6 .Civil Statements of Case, Defence, Default Flashcards
What happens if a defendant fails to respond to a particulars of claim
Judgment in default- claimant will win
What if a claim form is marked with ‘particulars to follow’?
Nothing to do but wait for particulars to be served
3 ways in which a defendant may respond to a claim
- Filing an acknowledgement of service
- Filing a defence
- Filing an admission
What happens where court office is closed, but the time for doing an act ends on that day?
Time does not expire until the end of the first day on which the court office is next open
How is time defined in r2.8
clear days
what does r10.2 provide for where D fails to respond within a set time
(a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3; and
(b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14, the claimant may obtain default judgment if Part 12 allows it.
general rule for time period for acknowledgment of service 10.3
(a) 14 days after service of the particulars of claim where the defendant is served with a claim form which states that particulars of claim are to follow; and
(b) 14 days after service of the claim form in any other case.
which form deals with acknowledgement of service
Form N9
From whom is service acknowledged when a claim is brought against a partnership r10.5(5)
in the name of the partnership on behalf of all persons who were partners at the time when the cause of action accrued.
can be signed by any partner
What if D is a registered co r10.5(3) and 4
a person holding a senior position or any officer of the co, provided they state the position they hold
r11- what must D do if they wish to dispute court jurisdiction
D wishing to dispute jurisdiction of court must indicate this on service acknowledgment
A D can choose to file acknowledgement and file a defence. What is the time limit r15.4
15.4.—(1) The general rule is that the period for filing a defence is—
(a)14 days after service of the particulars of claim; or
(b)if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.
(2) The general rule is subject to rules 3.4(7), 6.12(3), 6.35, 11 and 24.4(4).
Can a time limit for filing a defence be extended?
Yes, with the agreement of the parties for up to 28 days
What must D give the court if parties reach an agreement for extension of filing a defence
written notice of the agreement
Form to use in claims for specified amount
N9B
Form to use in claims for unspecified amount
N9C
What must happen after a defence is filed
copy to be served on all other parties- court effects service
What if D only accepts part of the claim
D fills out appropriate sections of response pack
What if D admits the whole of the claim
Serve N9A on claimant within 14 days of service of particulars
What must D give alongside N9A
personal details, details of income & expenses, an offer of payment (in full by a certain date or by monthly instalments)
What happens once C receives form N9A
C files a request for judment
What if C declines D’s offer to pay by a certain date/instalments
court decides the appropriate order.
no court hearings for claims under 50k
What happens where a rate of payment has to be decided by a judge
proceedings are automatically transferred to D’s home court
Where is Ds home court
County - where D resides or carries on business
High- district registry for the discrint in which D resides or carries on business
No district- Royal courts of justice
Notice period where a decision is made by hearing
notice of at least 7 days
What does the court consider when deciding time/rate of payment
defendants statement of means
claimants objections to defendants request
any other relevant factors
procedure for part admission of specified amount
- D files N9A within 14 days of service
- Court gives notice of admission to C
- C to decide whether they accept offer in full satisfaction of claim, accept offer but not D’s proposals for payment, reject the offer and wish to proceed with claim
- c has 14 days to file notice and serve on D
-If c accepts offer they file for judgment - if D has not requested time to pay, C stipulates time and court enters judgment accordingly
- if c rejects offer, case continues as defended actiomn
procedure for admission of unspecified amount (no offer)
court enters judgment for damages to be assessed at a disposal hearing
name of hearing at which damages are assessed
disposal hearing
procedure for admission of unspecified amount (offer made)
court serves notice on c requiring them to return notice whether or not they accept amount in satisfaction of the claim
if claimant does not file notice, claim is stayed until they do
if c does not accept amount, enter judgment for damages to be assessed at a disposal hearing
how can parties challenge a court decision where court has decided the time and rate of payment by court officer/judge without hearing
apply for re determination by a judge
application to be made within 14 days of service of determination on applicant
when will interest be included where d admits liability for whole amount
particulars of claim include details required by r16.4
interest claim under s35A SCA or 69 CCA if rate is no higher than interest rate payable on judgment debts
c’s request for judgment includes calculation of interest claimed for period from date up to which interest was stated to be calculated in claim form to the date of the request for judgment
what if conditions for including interest have not been satisfied
court decides amount of interest and gives directions as to how this should be acchieved
when can parties apply to vary time and rates of payment para 6.1 PD 14
where there has been a change of circumstances
when can c receive default judgment
D fails to return service acknowledgement
D fails to file a defence
what is a default judgment
c obtains judgment without there being a trial of the issues involved
When is default judgment not available
- claim for delivery of goods under agreement regulated by CCA 1974
- part 8 claim
- any other case where a rule/PD states c may not obtain default judgment
procedure for default judgment
- c files a request using relevant form
- c must satisfy court that
particulars have been served
defendant has not acknowledged service or filed a defence at the date on which judgment is entered, relevant time period expired
defendant has not satisfied claim
defendant has not admitted liability for full amount
what if request for default judgment does not indicate date for full payment , or times and rate at which it is to be paid in instalments for claims of specified amoutns
court gives judgment for immediate payment
what if request for default judgment does not indicate date for full payment , or times and rate at which it is to be paid in instalments for claims of unspecified amounts
request for court to decide amount- involves a disposal hearing -> track allocation and directions
does the time for serving a statement of case run if court has imposed a stay?
no grant v dawn meats
what is a stay
operates to halt or freeze the proceedings. in general terms, no steps in the action, by either side, are required or permitted during the period of the stay. where the stay is lifted, or the stay expires, the position as between the parties should stay the same as it was the moment the stay was imposed. the parties pick up where they left off at the time of the imposition of the stay
imposition of automatic stay r15.11
15.11.—(1) Where—
(a)at least 6 months have expired since the end of the period for filing a defence specified in rule 15.4;
(b)no defendant has served or filed an admission or filed a defence or counterclaim; and
(c)no party has entered or applied for judgment under Part 12 (default judgment), or Part 24 (summary judgment); and
(d)no defendant has applied to strike out all or part of the claim form or particulars of claim,
the claim shall be stayed.
can a stay be lifted
yes 15.11(2) application must contain explanation for delay in proceeding/responding to the claim
court applys 3 step approach set out in denton
