What Is a Set Aside Application?
A set aside application is a request to the court to cancel a judgment that was entered without the defendant having had the opportunity to present their case. In most instances, this concerns a default judgment — a judgment entered because the defendant failed to file a defence or acknowledgment of service within the prescribed time limit.
For claimants, a set aside application can feel like a setback. You followed the procedure correctly, obtained judgment, and may already be considering enforcement. Then the defendant files Form N244 asking the court to undo it all.
This guide explains how set aside applications work from the claimant’s perspective, the legal tests the court applies, and how to respond effectively if your default judgment is challenged.
Why Default Judgments Get Set Aside
Default judgments are procedural judgments. They are entered not because the court has considered the merits of the claim, but because the defendant failed to respond within the deadline. The Civil Procedure Rules recognise that there are circumstances where this failure should not be fatal to the defendant’s case.
The court’s overriding objective under CPR Part 1.1 is to deal with cases justly and at proportionate cost. A judgment entered by default, where the defendant has a genuine defence they were unable to present, does not serve justice — even if the claimant followed every step correctly.
This is not a criticism of the claimant. It is a recognition that procedural compliance and substantive justice are both important, and the court must balance them.
The Two Legal Routes for Set Aside
Mandatory Set Aside — CPR 13.2
Under CPR 13.2, the court must set aside a default judgment if the defendant can show that:
- Judgment was entered before the time for filing a defence had actually expired
- The defendant had already filed an acknowledgment of service before judgment was entered
- The defendant had already filed a defence before judgment was entered
- The defendant had already satisfied the entire claim before judgment was entered
If any of these conditions is met, the court has no discretion — the judgment must be set aside. As a claimant, if the defendant’s application falls under CPR 13.2, the practical approach is to verify whether the condition genuinely applies. Check the dates carefully. Was the defence or acknowledgment actually filed before your request for judgment? Was the time limit genuinely unexpired?
Discretionary Set Aside — CPR 13.3
The more common route is CPR 13.3, where the court has discretion to set aside a default judgment. The court considers three factors:
| Factor | What the Defendant Must Show |
|---|---|
| Real prospect of success | The proposed defence has a realistic (not fanciful) chance of succeeding at trial |
| Good reason for failure | There is a credible explanation for why the defence was not filed on time |
| Promptness | The application was made without unreasonable delay after the defendant became aware of the judgment |
The court also considers all the circumstances of the case, including any prejudice to either party if the judgment is set aside or allowed to stand.
How to Respond as the Claimant
When you receive notice that the defendant has applied to set aside your default judgment, you have the right to oppose the application. The court will consider your submissions alongside the defendant’s.
Step 1 — Read the Application Carefully
The defendant’s N244 application should specify the order they are seeking and the grounds they rely on. It should be accompanied by a witness statement explaining their proposed defence and the reason for their failure to respond. Read every word. Understanding their argument is essential to preparing your response.
Step 2 — Prepare a Witness Statement in Opposition
Your witness statement should address each element of the CPR 13.3 test:
On the proposed defence:
- Does the defendant’s proposed defence actually engage with the substance of your claim?
- Is it supported by any evidence, or is it bare assertion?
- Does it disclose a defence recognised in law, or is it merely an expression of disagreement?
On the reason for delay:
- Is the defendant’s explanation for failing to respond credible?
- Was the claim properly served? Can you evidence service?
- Has the defendant provided supporting evidence for their explanation (medical evidence, postal records, evidence of being abroad)?
On promptness:
- How long has elapsed between the defendant learning of the judgment and filing the application?
- Has there been unexplained delay?
Step 3 — Gather Your Evidence of Service
If the defendant claims they did not receive the claim form, your evidence of proper service becomes critical. The OCMC provides confirmation of service dates. If you served personally or by post, gather your proof of posting, certificate of service, or any tracking information.
