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Dispute Resolution > 10: The defendant's response > Flashcards

10: The defendant's response Flashcards

1
Q

How many days does the defendant have from the date of service of the particulars of claim to enter a formal response?

A

14 days.

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2
Q

What documents does the defendant receive along with the particulars of claim?

A

Form N9 Response Pack.

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3
Q

What does the Form N9 Response Pack include?

A

An acknowledgment of service form (N9)
A form of admission (N9A for specified amount, N9C for non-specified amount)
A form of defence and counterclaim (N9B for specified amount, N9D for non-specified amount)

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4
Q

What must the defendant do to avoid default judgment?

A

Respond to the claim by completing one of the forms in the Form N9 Response Pack within the prescribed time limit.

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5
Q

Which form should be completed if the claimant’s action is for a specified sum of money and the defendant wants to make an admission?

A

Form N9A.

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6
Q

Which form should be completed if the claim is for an unspecified sum and the defendant wants to make an admission?

A

Form N9C.

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7
Q

If the defendant receives a claim form with no particulars included, when should they respond?

A

They need not respond until the particulars are received.

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8
Q

Which Part deals with if the defendant wishes to admit the claim?

A

Part 14.

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9
Q

Which Part deals with if the defendant wishes to contest the claim?

A

Part 15.

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10
Q

What action should the defendant take if they wish to admit only part of the claim?

A

File a defence and partial admission.

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11
Q

What action should the defendant take if they need more than 14 days to prepare a defence or contest the jurisdiction of the court?

A

File an acknowledgment of service (N9).

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12
Q

Would an offer to compensate count as an admission of liability?

A

No, a clear admission of liability is required.

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13
Q

When and how can a party admit the truth of the whole or any part of the other party’s case?

A

At any stage of the proceedings, by giving notice in writing.

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14
Q

What must the claimant do when there is an admission of the whole of a claim for a specified amount?

A

File a request for judgment in the prescribed form, and judgment will be entered for that amount plus fixed costs.

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15
Q

For which financial reason might a defendant decide to admit the claim early?

A

To restrict the claimant to fixed costs.

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16
Q

What happens where there is an admission of a claim for an unspecified amount?

A

Judgment may be entered by filing a request, limited to judgment on liability, with the amount to be decided later by the court.

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17
Q

What should be included in the acknowledgment of service (Form N9)?

A

Full name
Address for service of documents
If legally represented, the address of the legal representative.

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18
Q

Who can sign off on Form N9 for an individual, a company, a partnership and a child?

A

The defendant or their legal representative
A senior position holder in a company or corporation
Any partner in a partnership
A litigation friend or legal representative for children and protected parties.

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19
Q

How can the 14-day period for filing a defence be extended?

A

By filing an acknowledgment of service (to 28 days)
Written consent from the claimant (up to 56 days all in)
Or obtaining a time order from the court.

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20
Q

What happens if a defence to a Part 7 claim is not filed within the prescribed time?

A

Judgment in default may be entered in favour of the claimant.

21
Q

How long does the claimant have to seek default judgment after the defence should have been filed before the claim is stayed?

A

6 months.

22
Q

What are the three types of defences?

A

Procedural defence
Defence to the claim for damages
Defence to the cause of action

23
Q

What are the differences between defences to the claim for damages and defences to the cause of action?

A

Defences to the claim for damages: it is not a good enough claim, e.g. doesn’t set out the right elements, no mitigation of loss, negligent.

Defences to the cause of action: there is no action to be had, e.g. there is no case, it will easily be ruled in the defendant, the defendant has no liability.

24
Q

What are examples of defences to the claim for damages?

A

E.g. the claim does not set out all required elements, the loss was not caused by the breach, the loss was not foreseeable, the claimant failed to mitigate their loss, or the claimant was also negligent.

25
Q

When does default judgment not apply?

A

When there is an application pending to strike out the claim/summary judgment is pending. Also possibly against a child is not allowed.

26
Q

Can a defendant obtain default judgment on a counterclaim against a claimant?

