LGS04 Responding DJt SJt Flashcards
(79 cards)
Particulars of Claim may be served:-
- With the Claim Form by being written on the second page of the Claim Form
- With the Claim Form by being stapled to the Claim Form
- Separately, at a later date.
Deadline for serving Particulars of Claim
By CPR, r. 7.4(1), Particulars of Claim must be served within 14 days after service of the Claim Form; and
By CPR, r. 7.4(2), Particulars of Claim must in any event be served during the [4 month] period of validity of the Claim Form
Responding to Particulars of Claim
CPR, rr. 6.26, 9.2, 10.3(1) and 15.4(1): The Defendant has 14 days from the deemed date of service of the Particulars of Claim to respond by filing:
- An admission APA pp 66-67
- An acknowledgment of service (A/S); and/or APA p 65
- A Defence
Calculating Time Available for Filing the Defence
Particulars of Claim may be part of the claim form, or a separate non-“claim form” document
- Have Particulars of Claim been served?
- Date of act of service
- Calculate deemed date of service:
- where the Particulars of Claim are endorsed on the claim form, CPR, r. 6.14 it will be the second business day after completion of the relevant step
- where the Particulars of Claim are served separately from the claim form, deemed dates of service are calculated using the rules in CPR, r. 6.26
- Add 14 days (CPR r. 15.4(1)(a)); or
- Add 28 days if D has filed an A/S (r. 15.4(1)(b))
While this [calculating the date for filing a defence] provides a clear date for the claimant, what is the danger faced by the defendant?
[Answer: there may be delays in the post, or the communication may go astray, or the postmark on the envelope may be later than the date it was placed in the post box (PD 6A, para 3.1). All these may give a misleading date / no notice at all for the defendant].
how do you File a Defence or Defence and Counterclaim?
- Form N9B; or APA p 68-69
- Draft a formal statement of case called a “Defence and Counterclaim”
How do you Extend the time for filing a Defence
CPR, r. 15.5
(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.
(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.
In undefended cases the Claimant can enter default judgment. This arises:-
(a) If the Defendant fails to file either an A/S or a Defence within 14 days of the deemed date of service of the Particulars of Claim
(b) If the Defendant files an A/S admitting the claim
(c) If the Defendant files an A/S stating an intention to defend, but fails to file a Defence within 28 days of deemed date of service of the Particulars of Claim
What is the procedure for entering default judgment in money claims.
Procedure in money claimsCPR r. 12.4(1)
Claimant enters default judgment by filing:-
- request for judgment form at court
- certificate of service (unless the court effected service)
What is the procedure for obtaining default judgment in in claims for equitable relief
Procedure in claims for equitable reliefCPR r. 12.4(2),(3)
Claimant either:
- abandons the equitable relief and simply requests default judgment on any money claim
- applies using the CPR Part 23 procedure to the court, where at a hearing the Claimant will seek to persuade the court to enter judgment for the equitable relief
In which Money Claims cases is an application required to enter default judgment?
Money claims where default judgment requires an application CPR r. 12.10
An application using the Part 23 procedure is required to enter a default judgment even in a money claim:
(a) in claims against children and protected persons
(b) in tort claims by one spouse or civil partner against the other.
Exceptions where default judgment is not available
CPR r. 12.3(3)
Claimant is not allowed to enter default judgment if:
(a) (i) D has applied to strike out C’s case
(a) (ii) D has applied for summary judgment
(b) D has paid the whole claim
(c) In a money claim D has filed an admission with a request for time to pay
(d) [closed material case under Justice and Security Act 2013 s 6]
Also not available in Part 8 claims (PD 12, para 1.2(1))
Default judgment in claim for specified sum of money
Default judgment in claim for specified sum of moneyCPR r. 12.5(1),(2)
Typically judgment is for the whole sum
- plus interest to date of judgment (for requirements see r. 12.6)
- and costs
C may agree to payment by instalments
Default judgment for an unspecified sum
Default judgment for an unspecified sumCPR r. 12.5(3)
Judgment for an amount to be decided by the court, plus costs.
Court will give directions and may allocate to a track (r. 12.7)
Default judgment in claim against more than one D
- CPR r. 12.8 provides:
- (1) A claimant may obtain a default judgment on request under this Part on a claim for money or a claim for delivery of goods against one of two or more defendants, and proceed with his claim against the other defendants.
- (2) Where a claimant applies for a default judgment against one of two or more defendants –
- (a) if the claim can be dealt with separately from the claim against the other defendants –
- (i) the court may enter a default judgment against that defendant; and
- (ii) the claimant may continue the proceedings against the other defendants;
- (b) if the claim cannot be dealt with separately from the claim against the other defendants –
- (i) the court will not enter default judgment against that defendant; and
- (ii) the court must deal with the application at the same time as it disposes of the claim against the other defendants.
- (a) if the claim can be dealt with separately from the claim against the other defendants –
A claimant may not enforce against one of two or more defendants any judgment obtained under tPart 12 for possession of land or for delivery of goods unless –
CPR r. 12.8 provides:
(3) A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless –
(a) he has obtained a judgment for possession or delivery (whether or not obtained under this Part) against all the defendants to the claim; or
(b) the court gives permission.
Joint Liability (Part 12)
Where defendants have joint liability, the case comes within r. 12.8(2)(a), and default judgment may be entered against a defendant who fails to file a Defence.
Several Liability (Part 12)
Several liability
Where defendants have several liability, under r. 12.8(2)(b) the court must not enter default judgment against those defendants who do not file Defences.
What does setting aside mean?
Setting aside means cancelling a judgment or order or a step taken by a party in the proceedings (CPR Glossary).
Setting aside as of right
Setting aside as of right
CPR, r. 13.2:
The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–
(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
(c) the whole of the claim was satisfied before judgment was entered.
Discretionary setting aside
Discretionary setting aside
CPR, r. 13.3:
(1) In any other case, the court may set aside or vary a [default] judgment …
Procedure for setting aside default judgment
Procedure
D issues an application notice using the Part 23 procedure (Workbook pp 21-23).
CPR, r. 13.4(3): An application under r. 13.3 must be supported by evidence. This means written evidence supported by a statement of truth.
- Typically in a witness statement (see APA Civil p 363).
- Can use the space on the application notice (Workbook p 22).
- Can rely on the statements of case.
Draft defences in applications for setting aside default judgment
It is normal to exhibit a draft Defence with a signed statement of truth to the W/S
Failing to do so has been described as “unsatisfactory”, see
Regione Piemonte v Dexia Crediop SpA [2014] EWCA Civ 1298 at [60]
Test for discretionary setting aside
CPR, r. 13.3:
(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.