I have seen a number of applications to set aside Judgment in default fail recently. The applications were the result of litigants in persons applying, and sadly while their actual cases had merit, it was simple errors (and a case called Mitchell) that costs them their result.
So, a few points a litigant in person MUST consider before applying to set aside a Default Judgment under CPR 13.3.
1) An application must be supported by evidence. Very important, a detailed witness statement supporting the application would be the best way to go. If you have no evidence then your application will undoubtedly fail. The statement needs to explain the background, why judgment was entered etc. If the opponent promised not to seek judgment til they provided documents but went back on their word, then this would be explained in the statement, you get the kind of thing that needs to go in there.You wont be able to turn up at Court and argue points which arent in your application, if you do then your opponent will probably object.
2) make sure you attach a draft order you are seeking. It doesnt have to be expertly crafted, a Judge will make an allowance for you as a Litigant in Person, but you need to set out in box 3 on the N244 the order you are seeking, so it shouldnt be too difficult to draft that into a proper order and attach it to the application.
3) make sure you attach a draft Defence. Many Judges have said to me that they want to be sure that by setting aside the Judgment they are not prolonging the inevitable, and that you wont be back before them in 8 weeks time with another application. So prepare you Defence and annex it to the application.You need to satisfy the Court that there is a real prospect of success or that there is a good reason why you should be allowed to defend the case. The Court will want to see that you have a real chance, not just a fanciful prospect of winning.
4) Make sure if there is a delay, that the delay is explained. If you asked the Court f or a form N244 and the Court took three weeks to send it, then make sure you make the point in your statement. Under CPR 13, the Court has to take into account if the application is timely. If you dont explain the delay then you may be disappointed. In Regency Rolls v Carnell, the Court made it clear that a delay of 30 days before making an application was all-together too long.
5) on thing that many litigants in person seem to miss, is approaching the Claimant and inviting them to consent to setting aside. If the Default judgment was entered wrongly then you may avoid an application entirely by simply picking up the phone. Many people seem worried by speaking to solicitors, when in fact they shouldn’t be. A solicitor cannot take an unfair advantage of a consumer and they will all know that if they do they would face all kind of difficulties. That is not to say that a solicitor should agree to set aside a default judgment if it was entered correctly.
6) If in doubt get legal advice.
7) Dont rely on Court staff to advise you what to do. Court staff cannot give legal advice, every email you receive from a Court states this, yet if i had a £1 for every time i heard “But the Court staff said” i wouldnt need to work. You must not rely on what the Court staff say, read the CPR, if you arent sure speak to a lawyer, it may cost you some money now, but it will save you in the long run.
The above are just some points which sprang to mind whilst i was reading a thread on an internet forum where a person had a Default judgment against them, so i thought id put pen to paper so to speak in the hope that others wont mane the same mistake.
To make matters worst, the Court of Appeal ruling in Mitchell v News Group Newspapers seems to suggest that breaches of the rules will not be tolerated, that extends to litigants in person so it seems you wont get any special treatment from the Courts any more even if you are a litigant in person, the rules are there to be followed!!.