Setting aside a default judgment: the two routes and the promptness trap

The way back: two routes, not one

Earlier this year this publication traced how a claim form can harden into a judgment when a defendant stays silent (‘Default judgment: when silence becomes a judgment before the facts are heard’, 23 June 2026), and how that judgment then travels into the credit record (‘CCJ: when a procedural judgment becomes a credit record’, 24 June 2026). This article is the sequel: the way back. What follows is not another explanation of how default judgments arise, but a disciplined account of how they come undone.

A default judgment is a judgment without trial, entered where a defendant has failed to file an acknowledgment of service or has failed to file a defence. Because no judge has heard the merits, the rules accept two possibilities. Some default judgments should never have been entered at all. Others were properly entered but ought, in fairness, to be reopened. Each possibility has its own route, its own test and its own burden, and confusing them is the first mistake an applicant can make.

Route one: the irregular judgment

A judgment is wrongly entered, in the language lawyers shorten to ‘irregular’, when the conditions for entering it were never met. Rule 12.3 sets those conditions: the relevant time for filing an acknowledgment of service or a defence must have expired, and judgment is barred where, at the time the court considers it, the defendant has an application to strike out the claim or for summary judgment still awaiting a decision, has satisfied the whole claim, or has admitted the money claimed and asked for time to pay. A judgment entered in any of those situations should not exist.

Rule 13.2 deals with exactly that situation, and its verb does the work: the court must set the judgment aside. On this route there is no discretion to weigh and no merits threshold to clear. A defendant whose judgment was entered before the deadline for responding had expired, while a strike-out application was still waiting to be heard, or after the claim had already been paid in full, does not need to show a promising defence. The judgment falls because it was wrongly entered, not because the defendant deserves a second chance.

That shapes the preparation. Route one is won or lost on the record, not on advocacy: the court file, the dates on the claim form and the response pack, the date judgment was entered. A defendant who suspects irregularity should assemble those dates before writing a word of argument, because the whole application is a comparison between what the rule required and what the file shows.

Route two: discretion under rule 13.3

The second route is the usual one, and for a structural reason: a default judgment can only have been entered where the rule 12.3 conditions were satisfied, so in the normal case the claim was served, the time expired, and the defendant simply did not respond. Here the judgment is entitled to stand unless the defendant displaces it, and rule 13.3(1) offers two ways to do that. The first is to show a real prospect of successfully defending the claim. The second is to persuade the court that there is some other good reason why the judgment should be set aside or varied, or why the defendant should be allowed to defend.

‘Real prospect’ is a term of art, and it is not a low bar dressed as a high one. The Court of Appeal has held that it bears the same meaning here as in the summary-judgment rule: a realistic, as opposed to a fanciful, prospect of success, with the burden resting on the defendant to show it (ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472). The court does not conduct a mini-trial, but nor must it accept every assertion at face value; a factual assertion contradicted by the contemporary documents may carry no weight. A defence raised for the first time in the application, after months of silence or after admissions in correspondence, will be tested against that standard.

The second limb, some other good reason, is deliberately open-textured. It exists for the case where the defence may be thin but something about the way judgment was obtained, or about fairness between the parties, makes it wrong to leave the judgment standing. It is not a soft option. It asks the court for an exercise of discretion, and discretion is earned with candour and evidence, not with adjectives.

The promptness trap

On the discretionary route, the rule itself singles out one factor by name. Rule 13.3(2) requires the court to have regard to whether the person seeking to set aside the judgment made the application promptly. The requirement sits in the discretionary route alone; rule 13.2 does not mention it. But in practice delay costs a defendant on either route, because while the judgment stands the claimant may enforce it and the register entry keeps working.

In practice the question the court asks is not abstract. It is: what did this defendant do after learning of the judgment? A defendant who applies within days of discovery starts with credit. A defendant who waits three months starts with a debt to explain, and ‘I did not know what to do’ is an explanation that weakens with every week that passes. Promptness is not a technicality. It is the court’s proxy for whether the defendant genuinely intends to defend.

The wider procedural culture points the same way. In Denton v TH White Ltd [2014] EWCA Civ 906 the Court of Appeal restated the approach to relief from sanctions: a judge should ask, in three stages, how serious and significant the breach is, why the default occurred, and what all the circumstances of the case require, giving particular weight to the need for litigation to be conducted efficiently and at proportionate cost and to the enforcement of compliance with rules, practice directions and orders. A set-aside application is not a relief-from-sanctions application, and the rule does not import that test wholesale. But the discipline Denton demanded, act promptly, explain the default honestly, prove rather than assert, is the discipline a route-two application needs. The court weighing promptness and ‘some other good reason’ is weighing the same underlying question: does this party deserve the court’s indulgence?

Two explanations are therefore needed, not one. The first covers the original default: why no acknowledgment of service and no defence. The second covers the delay since the judgment came to light. Both belong in the evidence, and both are strongest when they are dated, specific and supported by documents.

The application and the evidence

The application is made on form N244, the court’s standard application notice. Rule 13.4(3) provides that an application under rule 13.3 must be supported by evidence. Where the claim is for a specified amount of money, the defendant is an individual, and the judgment was obtained in a court that is not the defendant’s home court, the rules direct that the application be transferred or sent to the defendant’s home court. None of this is difficult. What defeats applications is not the paperwork but the gap between assertion and proof.

Evidence turns confusion into an argument. A witness statement that sets out the chronology and exhibits the proof does three jobs at once: it shows the real prospect, it answers the promptness question before it is asked, and it demonstrates the seriousness the court is looking for. A statement that asserts a defence without exhibiting a single document invites the response the Court of Appeal described in Patel: an assertion contradicted by the contemporary record may carry no weight.

If the judgment is set aside

Setting aside is not victory; it is the restoration of the right to defend. The judgment ceases to have effect, the claim revives, and the defendant must then do what should have been done the first time: file and serve a defence, within the time the court directs. The court may attach conditions when it sets aside or varies a default judgment, and in a money claim a condition to pay the sum claimed, or some of it, into court is a recognised possibility. A defendant who wins the application and then ignores the directions that follow will simply meet a second default judgment, this time with a history.

The credit record has its own timetable. GOV.UK guidance explains that records of county court judgments are kept for six years unless the full amount is paid within a month, and that a person can apply for a judgment to be cancelled, ‘set aside’, where they do not owe the money or did not receive or respond to the original claim. When a judgment is set aside, the judgment that fed the register entry no longer exists. The practical steps afterwards are unglamorous but essential: confirm that the public register has been updated, and check credit files with the reference agencies a few weeks later to make sure the entry has gone.

None of this undoes the cost of the default. The application takes time, the claimant may recover some costs, and the defence still has to be fought. Setting aside buys the hearing, not the outcome.