Commencing, responding to or progressing a claim

Question 1

What is the general rule for acknowledging service?

Answer 1

where the defendant is served with a claim form which states that the particulars are to follow,

14 days after service of the particulars of claim; and

in any other case, 14 days after service of the claim form (CPR 10.3).

Question 2

Is acknowledging service compulsory?

Answer 2

Acknowledging service is not a compulsory step in a claim and, if appropriate and the defence is ready, the defendant could choose to defend instead straight away.

Question 3

How does someone acknowledge service?

Answer 3

The form for acknowledging service (Form N9) is sent to the defendant in the response pack.

The acknowledgment of service form is a simple form in which the defendant confirms their name is correctly stated on the claim form and gives their address for service of documents.

The defendant will also indicate, by ticking the appropriate box on the form, whether they intend to defend all or part of the claim, or whether they intend to contest the jurisdiction of the court to
deal with the matter.

Question 4

What is the deadline for a defence and acknowledging service

Answer 4

If the defendant does NOT file an acknowledgment of service, it must file and serve a defence within 14 days of the deemed date of service of the particulars of claim.

If the defendant does file an acknowledgment of service indicating an intention to defend the claim, it extends the deadline for serving the defence to 28 days after the deemed date of service (DDS) of the particulars of claim.

Question 5

What happens after acknowledging service?

Answer 5

Once the defendant has filed an acknowledgment of service, the court will notify the claimant in writing that this has been done (CPR 10.4), and the defendant’s solicitors will often notify the claimant / claimant’s solicitors directly as well.

The parties will now be able to calculate and diarise the deadline for the filing and service of the defence:
* Defendants need to ensure that the defence is ready and filed by this date (or take further action to extend this deadline if it is not).
* Claimants need to be ready to apply for judgment in default if the deadline expires and no defence is filed and served.

Question 6

When might a longer period for filing a defence apply?

Answer 6

• where the claim form has been served out of the jurisdiction, longer periods apply depending on which other country is involved (see CPR 6.35/36);
• where a defendant makes an application disputing the court’s jurisdiction, the defendant need not file a defence before the hearing of that application;
• where, before the defence is filed, the claimant applies for summary judgment, the defendant need not file a defence before the hearing of that application (CPR 24.4(2)); and
• where the court makes an order for service of a claim form on an agent of a principal who is overseas, the court will specify the period (see CPR 6.12).

Question 7

Can the time to serve defence be extended by agreement?

Answer 7

can agree an extension of time for serving the defence of up to 28 days

This means that it is possible for the defendant to have up to 56 days from the deemed date of service of the particulars of claim to file the defence without having to apply to the court for permission to extend the time for service.

if agreed, the court must be notified in writing (but no application to court
is required).

Question 8

What happens if the parties cannot agreed for an extension of time to serve defence?

Answer 8

It is not possible for the parties to agree an extension of more than 28 days. In this situation, the defendant will need to apply to the court for a longer extension to be granted.

Similarly, if a claimant refuses to agree an extension of up to 28 days in accordance with CPR 15.5, the defendant will need to apply to the court for an order allowing an extension of time.

Question 9

What happens if the defendant is served with a claim for a specified amount of money (eg a debt claim), but has already paid the claimant before receiving the claim

Answer 9

They will respond to the claim with a defence which states that the debt has already been paid.

Question 10

Rules for response of ‘money paid’

Answer 10

The rules provide a simple procedure to deal with the claim in this situation :

• When the court receives this type of defence, it sends a notice to the claimant which, in effect, asks the claimant whether the defence is correct.
• The claimant must respond within 28 days and the claim is stayed if they do not do so.
• Whatever their response, the claimant must serve a copy of it on the defendant.
• If the claimant does not wish to continue that is the end of the case.
• If the claimant does wish to continue, the claim will proceed as a defended claim.

Question 11

How and when does a D admit a claim

Answer 11

The admission form is contained in the response pack sent to the defendant with the particulars of claim.

A defendant wishing to admit the whole or part of a claim completes the relevant admission form and sends this to the court (or to the claimant directly if admitting a specified claim in full) within 14 days of deemed service of the particulars of claim.

Question 12

What is requesting time for pay in admission

Answer 12

a proposal by the defendant to pay by a certain date or by instalments.

Both versions of the admission form (Forms N9A and N9C) make provision for this request to be made at the same time as the admission and for the defendant to supply personal financial information (income, outgoings, debts etc).

