Responding to a claim

Question 1

What is the difference between a specified claim and an unspecified claim?

Answer 1

Specified claim: Claim for a specific amount of money;

Unspecified claim: Claim where damages are sought but not specified

Question 2

What is the purpose of an acknowledgement of service?

Answer 2

Used when the defendant wants to defend the claim but is not in a position to draft a full defence.

Question 3

What is the effect of an acknowledgement of service?

Answer 3

It extends the time to reply to the claim form from 14 days after service of the POC to 28 days.

Question 4

What are the options when responding to a claim?

Answer 4

• Admission (whole or part);
• Acknowledgement of service;
• The Defence;
• Defence and Counterclaim;
• Counterclaim.

Question 5

In a defence, what responses must be included against the Particulars of Claim?

Answer 5

(i) Admit;
(ii) Deny;
(iii) Require Proof. This is when the defendant doesn’t want to accept something, but does not have an alternative explanation to put forward.

Question 6

What is the standard time limit for filing a defence?

Answer 6

14 days from the service of the POC;

28 days if an acknowledgement of service was filed.

Question 7

What is the longest time limit available for filing a defence?

Answer 7

56 days from POC service.

Question 8

When is a default judgment served?

Answer 8

When the time limit for serving a Defence has lapsed.

Question 9

What must an applicant for Default Judgment show?

Answer 9

That the POC has been served upon the defendant; and

The defendant hasn’t filed a reply within the relevant time.

Question 10

What are the cost implications of a default judgment when it is:

• Set aside on mandatory ground;
• Set aside on discretionary ground (good reason to allow D to defend the claim - i.e. if they were ill and that’s why they missed the deadline);
• Set aside on discretionary ground (real prospect)

Answer 10

• Set aside on mandatory ground: C pays D’s costs;
• Set aside on discretionary ground (reason for default): no specific cost implications;
• Set aside on discretionary ground (real prospect): D pays C’s costs

Question 11

When can a claimant discontinue a claim?

Answer 11

At any point in the proceedings

Question 12

Is permission required to discontinue the claim?

Answer 12

No, but may need permission if the court has granted an interim injunction

Question 13

What is the procedure for discontinuance?

Answer 13

C must file and serve a notice to all the parties in the proceedings.

If consent was required, this needs to be served, too.

Question 14

What happens when a settlement is reached after the issue of proceedings?

Answer 14

If a settlement is reached, it is preferably recorded in a court order or judgment.

Often, it is in a consent order when the parties want to avoid court.

Question 15

What is a Consent Order?

Answer 15

Settlement written down in terms that the court has the power to order. It is a public document.

Question 16

What is a Tomlin Order?

Answer 16

Stays a claim on agreed terms; can contain normal terms, but has the benefit of being confidential if the parties wish and can include terms the court cannot order.

Confidential terms and terms a court can’t order are in a separate document.

Question 17

How can a defendant dispute the court’s jurisdiction?

Answer 17

Must be stated on an acknowledgement of service; D must NOT serve a defence as they effectively forfeit to the jurisdiction thereafter.