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

Last reviewed: 27 September 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 or Shelter England. The Housing Loss Prevention Advice Service, funded by the Legal Aid Agency, gives free early legal advice to anyone at risk of losing their home from the moment they receive written notice, and on-the-day advice and representation at possession hearings, whatever their income. Find a provider at find-legal-advice.justice.gov.uk.

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 there is no default judgment (CPR 55.7(4)). Part 55 sets a hearing date when the claim is issued, and the tenant may still take part in the hearing even if no defence is filed. If a possession order is made at a first hearing the tenant did not attend, the route is an application under CPR 3.1(2)(p), to which the court applies the r.39.3(5) factors (Forcelux Ltd v Binnie [2009] EWCA Civ 854), not CPR 13.

Default judgment does arise in housing cases where a separate money claim for arrears is issued via MCOL or N1 (for example, against a former tenant who has already vacated). If the time for responding expires unanswered, default judgment is entered and the judgment is sent for registration on the Register of Judgments.

In that case 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 money claims for rent arrears, common "real prospect" defences include:

• The arrears figure is wrong. Bank statements showing payments not credited.
• There was a valid set-off for disrepair — see Lee-Parker v Izzet [1971] 1 WLR 1688 (recouping the cost of repairs) and Televantos v McCulloch (1990) 23 HLR 412 (CA) (set-off available where the landlord was in breach before proceedings began).

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 means acting with all reasonable speed once the defendant knows of the judgment.

The leading Court of Appeal authority on promptness in set-aside applications is Standard Bank plc v Agrinvest International Inc [2010] EWCA Civ 1400. In Gentry v Miller [2016] EWCA Civ 141 the Court of Appeal held that the approach in Denton v TH White Ltd [2014] EWCA Civ 906 to relief from sanctions also informs set-aside applications. Mullock v Price [2009] EWCA Civ 1222 is a further Court of Appeal decision on promptness under CPR 13.3(2).

Delay counts against the application. A defendant who finds out about a default judgment should file the N244 without waiting.

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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.

The witness statement must include a statement of truth under CPR Part 22. Without one, the court may direct that it is not admissible as evidence (CPR 22.3).

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

Step 3 — File at the County Court

File the application with the court dealing with the claim. Where the claim was for a specified sum against an individual and the judgment was obtained outside the defendant's home court, the application is sent to the defendant's home court (CPR 13.4(1)); it must be supported by evidence (CPR 13.4(3)). Fee:

• £321 for an application on notice (the standard route).
• A reduced fee for an application without notice (currently £126; 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 Help with Fees (online or on Form EX160) before paying if you can; a refund is available if you paid in the last 3 months and were eligible when you paid. See our EX160 fee remission guide. Many tenants are eligible.

Step 4 — The hearing

Set-aside hearings are usually short. 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. 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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Costs

Even where set-aside is granted, the court may order the defendant to pay the costs of the application. 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.

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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. File the application and take advice at the same time, 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 made in their absence or after a hearing), the application to suspend the warrant (on N244, not N245) runs in parallel. See the suspension guide. Where the warrant is imminent, both applications can be made together:

• N244 to set aside the possession order (CPR 3.1(2)(p); Forcelux)
• N244 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 and Possession Orders Made in Your Absence

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:

"Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, 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 strike out or 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." (CPR 39.3(5); the evidence requirement is r.39.3(4).)

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

CPR 39.3 applies where a party did not attend the trial — 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.

In a possession claim, a possession order made at a first hearing the tenant did not attend is set aside under CPR 3.1(2)(p), and the court applies the r.39.3(5) factors (Forcelux Ltd v Binnie [2009] EWCA Civ 854).

In a money claim where default judgment was entered, the route is CPR 13.3. For defendants who were never served, the absence of service is itself a powerful "good reason" under limb (b).

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Authoritative Sources

• Civil Procedure Rules Part 55 — possession claims (r.55.7(4): no default judgment): justice.gov.uk Part 55
• 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: Denton v TH White Ltd [2014] EWCA Civ 906; Standard Bank plc v Agrinvest International Inc [2010] EWCA Civ 1400; Gentry v Miller [2016] EWCA Civ 141; Forcelux Ltd v Binnie [2009] EWCA Civ 854; 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 the N11R defence through the N244 set-aside and suspension applications.

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 judgments should take immediate advice. Citizens Advice, Shelter England and local Law Centres advise on civil debt judgments. The Housing Loss Prevention Advice Service, funded by the Legal Aid Agency, gives free early legal advice to anyone at risk of losing their home from the moment they receive written notice, and on-the-day advice and representation at possession hearings, whatever their income. Find a provider at find-legal-advice.justice.gov.uk.