A

No, default judgment on a counterclaim is not applicable, but may be obtained after the time for filing the defence has expired.

27
Q

Can default judgment be entered before a certificate of service is filed?

A

No, the claimant must file a certificate of service (N215) beforehand.

28
Q

What are the methods for seeking default judgment and is there a fee?

A

By filing a request (no fee, dealt with administratively) or an application to the court (fee, dealt with judicially).

29
Q

When is filing a request for default judgment used?

A

SPECIFIED AMOUNT: Form N225 - When the claim is for a specific amount of money
UNSPECIFIED AMOUNT: Form N227 - For a sum to be determined by the court

Everything else will be via an application to the court (N244), e.g. more than one defendant or applying for costs only.

30
Q

What form is used for an application to the court for default judgment?

A

Form N244 (the application to the court standard form).

31
Q

What must accompany Form N244 for an application to the court for default judgment?

A

Supporting evidence and a fee for the application.

32
Q

What is the process for applying for default judgment for a specified amount?

A

The claimant completes request Form N225 and files it at court.

The court then enters default judgment, produces order N30, and sends copies to the claimant and defendant.

33
Q

What is the process for applying for default judgment for an unspecified amount?

A

The claimant completes request Form N227 and files it at court.

The court refers papers to a Master/District Judge for case management directions for assessment of the amount.

Court provides directions/hearing date by producing N17 order and sends copies to the claimant and defendant.

34
Q

What form is used for a specified amount in a default judgment request?

A

Form N225.

35
Q

What form is used for an unspecified amount in a default judgment request?

A

Form N227.

36
Q

What order is produced when the court enters default judgment for a specified amount?

A

N30.

37
Q

What order is produced when the court enters judgment for an amount to be decided by the court?

A

N17.

38
Q

What are the reasons why a court MUST set aside a default judgment?

A

When the defendant shows the default judgment was wrongly entered, e.g.

  1. it was entered too early
  2. during an ongoing application to strike out or dismiss
  3. after the whole claim was paid
  4. after the defendant filed an admission with a request for time to pay
39
Q

What 3 things must a defendant show to seek an order to set aside a default judgment, if it MAY be set aside?

A
  1. A real prospect of successfully defending the claim (witness statement + intended defence)
    OR
  2. Establish some other good reason for setting aside the judgment (in witness statement)
    AND
  3. The application has been made promptly
40
Q

What evidence is required to set aside a default judgment?

A

The chronology or facts that bring the application, which can include copies of supporting evidence.

41
Q

What should be sought in any application to set aside default judgment (MUST type)?

A

The consent of the other party. If it is had, there won’t be a hearing and it will be done by paper application.

42
Q

What is the procedure for having a default judgment set aside?

A

Submit an application using Form N244, with supporting evidence, demonstrating a real prospect of success and prompt submission.

43
Q

Under what conditions will an application for setting aside default judgment be transferred to the defendant’s home court?

A

When the claim is for a specified sum and the defendant is an individual. If not both of these, it will go to the claimant’s preferred court.

44
Q

What is the first step in setting aside a default judgment?

A

The party lodges N244 (application notice) and pays the fee to set aside or vary the default judgment with supporting evidence at the court.

45
Q

What is the next step after the party lodges the N244 application notice?

A

The court fixes an appointment for an application hearing before a Master/District Judge and sends a copy of the application notice and N244A (notice of hearing) to all parties.

46
Q

What happens if the Master/District Judge refuses the application to set aside the default judgment?

A

The court staff produce an order, and copies are sent to all parties.

47
Q

What happens if the Master/District Judge sets aside the default judgment?

A

The court staff produce an order, send copies to all parties, and send a notice to Registry Trust Ltd advising that the judgment has been set aside.

48
Q

What is the Registry Trust Ltd?

A

It puts judgments on a record after 28 days, which then affects credit scores.

49
Q

Why is it important that a default judgment in error gets set aside prompty?

A

It can really affect the credit score of an individual or company, which can affect getting loans.

Dispute Resolution (20 decks)

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