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The Report on the Review of Civil Procedures

Part 13

Setting Aside or Varying Default Judgment

Contents of this part

Scope of this Part Rule 13.1
Cases where the court must set aside judgment ordered under Part 12 Rule 13.2
Cases where the court may set aside or vary judgment entered under Part 12 Rule 13.3
Application to vary or set aside judgment - procedure Rule 13.4
Court to impose conditions as to filing of defence Rule 13.5
Hearing may be treated as case management conference Rule 13.6

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Scope of this Part

13.1 The rules in this Part set out the procedure for setting aside or varying a default judgment entered under Part 12 (default judgments).

(Part 48 deals with variation of the terms of a judgment as to time and method of payment)

Cases where the court must set aside a judgment entered under Part 12

13.2 (1) The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because -

(a) in the case of a failure to enter an appearance, any of the conditions in rule 12.3 was not satisfied; or

(b) in the case of judgment for failure to defend any of the conditions in rule 12.4 was not satisfied.

(2) The court may set aside judgment under this rule on or without an application.

Cases where the court may stay or vary judgment entered under Part 12

13.3 (1) The court may set aside a judgment entered under Part 12 if -

(a) the defendant has a realistic prospect of success in the claim; and

(b) the defendant acted as soon as reasonably practicable when he found out that judgment had been entered against him.

(2) Where this rule gives the court power to set aside a judgment, it may instead vary it.

Applications to set aside judgment - procedure

13.4 (1) An application under rule 13.2 (cases where the court must set aside judgment) may be made by -

(a) the defendant; or

(b) the claimant; or

(c) any other person who is directly affected by the entry of judgment

(2) An application under rule 13.3 (cases where the court may set aside or vary judgment may be made by -

(a) the defendant; or

(b) any other person, except the claimant, who is directly affected by the entry of judgment

(3) A claimant who applies to set aside judgment under paragraph (1) may do so without giving notice.

(4) An application under paragraphs 1(c) or 2(b) need not be served on the defendant.

(5) An application (other than an application by a claimant) must be supported by evidence.

Court to impose condition as to filing of defence

13.5 (1) If judgment is set aside under this part the general rule is that the order shall be conditional upon the defendant filing and serving a defence by a specified date.

(2) The general rule shall not apply if the court is satisfied that the defendant was not served with the claim form and statement of case.

Hearing may be treated as case management conference

13.6 (1) When judgment is set aside under this Part the court shall treat the hearing as a case management conference unless it is not possible to deal with the matter justly at that time.

(2) If it is not possible to deal with the matter justly at that time the court shall fix a time date and place for a case management conference.

(Part 26 deals with the powers of the court on a case management conference, Part 27 deals with the procedure for case management conferences.)

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