2. Commencing and Responding to a Claim Flashcards
(105 cards)
1
Q
Within what time limit must a defendant respond to a claim after the date of deemed service of the Particulars of Claim, where it is not included with the claim form?
A
14 days
2
Q
Deemed service for docs other than claim for if DX or first class post (most imp thing is next day delivery)
A
The second day (as long as it is a business day) after it was posted, left with, delivered to, or collected by the relevant service provider. If not a business day, then the next available business day
claim form deemed served 2nd business day aftr delivery
3
Q
Deemed service for docs other than claim for if: personal delivery, fax, electronic service, and personal service, email
A
On the business day it is left at the address, transmitted, or served personally if this is before 4.30pm. If not, the next business day
4
Q
What are the three things a defendant can do in their response?
A
- Admit the claim
- File and serve a defence to the claim, and possibly a counterclaim
- Acknowledge service and indicate they propose to defend the claim
5
Q
How can the time limit to respond with a defence be extended, and what is the maximum extension?
A
By agreement of the parties. For a further 28 days but not to exceed 56 days in total from the date of deemed service of the Particulars of Claim, including the extra 14 days from filing the Acknowledgement.
6
Q
What happens if the defendant admits the whole claim, and the amount at issue is a specified sum?
A
The court will issue a judgment on liability and decided damages in the same hearing.
7
Q
If a defendant admits a claim in the protocol, what is the monetary threshold below which such an admission will be binding?
A
£25,000
if a defendant admits liability on a claim of £25,000 or less, that admission is binding and cannot be later disputed.
8
Q
What will the court do if the claim is for an unspecified amount?
A
court enters judgment but stays the case and damages decided in a later hearing.
Claimant applies to enter judgment within 14 days from notice to admit.
9
Q
What must the defendant do if they admit only part of a claim?
A
They must file a defence for the part in dispute and not for the remainder of the claim.
10
Q
What does it mean when a defendant admits liability but disputes quantum?
A
They accept responsibility for the breach, accident or event, but deny that it caused injury, damage, or loss to the extent claimed by the claimant
11
Q
If a defendant wishes to withdraw an admission, what five things will the court consider in determining whether to grant permission for this?
A
- Prejudice to the parties (refers to any disadvantage, harm, or unfair impact suffered by a party in a legal case)
- Reasons the admission was made
- Stress the party was under when they made the admission
- Interests of the public
- The timing of the application of the application to withdraw
12
Q
In a personal injury, clinical negligence, and disease/illness claim, if the defendant wishes to withdraw an admission that came after a letter of claim, one of what two things are required?
A
- Consent of the person to whom the admission was made, or
- With court permission, if after commencement
13
Q
Deadline for D to defend the claim?
A
within 14 days of service of the DDS of Particulars of Claim
14
Q
Deadline for D to defend a claim if acknowledged?
A
28 days from the DDS of POS.
15
Q
What three things can the defendant achieve on the Acknowledgement of Service form?
A
- Indicate intention to dispute, but claim additional 14 days to file defence.
- Admit some of the claim but ask for time to pay
- Dispute the jurisdiction of the court
16
Q
What type of defendants will the above time limits not apply to?
A
Defendants outside the jurisdiction
17
Q
What can the claimant do if the defendant files neither a defence nor an Acknowledgement of Service within 14 days, and there has been no extension agreed?
A
Claimant can make a claim for summary judgment
18
Q
What does it mean under the CPR when references to “day” or “days” is “clear day” or “clear days”?
A
As a default, the day on which the period begins is not included in the count. Further, if the end of the period is defined by reference to an event, the day on which that event occurs, is also not included
19
Q
What happens if a time limit will expire on a day the court office is closed?
A
The time limit will be deemed to expire at the end of the next day on which the court office is open
20
Q
To reiterate, the date of deemed service of what document is the starting point for calculating when the defence is due?
A
Particulars of Claim
21
Q
If the claimant wishes, what two things can they apply for when the defendant files an Acknowledgement of Service?
A
- Summary judgment
- Interim payment
22
Q
If the defendant disputes jurisdiction and has indicated such on the Acknowledgement of Service, what must they not do until the application is heard, and why?
A
They must not file a defence, as this may be deemed to be submitting to the court’s jurisdiction
23
Q
What are the four ways in which a default judgment could have been wrongly entered?
A
- Judgment entered too early
- Application for judgment came after an application by defendant to strike out/dismiss the claim, and this application hasn’t yet been considered
- Claim already paid or settled
- Defendant already submitted a request to pay which has not yet been considered
24
Q
What if D files a full defence?
