Where a defendant fails to respond to legal proceedings within the prescribed time period, the claimant may make an application for default judgment.
If default judgment is granted, the defendant may be able to make an application to set aside the default judgment if, for example:
- the judgment was “wrongly entered”;
- the defendant has a “real prospect of successfully defending the claim”; or
- there is some other good reason why the judgment should be set aside or varied.
Where it is found that the default judgment was “wrongly entered”, the court must set the judgment aside.
Where the application is made on the basis that the defendant has a real prospect of successfully defending the claim or there is some other good reason why the judgment should be set aside, the court has discretion whether or not to allow the application.
The factors that must be considered when the court exercises its discretion were summarised in Easyair Ltd (t/a Openair) v Opal Telecom Ltd  All ER (D) 104 (Apr). (a decision approved by the Court of Appeal). Some of these factors are:
- Whether the defendant has a ‘realistic’ (as opposed to a fanciful) prospect of success.
- A realistic claim is one that carries some degree of conviction. The defence must be more than arguable.
- In reaching its conclusion the court must not conduct a ‘mini-trial’.
- The court must nevertheless analyse everything that the defendant says in his statements before the court.
- The court must take into account not only the available evidence but also the evidence that can be reasonably be expected to be available at trial.
The court will consider the promptness of an application to set aside a default judgement. Each case depends on its own facts, but in the case of Gentry v Miller and another  EWCA Civ 141, the Court of Appeal did not grant the application to set aside default judgment partly on the basis that even though the defendant had a real prospect of successfully defending the claim, it failed to make the application promptly without any real justification. In that case, two months was considered too much delay. As such, an application to set aside default judgment should be made as soon as possible.
If you require any assistance or advice regarding a default judgment, please contact us on 0161 832 3304 and ask to speak to someone from the Dispute Resolution department.
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