Setting aside a Judgment in Default
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11 March 2013
CPR and considerations
Courts may exercise its discretion to set aside
default judgment which was not entered wrongly under:
CPR13.3(1) - "In any other case, the court may set aside or
vary a judgment entered under Part 12 if-
(a) the defendant has a real prospect of successfully defending the
(b) it appears to the court that there is some other good reason why -
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim."
Considerations a judge will take into account will be whether Defendant
made application to set aside promptly under CPR13.3(2) which states
"In considering whether to set aside or vary a
judgment entered under Part 12, the matters to which the court must
have regard include whether the person seeking to set aside the
judgment made an application to do so promptly".
What is a real prospect of success?
1. International Finance Corporation - V Utexafrica
sprl  CLC 1361 - The test in CPR 13.3(1)(a)
of having a real prospect of success means better than merely
2. In Alpine Bulk Transport Co.
Inc v Saudi Eagle shipping Co Inc  2 Lloyd's Rep 221
- Reasonable prospect of success not a merely arguable Defence.
3. In Thorne PLC V Macdonald
 CPLR 660 the court of appeal approved the
principle of whether there is a Defence with a real prospect
and that justice should be done.
4. Rayner (Mincing Lane) Ltd -v- Cafenorte SA
Importadora  ALL ER (D) 5 - Where a real
prospect of succeeding has been identified there must be compelling
reasons to refuse application to set aside.
Courts discretion to set aside a Judgment
1. Rahman -v- Rahman (1999) LTL 26/11/99
- The elements a judge had to consider to set aside Judgment include
(1) Nature of Defence; (2) period of delay; (3) prejudice claimant
likely to suffer if set aside; and (4) overriding objective.
2. Law -v- St Margarets Insurance Limited 
EWCW Civ 30, LTL 18/01/01 - Court of Appeal
allowed Judgment in Default to be set aside despite Defendants'
solicitors procedural errors in failing to file and Acknowledgment
Delays in applying to set aside Judgment
1. In Hart Investments Limited -v- Fidler
and another - a delay of 59 days of making an
application to set aside a default judgment was accepted.
2. In Rayner (Mincing Lane) Ltd -v-
Cafenorte SA Importadora  ALL ER (D) 5 -
Where a real prospect of succeeding has been identified there must be
compelling reasons to refuse application to set aside - a delay would
not be sufficient.
By Lawdit Solicitors,
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Article Published/Sorted/Amended on Scopulus 2013-03-22 09:06:13 in Legal Articles