A
litigation will proceed as a contested matter.
25
What is the purpose of default judgment?
administrative procedure where D fails to respond to a claim in time.
This means that the claimant obtains a judgment without there being any
consideration of the facts involved. The process is a straightforward paper exercise
## Footnote
There are limited circumstances where a claimant may not obtain a default judgment, specifically if there is a pending application by the defendant for summary judgment or to
have the claimant’s statement of case struck out.
26
What is the test for default judgment?
D properly served + no acknowledgement OR defence + deadline expired.
27
What are the exception to the test of default judgment?
CPR Part 8 claims + if D has filed for summary judgment.
28
What is the procedure to enter default judgment for money remedies (specified & unspecified)?
Claimant enters judgment.
**Specified:** enter judgment on liability + decide damages in same hearing as matter proceeds to immediate enforcement..
**Unspecified:** enter judgment + damages decided in later hearing.
29
What is the procedure to enter default judgment for non-monetary remedies?
Claimant enters judgment.
file application + supporting evidence + court fee.
30
What is the procedure to setting aside default judgments?
Defendant sets aside judgment.
file application + supporting evidence + court fee.
31
What are the mandatory grounds to setting aside default judgments?
Court is obliged to set aside a default judgment if it was wrongly entered.
32
What are the discretionary grounds to setting aside default judgments?
Court has the discretion to set aside a default judgment if D has a real prospect of successfully defending the claim; _OR_ there is some other compelling reason.
## Footnote
* The first ground for reopening proceedings focuses on the merits of the defense; defendants with limited chances of success should not be allowed to reopen cases. (REAL PROSPECT)
* Valid reasons for failing to respond in time include illness or being away on holiday, WHILE excuses like work pressure or misplaced documents are insufficient. (good reason)
* The court considers the promptness of the defendant's application to set aside the judgment, highlighting the importance of acting quickly to ensure fair and efficient case management.
33
What orders may the court grant to setting aside a default judgment?
(a)The defendant succeeds and the judgment is set aside, allowing them to continue defending the action.
(b) The claimant wins and the judgment remains in place, enabling enforcement to proceed.
(c) A conditional order is made, setting aside the judgment on the condition that the defendant pays money into court (e.g., the claim amount). This is the least likely outcome and is used when the court suspects the defense is a delaying tactic due to the defendant's inability to pay
34
What are the cost implications in setting aside a default judgment?
defendant does not generally recover its costs from the claimant.
35
What is the purpose of discontinuance?
allows the claimant to bring all or part of the proceedings to an end even if no settlement has been reached.
36
What must C do to discontinue proceedings?
C must file a notice of discontinuance with the court + serve it on all parties.
**Part of a Claim:** identify the part being discontinued.
**Multiple Ds:** C can discontinue against some or all defendants.
37
Is permission needed for discontinuance?
only needed if the court has granted an injunction or the parties have given an undertaking to the court.
38
What are the cost implications in discontinuance?
presumption that C will pay D’s costs incurred up to date it was served notice of discontinuance.
39
How can parties settle pre-issuing of proceedings?
## Footnote
settle before proceedings start
may be recorded either by letter or in a formal agreement.
## Footnote
must be clearly and accurately recorded.
40
How can parties settle post-issuing of proceedings?
## Footnote
settle after proceedings start
terms of a settlement must be recorded in a formal court order or, if the parties require confidentiality or the imposition of terms beyond the powers of the court, in a Tomlin order
41
When can D dispute jurisdiction?
14 days after acknowledgment to dispute jurisdiction – if not, they are treated as having submitted to the jurisdiction.
42
What is the effect of the court refusing a dispute of jurisdiction by D?
original acknowledgment ceases to have effect and D must refile within 14 days for proceedings to continue.
43
How does a claimant start a legal action?
Creating a claim form with a brief statement of the nature of the claim + remedy (statement of value).
44
What eight things must a claim form contain?
1. Names/addresses of parties
2. Details of claim
3. Remedy sought
4. Values
5. Claimant's preferred court
6. Fees and costs
7. Particulars of claim
8. Statement of truth
## Footnote
Details of the solicitors’ fee account must be added so the court fee may be paid
45
What is considered a **full name** for the purposes of the claim form for (1) an individual, (2) an individual carry on business a sole trade, (3) a general partnership, and (4) a limited partnership or company?
1. **Individual:** full unabbreviated name
2. **Individual carrying on business:** full unabbreviated names with their trading as (T/A) name
3. **General partnership:** Full name of partnership and every partner
## Footnote
What if a defendant is an individual who has died before proceedings are commenced?
