Set aside a default judgment: CPR 13 grounds, evidence, promptness and draft order

Start from the sealed judgment and the Part 12 record

Obtain the sealed default judgment, claim form, particulars of claim, service information, any acknowledgement of service, any defence that was attempted, and the court record showing when judgment was entered. Record the claim number, parties, court, judgment date, amount and the exact basis on which default judgment was obtained. CPR Part 13 concerns judgments entered under Part 12, so the first task is to establish that the judgment being challenged is a Part 12 default judgment and to identify the procedural route by which it was entered. Do not begin with a generic complaint about unfairness before the underlying court record has been assembled.

Create a chronology beginning with issue of the claim and ending with the date on which the application will be filed. Include the alleged service date, the address used, the date any claim documents were actually received, acknowledgement or defence activity, judgment date, first knowledge of the judgment, enforcement steps, requests for copies and every material action taken afterwards. This chronology allows the court to test both whether judgment was wrongly entered and, if discretion is required, whether the defendant acted promptly. Use exact dates and preserve the documents from which each date is derived.

Test CPR 13.2 before relying on discretion

CPR 13.2 requires the court to set aside a Part 12 judgment where it was wrongly entered because the relevant conditions in CPR 12.3 were not satisfied, or where the whole claim had been satisfied before judgment. That is a mandatory route and should be pleaded distinctly from CPR 13.3. Identify the particular condition said not to have existed when judgment was entered. If the issue concerns an acknowledgement or defence, exhibit the filing or transmission evidence. If the issue is satisfaction of the whole claim, identify the payment and match it to the pleaded liability rather than merely stating that money changed hands.

Where service is the underlying issue, be precise about what is challenged. The question may concern the address used, whether service under the applicable rule was valid, whether a response deadline had expired, or whether the court record failed to reflect a document already filed. Keep the service argument anchored to the relevant facts and rules. Do not assume that not personally reading the claim necessarily proves invalid service, and do not assume that a court record is infallible where reliable filing evidence shows something different. The application should identify the exact procedural condition that failed.

Build an alternative CPR 13.3 case where necessary

If CPR 13.2 does not conclusively dispose of the judgment, CPR 13.3 allows the court to set aside or vary default judgment if the defendant has a real prospect of successfully defending the claim or there is some other good reason for set aside, variation or permission to defend. State which limb is relied on and why. A bare assertion that the claim is disputed is insufficient preparation. The court needs a concise account of the proposed defence, linked to pleaded allegations and documents, so that it can assess whether there is a real rather than fanciful prospect of success.

Prepare a draft defence or a structured defence summary. Identify the essential factual disputes, any positive defence, relevant contractual terms, payments, correspondence and any legal issue that would require determination. If only part of the claim is defensible, say so instead of overstating the position. If the defendant needs a document from the claimant to finalise one point, identify that gap without leaving the entire defence undefined. The witness statement supporting set aside and the proposed defence should be consistent on dates, amounts and explanations for what happened.

Address promptness expressly and with evidence

CPR 13.3 requires the court to have regard to whether the person seeking set aside made the application promptly. Record when the defendant first learned of the judgment and what happened on each material day afterwards. Include requests for the claim file, attempts to obtain the judgment, advice appointments, preparation of evidence and filing steps. If there was delay, explain it directly and provide supporting evidence where possible. Avoid phrases such as “I acted as soon as possible” without dates, because the court cannot test promptness from a conclusion alone.

Do not select a later date merely because it makes the chronology look better. If the defendant knew of the judgment before enforcement started, record the earlier knowledge date. Conversely, if the first genuine knowledge came through a credit report, bailiff communication, bank restriction or another event, preserve that document. If illness, absence, address problems or another circumstance affected the timing, explain the specific period and practical effect rather than offering a broad excuse. The promptness section should be short, chronological and supported.

Prepare evidence in the structure required by CPR 13.4

An application under CPR 13.3 must be supported by evidence. Usually a witness statement is the clearest format. It should identify the witness and source of knowledge, explain service and default, state when judgment was discovered, set out the proposed defence, address promptness and exhibit the documents on which the account depends. Number exhibits consistently and use complete documents where context matters. Emails should show sender, recipient and date; payment material should identify the account and transaction; address evidence should cover the period actually in dispute.

Separate fact from submission. A witness can state what address was occupied, what document was received and what payment was made. Legal submissions about the effect of service or the strength of the defence can be made concisely but should not obscure the factual record. Where an important fact is based on recollection rather than a document, say so. Where a document is missing, identify what was requested and the response. A transparent evidential account is more useful than an overconfident statement that silently converts assumptions into facts.

Use the application notice to state precise relief

A set-aside request is an application for a court order and the general application framework in CPR Part 23 applies. The application notice should state exactly what order is sought and briefly why. Identify the default judgment by date and, where relevant, amount. Ask for set aside or variation under the correct rule, and include only consequential directions that are needed, such as a timetable for defence or a stay of identified enforcement. Avoid requesting final determination of the underlying claim unless there is a separate procedural basis to do so.

Check the current HMCTS application form and filing route before submission. Where N244 is appropriate, ensure the claim number, parties, hearing request, time estimate, level of judge, evidence relied on and service information agree with the witness statement and draft order. A form copied from a different case can introduce contradictions. The document should not say the application is supported by a witness statement if none is enclosed, and a draft order should not seek relief omitted from the application notice without explanation.

