Responding to a claim Flashcards
(25 cards)
What are the defendant’s 3 options?
- file/serve an admission
- file a defence
- file an acknowledgement of service
Defendant admits the claim
Admission:
- form is sent in response pack with Particulars of Claim
- deadline: within 14 days of PoC
- Specified claim: if admitted in full, judgment amount is known. If admitted in part, state the balance that remains in dispute
- Unspecified claim: can either admit liability to pay for whole (court decides £) or offer a sum in satisfaction
- Entering judgment
What is entering judgement?
- Judgement = final order, disposes of the claim
- indicates that C is fully/partially successful
- D’s prefer to avoid judgments as they are on a public register for 6 years
- if spec claim has been admitted and paid in full within 14 days, judgement is unlikely
- settlement
- withdrawal
Defendant defends the claim (files defence)
- MUST react to every point/allegation in PoC
- if they do not = admit it (unless it is a money claim)
- must also state full details of D’s own case
- must give reasons if denying an allegation
- can also ‘require proof’ if they cannot admit/deny because they do not know
What are the time limits for serving defence?
- If no acknowledgement of service, serve within 14 days of DDS of PoC
- If acknowledgement of service, serve 28 days after DDS of PoC
- Can extend up to further 28 days (mutual agreement), or apply to court to get up to 56 days
Counter claim
- separate claim to main claim, normally made at the same time as filing defence (permission is needed if want to make CC after)
- must be a viable cause of action
Defendant disputes jurisdiction
Common grounds:
- D disputes applicability of Hague
- D argues none of the jurisdiction gateways were met
- D argues there is a more suitable forum
To dispute: file an ACK of service and submit application to contest jurisdiction within 14 days of ACK
Cannot contest jurisdiction if you have submitted to it (e.g., party takes step to engage with proceedings)
What is judgement in default?
- granted in C’s favour without trial if D hasn’t responding to CF
- C can apply, court will then make an order requiring D to pay the claimed sum
- may include interest
- setting aside: court must consider how quickly D made application to set aside - Denton principles apply
What is Part 36 settlement?
Part 36 offers a framework for settlement offers: rewards people who make fair settlement offers by penalising those who reject them unreasonably
- can be made a any point, even before formal litigation
How is Part 36 offer made?
- in writing, stating it is a part36 offer
- includes a relevant period, minimum 21 days
- specify where it covers part/whole of the claim and whether it includes a CC
- if D is making the offer, they must generally offer a sum to be paid within 14 days
Can clarification of Part 36 be made?
Offeree can request clarification of terms within 7 days
How to accept a Part 36 offer?
Acceptance requires written notice
- if before proceedings, a letter is fine
- if after, must also file at court
The offer remains open until it is withdrawn. Even if relevant period has ended, it stays open unless it is explicitly set to expire. Cannot be withdrawn/altered once accepted
What happens after Part 36 offer is accepted?
- Claim is stayed
- unless otherwise agreed, D must pay within 14 days of acceptance (C can enter a judgement otherwise)
Impact of acceptance on costs
- within relevant period - C is entitled to costs up to date that acceptance was served
- after relevant period - court determines cost liability unless parties agree
- within 21 days of trial - court decides if parties can’t agree
- acceptance in part - if offer leaves out part of claim, it is up to C what to do:
a) abandon remainder
b) pursue remainder (court determines)
Withdrawing/changing a Part 36 offer
- CANNOT happen once accepted
- if trial has begun, court permission is needed
- if during relevant period, withdrawal/change takes effect afterwards unless offeree accepts
What is discontinuance?
Only C can discontinue a claim
- C can do so at any time
- It means C is choosing not to pursue the claim against D any further
- can discontinue part of the claim
What are the consequences of discontinuance?
- ends the proceedings in relation to claim/part of claim
- C is liable to pay D’s costs up to the point of discontinuance, unless court orders otherwise
Procedure for discontinuance
- file a notice of discontinuance at court and serve a copy on every party
Why acknowledge service?
- More time to file a defence - additional 14 days from DDS of PoC (gives D 28 days)
- Dispute the court’s jurisdiction
Counting time rules
- Day on which period begins is not included
- Period of 5 days or less - do not count weekends
- Day on which period ends is included, unless the period ends on an event
- Court office closed? In time if done on next open day
What happens if defendant does not respond at all?
If the claim is properly issued and served and time limits for D responding have passed
- C can request/apply for judgment in default
What does judgment in default mean?
This means the claimant has won because of the procedural reason that D has failed to respond to proceedings
What happens if judgment in default is wrongly entered?
It must be set aside
What happens if judgment in default is correctly entered but D wishes to contest it?
Application to set aside default judgment
The court may set it aside if:
- D has real prospect of successfully defending the claim; or
- there is some other good reason
- Test for applying for relief from sanction also applies