In such circumstances, the claim should be made against the executors or administrators if appointed; or ‘the personal representatives of [name] deceased’ if not.
46
What is the name given to a claim for a specified sum?
A debt claim
47
If the claim is for an unspecified amount in County Court, what must the claimant state on the claim form?
What range they expect to recover in, for the purposes of and using the same ranges as allocating to a track
48
What will a claim for damages always be, even if the claimant is able to itemise their loss in great detail?
An unspecified claim
49
If the claim is for an unspecified amount in the High Court, one of what two things must the claimant state on the claim form?
1. That the claimant expects to recover more than £100,000 (£50,000 for personal injury), or
2. Details of the statute that provides the claim may be commenced in the High Court
## Footnote
if it is 1 claimant will have choice between which court to decide. In deciding the lawyers need to consider whether case is complex and if its importance to public.
50
In estimating value of a claim, what should the claimant focus on and what should they disregard?
**Focus on**: What *they* are claiming for damages
**Disregard**: Interest, costs, contributory negligence, any counterclaim
51
What are the two court fees and what are the thresholds for each to apply?
Case over £10,000 but less than £200,000: **5%** of claim value
Claims over £200.000: **Fixed fee of £10,000**
52
What does it means when costs are *to be assessed*?
The court will determine the costs payable
53
What are the two options for including the Particulars of Claim?
1. Include on back of claim form, *or*
2. Produce as a **separate document** and either serve with claim form, or within 14 days following service
54
What are the five critical points to bear in mind when completing the claim form?
1. Parties correctly identified, including spelling of name
2. Whether the claim is specified or unspecified
3. Particulars of Claim are included or to be sent separately
4. Statement of Truth is signed, and
5.The correct type and number of documents have been supplied to the court
55
What is a statement of truth under CPR Part 22, who can sign it, and what are the consequences of omission?
* key documents like the claim form require a statement of truth, verifying honesty in their contents with the wording: "I believe that the facts stated in this [document] are true.
* The statement must be signed, dated, and in the witness’s language.
* An individual, authorized partner, senior company official, or legal representative (in their own name and firm if relevant) can sign it. Legal representatives must confirm client authorization, understanding of the truth requirement, and warn of contempt risks for falsehoods.
## Footnote
Missing a statement of truth may lead to the document being struck out, preventing reliance on its contents.
Where a solicitor signs a statement of truth they are deemed to have their client’s authority to do so and no separate written statement to that effect is needed
The statement is explaining that when a legal representative signs a statement of truth (a formal document declaring that the information provided is true) on behalf of a company, it is automatically assumed that the company has been informed of the possible consequences of providing false information.
The legal representative doesn't need to provide a separate statement confirming that the company official who gave the instructions believed the facts to be true.
56
What is a **Part 8 claim**?
A claim where the parties do not substantially dispute the facts
57
What four things must a Part 8 claim state?
1. That Part 8 applies
2. Questions to be decided, or remedy sought and legal basis
3. Details of the claim
4. Capacity of the representative if claim is made in a representative capacity
58
How does a defendant respond to a Part 8 claim?
File witness evidence with their acknowledgement of service, but do not file a defence
59
What are the consequences for a defendant who fails to respond to a Part 8 claim?
They cannot take part in the hearing, unless the court gives permission
60
What is the statement of value for specified claims?
precise figure calculated including interest accrued – debt claims.
61
What is the statement of value for unspecified claims in the high court and the county court?
*High court:* C expects > 100k OR > 50k for PI.
*County court:* C expects to recover <£10k; £10-25k; OR £25k-100k, > £100k
In a personal injury claim (excluding road traffic accidents), the claimant must specify whether they expect general damages for pain, suffering, and loss of amenity (PLSA) to exceed £1,500.
## Footnote
consists of kings bench, chancery and family division.
There is also Commercial Court, which deals with complex cases arising out of business disputes over contracts, insurance, banking and finance; and
* the Technology and Construction Court, which handles claims about buildings, engineering and surveying
62
What is the SOV if a claim is for both damages and a non-monetary remedy?
A statement of value must be given in respect of the damages claimed.
63
Description of parties in a claim form
Individual: name
Company: registered name
ST/Partnership: trading name
64
Where are proceedings issued?
the majority of cases are issued in the County Court and only claims in excess of £100,000 (or £50,000 for personal injury claims) **may** be commenced in the High Court.
65
How are proceedings issued?
claimant files claim form + pays fee at relevant court + court dates / issues it.
