Once a claim has been issued by the court, the defendant will only have 14 days to file an Acknowledgment of Service of the particulars of claim. The defendant must indicate whether they intend to admit to the entirety of the claim or defend all or part of the claim. If the defendant opts for either of the latter two options, a defence must be served within 28 days of serving the particulars of claim. Typically, the Acknowledgment of Service and defence will be served and filed simultaneously.
Failure to respond to the claim will result in the claimant seeking a default judgment from the court. A so-called Judgment in Default is a judgment by administrative act rather than by trial therefore, providing early determination of the claim. However, there are certain circumstances where a default judgment cannot be obtained.
Once a default judgment has been obtained, the claimant will be able to take enforcement action to recover the monies owed as stated in the judgment. If the sum demanded in the claim is not paid within the period stated, a county court judgment will be entered against the defendant. This could affect credit scores, job opportunities and mortgage applications.
A judge can set aside a default judgment when it can be proven that the defendant did not serve the acknowledge of service due to having not received the claim forms and/or that they were incorrectly named as the defendant in the proceedings. Please note this is not an exhaustive list of circumstances and each case will vary.
Issuing an application to set aside the judgment in default will incur a court fee in the sum of £255. The application should be made at the first opportunity with a witness statement explaining to the court the reason for making the application. There are two grounds in which a default judgment can be set aside:
- The default judgment has been wrongly entered
- The default judgment has been correctly entered; however, the judge has exercised their discretion and satisfied the criteria (see below).
The first ground is mandatory regardless of the prospect of success of the claim. Therefore, it is highly important that the claimant complies with the rules for serving the claim. Failure to comply with the stringent protocols could result in the judgment being set aside.
The second ground is discretionary. The judge will consider the reason the defendant did not adhere to the time deadlines for filing an acknowledgment of service, as well as considering how successful the claim is likely to be. Typically, the court will exercise its discretion in the following circumstances:
- The defendant has a reasonable prospect of defending the claim
- There is another reason the court considers that it is necessary
- The judgment should be set aside or varied
- The defendant should be allowed to defend the claim.
The success of an application to set aside a judgment will vary depending on the individual circumstances of each case. If you require further advice and assistance, please get in touch.
For more information and to find out how we can help you, please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.