Responding to a Claim Flashcards
(18 cards)
What must the defendant wait to receive before they can respond to a claim?
The Particulars of Claim, when the claim form says that they are to follow
D has four main options after receiving the claim form and PoC. Give an overview of these and their deadlines.
1) To file an admission, in part or in whole - within 14 days of deemed service of PoC
2) To file an acknowledgment of service within 14 days of deemed service of PoC and a defence within 28 days of the deemed service of PoC
3) To file a full defence (Part 15) - within 14 days of deemed service of PoC
4) D can also ignore the claim, which will allow C to apply for judgment in default
How do admissions work for specified claims?
Specified claims form
1) If D admits whole claim, they provide details of their income + expenditure and make an offer of payment in full or instalments; if C rejects payment terms, the judge will decide the appropriate rate of payment
2) If D admits part of the claim, C has 14 days to consider the offer and decide whether:
- To accept the part admission in full satisfaction of the claim
- To accept part admission but not D’s proposals for payment, so court decides on their suitability
- To reject the offer and proceed with their claim as a defended action
How do admissions work for unspecified claims?
Unspecified claims form
D admits liability and offers a sum of money; C can accept or reject
If C rejects or D makes no offer, damages will be assessed at a disposal hearing
What is the purpose of an acknowledgment of service?
This buys D time to prepare a defence – they will have 28 days to file the defence from service of the PoC
Note that it does not give them a further 14 days from date of acknowledgement; it just allows an extra 14 days from the deemed service date of PoC
Give some more details about a defence
1) D can file a full defence within 14 days of service of the PoC, either using the forms in the response pack or with a separate document
2) Once a defence has been filed, a copy must be served on all other parties – court responsible for this usually
3) D can also enter a counterclaim at the same time
4) Parties can agree to give a further 28-day extension to filing a defence, leaving D with a total 56 days if they also file an acknowledgement of service – further extensions possible with court permission
If a defendant wants to seek an indemnity or contribution from another party, how should they do this and when?
D can issue a Part 20 claim for an indemnity against a party which they have a contractual relationship with
A contribution is more likely where there is no direct contractual relationship
The best time to do this is after acknowledgement of service and before, or at the same time as, filing a defence, as this means they do not need the court’s permission
Generally, what must C prove to obtain judgment in default?
To succeed, C must satisfy the court that:
- The PoC have been served on D
- D has not filed an acknowledgment of service form or a defence within the relevant time period
Where applying for default judgment for a specified sum, what else must C do?
- Indicate the date payment was due
- Calculate an up-to-date total for the interest claimed; and
- State a daily rate at which interest accrues
Once final judgment has been entered, payment is usually required in 14 days
Where applying for default judgment for an unspecified sum, what else must C do?
Where the claim is for an unspecified sum, court will grant C’s request for default judgment, but the case will come back before the court to decide the damages payable (a disposal hearing)
D can get the default judgment set aside on two sets of grounds. The first is ‘mandatory grounds.’ Explain these
1) Court obliged to set it aside if the default judgment was wrongly entered. For example:
- Where it was entered too early; or
- The claim has already been paid in full
2) C liable for D’s costs if an application is granted on these grounds
What are the ‘discretionary grounds’ under which the court may set aside default judgment?
Court can set it aside where D
1) Has a real prospect of successfully defending the claim; or
- Normally D has to pay C’s costs if this argument succeeds
2) There is some other good reason why D should be allowed to defend the claim
- D was ill or on holiday so couldn’t respond as an example
- D ought to issue their application to set aside ASAP as court will take the immediacy into account
- Neither side at fault, so costs are in the case
How does D apply for default judgment to be set aside and what are the possible options available to the court?
D submits an N244 form and witness statement outlining submissions, to ask judgment to be set aside and judge can make 1 of 3 orders:
1) D succeeds and judgment set aside, allowing them to continue to defend the action
2) C wins and judgment remains, so they can proceed to enforcement
3) Judgment set aside on condition that D pays monies into court, for example the amount of the claim – rarely used
If the application fails, D pays C’s costs of the application
What is discontinuance?
1) C can decide to no longer pursue the claim, even though no settlement has been reached
- They can discontinue all or part of the claim at any time during proceedings
2) Permission not normally needed
- If multiple Cs, all must consent in writing or the court must give permission
3) C can discontinue the claim against all or any of the defendants if there are multiple
4) To do this, C must file and serve a notice of discontinuance on the parties to the proceedings; consent, if needed, is attached to the notice
5) C liable for the costs of proceedings unless court orders otherwise – solicitor must inform C of this
Give some details on pre-action settlements
If a settlement is reached prior to issue of proceedings, C cannot recover their legal costs until terms agreed
These terms should be clearly and accurately recorded in writing for enforcement purposes
If a settlement is reached after proceedings have started, this may be recorded in a consent order. Give details on these
Formalities for a consent order are:
- (a) the order agreed by the parties must be drawn up in the terms agreed;
- (b) it must be expressed as being ‘By Consent’; and
- (c) signed by the legal representative acting for each of the parties to whom the order relates.
Effect of the order is that, provided one party pays the other, as agreed by the terms in the order, the **claim will come to an end **
Claim is ‘stayed’ until commitments met, meaning C could return to court if D doesn’t do what they’re supposed to do
Terms of a consent order are open to public inspection and so not confidential
If a settlement is reached after proceedings have started, this could also be recorded in a Tomlin order. Give details on these
1) Certain terms must appear in the order and others can be put in a schedule to the order
2) Those required in the order:
- By consent – records the fact there was agreement
- Stay of proceedings – confirms proceedings are paused
- Liberty to apply – allows any party to apply to court for the stay to be lifted and they can ask the court to enforce the settlement
- Payment of costs or detailed assessment of costs - Where one party is to pay another’s costs and/or the parties want the amount of those costs to be assessed (checked and calculated) by the court, that direction must go in the order itself.
- Signed by the parties’ solicitors – formal requirement signifying consent to the agreement
3) Terms that the parties wish to keep confidential should go in the schedule to the order – often the payment sum is keep confidential so other businesses cannot see it
How can the court’s jurisdiction be disputed by the defendant?
1) If D wants to dispute the jurisdiction of the court, this must be stated on the acknowledgement of service
- D then has 14 days to make a challenge – application to challenge jurisdiction must be supported with evidence to show why E+W is not the proper forum for the case
- Filing a defence is treated as accepting their jurisdiction
2) If application re jurisdiction granted, proceedings come to an end and service of the claim form is set aside
3) If application re jurisdiction refused, D must file a further acknowledgement of service within 14 days and proceedings continue as normal
