Setting Aside a Default Judgment Under CPR 13.3: The Test, the Evidence the Court Expects, and the "Promptly" Trap

Last reviewed: 14 May 2026 — England and Wales

General information only. This article describes the law in England and Wales as at the date shown above. It is not legal advice and is not a substitute for advice on your case. For free regulated advice, contact a Law Centre, Citizens Advice, Shelter England, or the Housing Loss Prevention Advice Service available at every County Court.

Quick Answer

A defendant who has had a default judgment entered against them — usually because they did not file a defence in time — can apply to set it aside on Form N244 under Civil Procedure Rule 13.3. The court will set the judgment aside if (a) the defendant has a real prospect of successfully defending the claim, OR (b) there is some other good reason. In either case the application must be made promptly — typically within days or a few weeks of finding out about the judgment. Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and the Denton line of cases set the framework for promptness. For housing tenants facing possession on a default judgment, the same procedural test applies but the court will often consider the housing-specific consequences as a factor in the "good reason" limb.

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What a Default Judgment Is and How It Happens

A default judgment is a judgment entered without a hearing because the defendant has not defended. In civil money claims, default judgment can be entered after:

• 14 days if the defendant has been served and has not acknowledged service (CPR 12.3(1));
• 28 days if the defendant acknowledged service but did not file a defence (CPR 12.3(2)).

For housing possession claims under CPR Part 55, default judgment is rarer — Part 55 sets a hearing date when the claim is issued, and the tenant's right to attend is preserved even if no defence is filed. But default judgments do happen in two scenarios:

1. The tenant moves and is not served with the claim. The landlord serves at the last known address, default judgment follows, the tenant discovers the order only when the bailiff arrives.

2. A separate money claim for arrears is issued via MCOL or N1 (for a former tenant who has already vacated). The 28-day window expires unanswered, default judgment is entered, the CCJ is registered on the Register of Judgments.

In both cases the route to challenge is CPR 13.3 on Form N244.

The full Rule is at justice.gov.uk Part 13. The legislation it sits under — the Civil Procedure Act 1997 — is at legislation.gov.uk/ukpga/1997/12.

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The Two-Limb Test

CPR 13.3(1) provides:

"In any other case [than mandatory set-aside under CPR 13.2], the court may set aside or vary a judgment entered under Part 12 if (a) the defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why (i) the judgment should be set aside or varied; or (ii) the defendant should be allowed to defend the claim."

Two routes. They are alternatives, not cumulative.

Limb (a) — Real prospect of successfully defending

"Real prospect" means more than fanciful but less than probable. The test is the same as for summary judgment in reverse — Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) is the working authority, summarised by Lewison J: a real prospect is not a fanciful one but does not require the defendant to show that they will probably succeed.

For housing cases, common "real prospect" defences include:

• The arrears figure is wrong. Bank statements showing payments not credited.
• There was a valid set-off under Lee-Parker v Izzet [[1971] 1 WLR 1688] — disrepair counterclaim reducing the arrears below threshold.
• The Form 3A was defective — wrong notice period, missing prescribed information, served on the wrong person.
• The deposit was not protected, breaching the gating rule in Superstrike v Rodrigues [2013] EWCA Civ 669.
• The tenancy is not what the landlord says it is — e.g. claimed assured shorthold when actually a Rent Act protected tenancy with completely different procedural rules.

Evidence has to support the defence. A witness statement saying "I dispute the arrears" without supporting bank statements is not a real prospect.

Limb (b) — Some other good reason

This is the safety valve where the merits are weaker but the procedure has gone wrong in a way the court should fix.

Typical good-reason cases:

• The defendant was not served with the original claim. Often because the landlord served at the last known address but the tenant had moved (with the landlord's knowledge or not).
• Service was technically valid but the defendant did not see the documents — long-term hospital admission, foreign travel, mental health crisis.
• The defendant was unrepresented and acted on incorrect informal advice about the deadline.
• The default judgment itself contains an error — wrong amount, wrong defendant, wrong tenancy.

The "good reason" limb is not a free pass for tenants who simply ignored the claim. The court will weigh the strength of the reason against the prejudice to the landlord of re-opening the claim.

