I want to apply to set aside a default judgment. Would it be sensible to suggest that we use the Default judgment—video hearings pilot scheme 2020 (CPR PD 51V) even though it would not be in the courts that pilot scheme applies to or should I be doing something else?

06 Apr 2020

Practice Direction 51V does not indicate that the pilot can be extended to cases which fall outside the categories identified in para 1.6 PD 51V, and in the circumstances there does not appear to be a discretion to extend the pilot scheme to other cases.

While it is possible that the courts operating the Pilot Scheme might in practice accept a case which falls outside the parameters of the scheme there is a very real risk that this could cause administrative confusion and delay. For example, transferring a file between courts can often result in significant delays to proceedings even when the courts are operating with normal staffing levels.

In very general terms, unless there is otherwise reason to seek a transfer of proceedings, the best course is likely to be to issue the application in the court which gave judgment and to allow the court to list in due course, adopting such listing arrangements as are appropriate to the circumstances. The courts are responding to the Covid-19 crisis by using a range of alternatives to physical hearings and the method used (video hearing, telephone hearing, determination on paper) will depend upon the circumstances of the case and the facilities available to the court.

If there is genuine urgency (for example if the judgment creditor is taking steps to enforce the judgment) it may be possible to ask the court to accommodate an urgent hearing.  Before making such a request, alternative solutions which may alleviate the urgency should be explored.  For example, the judgment creditor might agree to temporarily stay enforcement or the court may be willing to grant an interim stay of enforcement on an application which can be determined on the papers.

While an application to set aside default judgment should be always be issued promptly after the judgment debtor becomes aware of the judgment, it is not uncommon for several months to elapse between the date of issue and the first hearing.  It is entirely possible that a non-urgent application, if issued now, will be listed for a hearing on a date in the future by which point the courts may be returning to business as normal.

This article was first published by LexisPSL.


Sarah Clarke

Call: 2003


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