Commencing Proceedings/Counting Time/JinD

Question 1

Claim Form: Issue and Service

Answer 1

Court wil issue claim form by entering a date of issue and giving the case a number and sealinf the claim form.
Once the documents are sent to court, sufficient to stop time running for limitation purposes.
Strict approach.

Once issue, claim form must be SERVED on the defendant WITHIN 4 MONTHS AFTER ISSUE.
CPR 7.5.

Need NOT be DEEMED SERVED within the 4 months - claimaint just needs to have COMPLETED THE RELEVANT STEP by MIDNIGHT ON THE CALENDAR DATE 4 MONTHS AFTER ISSUE.

Question 2

Service of Particulars of Claim

Answer 2

P of C must be SERVED within 14 days of after SERVICE of the claim form (unless contained in the claim form).

In any event, no later than the latest time for serving a claim form (i.e. 4 months after issue).

CPR 7.4.

Question 3

Methods of Service (for all documents)

Answer 3

CPR 6 permis various methods of serving documents:

• Personally on the other party (personal service)
• By first class post, DX, or other service providing next day delivery
• By delivering/leaving the document at a permitted address;
• By fax
• By other electronic method.

Question 4

Service on Companies

Answer 4

Can serve on a company by:

• leaving the document at or sending by post to its Registered Office;
• by serving on a director or secretary or by leaving/seding it by post to that person’s service address (as shown on the public register of the company).

Question 5

DEEMED date of service of CLAIM FORM

Answer 5

CPR 6.14

The second business day after completion of the relevant step (in CPR 7.5)

(whatever method is used).

Question 6

DEEMED date of service of OTHER DOCUMENTS

Answer 6

CPR 6.26 - look at!

Personal service on Defendant
- Effective immediately if before 4.30pm on a business day; otherwise the next business day.

By delivering/leaving at a permitted address
- Effective immediately if delivered/left at the address before 4.30pm on a business day; otherwise the next business day.

By first class post or DX
- The second day after posting/left with, delivered to or collected by service provider, provided that day was a business day; otherwise, the next business day.

By fax
- Effective same day if transmitted before 4.30pm on a business day; otherwise the next business day after transmission.

By other electronic method
- Effective same day if sent before 4.30pm on a business day; otherwise the next business day after its sent.

Question 7

‘Business day’

Answer 7

Excludes Saturdays, Sundays, Bank Holidays, Good Friday and Christmas Day.

Question 8

Defendant’s Response

Answer 8

Defendant need not do anything until it has been served the particulars of claim (except in Commercial Court).

Once PoC served, defendant must, WITHIN 14 DAYS OF THE DEEMED DATE OF SERVICE OF THE PoC:

• ADMIT all or part of claim
• file a DEFENCE
• file an ACKNOWLEGMENT OF SERVICE.

If D files an acknowledgment of service, D will have in total 28 DAYS FROM WHEN PoC WAS DEEMED SERVED in which to file the defence.

CPR 15.4

Question 9

Counting time rules

Answer 9

CPR 2.8

Clear day rule always applies under CPRs.
Exclude:
- the day on which the period begins (e.g. service of PoC); and
- the day of the event, but ONLY if that event is a court hearing.

If the period of time is 5 days or less, exclude Saturdays, Sundays, Bank holidays, Christmas Day, Good Friday.

If the period ends on a day the court office is closes, the act will be done in time if done on the next day that the court is open.

Question 10

What if Defendant misses deadline for filing a defence?

Answer 10

D and C can agree together an extension of up to 28 days - CPR 15.5 - (if advising Claimant, don’t advise them to do this voluntarily, only if other side asks!)

D can apply to court for an extension of time.

If either side applies for summary judgment, the deadline for filing a defence is automatically extended

C can apply for JUDGMENT IN DEFAULT - CPR 12 - if C can show:

• particulars of claim have been served;
• time for filing a defence of an acknowledgement of service has expired;
• the claim has not been admitted or satisfied;
• no application for summary judgment or strike out has been made.

Question 11

Setting aside Judgment in Default

on appplication of defendant or by court of its own motion

Answer 11

Court MAY set aside judgment in default (CPR 13.3) if:

• defendant has a real prospect of successfully defending the claim (same test as summary judgment - Swain v Hillman - must show real prospect of success in substance only; need not be on balance of probabilities)

OR

• appears to the court that there is some other good reason why judgment should be set aside or caries or the defendant should be allowed to defend.

Court MUST set aside judgment in default - CPR 13.2 - if judgment was WRONGLY ENTERED, because:

• the time limit for ackowledging service had not expired;
• either an A of S or defence was filed on time;
• either summary judgment or strike out had been applied for when judgment was entered;
• the defendant had satisfied the claim or admtted the claim or requested time to pay.

Court will have regard to:

• whether there is a defence with a real prospect of success and that justice should be done
• length of delay in responding to claim and reasons for the delay
• any failure to provide an explanation for the delay
• whether any prejudice will be suffered by the claimant
• how promptly D makes its application to set J in D aside.
• 3 stage test from Denton v TH White - court will conisider on an application for relief from sanctions.