Yes, you can claim for the set-aside application fee from the claimant (Gladstones), but whether the court awards it depends on how the set-aside is granted and the circumstances of the case.
If the court grants the set-aside but the claim isn’t immediately struck out, you can still defend the claim and raise the defective PoC issue in your defence. If the claim is eventually struck out later, you can ask the court to order all costs associated with the set-aside and defence be reimbursed, including the set-aside fee.
You may need to adjust the letter requesting the consensual set aside. Since the default judgment arose due to a misunderstanding on your part about the defence deadline — rather than a procedural defect by the claimant (even though the claim is defective) — it’s important to adjust your approach when requesting reimbursement of the £119 application fee.
You'd need to focus on the fairness argument and the overriding objective, highlighting that both parties benefit from avoiding a contested set-aside and that it would be reasonable for the claimant to cover the fee as part of the Consent Order. You’re not claiming that the default judgment was wrongly obtained, but instead framing it as a pragmatic solution to save both parties further time and costs.
As it currently stands, if Gladstones agrees to a consent set-aside, it’s unlikely you’ll be able to recover the £119 application fee unless you explicitly negotiate this as part of the Consent Order itself. However, courts don’t automatically order costs in a mutual consent set-aside, since the agreement implies both parties are covering their own costs to avoid further disputes.
That said, there are ways you can try to recover the fee, depending on the circumstances and how the claim progresses. You'd have to adjust the letter to ask Gladstones to include the £119 reimbursement in the Consent Order. If they refuse to include a costs clause, reserve your right to request costs later.
It will all depend on whether Gladstones agree to a Consent Order at all. If they do, when reviewing a Consent Order, if it looks like the claim is likely to be struck out for defective PoC, you could propose the following clause:
“The claimant shall reimburse the defendant the sum of £119 for the set-aside application fee should the claim be struck out by the court for non-compliance with the Civil Procedure Rules.”
Even if Gladstones refuses to include that clause, you can still raise the issue with the court if the claim is struck out later.
If they refuse to consent to the set-aside entirely, you would proceed with a contested set-aside and request the court to order costs.
These are the scenarios:
• If Gladstones agrees to a Consent Order for the set-aside and the court grants it, but the claim remains live after the judgment is set aside, you cannot automatically recover the £119 fee. In this case, you’ve agreed to cover the cost of the set-aside to correct your own procedural mistake, and no further costs order would typically be made at that stage.
• If the court grants the set-aside and then strikes out the claim because the Particulars of Claim (PoC) are defective or non-compliant with CPR 16.4, you can request reimbursement of the set-aside application fee.
• If the claim remains live after the set-aside but you successfully defend it at a later hearing (or it is struck out for another reason), you can ask the court to award costs, including the set-aside fee, at that point.
The reasoning is that you incurred the set-aside fee as part of your successful defence, and it would be unjust for you to bear that cost given that the claim lacked merit or was procedurally defective.