Step 4 — Address Prejudice
Explain to the court what prejudice you would suffer if the judgment is set aside. This might include:
- Enforcement steps already taken (warrants issued, charging orders obtained)
- Costs incurred in obtaining and enforcing the judgment
- Delay in recovering money owed to you
- Any deterioration in the evidence available (witnesses becoming unavailable, documents lost)
Step 5 — Attend the Hearing
Set aside applications are almost always decided at a hearing. Both parties attend and present their arguments. Come prepared with your witness statement, the original claim documents, proof of service, and a clear, concise summary of why the judgment should stand.
What Happens at the Hearing
The hearing is typically listed before a District Judge. Both parties will have the opportunity to make submissions. The judge will consider the defendant’s application against the CPR 13.3 criteria and any response from the claimant.
The possible outcomes are:
| Outcome | Effect |
|---|---|
| Application refused | Your default judgment stands. The defendant may seek permission to appeal |
| Application granted unconditionally | The judgment is set aside. The defendant is given time to file a defence. The case proceeds to trial |
| Application granted on conditions | The judgment is set aside subject to conditions — commonly that the defendant pays a sum into court, pays your costs of the application, or files their defence within a specified period |
If the judgment is set aside with conditions and the defendant fails to comply with those conditions, you can apply to have the judgment restored.
Conditions the Court May Impose
When granting a set aside application, the court frequently imposes conditions to protect the claimant’s position. Common conditions include:
- Payment into court — the defendant must pay some or all of the judgment sum into court as security
- Costs of the application — the defendant pays the claimant’s costs of responding to the set aside application
- Filing a defence within a fixed period — typically 14 or 28 days from the date of the order
- Unless order — if the defendant fails to file a defence by the specified date, the judgment is automatically restored without further application
These conditions reflect the court’s recognition that the claimant should not be disadvantaged by the defendant’s earlier failure to engage with the proceedings.
Strategic Considerations
A set aside application is not necessarily a disaster for the claimant. Consider the following:
The defence may be weak. The fact that the defendant has applied to set aside judgment does not mean their defence will succeed at trial. A default judgment avoids the need for a trial entirely, but if the judgment is set aside and the case proceeds, you may still win — and potentially recover additional costs.
Settlement opportunities arise. A defendant who has applied to set aside judgment has demonstrated engagement with the proceedings. This may be the first realistic opportunity for settlement discussions. A well-timed Part 36 offer can be particularly effective at this stage.
Costs protection. If you successfully oppose the set aside application, or if the court grants it on conditions that include costs, you recover the cost of responding. If the case proceeds to trial and you succeed, the costs of the entire proceedings (including the set aside hearing) may be recoverable.
Costs of a Set Aside Hearing
The defendant pays the court fee for their N244 application (currently £296 for a hearing). As the claimant responding, you do not pay a fee for opposing the application. However, you may incur costs in preparing your witness statement and attending the hearing.
If the court sets aside the judgment, it will typically order the defendant to pay the claimant’s costs of the application — recognising that the claimant is in this position through no fault of their own.
Frequently Asked Questions
Can I oppose a set aside application? Yes. As the claimant, you have the right to file a witness statement in opposition and attend the hearing to make submissions. The court will consider your response alongside the defendant’s application before making its decision.
What happens if the default judgment is set aside? The case returns to the position it was in before judgment was entered. The defendant will be given time to file a defence, and the case will proceed through the normal litigation process — directions, disclosure, witness statements, and trial.
Does the defendant have to pay costs if their set aside application succeeds? Typically, yes. Even when the court grants a set aside application, it usually orders the defendant to pay the claimant’s costs of the application. This reflects the principle that the claimant should not bear the cost of the defendant’s earlier failure to comply with the rules.
Can I enforce the judgment while the set aside application is pending? The filing of a set aside application does not automatically stay enforcement. However, the defendant may apply for a stay of enforcement pending the hearing. If the court grants a stay, enforcement is paused until the application is decided. If no stay is granted, you may continue enforcement — but proceed with caution, as the court may take a dim view of aggressive enforcement while a set aside application is outstanding.
Next in the series: Form N244 Application Notice: How to Make a Court Application — the essential guide to the court’s most versatile application form.
This is Part 12 of 21 in the eLitigant Court Guide series. Visit our blog for the complete collection.