If the defendant is unable to pay immediately, they can also include the reasons for this.

If the claimant does not accept the defendant’s proposals for payment, the court will determine the rate of payment taking into account the information supplied by the defendant and the objections raised by the claimant

Question 13

What happens re judgment following admission of a claim

Answer 13

The claimant will be notified of an admission and has the option to enter judgment against the defendant.

A judgment is a ‘final order’ which disposes of the claim.

Judgment indicates that the claimant is, either completely or to some extent, the successful party. Claimants, therefore, will ordinarily prefer to have a judgment entered.

Depending on the parties’ views, they might decide to conclude an admitted claim by way of settlement instead of entering judgment, using an order that stops short of a judgment, such as a Tomlin Order, or by the claimant agreeing to withdraw the claim.

Question 14

What will the judgment comprise of in specified claims following admission

Answer 14

• the amount of the claim / debt including interest to the date of issue of the claim;
• interest since the date of issue (using the daily rate from the particulars of claim);
• court fees (ie issue fee as shown on the claim form); and
• fixed costs, the amount of which are set out in the rules (CPR 45) – there will be an amount of fixed costs as shown on the claim form and an additional amount to be added on entering
  judgment.

Question 15

What will the judgment comprise of in unspecified claims following admission

Answer 15

the judgment will be on liability only, so there will be no amount of damages recorded.

Instead, the matter will be listed for a subsequent hearing where evidence will be heard on the issue of quantum and the judge will hand down a judgment recording the amount due, including interest and provision for costs.

Section 35A Senior Courts Act 1981 / section 69 County Courts Act 1984 provide the court with the power to award simple interest on debts due where eg there is no other provision (such as a contractual term) allowing for interest to run.

Question 16

How to enter judgment following a claim being admitted?

Answer 16

entering judgment for a specified sum following an admission is an administrative process.

There will be no judicial involvement and the claimant simply files the correct paperwork which will be processed by the
court staff. There is no hearing.

claimant reply to admission form within 14 days of receiving notice of the admission.

they will indicate the judgment amount, including interest, court fees and fixed costs, as well as the amount of any payments made by the defendant.
On receipt of the request for judgment, the court staff will enter judgment and send this to the parties.

Once judgment is entered following the admission and the amount payable has been determined, the claim is effectively concluded.

Unless otherwise agreed or stated on it, the judgment is payable by the defendant within 14 days
Enforcement proceedings can be taken against the defendant to secure payment of
any sums outstanding after this time.

Question 17

Counting days rules: Clear days – day on which period begins

Answer 17

Under the CPR, any reference to a number of days (such as “The general rule is that the period for filing a defence is 14 days after service of the particulars of claim”) means ‘clear days’ as defined by the rules.

Firstly, the day on which a period begins is never included so you would always start counting on the following day – you might find it useful when counting to call the day on which a period begins ‘day zero’ and start counting ‘day one’ from the following day.

Question 18

Counting days rules: Clear days – end of period defined by reference to an event

Answer 18

Secondly, if the end of the period is defined by reference to an event (for example, a hearing or trial), the day on which that event occurs is not included.

Question 19

Counting days rules: Clear days - days which do not count

Answer 19

Thirdly, where the specified period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count.

Question 20

Counting days rules: Deadlines on days on which the office is closed.

Answer 20

(a) Where a deadline relates to doing any act at the court office (such as filing a document at
court); and
(b) Applying the first three rules explained in this section, the deadline for doing that act ends on a day on which the court office is closed:
Then the act is treated as on time if done on the next day on which the court office is open

Question 21

What is a default judgment

Answer 21

Applying for judgment to be granted in the claimant’s favour without a trial
if the defendant has not responded to the claim by either serving an acknowledgment of
service or a defence within the prescribed time limits (CPR 12.1). It is also referred to as
judgment in default ie in default of the defendant doing something.

Question 22

What if a claimant is successful in a default judgment?

Answer 22

If the claimant is successful in its default judgment application, the claimant has won the case.
It is therefore very important to calculate time limits accurately when filing documents. There are some types of claim in which default judgment may not be obtained (CPR 12.2):

• claims for delivery of goods subject to an agreement regulated by the Consumer Credit Act1974
• Part 8 claims
• any other claims where a practice direction provides that the claimant may not obtain default judgment.

Question 23

What must the claimant show to obtain default judgment?

