Setting aside a Default Costs Certificate can be a challenging process – particularly if you’re the paying party and time is already working against you. However, with the right approach and specialist support, it is possible to have a certificate set aside or vary. In this article, we’ll walk through how Default Costs Certificates are obtained, what their implications are, and what the application process looks like when trying to set aside.

At Greener Costs, we regularly assist solicitors, litigators, and legal professionals – acting for both paying and receiving parties – in navigating detailed assessment proceedings and default costs disputes.

What Is a Default Costs Certificate?

A Defaults Costs Certificate is issued by the court when a paying party fails to serve Points of Dispute within the required time after receiving a Notice of Commencement and Bill of Costs. This usually happens 21 days after service.

When a Bill of Costs is served (commencing detailed assessment proceedings), the paying party is expected to respond with Points of Dispute – setting out which items are disputed and why. If they don’t, the receiving party can apply for a Default Costs Certificate under CPR 47.9, meaning the full amount of costs claimed will be awarded in the absence of any challenge.

This avoids the need for a detailed assessment hearing and effectively ends the assessment process in the receiving party’s favour. In some cases, this could mean recovering six-figure sums without the other side even being heard – so it’s easy to see why courts apply a high threshold for setting one aside.

When Can You Set Aside a Default Costs Certificate?

Under CPR 47.12, a party can apply to set aside or vary a Default Costs Certificate in limited circumstances.

The court must set aside the certificate if it was obtained improperly – for instance, if the receiving party’s bill was served incorrectly or the application was made before the 21-day period had expired. But most applications hinge on the discretionary power of the court, which will only act if there’s a good reason the detailed assessment proceedings should continue.

Typical valid reasons include:

• The paying party was never properly served with copies of the bill
• A genuine mistake or miscommunication occurred regarding service
• There are significant issues with the costs claimed that should be tested at a detailed assessment hearing

The application must be supported by evidence and must include:

• A copy of the default costs certificate
• A copy of the bill
• A draft of the points of dispute you intend to serve if granted

The court will also consider how promptly the application to set aside was made. Delay can be fatal, so urgency is essential.

Practical Considerations When Applying to Set Aside

Making an application to set aside a default certificate is more than ticking boxes. The court applies a high bar, and there is no automatic right to relief. You will need to convince a costs judge that your case warrants special consideration.

While human errors like diary mix-ups or short staffing can be factors, they rarely prove to be enough on their own. Courts often consider the Denton Test, which asks:

1. Is the breach serious or significant?
2. Is there a good reason for the default?
3. Has the application been submitted promptly?

Your draft Points of Dispute must also be realistic – the court is unlikely to entertain speculative or purely tactical objections. This means any proposal to vary a default costs certificate must be supported by reasoned and credible challenges to the costs claimed.

Strategic Tips for Setting Aside a Default Costs Certificate

Applications to set aside a Default Costs Certificate are time-sensitive and fast-specific, but there are consistent strategies that improve your prospects of success.

Here are some practical tips based on our experience assisting legal professionals across a broad range of cases:

1. Act Without Delay

The court places heavy weight on how quickly an application is made. The longer the delay, the harder it is to persuade a costs judge to exercise discretion in your favour. Ideally, an application should be made within 14 days of discovery the certificate has been issued.

2. Present a Strong Evidential Foundation

A successful application must be supported by evidence – not just explanations. This includes:

• A copy of the bill
• A copy of the default costs certificate
• A draft of the Points of Dispute
• A witness statement explaining the default and the reasons for the delay

Make sure the evidence directly addresses the cause of the breach and shows why the detailed assessment proceedings should continue.

3. Make the Points of Dispute Count

Even if your application is procedurally correct, if your Points of Dispute are weak or clearly without merit, the court may refuse to set aside the certificate. Show that the costs claimed are realistically open to challenge – whether it be because of proportionality, duplication, hourly rates, or other well-established grounds.

4. Show a Genuine Intention to Engage

It helps to show that the paying party always intended to engage in the process and has not simply ignored obligations. For example, evidence of internal miscommunication, IT issues, or confusion over service may carry more weight if accompanied by immediate action once the issue is discovered.

5. Maintain Professional Cooperation

Although it may be frustrating to deal with a Default Costs Certificate, it’s worth keeping professional dialogue open with the receiving party. In some cases, agreements can be reached to consent to setting aside the certificate or to narrow the scope of the dispute before the court hearing.

Interim and Final Costs Certificates

Where there’s a delay or failure to respond, receiving parties can also apply for an interim costs certificate, especially If there’s an upcoming detailed assessment hearing. This ensures some payment is made sooner rather than later.

Once the assessment is complete – or parties reach an agreement – a final costs certificate can be issued to confirm the agreed or assessed figure. At Greener Costs, we frequently assist in both applying for and challenging these certificates.

How Greener Costs Can Help

Whether you’re a paying party looking to set aside a default or a receiving party seeking enforcement, having a knowledgeable costs draftsman on your side is essential.

At Greener Costs, we assist with:

• Applying to set aside or vary Default Costs Certificates
• Drafting robust Points of Dispute
• Reviewing receiving party’s bills
• Responding to or initiating detailed assessment proceedings
• Applying for interim or final cost certificates
• Negotiating costs settlements

We work closely with law firms, in-house legal teams, and litigators to ensure costs are properly scrutinised and fair outcomes are reached.

Get in Touch

If you’re facing a tight deadline or complex costs dispute, don’t leave it to chance. Whether you need help serving Points of Dispute, reviewing a Bill of Costs, or preparing an application to set aside, our team is ready to assist.

With our extensive knowledge of the civil justice system and our highly skilled team of Costs Draftsmen, we can provide law costing services to clients throughout England and Wales. We are also proud to be represented on Your Legal Advisor’s panel of costs experts.

Greener Costs is the UK’s first net positive legal costs company, and our aim is to assist your law firm in costs services whilst also helping you become more carbon neutral. Our operations are fully paperless, and we commit to planting 25 trees per instruction. At the end of the year, we will send you a report detailing how much of your emissions have been offset by instructing our team.

Contact Greener Costs Today on 01204 263047 or email us at info@greenercosts.co.uk to speak to a specialist today.