How to defend a claim under CPR 13.2 where you were not served

CPR 13.2 is the mandatory set aside rule in civil proceedings. Where its conditions are met, the court must set aside a default judgment. The most important application of the rule is where service of the claim form was not effective. If you have been served with a default judgment for a claim you never knew about, CPR 13.2 may be the route to set it aside.

This guide explains how CPR 13.2 works, the evidence needed to establish that service was not effective and the procedure to follow.

The text of CPR 13.2

CPR 13.2 provides that the court must set aside a default judgment where:

• The right to enter judgment did not exist at the date judgment was entered
• The whole of the claim has been satisfied before judgment was entered
• The whole of the claim has been paid since the judgment

The first ground is the most commonly relied on. It covers situations where the claimant was not entitled to enter judgment, including where service was not effective.

The difference between CPR 13.2 and CPR 13.3

CPR 13.2: Mandatory

If the conditions are met, the court must set aside the judgment. The court has no discretion to refuse.

CPR 13.3: Discretionary

The court may set aside the judgment if there is a real prospect of defending the claim or another good reason. The court has wide discretion.

CPR 13.2 is the stronger route where it applies because the outcome is mandatory. CPR 13.3 is the wider route, available where the substantive defence has merit even if the procedural grounds are not made out.

When service is not effective

The CPR contains detailed rules about service. Service can fail to be effective for several reasons:

Wrong address

The claim was sent to an address that was not the defendant's address. The claimant relies on rules permitting service at the defendant's last known address, but if that address is genuinely no longer the defendant's, service is not effective.

Address where defendant no longer lives

The defendant moved before service. Even where the new address was not notified to the claimant, the question is whether the claimant took reasonable steps to identify the right address.

Wrong method

The claim was served by a method not permitted for that type of party (for example, service on a registered office for a company, or service on a usual residence for an individual).

Defective service

The documents served were not the full set required, or were not served by the deemed date of service.

Service on the wrong person

For corporate defendants, service must be at the registered office. For individuals, service must be on the individual or at their usual or last known residence.

The deemed service rules

CPR 6 contains detailed rules about deemed service. The key principles are:

• For first class post, deemed service is the second business day after posting
• For document exchange, deemed service is the second business day after the document is left for delivery
• For personal service, deemed service is when the document is handed to the defendant (or left at the appropriate place)
• For email service, deemed service is the date the email is sent if before 4:30pm on a business day, otherwise the next business day

The deemed service date matters because it triggers the time periods for acknowledging service and filing a defence.

The procedure to apply

The application

The application is made on Form N244, supported by a witness statement.

The witness statement

The witness statement must address:

• The factual background
• Why service was not effective
• Evidence supporting that
• When you became aware of the judgment
• What steps you took once aware
• Why the application is being made promptly

Court fee

A court fee is payable. The amount depends on the nature of the application.

Service

The application must be served on the claimant.

The hearing

The hearing is usually short (30 minutes to an hour). Both sides make submissions. The court decides whether the conditions of CPR 13.2 are met.

Evidence of non-service

The most important evidence in a CPR 13.2 application is evidence that service was not effective. Useful evidence includes:

Address history

Records showing where you actually lived at the relevant time: tenancy agreements, utility bills, council tax bills, electoral roll records.

Forwarding arrangements

Royal Mail redirection orders, evidence of post being forwarded.

Notifications you gave

Evidence that you notified the claimant of a change of address (for example, in correspondence before the claim was issued).

The claimant's contact details

If you and the claimant were in contact through email or telephone, evidence of how they could have reached you.

Statements from third parties

Statements from family members, employers or former residents at the address used by the claimant.

The current occupant

If the address used by the claimant is occupied by someone else, a statement from that person confirming they did not pass on the documents.

The promptness requirement

Although CPR 13.2 is mandatory in setting aside, the court will still consider whether the application has been made promptly. CPR 13.4 sets out the requirement.

"Promptly" means as soon as reasonably possible after becoming aware of the judgment. The court will consider:

• When you first knew about the judgment
• What you did to investigate
• How quickly you applied once you had sufficient information
• Any reasonable explanation for delay

Significant delay can result in the application being refused even where the substantive grounds under CPR 13.2 are made out.

What happens after a successful application

If the judgment is set aside under CPR 13.2, the position returns to where it was before default judgment was entered. The defendant has the right to file a defence and the case proceeds.

The court may also make orders about:

• Filing a defence by a specified date
• Any pre-existing enforcement action (such as charging orders)
• Costs of the set aside application

Costs of set aside

The court has discretion on costs. The starting point depends on who was responsible for the situation:

Where the claimant served on a knowingly wrong address

The defendant is usually awarded costs against the claimant.

Where the claimant relied on a reasonable address but it turned out to be wrong

Costs may go either way. The court considers whose conduct was reasonable.

Where the defendant's own conduct contributed to the problem

The defendant may not get costs. For example, where they failed to notify of a change of address despite previous correspondence.

What if service was technically effective but unfair?

Some situations involve technically valid service but where the defendant genuinely did not know about the claim. In these cases:

• CPR 13.2 may not strictly apply
• CPR 13.3 may apply on the "good reason" ground
• The substantive defence prospects under CPR 13.3 may also apply

The right approach is usually to apply on both CPR 13.2 and CPR 13.3 grounds, allowing the court to choose the appropriate basis.

Pre-action steps

Where you discover a CCJ against you that you did not know about:

Confirm the details

Get a copy of the judgment from the court and a copy of the claim form.

Investigate the service position

Identify where the claim was supposedly served, your actual address at the time, and any evidence about the service attempt.

Consider the underlying claim

Is the underlying claim legitimate, even if you did not know about it? This affects strategy: if there is a strong defence, set aside reopens the issue; if not, you may end up with the same judgment.

Take advice early

Specialist advice on the prospects of set aside and the strategy for any subsequent proceedings is usually worthwhile.

Common mistakes

Treating the application as routine

Set aside applications need careful preparation. A weak application can fail even where the underlying position would have justified set aside.

Inadequate evidence of non-service

Bare assertions are not enough. The court needs documentary evidence of where you actually lived.

Delay

The most common reason applications fail. Move quickly.

Ignoring the underlying claim

Even if you succeed in setting aside, the claim continues. Plan for the next stage.

When to take legal advice

CPR 13.2 applications can be straightforward where service was clearly defective, but they are also commonly contested. For any meaningful sum, taking specialist advice on the application is worthwhile.

A direct access barrister with civil litigation experience can advise on the prospects, draft the witness statement and represent you at the hearing on a fixed fee.

Want a barrister to review your case?

Whether you need full representation at a hearing or just a one-off conference to take advice, our team can match you with the right specialist quickly. There is no charge for the initial enquiry. Tell us what you are dealing with and we will arrange a fixed-fee quote.