Commencing and responding to a claim

Question 1

Which court will a case be heard in? - County court

Answer 1

If the value of the claim is £100,000 or less it must be started in the county court

Question 2

Which court will a case be heard in? - Personal injury

Answer 2

For a claim for damages in respect of personal injuries they cannot be started in the high court unless the value of the claim is £50,000 or more

Question 3

Which court will a case be heard in? - High court

Answer 3

For claims in excess of £100,000 the claimant has a choice of which court to use. In addition to the value of the claim the high court may also be used if there are other factors present:
- The claim is complex either in relation to the facts the legal issues the remedy or the procedures
- The outcome is important to the public in general

Question 4

Issuing proceedings - Claim form

Answer 4

Proceedings commence when the claimant or their solicitor send a claim form and other relevant documents to the appropriate court to be issued. It must contain a concise statement of the nature of the claim and specify the remedy that the claimant is seeking. Where the claim is for money the estimated or actual value of the claim must be inserted.

Question 5

Issuing proceedings - Adding, substituting or removing a party - Who can make an application?

Answer 5

An existing party or a person who wants to become a party but no-one may be added or substituted as a claimant unless their consent in writing has been filed at court

Question 6

Issuing proceedings - Adding, substituting or removing a party - Is permission required?

Answer 6

Yes unless the claim form has NOT been served

Question 7

Issuing proceedings - Adding, substituting or removing a party - Grounds - Application made within the limitation period

Answer 7

It is desirable:
- To add a new party to resolve matters in dispute
- To remove a party
- To substitute a party where the existing party’s interest or liability has passed to them

Question 8

Issuing proceedings - Adding, substituting or removing a party - Grounds - Application made outside the limitation period

Answer 8

A party may only be added or substituted if the limitation period was current when proceedings were started and:
- The original party was named by mistake
- The original party has died/is subject to a bankruptcy order and their interest or liability has passed to the new party
- The claim cannot properly be carried on without the new party

Question 9

Service of the claim form

Answer 9

Once a claim form has been issued it must be served on the other parties within 4 months - it must be sent to or delivered to the defendant so they are aware of the existence of the proceedings. Some methods of service:
- Personal service
- 1st class post or document exchange
- Leaving the claim form at a specified place
- Fax or other means of electronic communication

Question 10

Where to serve?

Answer 10

Individual’s usual or last known residence. Company’s place of business.

Question 11

When to serve?

Answer 11

Once a claim form has been issued the claimant has 4 months in which to serve it on the defendant. Whether or not the time limit is met depends upon the method of service used so the period ends on the date:
- Personal service was effected or delivery was made at the relevant place
- The letter was posted or left with the DX provider
- The transmission of the fax was completed or the email was sent

Question 12

Deemed service

Answer 12

Presumption is that the claim form is deemed to have been served on the 2nd business day after the step required has occurred. Establishing this requires 2 pieces of info.:
1) A business day is any day except Saturday, sunday, a bank holiday, good friday or christmas day
2) The step required is for example putting the claim form in the post

Question 13

Responding to a claim - Options

Answer 13

1) To file an admission
2) To file an acknowledgment of service
3) To file a defence

Question 14

Responding to a claim - Admissions - Definition

Answer 14

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 as this will bring the matter to an early conclusion and limit their liability for costs.

Question 15

Responding to a claim - Admissions - Whole claim

Answer 15

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

Question 16

Responding to a claim - Admissions - Part of a claim

Answer 16

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

Question 17

Responding to a claim - Acknowledgment of service

Answer 17

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

Question 18

Responding to a claim - Filing a defence

Answer 18

Filing a full defence. A well drafted defence would set out more factual detail than could be included in the form. Once the defence has been filed a copy must be served on all the other parties. They may wish to file a counterclaim.

Question 19

Default judgment - Definition

Answer 19

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. If the defendant does not respond within the appropriate time period the claimant may enter judgment in default against the defendant

Question 20

Default judgment - What does the claimant have to satisfy?

Answer 20

They must satisfy the court that:
- The particulars of claim have been served upon the defendant
- The defendant has not filed an acknowledgement of service form or a defence within the relevant time period

Question 21

Default judgment - Specified sum

Answer 21

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

Question 22

Default judgment - Defendant

Answer 22

Having initially ignored the proceedings if the claimant enters default judgment the defendant will have no choice but to face them. 2 grounds under which the defendant may rely in their application:
- The mandatory ground - the court is obliged to set aside a default judgment if it was wrongly entered
- The discretionary ground - the court also has the power to set aside a default judgment in circumstances where the defendant has a real prospect of successfully defending the claim there is some other good reasons why the defendant should be allowed to defend the claim

Question 23

Default judgment - Orders the judge can make

Answer 23

1) The defendant succeeds and the judgment is set aside allowing them to continue to defend the action
2) The claimant wins and the judgment remains in place so they may proceed to enforcement
3) A conditional order is made namely the judgment is set aside on condition the defendant pays monies into court

Question 24

Discontinuance

Answer 24

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.