10 steps to set aside a default judgment against you or your company

June 1, 2020 Mike 4 Comments

Default JudgmentYou must respond to or deal with a claim that is being made against you. If you do not then the Claimant may enter what is called a “Default Judgment”. If this happens then you may be forced to make an application to set aside a default judgment. They are allowed to do this 14 days after the start the claim.

This goes up to 28 days if you do respond within 14 days but then fail to send in a defence to that claim afterwards.

If this has happened to you recently then please DO NOT IGNORE IT. There are options available to you.

If you already have a CCJ in your name that is older than one month then this article may not help you, unless you have only just found out about it. Try this excellent charity website. Stepchange

 

The following is a step by step guide to beginning the process of setting aside a default judgment.

I HAVE MADE NUMEROUS APPLICATIONS TO SET ASIDE A DEFAULT JUDGMENT.

THIS GUIDE IS FOR ILLUSTRATION PURPOSES AND I WOULD ADVISE ANYONE WISHING TO MAKE SUCH AN APPLICATION TO SEEK PROFESSIONAL LEGAL ADVICE.

THIS STEP BY STEP GUIDE MAY BE SUFFICIENT TO BRING YOUR CASE TO COURT BUT THERE ARE NUMEROUS OTHER ISSUES WHICH COULD AND SHOULD BE CONSIDERED ALONG THE WAY.

THIS DOCUMENT IS NOT LEGAL ADVICE AND SHOULD NOT BE RELIED UPON AS SUCH.

Set aside a default judgment – step by step

 

  1. Check your paperwork

 

    1. Is most of what you need to respond in the papers sent to you by the court.
    2. Double check old post together with old emails to see if there is anything that you have missed that the Claimant may have sent to you in the past. It may save a lot of time.
    3. If you have no idea what it is about then you may have to contact the court and/or the Claimant directly.
    4. From this point on you must keep all correspondence (post and email). Always make and keep notes with dates and times of all telephone conversations throughout this process.

 

  1. Contact the court.

 

    1. Firstly, BEWARE. The court cannot give you legal advice and may not tell you what to do next. They may help you practically but only up to a point. There is no comeback against court employees if they should give you advice that later turns out to be incorrect.
    2. You need to to get as much detail about the claim as you can. Some of this you may have already; I will assume that you don’t.
    3. Use this link to find the court contact details. Find the court details.
    4. Make sure you have the following details to hand when you call;
      1. Date of the order
      2. Names of the parties
      3. The claim or case number
    5. You should look to find out;
      1. The name and contact details of the person or the organisation making the claim.
      2. What the claim is about.
      3. How much the claim is for
      4. How long you have to respond.
      5. What forms you should use to respond (they may not tell you this).
      6. How to send in your forms (email or post) and how to pay for the application (cheque, card or bank transfer). Different courts have different rules.

 

  1. Make contact with the claimant

 

Make contact with whoever is making the claim (by telephone for speed) and make a note of the conversation and confirm the content to them in writing afterwards by post or email.

    1. Discover what the claim is about (if you don’t know already) and
    2. Ask what you can do to stop it continuing further.
    3. Find out when the debt began.
    4. Have them resend any paperwork that they may have sent to you previously that you don’t have. Email is quickest but some may only send in the post.
    5. Confirm that you intend to make an application (if you do) and ask them if they will accept the documents via email or post.
    6. Confirm the content of the conversation via email to them.

 

  1. Consider the following before your make your application to set the default judgment order aside.

 

    1. Are you in time to make your application?
      1. Usually this should be done with 7 days of the date of the order
      2. If you are outside of this time limit, then that does not mean you should not make it – it may affect your chances of success though.
    2. If you are late making the application then there needs to be a good reason why you are late.
      1. An example of a bad reason is that you didn’t understand what to do or that you forgot.
      2. An example of a good reason is that the order was not received until more than 7 days after it was made for a reason that was not your fault.
      3. There are many good and bad reasons why you may be late, these are just examples.
    3. Do you have a reasonable prospect of defending the claim?
      1. This the most important reason for making an application to have a default judgment set aside.
      2. Unless you can demonstrate this in a court there will be little prospect of setting aside any default judgment.

 

  1. Download and fill out form N244 from the HMCTS website. 

 

The N244 can seem complicated.

Download a copy of this article together with an illustration of how to fill out the N244 and other relevant documents here.

 

  1. Write your witness statement and attach it to the application.

 

    1. You only need this step if you are unable to include all the information you require in section 10 of the N244 form.
    2. In practice I find that there is rarely sufficient space in section 10. I usually prefer to attach it separately. It’s also easier to have it separate if you need to change something later on.
    3. You can download a copy of this article together with an example of a typical witness statement here.

 

  1. Write a draft version of the order you wish the court to make and attach it to the application.

 

    1. This should be similar in content to section 3 of the N244 application form.
    2. You can download a copy of this article together with an example of a typical simple draft order here.

 

  1. Draft your Defence and attach it to the application.

 

    1. Remember you are having to apply because you failed to take this step previously.
    2. Doing this now is the most effective way to show the court that you do have a chance of Defending the claim.
    3. While this step is not necessarily essential, I would say it is highly desirable. It will increase the chances (providing it is credible) of your application to set aside the default judgment, being successful.
    4. You can download a copy of this article together with an example of a typical simple draft defence here.

 

  1. Write a covering letter or email to attach your application and documents to.

 

Your covering letter or email to the Claimant should;

    1. Inform them that a copy has been sent to the court
    2. Quote their claim reference from the court order; usually located near the top of the court order to the right of the claimant name.
    3. Quote the courts claim number usually located at the top right hand side of the court order.
    4. Invite them to agree the application in order to save the costs and time of a court hearing.
    5. Inform them that if they don’t agree to it then you will ask the court to order that they pay your costs should your application be successful.
      1. A court may not order this but you can always ask the judge.
      2. It may focus their minds if it is a claim with a good defence.
      3. Ask for confirmation of receipt and their position within 7 days.

 

Your covering letter or email to the Court should;

    1. Inform the court that a copy has been sent to the other parties
    2. Quote the claim reference from the court order.
    3. Ask for confirmation of receipt.

 

  1. Send your application to all other parties in the action (usually just the Claimant) and the Court by post or email.

 

It should contain;

    1. The covering letter.
    2. The N244 application form
    3. The witness statement
    4. The draft court order
    5. The defence
    6. Possibly your costs schedule (this is not essential at this stage but it should certainly be submitted prior to the hearing).

When sending by post then deliver by hand and photograph yourself doing so with a time and date stamped camera or send recorded delivery.

If you are sending via email then request a read and delivered receipt.

If via post or email to the court then you can usually pay by debit card.

Post introduces the possibility of paying by cheque. See 2 e. (vi) above.

Payment is not required if you are eligible for fee remission – See the downloadable document on filling out the N244.

Download a copy of this article together with an illustration of how to fill out the N244 and other relevant documents here.

Contact Michael if you need legal assistance

Members of the public may now go direct to a Barrister without having to instruct a Solicitor or having to represent yourself. This means they can save money while gaining access to the best legal advice possible to set aside your default judgment. Michael Shaw is a Direct Access Barrister.

Contact Michael Shaw

  • Please call Michael on 07813337612, or
  • Mail him at shaw@clerksroom.com, or
  • Chat to him directly (if he is available) using the chat facility at the bottom right of this page.

 

 

10 steps to set aside a default judgment against you or your company was last modified: July 11th, 2020 by Mike

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