66
What is the effect of issuing proceedings in relation to the limitation period?
If issued within limitation period, it stops the clock.
If issued after limitation period, it is deemed to be issued on the date received by the court.
67
What is the deadline to serve?
midnight on the day 4 months after date of issue.
## Footnote
Once a claim form has been issued, it must be served on the other parties within four months. This means that it must be sent to or delivered to the defendant so they are aware of the existence of the proceedings
if claim form issued 20 Jan u have until 20 may midnight
u need to submit beofre this date
68
What is the effect of failing to serve after proceedings have been issued?
claim automatically stayed.
69
Can an extension be granted if C fails to serve after issuing proceedings?
only available if C tried to serve claim form.
70
Why is service of a claim a critical step?
Because it triggers the defendant's obligation to respond
71
Within how long of **issue** must a sealed claim form be served on the defendant where they are (1) within the UK and (2) outside the UK, and what is this period known as?
In the UK: **Four months**
Outside the UK: **Six months**
It is known as the claim form **validity period**.
## Footnote
OUTSIDE JURISDICTION->
What are the time limits and procedures for serving a claim form outside the jurisdiction of England and Wales?
A: Special procedures govern the service, and for Scotland and Northern Ireland, no permission is required, but pecific methods of service must be followed as detailed in CPR Part 6.
For EU Member States and other cases, permission is required, EXCEPT when a contract contains an English jurisdiction clause.
72
What must accompany a claim form served outside the jurisdiction, and what is the process for obtaining permission?
The claim form must be accompanied by a notice detailing the grounds for serving it outside the jurisdiction, along with evidence that England and Wales is the proper forum. Grounds may include the breach of contract occurring in England and Wales or excessive costs/delays in a foreign court.
The application for permission is made without notice and must be supported by evidence. If granted, the time limit for responding to the claim will be extended, and service is usually through judicial authorities or the British Consul.
73
If a claimant wishes to apply to have the claim form validity period extended, within what time period must the application be made, and only in what circumstances will the court grant it?
Application must be made **within the original validity period**, and the court will only grant in **exceptional circumstances**
74
Where a claimant's solicitor as opposed to the court will serve proceedings, what must the claimant ensure is enclosed, otherwise the court won't deem service effective?
The response pack
75
On whom must proceedings be served where the defendant has nominated solicitors to accept service (1) where defendant is an individual, and (2) where defendant is a company?
*Individual:* **Must be served on solicitors**, otherwise ineffective
*Company:* Solicitors, or also *may* be delivered or posted to the company's registered address
## Footnote
A claim form can only be served on a firm of solicitors if the defendant has nominated them in writing and this should not be presumed just because that firm has represented the defendant in pre- action negotiations.
Once nominated, all court documents are served on the lawyers unless
(exceptionally) the document must be served personally on the party, such as an injunction
76
In the case of personal service to a company, who can accept service?
Any person holding a senior position
## Footnote
director, treasurer and secretary
77
In the case of personal service to a partnership being sued *in the firm name*, who can accept service?
A partner, or any person who had control or management of the partnership business at its principal place of business *at the time of service*
78
Does the person being personally served have to take hold of or retain the papers?
No, as long as the process server has explained the general nature of the documents
79
What are the three requirements for service to be sent by fax?
1. Express consent*, even if already communicating by fax*
2. Party has given a fax number to be contacted on
3. Fax number is within the jurisdiction
80
Is consent to receive service by fax still required even if the parties had been communicating via fax?
Yes
## Footnote
An email address or fax number on the
PARTY'S’ headed paper IS NOT ENOUGH to satisfy this
requirement.
* In contrast, the ***inclusion of a fax number on the
SOLICITOR’s letterhead is sufficient* indcation they are willing to accept service by SUFFICIENT
81
What are the three requirements for service to be sent by DX?
1. Party's address for service contains a DX number
2. DX number is on the party's writing paper
3. No express indication that service by DX is not acceptance
82
What are the two requirements for service to be sent by email?
1. Express consent*, even if already communicating by email*
2. Party has given an email address to be contacted on
## Footnote
EVEN solicitor must specifically confirm this method may be used for service
83
Is consent to receive service by email still required if an email address is on the firm's paper or the parties have communicated via email?
Yes
84
What is the step required to effectuate service in the case of (1) personal service, (2) post or DX, (3) fax, or (4) other electronic method?
1. *Personal service*: **leave claim form with person or near them**
2. *Post or DX*: **post, or leave with service provider**
3. *Fax*: **complete fax transmission**
4. *Other electronic method*: **send email or transmission**
85
When is the claim form deemed to be served, and does this depend on the method used?