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The Promptness Requirement — Where Cases Are Won and Lost

CPR 13.3(2) reads:

"In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly."

This is the key practical hurdle. Promptly does not mean "within a reasonable time." It means as soon as practicable after the defendant becomes aware of the judgment.

The leading authorities are the post-Jackson reform cases on relief from sanctions. Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 set the original, deliberately strict framework; the Court of Appeal then significantly refined and softened it in Denton v TH White Ltd [2014] EWCA Civ 906. Denton is the controlling modern authority — applications today should cite Denton, not Mitchell on its own. Although these cases are about relief from sanctions under CPR 3.9, the courts have consistently treated promptness for set-aside applications under the same framework.

The Denton three-stage test:

1. Identify and assess the seriousness and significance of the failure — how late is the application?
2. Consider why the default occurred — was there a good reason for the delay?
3. Evaluate all the circumstances of the case — including the need for litigation to be conducted efficiently.

The leading modern authority on promptness in set-aside applications is Standard Bank plc v Agrinvest International Inc [2010] EWCA Civ 1400, which confirmed that the promptness requirement is to be approached with the Denton discipline — a short delay with a strong defence is not necessarily fatal, but a long delay even with a strong defence usually is.

Indicative ranges from County Court practice in 2026 (every case turns on its facts — these are guides, not rules):

• Within 7 days of finding out about the judgment: prompt by any standard, set-aside almost always granted on a real prospect.
• Within 14 to 21 days: still arguably prompt, set-aside usually granted unless the defence is weak.
• Within 1 to 2 months: explanation required, set-aside discretionary.
• More than 3 months: very difficult to argue prompt, even with a strong defence.
• More than 6 months: courts effectively refuse set-aside without exceptional circumstances.

The case-law pattern is that procrastination defeats the application. The published advice-services practice is that a tenant who suspects a default judgment has been entered files the N244 first and perfects the defence afterwards.

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The Application Process

Step 1 — Get Form N244 and CPR 13.3 evidence

Form N244 is on gov.uk. It is the general application notice for all civil applications.

Fill in:

• The court, the case number, the parties
• The application: "Set aside the default judgment dated [date] under CPR 13.3"
• The proposed defence: a short witness statement attached
• The relief sought: set-aside of the judgment and permission to defend

Step 2 — Prepare the witness statement

The witness statement is the heart of the application. It must address:

1. When the defendant became aware of the judgment. Date and circumstances.
2. Why the original deadline was missed. Was the defendant served? If so, what went wrong? If not, why not?
3. The defence on the merits. Specific defences raised, evidence in support.
4. Why the application is being made now. Steps taken since awareness, including any attempt to engage the claimant.
5. What relief is sought. Set-aside of the judgment AND permission to file a defence within a stated period (typically 14 to 21 days from set-aside).

The witness statement must include a statement of truth under CPR Part 22. Without that, it has no evidential weight.

Documents commonly attached include: rent receipts, payslips, photographs of disrepair, and medical evidence of illness.

Step 3 — File at the County Court

The court that entered the judgment hears the set-aside application. Fee:

• £313 for an application on notice (the standard route).
• A reduced fee for an application without notice (currently in the region of £119; check the Civil Proceedings Fees Order 2008 as amended for the current figure). Used only where there is genuine urgency, e.g. immediate enforcement.

Apply for fee remission on Form EX160 BEFORE paying. See our EX160 fee remission guide. Many tenants are eligible.

Step 4 — The hearing

Default-judgment set-aside hearings are short — typically 15 to 45 minutes. The District Judge will:

• Take the witness statement as read (the judge will have read it in advance)
• Ask brief questions about the timing — when did you find out, what happened in between
• Hear the claimant's response — usually that the defence is weak and the delay was too long
• Decide

If the application is granted, the court will set aside the judgment and give directions for the defence to be filed (often within 14 days). The case continues as if the default had not happened, sometimes with costs against the defendant for the disruption.

If the application is refused, the judgment stands. The defendant can appeal under CPR Part 52 (21-day window) or, in some cases, seek a stay of execution pending other applications. But appeal is a steep climb — the appellate court will only interfere with a discretionary decision if it was wrong in principle.

