CCP: action after judgment obtained: hearing an application to set judgment aside
Opposing the application
If you intend to oppose the application to set judgment aside, you need to demonstrate to the court that there was an underlying debt that formed a sound basis for the judgment when judgment was entered. You should confirm to the court that:
- the action was correctly started
- judgment was properly entered against the judgment debtor
- you have advised the judgment debtor that there are no grounds for setting judgment aside.
The fact that the judgment debt may have since been paid does not diminish those facts.
However, if the judgment debt has been wholly extinguished, other than by payment, you should not oppose the application (DMBM666380). Typically, this occurs where:
- an application is made to adjust an ITSA POA (DMBM668360)
- a determination is superseded by a self assessment (DMBM668400).
(This content has been withheld because of exemptions in the Freedom of Information Act 2000)
At the hearing you will need to provide evidence to show why the judgment should not be set aside, either by proving that the reasons for the application are unsound, or by proving that a debt existed when judgment was entered. You should also produce a copy of your letter in response to the application (DMBM666380).
Depending of the particular circumstances, such as whether the judgment debt has been satisfied wholly or partially by way of payment or if it has been reduced following late submission of tax returns, you may be able to produce certificates of debt showing details of your claim. If certificates of debt have already been prepared, usually for the hearing when judgment was entered, then those certificates can be produced at the judgment set aside hearing, suitably amended as necessary to reflect the current debt. Alternatively, if certificates of debt have not been previously prepared, you should prepare certificates of debt to reflect the debt as it stands now.
Exceptionally where the debt is now nil, because the debt has been fully satisfied by payment since judgment, you should not prepare certificates of debt. Instead, your letter in response to the application (DMBM666380), which would have explained that a debt existed when judgment was entered, should be produced in evidence.
Application on grounds that claim not received
Where the application is on the grounds of non-receipt of the claim, you should also present any evidence that the judgment debtor was aware of the claim, for example,
- the filing of an admission or defence
- a payment made which included court fees
- any enforcement activity or
- any correspondence from the judgment debtor directly related to the action.
Where you have no evidence to show that the judgment debtor was aware of the action, confirm that the address where the claim form was served was valid, that is to say it was the judgment debtor’s usual or last known address as at the date of service (see DMBM665340 and DMBM665480).
If appropriate you should also confirm that subsequent correspondence to the same address has been acknowledged or has not been returned undelivered.
Cases of doubt or difficulty
You should consult your line manager if you are in any doubt as to whether or not oppose an application from the judgment debtor to have judgment set aside.
Decision of district judge
The district judge will decide whether or not to grant the judgment debtor’s application. If, despite your representations, the district judge decides in the judgment debtor’s favour, you should accept the decision with good grace, but you should ask that the judgment debtor be debarred from making any application for costs against you.
In cases where your claim has been fully satisfied, no further action is required.
In cases where some element of your claim remains payable, the district judge will give directions as to the future conduct of the case. This will vary from case to case but typically the defendant will be ordered to file a full defence, or HMRC will be ordered to provide information to the defendant, within a particular timescale.
Where the order is for the defendant to take some action, you should
- confirm with the district judge that you will be entitled to apply for judgment in default if the defendant does not comply with the order and
- ask that this be included in the order.