Font Size

Setting aside a Judgment in Default

 By

Lawdit Solicitors - Expert Author

Legal Articles
Submit Articles   Back to Articles

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 claim; or

(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 [1001] CLC 1361 - The test in CPR 13.3(1)(a) of having a real prospect of success means better than merely arguable.

2. In Alpine Bulk Transport Co. Inc v Saudi Eagle shipping Co Inc [1986] 2 Lloyd's Rep 221 - Reasonable prospect of success not a merely arguable Defence.

3. In Thorne PLC V Macdonald [1999] 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 [1999] 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 [2001] 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 of Service.

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 [1999] 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, Southampton


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.



Follow us @Scopulus_News

Article Published/Sorted/Amended on Scopulus 2013-03-22 09:06:13 in Legal Articles

All Articles

Copyright © 2004-2021 Scopulus Limited. All rights reserved.