Acting for the Defendant Flashcards
What duties is the defendant charged with?
Explaining any defence they file and setting down why they submit that the claimant’s allegations are false or cannot be substantiated
How long does the defendant have to enter a response to the claim?
14 days from deemed date of service of
If the defendant does not provide a response to the claim within the time limit, what happens?
The claimant can apply for a judgment in default
If counterclaim made, who has the burden of proof?
Defendant
What are the options available to the defendant?
Admission, defence, AoS
How much more time does the defendant have if they file an AoF?
28 days from deemed date
Part 11
Gives the defendant an option of applying to the court for an order declaring that it has no jurisdiction or that it should not exercise any jurisdiction it may have
Where a defendant makes an application under Part 11, they-
Should not file a defence before the hearing of the application as this is likely to be taken a a submission to the jurisdiction
Likely orders under Part 11
For the claim form to be set aside, service of the claim form to be set aside, discharge of any order made before the proceedings and a stay
How can an AoS be amended or withdrawn?
Only by permission of the court following an application with evidence
If an admission is made-
The matter will conclude without a trial
An admission must be-
A clear admission of liability
Rule 14.1
Any party may admit the truth of the whole or any part of another party’s case at any stage of the proceedings by giving notice in writing
When the defendant makes an admission-
The claimant is entitled to apply for judgment and the court will make such judgment as it appears the applicant is entitled to on the admission
If a claim for a specified sum is admitted in full then under r14.4-
The claimant should file a request for judgment in the prescribed form and judgment will be entered for that amount for fixed costs (modest)
If a claim for an unspecified sum is admitted in full then under r14.6-
A judgment may be entered by filing a request but it will be a judgment on liability with the amount to be decided later by the court
In deciding the time and rate of payment following an admission, the court will take into account- (3)
Statement of means, the claimant’s objections to the defendant’s request and any other relevant factors
Who determines the level of instalments?
A judge or a court officer (if specified less than £50k)
If first instalment determination taken by a court officer, then-
Re-determination can take place without a hearing
If first instalment determination taken by a judge, then-
Re-determination must take place at a hearing unless the parties agree otherwise
Rule 15.2
A defendant who wishes to defend all or part of a claim must file a defence
Rule 15.6
A copy of the defence must be served on any other party
Types of defence
Procedural, to the cause of action, to the claim for damages
Rule 12.3
If a defence is not filed within the prescribed time, judgment in default may be entered in favour of the claimant
Exceptions to the 14-day rule for filing a defence
Where the claimant applied for a summary judgment under Part 24 extended to after the hearing and where the defendant disputes jurisdiction extended to after the jurisdiction hearing
By r15.5, how much can the period for filing the defence be extended by consent?
A further 28 days
If you want an extension for filing a defence longer than 28 days from the original 28 days, what needs to be done?
An application to the court needs to be made
What is required in a defence? (2-4)
Statement of value, address for service and for PI medical report and schedule of past and future loss and expense
If the defendant fails to deal with an allegation-
They will be deemed to have admitted that allegation
If the defendant has clearly addressed the issue in their defence but just not specifically related it to the allegation-
They will not be deemed to have admitted it
For each allegation, the defendant has the following options-
Admit it, deny it, make no admissions, seek to shift the blame
What’s the effect of making no admissions?
It leaves the claimant with the burden of proving their allegation or fact
When does a counterclaim arise?
Where the defendant says that they have a right of action against the claimant
Counterclaims are classed as-
Additional claims under Part 20
Does a claim form need to be completed in respect of a counterclaim?
No but an issue fee needs to be paid
A counterclaim can be made without the permission of the court-
Provided that it is made at the same time or before the defence is filed
Setoff
A money claim which the defendant has against the claimant
What does a setoff do?
It provides a technical legal defence to the claim in that the amount of the counterclaim is set against the amount of the claim
Circumstances in which setoffs arise
Claimant owes a separate debt to the defendant, good sold of not satisfactory quality, service supplied without reasonable care and skill
Rule 20.5
Counterclaim against a person other than the claimant
Counterclaim against a person other than the claimant
It’s a counterclaim but to which the defendant wishes to add other parties as defendants to the counterclaim, court permission required
Rule 20.6
Defendant’s additional claim for contribution or indemnity from another party, done by serving a notice setting out the grounds of their claim within 28 days of filing the defence, otherwise permission required
Rule 20.7
The Part 20 claim form must be issued at court either before or at the same time as filing the defence, otherwise permission reuqired
Rule 20.8
The Part 20 claim form must be served within 14 days of which it is issued
What needs to be served with a Part 20 claim form?
PofP20C, response pack, every statement of case already served
If the additional party is not already a party-
They must serve an AoS and defence
If no defence filed by the additional party-
They will be deemed to admit the main action and be bound by the outcome of it so far as it relates to them by the additional claim made against them by the defendant
The reply
A statement of case that responds to a defence
Rule 16.7
There is no obligation on the claimant to serve a reply and no admissions are to be implied from the absence of one
Part 3
Striking out of a claim
The defendant may make an application tto dismiss the claim if-
The claim raises no proper cause of action or is an abuse of process or on the basis that there has been a failure to abide by an order of a court