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What Cost Sanctions to Expect

Even where set-aside is granted, the court will often order the defendant to pay the costs of the application. The standard order is:

• Costs of the application against the defendant — typically £500 to £1,500 for a half-day hearing with the claimant represented.
• Defence to be filed within 14 days.
• Permission to amend the defence if necessary.

Where the defendant was clearly not at fault — for example, where the claimant served at the wrong address — the costs order may be in the defendant's favour. The Court of Appeal in Mullock v Price held that fault is relevant to the costs order even where set-aside is granted.

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Common Patterns in Refused Applications

The case-law and published court practice repeatedly identify the same patterns that defeat applications:

Filing without evidence of the defence

A bare assertion that "the arrears figure is wrong" or "the property is in disrepair" is rarely enough. The judge looks for the documentary basis — bank statements showing missed payments, photographs of disrepair with timestamps, emails to the landlord asking for repairs. Without that, the "real prospect" limb commonly fails on the case-law pattern.

Waiting to take advice

The promptness window narrows by the day. The published advice from HLPAS, Citizens Advice, and Shelter is consistent: parallel-track the filing with advice-taking rather than waiting until advice is concluded.

Confusing set-aside with appeal

Set-aside is the procedure where the defendant did not have their day in court. Appeal (CPR Part 52, 21-day window) is the procedure where they did, lost, and want a different outcome. The procedural rules treat them as distinct; confusing them is a common cause of refused applications.

Missing the warrant suspension parallel

For tenants who already have a possession order against them (whether by default or after a hearing), the N245 suspension-of-warrant route runs in parallel. See the N245 suspension guide. The published strategy in advice-services guidance is that both applications are commonly filed together where the warrant is imminent:

• N244 to set aside the default judgment (CPR 13.3)
• N245 to suspend the warrant pending the set-aside hearing

This buys time without committing to a single procedural route.

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CPR 39.3 — When the Defendant Attended the Wrong Hearing

A related but distinct route is CPR 39.3, which allows a party who did not attend a trial to apply to set aside the resulting judgment. Different test:

"An application under paragraph (5) for a judgment or order to be set aside must be supported by evidence; and the court may grant the application only if the applicant (a) acted promptly when he found out that the court had exercised its power to … enter judgment or make an order against him; (b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial."

All three limbs must be satisfied — unlike CPR 13.3, where (a) and (b) are alternatives.

CPR 39.3 applies where the defendant filed a defence but did not attend the hearing — for example, where the defendant missed the hearing because of illness, family emergency, or transport failure. The leading case is Bank of Scotland plc v Pereira [2011] EWCA Civ 241, which deals with the conjunctive test under CPR 39.3.

For tenants who were served, did not file a defence, and did not attend — the route is CPR 13.3.

For tenants who were served, filed a defence, and did not attend — the route is CPR 39.3.

For tenants who were never served — CPR 13.3 is appropriate, and the absence of service is itself a powerful "good reason" under limb (b).

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Authoritative Sources

• Civil Procedure Rules Part 13 — set aside default judgment: justice.gov.uk Part 13
• Civil Procedure Rules Part 39.3 — set aside judgment at trial: justice.gov.uk Part 39
• Civil Procedure Rules Part 12 — default judgment: justice.gov.uk Part 12
• Civil Procedure Act 1997: legislation.gov.uk/ukpga/1997/12
• Case law: Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Denton v TH White Ltd [2014] EWCA Civ 906; Standard Bank plc v Agrinvest International Inc [2010] EWCA Civ 1400; Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch); Bank of Scotland plc v Pereira [2011] EWCA Civ 241.

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BundleCreator's Housing Possession & Tenant Debt subsite at /housing-possession-debt maps the defending tenant journey from N9 acknowledgement through N244 set-aside and N245 suspension. The Defending bundle template pre-loads the witness-statement framework, the promptness explanation, and the cross-reference to CPR 39.3 where attendance is in issue.

Nothing in this article is legal advice or a substitute for it. The law in England and Wales as at the date shown. Defendants facing default judgments should take immediate advice — the Housing Loss Prevention Advice Service is free to any housing tenant served a possession claim, regardless of means; Citizens Advice, Shelter England, and local Law Centres provide free advice for civil debt judgments.