11 Statement of case and default judgment Flashcards
Filing request for default judgment or making an application for default judgment?
Filing = 12.4
• where claim is for specified amount of money
• delivery of goods when paying is an alternative
• claim is for fixed costs
Application =
• claim for remedy other than money (injunction)
• costs other than fixed costs
• claim against child or PP
• spouse or civil partner v spouse or civil partner in tort
What are the 5 possible “responses” to a CF and POC
- Acknowledge (only)
- Admit in full
- Defend in full or in part
- D makes Cc against C
- D does nothing
A defendant has 14 days to serve an AOS or a defence UNLESS
Within 14 days of DS of POC, D files an AOS, he then has 28 days from the DS of POC
C soliciting admission by…
Filing notice on D to admit, no less than 21 days before trial
When does D not need to file a defence within 14 days of DS of POC?
- If D is challenging court’s jurisdiction
- Hearing is planned for C to get summary judgment
How may D defend his claim (other than generally disputing facts)?
- Money owed has already been paid
a) court sends notice to C asking if want to continue
b) C responds and copy also sent to D
c) claim stayed for 28 days
d) any party can apply for stay to be lifted - Dispute figures and or facts of medical report
a) disputes
b) can send own figures - Limitation
- Set off
a) only available for defined amounts
A defence must (a-e)
a) deal with each aspect of C’s POC correspondingly (follow structure of POC) must admit, deny or require C to prove (RTP)
b) if D fails to deal with an aspect he is taken to admit it, UNLESS nature of defence deals with it
c) if D disputes statement of value, he must state why and give his own statement of value
d) D’s capacity as a representative
e) service for address
Your client, Mary, is a D2 in a claim. The subject of which is an RTA which happened in 2022. Mary was stationary in her at a crossroad junction as her light was red and the claimant was correctly driving in the adjacent flow of traffic, when Bob who is currently not a party to the proceedings crashed at full speed without breaking into Mary causing her to collide with the claimant and subsequently cause her injuries, Mary also suffered a broken collarbone and whiplash and other minor injuries.
The claimant did not follow the pre action protocol so Mary was unable to inform her of the details of the incident.
Mary is about to file her Defence (as it must be served within 2 days) Mary informs you she wishes to file a claim against C and D2 but she can’t do so in time so she will do at another time.
Mary is worried that if she is unsuccessful she may be landed with substantial costs, which is another factor as to why Mary may not file her claim.
How would you best advise Mary?
Mary may obtain written consent from the other parties (C? Or D2 as well?) to extend the time for filing her defence. If such consent is not obtained, Mary may seek an extension from the court.
Mary can file a counterclaim or additional claim without permission of the court, if she files those claims before or at the same time as her defence. If not, she will have to apply for permission of the court to bring those claims and this will not be consistent with her duty to further the overriding objective, if an extension has not been sought.
As Mary is faultless in this scenario she will not be seeking a claim for contribution or indemnity from D2, the capacity in which she is making the claim against D2 is for her personal injuries, this then means Mary would be entitled to QOCS.
In addition to this, as Mary will very likely not be found liable in the original claim, her costs of defending the claim will be bourne by D2 (as the judge is likely to make a Bullock Order, meaning D2 will pay to C C’s costs and Mary’s cost, which will then be sent to Mary.
PD files a defence and a counterclaim, does C have to reply to both?
C MUST provide a defence to the counterclaim within 14 days. HOWEVER, it is not the same as the original claim, as anything C fails to deal with will be taken as RTP
C may reply to D’s defence to admit something to allege facts with regard to his defence but does not have to
What is the procedure if D does not respond at all?
If after 14 days of DS of the POC, D has not responded, C can (if for fixed costs, specific sum of money, if for delivery for goods money can be paid, amount to be decided by court) file a request for default judgment or if (claim against a child or PP, not fixed costs, spouse v spouse in tort, remedy sought is not monetary) C may make an application for default judgment and in doing provide D with 3 days notice
When is default judgment not available? (8)
PD12 paragraph 1.2
a) claim is Part 8 procedure
b) claim is for delivery of goods subject to agreement regulated by CCA 1974
My notes (that need to be checked)
- PD says so
- D’s pending application (summary judgement or strike out)
- D filed admission with request for time to pay
- D has paid money owed and did not receive CF
- closed material application pending
- C seeking judgment on money*** e.g?
Both on request and on an application for default judgment, the court must be satisfied that -
PD12.4
4.1
1. POC have been served on D (a certificate of service on the court file will be sufficient evidence)
2. Either D has not filed an AOS or defence and time for filing has expired
3. D has not satisfied the claim
4. D has not filed an admission or returned an admission to a claimant
Must C file the evidence relied on in his application for default judgment?
Has D filed an AOS?
If yes, then yes must serve ev relied on
If not, no
The court MUST set side a default judgment when it was entered incorrectly because of -
CPR 13.2
a) the time for filing an AOS had not expired
b) the time for filing a defence had not expired
c) the whole claim was satisfied before default judgment was entered
What are the two circumstances default judgement may be set aside?
- Wrongly entered CPR 13.2
- D PROMPTLY makes an application to show either he has a REAL PROSPECT of SUCCESSFULLY DEFENDING the claim OR THERE IS SOME OTHER GOOD REASON for it to be set aside (or vary)
