4. Responding to a claim

Question 1

What is form N9?

Answer 1

‘The response back’, the defendant will receive this after they have been served the claim form and particulars of claim

Question 2

What 3 options does the defendant have after being served with the claim form / PoC

Answer 2

1. file an admission
2. file an acknowledgement of service or
3. file a defence
4. DO NOTHING

Question 3

After particulars of claim are served, how long does the defendant have to take action

Answer 3

14 days

Question 4

If the defendant files an acknowledgement of service, how long does this give them to file a defence?

Answer 4

D must file a defence within 28 days of deemed service of the PoC

Question 5

If D responds (specified claim) with an admission for ‘part of the claim’ what options does the claimant have / timeline

Answer 5

14 days to decide whether to
1. Accept and request judgement to be answered for this amount
2. accept part admission but reject proposals for payment (court must then decide)
3. reject offer entirely, proceed with claim as a defended action

Question 6

Unspecified Claim: If defendant admits liability and offers an amount of damages what options does the claimant have

Answer 6

1. Accept
2. Reject, enter judgement for damages to be assessed at a disposal hearing

Question 7

How long can the deadline for filing a defence be extended for - what requirements are there for this?

Answer 7

• deadline can be extended for a max. of 28 days (56 days from date of service of PoC) WITH AGREEMENT OF OTHER PARTIES
• any further extension needs court permission

Question 8

If the defendant does not file an acknowledgement of service or defence within the appropriate time period, what can the claimant do?

Answer 8

Apply to the court for a default judgement

Question 9

If a claimant applies for default judgement, on what two grounds can the defendant apply to get this set aside

Answer 9

1. Mandatory Ground (default judgement wrongly entered because claim already paid or TOO EARLY)
2. Discretionary Ground
   - D has a reasonable prospect of successfully defending claim OR a good reason for missing deadline like being ill

Question 10

If D wants to apply for a default judgement to be set aside, what must they do?

Answer 10

File application notice (Form N244) with witness statement outlining the defendant’s submission

Question 11

Defendant applying to have default judgement set aside: three possible outcomes from the court

Answer 11

1. defendant succeeds, they can continue to defend the action
2. claimant wins, judgement remains in place and may be enforced
3. conditional order is made (ie. judgement set aside if defendant pays monies to court)

Question 12

Setting aside a default judgement: when will the claimant be liable to pay the defendant’s costs

Answer 12

• if application is granted for mandatory ground

Question 13

Setting aside a default judgement: when will the defendant be liable to pay the claimant’s costs

Answer 13

• if defendant only establishes discretionary ground of real prospect of success (as they should have dealt with proceedings initially)
• if application fails, D pays C’s costs of the application

Question 14

At what point in the proceedings can a discontinuance be issued?

Answer 14

Any point in the proceedings

Question 15

Requirements for discontinuance: Permission

Answer 15

1. need written consent of every other party OR
2. court gives permission
3. must serve notice on parties (with consent attached if relevant)

Question 16

What is a consent order

Answer 16

Order used when neither party is a litigant in person and can draw up an order for court to approve (rather than court deciding) essentially a settlement

Question 17

Formalities for a consent order

Answer 17

1. must include all terms agreed by parties
2. must be expressed as being ‘by consent’ and
3. signed by the legal representatives acting for each of the parties to whom the order relates

Question 18

How ‘private’ is a consent order?

Answer 18

Not very, the terms of the CO are open to public inspection

Question 19

If parties want to reach settlement without terms being open to public inspection, what should they do?

Answer 19

Get a tomlin order, wherein certain terms can be listed on separate documents / schedules which are then kept private
- terms such as ‘by consent’ and pausing proceedings, and signed by both must be in the order itself

Question 20

If a defendant wants to dispute a court’s jurisdiction, where do they do this?

Answer 20

In the acknowledgement of service
- can do so 14 days after by separate application supported by evidence
- if unsuccessful, original AoS will be ineffective so another one must be filed