Part 13 – Setting Aside or Varying Default Judgment

Scope of this Part

13.1

1. The Rules in this Part set out the procedure for setting aside or varying a default judgment entered under Part 12 (default judgments).
   • Part 47 deals with variation of the terms of a judgment as to time and method of payment.

Cases where court must set aside default judgment

13.2

1. The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because in the case of –
   1. a failure to file an acknowledgment of service – any of the condi­tions in rule 12.4 was not satisfied; or
   2. judgment for failure to defend – any of the conditions in rule 12.5 was not satisfied.
2. The court may set aside judgment under this rule on or without an application.

Cases where the court may set aside or vary default judgment

13.3

1. If Rule 13.2 does not apply, the court may set aside a judgment entered under Part 12 only if the defendant –
   1. Applies to the court as soon as reasonably practicable after finding out that judgment had been entered;
   2. Gives a good explanation for the failure to file an acknowledgement of service or a defence as the same case may be; and
   3. Has a real prospect of successfully defending the claim.
2. In any event the court may set aside a judgment entered under Part 12 if the defendant satisfies the court that there are exceptional circumstances.
3. Where this Rule gives the court power to set aside a judgment, the court may instead vary it.
   • Rule 26.1(3) enables the court to attach conditions to any order.

Applications to vary or set aside judgment – procedure

13.4

1. An application may be made by any person who is directly affected by the entry of judgment.
2. The application must be supported by evidence on affidavit.
3. The affidavit must exhibit a draft of the proposed defence.

Court to impose condition as to filing of defence

13.5

1. If judgment is set aside under rule 13.3, the general rule is that the order must be conditional upon the defendant filing and serving a defence by a specified date.

Hearing to be treated as case management conference

13.6

1. If judgment is set aside under rule 13.3 the court must treat the hearing as a case management conference unless it is not possible to deal with the matter justly at that time.
2. If it is not possible to deal with the matter justly at that time, the court office must fix a date, time and place for a case management confer­ence and give notice to the parties.
   • Part 26 deals with the powers of the court on a case management conference.
   • Part 27 deals with the procedure for case management conferences.

Abandoned claims to be restored if judgment set aside

13.7

1. If the claimant has abandoned any remedy sought in the claim form in order to enter a default judgment, the abandoned claim is restored if judgment is set aside.