Draft an order the court could actually make

Write a short numbered draft order. The first operative paragraph should identify the default judgment and the relief sought. If set aside is requested, add a realistic deadline for filing and serving the defence if the court has not already indicated one. If an enforcement stay is needed, identify the enforcement process and duration. Address costs in a form appropriate to the application rather than assuming an entitlement. A precise draft helps expose whether the evidence actually supports every requested paragraph.

Do not include broad language such as “all enforcement is cancelled forever” where only a temporary stay pending determination is sought. If a condition may be relevant, such as payment into court, do not volunteer an arbitrary amount without considering the case. Where the parties have agreed the substance of the application, prepare the consent wording in accordance with current procedural requirements and make clear whether costs are agreed, reserved or contested. The sealed order, not the draft, will ultimately control.

Deal separately with active enforcement

Filing a set-aside application does not by itself answer every enforcement step. If enforcement is active, identify exactly what is happening: warrant or writ, charging-order process, third-party debt order, attachment, order to obtain information or another step. Obtain the relevant notice and dates. If a stay or interim order is required, state that request expressly and explain the practical reason. Avoid generic urgency language where no enforcement event is imminent, because it can distract from the main Part 13 application.

Where urgent relief is genuinely needed, create a short urgency chronology showing the next enforcement date or consequence and when the defendant learned of it. Explain whether the claimant has been informed and whether any short standstill was requested. Keep evidence of communication. If the court grants a stay subject to a condition, record the condition immediately. If the court refuses interim relief but lists the set-aside application, update the case plan rather than assuming enforcement has stopped.

Prepare the draft defence for the next procedural stage

A coherent draft defence demonstrates what the case will look like if judgment is removed. Respond to material allegations in order, state admissions where appropriate, deny what is genuinely disputed and explain any positive case. If the claim includes several invoices, payments or heads of loss, answer them separately. If a limitation, contractual interpretation, set-off, performance or other issue is relied on, connect it to the source documents. The draft should be usable as a foundation for filing if the court grants set aside.

Check that the draft defence does not contradict the set-aside evidence. A witness statement saying no contract existed cannot sit comfortably with a defence admitting the contract but disputing only price unless the distinction is explained. Review names, dates and amounts. Remove template allegations that do not belong to the case. Where the court may impose a short deadline after set aside, having a mature draft reduces the risk of obtaining relief and then immediately missing the next order.

Organise the hearing bundle around the questions the judge must decide

Place the application notice, draft order, witness statement and exhibits near the front, followed by the default judgment, claim form, particulars, service evidence and draft defence. Add a concise chronology. If both CPR 13.2 and 13.3 are relied on, structure a short skeleton or note with separate headings: mandatory ground, discretionary ground, promptness, enforcement and proposed directions. This enables the court to see the route to the requested order without searching through a large historical file.

Include only documents that matter to the application. A complete trial bundle is usually unnecessary at this stage unless a specific document is required to demonstrate the defence. Paginate consistently and identify any document that was not previously before the court. If there is competing evidence about service or knowledge of judgment, put the two versions next to the chronology and state the point of disagreement precisely rather than using accusations about credibility before the evidence has been tested.

Serve the application and supporting material correctly

Check CPR Part 23, any relevant practice direction and the court’s own directions for service. Preserve the exact version of the application, witness statement, exhibits and draft order that was filed and served. Record the permitted service method, address, date and time. If the court undertakes service, keep the filing confirmation and court notice. If the applicant must serve, keep proof of transmission or posting. A dispute about service of the set-aside application is avoidable if the service record is maintained from the outset.

Where the hearing date is fixed, check the notice period and any deadline for evidence in response. If the respondent sends evidence, add it to the bundle and identify the factual points requiring reply. Do not assume that late evidence should simply be ignored; decide whether permission, a short responsive statement or case-management direction is required. The objective is a complete, auditable procedural record rather than a sequence of informal emails with different document versions.

Act on the sealed order immediately

After determination, obtain the sealed order and read every paragraph. If judgment is set aside, identify the defence deadline and any condition. Do not assume the draft defence has automatically been filed unless the order or court record says so. File and serve the defence within the operative period and preserve proof. If enforcement was stayed, check whether the stay ends automatically on determination or continues under the wording of the order.

If the application is refused or judgment is only varied, retain the reasons, hearing note and order before considering another procedural step. Appeal rights and deadlines depend on the order and applicable rules, not on disagreement alone. Update the chronology and deadline sheet. A set-aside file is not complete when the hearing ends; it is complete when the sealed order has been implemented and the next stage of the claim is procedurally secure.

Official sources checked

• Civil Procedure Rules — Part 13 — Current rules on mandatory and discretionary setting aside of default judgment and supporting evidence.
• Civil Procedure Rules — Part 23 — General application framework for court orders, service and evidence.
• HMCTS — Form N244 — Official page for the current application notice.

Rules, forms and court directions can change. Check the current official text and any order made in the individual case before filing.

Final preparation check

Verify the sealed judgment, service record, actual CPR 13 ground, knowledge date, draft defence, application notice, evidence, service and any enforcement request before filing. Do not treat a template as a substitute for the existing court record or a case-specific order.