Answer 23

At the date on which judgment is entered, time has expired for filing an acknowledgment of service (and the defendant has not filed either an acknowledgment of service or a defence) or time has expired for filing a defence (where the defendant has filed an acknowledgment of service but not a defence).

• The claim has not been admitted or satisfied by the defendant.
• No application for summary judgment or strike out has been made has been made by the defendant.

Question 24

What’s the difference between a default judgment and statement of case?

Answer 24

The court has the power to strike out a statement of case (CPR 3.4). Strike out focuses on a statement of case and so covers cases which do not amount to a legally recognisable claim or defence.

Default judgment covers cases where the defendant has failed to respond to the claim
and does not look at the contents of the statement of case.

Question 25

What’s the difference between default judgment and summary judgment ?

Answer 25

Default judgment is the consequence of the defendant failing to respond to a claim.

Default judgment is therefore procedural: if a defendant fails to file an acknowledgment of service and/or a defence in accordance with the CPR time limits, the claimant can apply for default judgment.

The court does not consider the merits of the case when ordering default judgment. In contrast, summary judgment covers cases which are weak on the facts, so the court will consider the merits of the case.

Question 26

the mandatory ground for setting aside default judgements: (5)

Answer 26

1. The court is obliged to set aside a default judgment if it was wrongly entered. 2. This would occur where judgment has been entered too early,
2. before the time for filing an acknowledgment of service
3. or a defence (whichever is applicable) expired;
4. or because the claim has already been paid in full.

Question 27

What is the statements of case?

Answer 27

In broad terms, they are the documents by which a claimant sets out the factual basis of its claim and the relief sought, and the defendant gives its own position in relation to the alleged facts and the alleged entitlement to relief.

Question 28

Why do statements of case matter?

Answer 28

They need to be concise, clear and correct and
they must comply with all necessary content requirements as prescribed by the CPR. They must also be in the correct format.

If a statement of case does not comply it might require formal amendment. This will often require the input of the court, giving permission, and will have a knock on impact on other statements of case, which will also require amendment by the other parties.

Question 29

What are the rules applicable to all statements of case

Answer 29

• Numbered paragraphs;
  -Pages numbered consecutively;
  -All numbers and dates in figures (eg ‘The property was purchased for £23,000 on 29 March 1965’);
• Reference in the margin to every document mentioned that has already been filed at court;
• The name of the person who drafted the document (the statement of case will therefore
  contain the name of an individual barrister or the firm of solicitors); and
• A statement of truth

Question 30

What is a statement of truth?

Answer 30

A party’s statement of case can be used as evidence in the proceedings only if verified by a statement of truth.

A statement of truth is a formal way of the person signing confirming that they believe that the document is true. If the document turns out to contain a false statement and the person signing the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing.

This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases

Question 31

What is the purpose of a claim form

Answer 31

The claim form is the document used to commence proceedings and to set out key elements of the claim, in particular the identity of the parties. It is the first statement of case.

The claim form is prepared by the claimant.

Question 32

What is the usual structure of a claim form?

Answer 32

The claim form is usually on Form N1 (7A PD 3.1) – so the form dictates the structure and guides the content to be included.

Note that special forms might apply in specialist proceedings (eg in the Commercial Court).

Question 33

What is the particulars of claim?

Answer 33

set out the claimant’s case in full detail, as opposed to the brief statement on the front of the claim form which simply sets out the nature of the claim and the remedy sought.

This is the claimant’s main statement of case and will be referred to by the court and all parties as such eg when identifying the basis of the claimant’s claim.

Question 34

What is the contents of the particulars of claim

Answer 34

The particulars of claim must include ‘a concise statement of the facts on which the claimant relies’ (CPR 16.4(1)(a)) and must cover the essential elements of the claimant’s cause (or causes) of action.

The particulars of claim must therefore set out all the material facts and allegations which, if
proved by evidence, would entitle the claimant to the remedy it seeks as a matter of law. In
addition, the particulars of claim should set out any facts that ‘tell the story’ and assist the reader in understanding the case, ie background facts.

this will mean that the particulars of claim will need to articulate the material facts and allegations showing a duty owed by the defendant to the claimant, breach of that duty, and that the breach caused recoverable loss

Question 35

What are the requirements of particulars of claim in specific cases?

