6 .Civil Statements of Case, Defence, Default

Question 1

What happens if a defendant fails to respond to a particulars of claim

Answer 1

Judgment in default- claimant will win

Question 2

What if a claim form is marked with ‘particulars to follow’?

Answer 2

Nothing to do but wait for particulars to be served

Question 3

3 ways in which a defendant may respond to a claim

Answer 3

• Filing an acknowledgement of service
• Filing a defence
• Filing an admission

Question 4

What happens where court office is closed, but the time for doing an act ends on that day?

Answer 4

Time does not expire until the end of the first day on which the court office is next open

Question 5

How is time defined in r2.8

Answer 5

clear days

Question 6

what does r10.2 provide for where D fails to respond within a set time

Answer 6

(a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3; and

(b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14, the claimant may obtain default judgment if Part 12 allows it.

Question 7

general rule for time period for acknowledgment of service 10.3

Answer 7

(a) 14 days after service of the particulars of claim where the defendant is served with a claim form which states that particulars of claim are to follow; and

(b) 14 days after service of the claim form in any other case.

Question 8

which form deals with acknowledgement of service

Answer 8

Form N9

Question 9

From whom is service acknowledged when a claim is brought against a partnership r10.5(5)

Answer 9

in the name of the partnership on behalf of all persons who were partners at the time when the cause of action accrued.

can be signed by any partner

Question 10

What if D is a registered co r10.5(3) and 4

Answer 10

a person holding a senior position or any officer of the co, provided they state the position they hold

Question 11

r11- what must D do if they wish to dispute court jurisdiction

Answer 11

D wishing to dispute jurisdiction of court must indicate this on service acknowledgment

Question 12

A D can choose to file acknowledgement and file a defence. What is the time limit r15.4

Answer 12

15.4.—(1) The general rule is that the period for filing a defence is—

(a)14 days after service of the particulars of claim; or

(b)if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.

(2) The general rule is subject to rules 3.4(7), 6.12(3), 6.35, 11 and 24.4(4).

Question 13

Can a time limit for filing a defence be extended?

Answer 13

Yes, with the agreement of the parties for up to 28 days

Question 14

What must D give the court if parties reach an agreement for extension of filing a defence

Answer 14

written notice of the agreement

Question 15

Form to use in claims for specified amount

Answer 15

N9B

Question 16

Form to use in claims for unspecified amount

Answer 16

N9C

Question 17

What must happen after a defence is filed

Answer 17

copy to be served on all other parties- court effects service

Question 18

What if D only accepts part of the claim

Answer 18

D fills out appropriate sections of response pack

Question 19

What if D admits the whole of the claim

Answer 19

Serve N9A on claimant within 14 days of service of particulars

Question 20

What must D give alongside N9A

Answer 20

personal details, details of income & expenses, an offer of payment (in full by a certain date or by monthly instalments)

Question 21

What happens once C receives form N9A

Answer 21

C files a request for judment

Question 22

What if C declines D’s offer to pay by a certain date/instalments

Answer 22

court decides the appropriate order.
no court hearings for claims under 50k

Question 23

What happens where a rate of payment has to be decided by a judge

Answer 23

proceedings are automatically transferred to D’s home court

Question 24

Where is Ds home court

Answer 24

County - where D resides or carries on business
High- district registry for the discrint in which D resides or carries on business
No district- Royal courts of justice

Question 25

Notice period where a decision is made by hearing

Answer 25

notice of at least 7 days

Question 26

What does the court consider when deciding time/rate of payment

Answer 26

defendants statement of means claimants objections to defendants request any other relevant factors

Question 27

procedure for part admission of specified amount

Answer 27

- D files N9A within 14 days of service - Court gives notice of admission to C - C to decide whether they accept offer in full satisfaction of claim, accept offer but not D's proposals for payment, reject the offer and wish to proceed with claim - c has 14 days to file notice and serve on D -If c accepts offer they file for judgment - if D has not requested time to pay, C stipulates time and court enters judgment accordingly - if c rejects offer, case continues as defended actiomn

Question 28

procedure for admission of unspecified amount (no offer)

Answer 28

court enters judgment for damages to be assessed at a disposal hearing

Question 29

name of hearing at which damages are assessed

Answer 29

disposal hearing

Question 30

procedure for admission of unspecified amount (offer made)

Answer 30

court serves notice on c requiring them to return notice whether or not they accept amount in satisfaction of the claim if claimant does not file notice, claim is stayed until they do if c does not accept amount, enter judgment for damages to be assessed at a disposal hearing

Question 31

how can parties challenge a court decision where court has decided the time and rate of payment by court officer/judge without hearing

Answer 31

apply for re determination by a judge application to be made within 14 days of service of determination on applicant

Question 32

when will interest be included where d admits liability for whole amount

Answer 32

particulars of claim include details required by r16.4 interest claim under s35A SCA or 69 CCA if rate is no higher than interest rate payable on judgment debts c's request for judgment includes calculation of interest claimed for period from date up to which interest was stated to be calculated in claim form to the date of the request for judgment

Question 33

what if conditions for including interest have not been satisfied

Answer 33

court decides amount of interest and gives directions as to how this should be acchieved

Question 34

when can parties apply to vary time and rates of payment para 6.1 PD 14

Answer 34

where there has been a change of circumstances

Question 35

when can c receive default judgment

Answer 35

D fails to return service acknowledgement D fails to file a defence

Question 36

what is a default judgment

Answer 36

c obtains judgment without there being a trial of the issues involved

Question 37

When is default judgment not available

Answer 37

- claim for delivery of goods under agreement regulated by CCA 1974 - part 8 claim - any other case where a rule/PD states c may not obtain default judgment

Question 38

procedure for default judgment

Answer 38

- c files a request using relevant form - c must satisfy court that particulars have been served defendant has not acknowledged service or filed a defence at the date on which judgment is entered, relevant time period expired defendant has not satisfied claim defendant has not admitted liability for full amount

Question 39

what if request for default judgment does not indicate date for full payment , or times and rate at which it is to be paid in instalments for claims of specified amoutns

Answer 39

court gives judgment for immediate payment

Question 40

what if request for default judgment does not indicate date for full payment , or times and rate at which it is to be paid in instalments for claims of unspecified amounts

Answer 40

request for court to decide amount- involves a disposal hearing -> track allocation and directions

Question 41

does the time for serving a statement of case run if court has imposed a stay?

Answer 41

no grant v dawn meats

Question 42

what is a stay

Answer 42

operates to halt or freeze the proceedings. in general terms, no steps in the action, by either side, are required or permitted during the period of the stay. where the stay is lifted, or the stay expires, the position as between the parties should stay the same as it was the moment the stay was imposed. the parties pick up where they left off at the time of the imposition of the stay

Question 43

imposition of automatic stay r15.11

Answer 43

15.11.—(1) Where— (a)at least 6 months have expired since the end of the period for filing a defence specified in rule 15.4; (b)no defendant has served or filed an admission or filed a defence or counterclaim; and (c)no party has entered or applied for judgment under Part 12 (default judgment), or Part 24 (summary judgment); and (d)no defendant has applied to strike out all or part of the claim form or particulars of claim, the claim shall be stayed.

Question 44

can a stay be lifted

Answer 44

yes 15.11(2) application must contain explanation for delay in proceeding/responding to the claim court applys 3 step approach set out in denton