One of the most common things I hear from clients faced with a default judgment is: “I knew nothing about the claim. The papers went to my old address, so the judgment must be invalid.” It is an entirely understandable reaction. Unfortunately, the legal position is not always that simple.
A default judgment is usually entered because a defendant did not respond to a claim within the required time. By the time the defendant discovers it, enforcement may already have begun and the judgment may be affecting their credit record. The immediate instinct is often to focus only on non-receipt. In my view, that is where many applications risk going wrong. The court will want to know not merely whether the defendant actually read the papers, but whether the claim was legally served and, if it was, whether there is a proper basis for reopening the case.
Written by Frankie Ng, Litigation Supervisor
Service at a last known address
For an individual, the court rules may permit a claim form to be served at the defendant’s usual or last known residence. This means that service can be valid even though the defendant had moved, was living overseas, could not gain access to the property or simply never collected the post. Actual receipt and valid service are not always the same thing.
That does not give a claimant a free hand to use an address which they know is obsolete. If the claimant has reason to believe that the defendant no longer lives there, the claimant must take reasonable steps to find the current address. If a current address is found, it should normally be used. Subsequently, if it cannot be found, the claimant may need to consider another place or method of service and, where appropriate, apply to the court for permission.
The facts are therefore crucial. Had the defendant told the claimant about the move? Were the parties communicating by email or telephone? Had correspondence been returned? Did the claimant possess documents showing another address? A bare statement that the claim was not received is rarely enough. The evidence should address what the claimant knew, or ought reasonably to have appreciated, when service took place.
When the court must set the judgment aside
Under CPR 13.2, the court must set aside a default judgment if it was wrongly entered. This may arise where the claim form was not validly served, where judgment was obtained before the time for responding had expired, where the defendant had already filed the necessary response in time, or where the whole claim had been satisfied before judgment was entered.
This is sometimes described as the mandatory route. The label should not create false confidence. The applicant still needs to establish the facts showing why judgment was wrongly entered. In a dispute about an old address, the chronology and documentary evidence will often be more persuasive than a general assertion of unfairness.
When the court has a discretion
If the judgment was regularly entered, the position changes. Under CPR 13.3, the court may set it aside or vary it if the defendant has a real prospect of successfully defending the claim, or if there is some other good reason why the judgment should be set aside or the defendant should be allowed to defend.
A real prospect of success means a defence with genuine substance. It is more than saying, “I disagree with the claim.” The court will normally expect the proposed defence to be explained clearly and supported, where possible, by documents. For that reason, I generally regard the draft defence as one of the most important parts of the application. It shows the judge that setting the judgment aside would serve a useful purpose and lead to a real issue being tried.
Promptness can decide the application
The rules expressly require the court to consider whether the application was made promptly. In practice, every unexplained period of delay can make the task more difficult. A defendant should not wait until a bailiff attends, money is taken from a bank account or a charging order is pursued before seeking advice. Once the judgment becomes known, the sensible approach is to obtain the court papers immediately, investigate service, gather the relevant evidence and prepare the application without delay.
It is also important to remember that applying to set aside the judgment does not automatically suspend enforcement. Where enforcement has begun or is threatened, a separate request for a stay may be required. This is a practical point which can be overlooked when all attention is directed towards the eventual set-aside hearing.
What the court will expect to see
A properly prepared application will usually include an application notice, a witness statement giving a clear and honest chronology, a draft order and a draft defence. Evidence of residence, moving dates, travel, correspondence, notification of a new address and the date on which the judgment first came to light may all be relevant. The applicant should also explain the reason for any failure to respond and any subsequent delay.
The court may refuse the application, set the judgment aside, vary it or impose conditions, such as requiring money to be paid into court. Costs orders are also possible. Even where judgment is set aside, a defendant may be ordered to pay costs caused by their own default or delay.
Lisa’s Law’s practical view
A default judgment should never be treated as a minor administrative problem. Equally, a defendant should not assume that the case is hopeless simply because papers were sent to an old address. The right approach is to examine service and the underlying defence together. A strong technical point on service may be decisive, but where service was valid, prompt action and a well-evidenced defence may still provide a route forward.
Above all, the application must tell a coherent story: what happened, why the claim was not answered, when the judgment was discovered and why there is a genuine defence deserving to be heard. That is far more persuasive than relying on non-receipt alone.
How we can help
Lisa’s Law can review the service history and underlying claim, advise on prospects, prepare the application and supporting evidence, seek a stay of enforcement where appropriate, and represent the defendant at the hearing.
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