5) Responding to a claim Flashcards
Particulars of claim
Defendant must await service of these. Until they respond
Options
1) To file an admission
2) To file an acknowledgment of service
3) To file a defence
Admissions - Definition
If a defendant is aware they owe the money provided they have the means to pay it is likely to be in their interests to admit the claim
Admission of entire claim - Specified claims
If a defendant admits the whole claim for a specified amount they must provide details of their income and expenditure and make an offer of payment either in full or by way of instalments
Admission of part of the claim - Specified claims
If the defendant admits only part of a claim for a specified amount. The claimant has 14 days to consider any offers made and to decide on their next course of action:
- To accept the part admission in full satisfaction of the claim and request that judgment be entered by the court for that amount
- To accept the part admission but not the defendant’s proposals for payment in which case the court will decide on their suitability
- To reject the offer entirely and proceed with their claim as a defended action
Admission - Unspecified claims
Where the defendant admits liability for a claim for an unspecified amount and offers a sum of money, the court will serve a notice on the claimant asking whether or not they accept the figure in satisfaction of the claim.
Acknowledgement of service
In many cases the defendant may be sure they want to defend the claim but are not yet in a position to draft a full defence perhaps because they are still gathering evidence. Filing the acknowledgement of service form buys the defendant time to enable them to do this. They have 28 days to file defence instead of 14 (from deemed service not including deemed service)
Filing a defence
Once the defence has been filed a copy must be served on all the other parties. They may wish to file a counterclaim. If the defendant needs more time the parties can agree and they can have a maximum of up to 56 days from the date of service of the particulars of claim
Default judgment - Definition
If the defendant takes no action at all. The claimant can still force an issue through a default judgment. This means that the claimant obtains a judgment without there being any consideration of the facts involved.
Default judgment - Procedure
The claimant will make an application under CPR Part 12 and this will require them to complete a request for default judgment. To succeed, they must satisfy the court that:
* the particulars of claim have been served upon the defendant; and
* the defendant has not filed an acknowledgement of service form or a defence within the relevant time period.
Default judgement - Specified sum
When applying for judgment in default for a specified sum the claimant must:
- Indicate the date payment was due
- Calculate an up-to-date total for the interest claimed
- State a daily rate at which interest accrues
Setting aside default judgments
2 grounds under part 13 CPR on which the defendant may rely in their application:
- The mandatory ground
- The discretionary ground
Setting aside default judgments - The mandatory ground
Court obliged to set aside default judgment if it was wrongly entered - if it has been entered too early, before the time for filing an acknowledgment of service or a defence expired.
Setting aside default judgments - The discretionary ground
Court has the power to set aside default judgment in the following circumstances:
- the defendant has a real prospect of successfully defending the claim
- there is some other good reason why the defendant should be allowed to defend the claim e.g the defendant was ill or on holiday so they could not respond within the time constraints
The court will also take account of the promptness of the defendant’s application to set aside
Default Judgments - Orders
There are three possible orders the judge can make:
(a) the defendant succeeds and the judgment is set aside, allowing them to continue to defend the action;
(b) the claimant wins and the judgment remains in place, so they may proceed to
enforcement; or
(c) a conditional order is made, namely, the judgment is set aside on condition the defendant pays monies into court, for example, the amount of the claim.
Default Judgment - Costs
If the defendant’s application succeeds due to good reason costs are usually in the case.
If the defendant’s application succeeds due to real prospect then they have to pay claimant’s costs.
If the defendant’s application succeeds due to the mandatory ground then claimant has to pay their costs.
If the defendant’s application fails they have to pay the claimant’s costs
Discontinuance
A claimant may decide not to pursue their claim even though no settlement has been reached. A claimant may at any time during the proceedings discontinue all or part of a claim. The claimant must file and serve notice of discontinuance on the parties. The claimant is liable for costs.
Pre-action settlements
Where a settlement is reached prior to the issue of proceedings, the prospective claimant will not be entitled to recover their legal costs unless this has been agreed.
Settlements reached after the issue of proceedings
If a settlement is concluded after proceedings have started, it is preferable for this to be recorded in a court order or judgment.
Consent order - usually if neither party is a litigant in person.
Tomlin Order
A consent order that allows parties to agree on terms to settle a dispute keeping terms confidential in a separate scheduleI Terms that the parties wish to keep confidential or that the court does not have the power to order must be set out in a schedule to the Tomlin order or in a separate document
Disputing the court’s jurisdiction
This must be stated on the acknowledgement of service. The defendant then has 14 days to make a challenge