*Irrespective of method used*, the claim form is deemed served on the **second business day** after the step required to effectuate service
86
As an aside, what is a **business day** per the Civil Procedure Rules?
Any day other than Saturday, Sunday, a bank holiday, Good Friday, or Christmas Day
87
What should a claimant do if they believe a defendant no longer lives at an address?
Take **reasonable steps** and make **reasonable enquiries** to ascertain the defendant's current address
88
If the claimant cannot ascertain the defendant's address after taking reasonable steps and making reasonable enquiries, what can they do?
Serve on the defendant's last known address
89
If a defendant wishes to argue that service of proceedings was invalid, where do they indicate this and within what time period must they make an application?
Indicate on acknowledgement of service, within 14 days.
90
If the claimant's solicitor is serving proceedings, within what time period must they file a certificate of service?
21 days
91
What must a claimant show to the court to be granted an order to permit service by alternate means or in an alternative place?
Good reason for the order
## Footnote
the application must be supported by evidence that the document is likely to be brought to the attention of the defendant.
92
Can an order to permit service by alternate means or in an alternative place be made **retrospectively**, and may the court deem steps already taken to be good service?
Yes
93
Even though the Particulars of Claim must be served with 14 days of service of the claim form, what must happen if this 14-day period would take the claimant beyond the validity period, i.e. four/six months from issue depending on where defendant is?
The Particulars of Claim **must** be served within the validity period
94
How is a claim form served and to what address?
How: served by the court using first class post + notice of issue to C.
No Address: must be served at last known residence / place of business.
D Gives Solicitor’s Address: must be served at that address.
95
What is the deemed date of service of the claim form?
2nd business day after relevant step.
96
When does C serve the Particulars of Claim?
C has 14 days to serve particulars of claim unless attached and no later than 4 months.
97
Purpose of POC
reinforces claim form and lays out all details of the case i.e., is claimant’s story.
98
Where can the POC be included/drafted?
included on the claim form itself for straightforward cases, i.e. debt action, but drafted as a separate document for complex matters.
99
What is the DDS of instant methods of service and rules on consent?
same day if before 16:30. if not, then next business day.
However, consent required. Can only be used if D consents to use (except fax on solicitor’s letter headed paper).
100
What is the DDS of non-instant methods of service?
if posted on business day, the second day after relevant step. If not, next business day.
101
In a claim form, what must a claimant disclose about vulnerable witnesses?
The claimant must state if they or any witnesses are vulnerable, specify the nature of the vulnerability, and detail any support or adjustments requested from the court and judge. See section 7.2.1 for more information.
102
RULES FOR SERVICING POC
either at the same time as the claim form; or
* within 14 days after service of the claim form (but no later than four months after the date
of issue of the claim form).
103
consent order
While the court can refuse to approve the order, it typically only involves a judge if there are inaccuracies or ambiguities.
The formal requirements for a consent order include:
* The agreed terms must be clearly documented.
* It must state that it is made "By Consent."
* It must be signed by the legal representatives of all parties involved.
## Footnote
A settlement reached after proceedings have started should be documented in a court order or judgment to facilitate enforcement if the agreement is not honored.
This allows the claimant to recover any money due, including costs.
THESE ORDER APPLY AFTER ISSUING OF PROCEEDING BUT BEFORE TRIAL
PARTIES NEED LEGAL REPRESENTATION FOR CONSENT ORDER
104
TOMLIN ORDER
A Tomlin Order stays the claim based on agreed terms, which are set out in a schedule attached to the order or in a separate document held by the parties’ solicitors.
Key Elements:
* Certain essential terms must be included directly in the order, while others can be kept confidential in the schedule.
* Commonly used for financial settlements to keep amounts confidential from third parties.
Example: In a Tomlin Order, it may state that:
* The order is made ‘By Consent’.
* Proceedings are stayed (paused).
* There is liberty to apply, allowing parties to return to court if the agreement is not honored.
* It includes specific provisions like payment of costs and must be signed by the parties' solicitors.
105
differences between order
**Consent Order:
* **Resolves the dispute outright, and the case is concluded.
* The terms of the settlement are public.
* Proceedings are not necessarily stayed; the case concludes once the order is made.
Tomlin Order:
* Stays the proceedings on agreed terms, pausing the case while the parties fulfill their obligations.
* Allows for confidentiality of certain terms, which can be placed in a separate schedule.
* Provides liberty to apply, enabling parties to return to court if the agreement is not honored.