Answer 35

• The particulars of claim should set out any claim for aggravated damages, exemplary
  damages and/or provisional damages, giving the grounds for claiming them (CPR 16.4).
• In personal injury claims, the particulars should include the claimant’s date of birth, details of his/her injuries, and attach a schedule of past and future expenses losses and the report of any expert medical practitioner which is relied on (16 PD 4).
• A claim in relation to the possession, occupation, use or enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make clear whether it includes residential premises
• Where the claim is based on a written agreement, it should be attached (with any general conditions which are incorporated)
• Where the claim is based on an oral agreement, the particulars should set out the words spoken, by whom, to whom, when and where
• Where the claim is based on an agreement by conduct, the particulars should set out the
  conduct relied on and state by whom, when and where the acts were done

Question 36

Whats the rule around claiming interest in the particulars of claim

Answer 36

A claimant has a right to claim interest on the principal amount being claimed.
This is to compensate for the delay in receiving the money due to them (assuming they win the claim).
If the claimant does seek interest, a statement to that effect and the details must be set out in the particulars of claim.

Question 37

What is the legal basis for claiming interest re particulars of claim?

Answer 37

The legal basis for claiming interest may be either:
* set out in a contract between the parties or, failing that,
* there is a statutory right to interest (under section 35A Senior Courts Act 1981 in the High Court and section 69 County Courts Act 1984 in the County Court).

There are two ways of setting out the paragraph(s) claiming interest:
* Calculating exactly the amount of interest claimed; or
* Claiming (‘pleading’) the interest generally.

Question 38

Exact calculation for claiming interest re particulars of claim

Answer 38

This method is only used in practice if the claimant is making a specified claim (ie a debt or a specified/liquidated damages claim). In pleading interest on a specified claim, you would need to set out:
* the applicable percentage rate,
* the dates from/to which interest is being claimed,
* the total amount claimed up to the issue of the claim form, and
* the daily rate of interest thereafter.

Question 39

What happens if the claim is partly specified and partly unspecified?

Answer 39

For such ‘hybrid’ claims, you have a choice. You may treat the two claims separately, working out the interest for the specified claim and making a general claim for the unspecified claim.
Alternatively, you may say that the two claims together come to a total which is an unspecified claim and therefore treat the whole claim as an unspecified claim.

Question 40

Can a party amend the statements of case if it has been served?

Answer 40

a party may amend it only –
(a) with the written consent of all the other parties; or
(b) with the permission of the court

Question 41

Can a claimant add a party to the statements of case?

Answer 41

The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served

Question 42

Deemed service and the claim form

Answer 42

A claim form is deemed served on the second business day after completion of the “relevant
step” (CPR 6.14).

Business day’ means any day except Saturdays, Sundays, bank holidays, Good Friday or Christmas day (CPR 6.2).

The relevant step relates to the step necessary to effect service by each particular method and this is explained in the section above on service. By way of example, when serving by post, the ‘relevant step’ is posting the claim form.

Question 43

Deemed service of documents other than the claim form

Answer 43

Instant methods (personal service, fax, email, delivering/leaving at a permitted address.
If done before 4.30pm on a business day: deemed served the same day.
Otherwise: deemed served the next business day

Not-instant methods (Post / DX) Deemed served second day after posting / giving to DX
provider, if a business day.
Otherwise: deemed served the next business day

Question 44

If a defendant wishes to dispute the jurisdiction of the court, this must be stated

Answer 44

on the acknowledgement of service.

Question 45

If a defendant wishes to dispute the jurisdiction of the court, how long do they have?

Answer 45

has 14 days after filing the acknowledgment of service form to make a challenge, failing which they will be treated as having submittedto the jurisdiction

Question 46

If the court grants the application and finds that the claim should not have been brought in England and Wales, what will be set aside and what will the consequence of this be?

Answer 46

service of the claim form will usually be set aside. As a consequence the proceedings come to an end.

Question 47

If the court refuses the defendant’s application to dispute the court’s jurisdiction? (3)

Answer 47

1. the original acknowledgement of service ceases to have effect
2. and the defendant must file a further acknowledgement within 14 days.
3. The proceedings will then continue in the usual way.

Question 48

Special measures for vulnerable witnesses: (7)

Answer 48

1. preventing a party or witness from seeing another party or witness by the use of screens;
2. allowing a party or witness to give evidence remotely by video conference;
3. hearing a party or witness’s evidence in private;
4. dispensing with the wearing of wigs and gowns;
5. admitting pre-recorded video evidence;
6. questioning a party or witness through an intermediary; and
7. using a device or other aid to help a party or witness communicate.