This scenario generally occurs when a court hearing has gone ahead and one of the involved parties was oblivious to it happening. This may happen because the party did not receive paperwork from the court giving the hearing date and time. Sometimes though, it can happen if someone is stuck in traffic or arrives late for some other reason.
And so, one party rocks up to the court, either physically or remotely, and gets a judgment in their favour, seemingly on the grounds of mere attendance rather than on any merit.
The absent party first learns of the court session when they either receive the judgment from the court or are informed that there is a default on their credit file.
What then can the absent party do?
If the matter is a Small Claim (generally under £10,000), one has to look to Civil Procedure Rule 27.11.
This rule allows the party who did not attend, is not represented, and did not ask for the case to be determined purely “on the papers” alone, to apply to the court to have the judgment set aside and obtain a full hearing.
HOWEVER, this can only be actioned if the application to set aside is completed on form N244 and submitted within 14 days of the court having deemed to have served the absent party with the judgment. A non-refundable fee of £255 also needs to be paid.
The court will hold a short session to hear any objections to the application from the party that was present at the first hearing. The court will then decide whether to set aside the judgment originally given and allow the case to be heard in full.
There is a general presumption the court will favour allowing a set aside/hearing under CPR 27.11. Perhaps because the absent party has at least made some prior effort in sending their documents to the court on time and should be given the benefit of any doubt.
This procedure is different to when a Judgment in Default is given because a Defendant has failed to send either their Acknowledgement of Service or defence to the court in the allotted time. The application form and the fee to set aside/seek a hearing are the same but CPR 27.11 cannot be used. There is no 14-days limit, but the Defendant must satisfy the court that they made the application promptly. They must also convince the court that their defence has a reasonable prospect of succeeding. Both of these criteria – from the writer’s own experience – tend to be more open to scrutiny by the judge in the circumstances of a Judgement in Default having been granted than when applying to set aside a judgment given for failure to turn up to a hearing.
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That said, proclaiming “I forgot.”, “I had COVID and was isolating.”, or the dog ate the court documents are unlikely to be persuasive. Don’t lie though. Perjury, followed by prison, is not ideal.
