Consolidate MCQ 2 Flashcards
On Thursday 1 October, your client issued a claim form in the High Court against the defendant to the claim claiming £125,000 being the price of goods sold and delivered. Unfortunately, the parties did not follow the Practice Direction on Pre-action Conduct. The claim form and particulars of claim were served together by first class post on Wednesday 14 October. The defendant has not yet filed any response to the claim. It is now Monday 2 November. Your client wishes to enter judgment in default for the sum of £125,000 plus interest. Which one of the following answers is correct?
A. Your client may enter judgment in default because at least 14 days have elapsed since the claim form was issued.
B. Your client may NOT enter judgment in default because the deadline for filing an acknowledgment of service has not elapsed.
C. Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served.
D. Your client may NOT enter judgment in default because the defendant does not have to file an acknowledgment of service and the deadline for filing a defence has not elapsed.
E. Your client may NOT enter judgment in default because your client did not write a letter of claim in accordance with the Practice Direction on Pre-action Conduct.
C. Your client may enter judgment in default because at least 14 days have elapsed since the particulars of claim were deemed to be served.
Default judgment may be obtained in default of the defendant filing an acknowledgment of service and/or a defence (CPRs 12.1 and 12.3). The defendant should have filed an acknowledgement of service within 14 days of service of the claim form where the claim form and particulars of claim were served together or within 14 days after service of the particulars of claim where the claim form stated that the particulars of claim was to follow (CPR 10.3(1)(a)); or a defence within 14 days of service of the particulars of claim (CPR 15.4). The deemed date of service of the claim form and the particulars of claim was Friday 16 October and the defendant should have filed either an acknowledgment of service or a defence within 14 days after the deemed date of service which was Friday 30 October. This date has now passed and it is open for the claimant to apply for default judgment.
On receipt of the claimant’s claim form and particulars of claim, you advised your client, the defendant, that it has a good defence. You have just returned from holiday 3 days late due to your flight being cancelled. In your absence, judgment in default was entered against your client as you failed to file an acknowledgement of service or defence within 14 days of deemed service of the particulars of claim.
What is the best answer about whether there is anything you can do to enable your client to defend the claim?
A. There is nothing that can usefully be done.
B. Issue an application to set aside judgment as the judgment in default has been wrongly entered.
C. Issue an application to set aside judgment in default as the defendant is not at fault for failing to file acknowledgement of service in time.
D. Issue an application to strike out the claimant’s claim.
E. Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly.
E. Issue an application to set aside judgment in default as the defendant has some real prospect of defending the claim and the application is made promptly.
The application to set aside judgment in default should be made promptly and should show some merit to the defence. The other answers are incorrect because ‘fault’ is not necessarily relevant, the judgment has been correctly entered, and there is no basis for applying for strike-out.
A firm is acting on behalf of a defendant in a litigation matter. The claimant served the defendant in England and Wales with the claim form and particulars of claim by personal service at 2.00 pm on Monday 5th July. The firm would like to serve the defence on the latest date possible without seeking permission from the claimant.
Based on the above information, the defendant, acting prudently, should file and serve its defence by when?
A. 19 July
B. 2 August
C. 21 July
D. 4 August
E. 30 August
B. 2 August
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 acknowledgement of service, 28 days after service of the particulars of claim (CPR 15.4). Time starts from the date of deemed service of the particulars of claim and the latest date to file a defence is 28 days after this date as long as an acknowledgement of service is filed.
If the particulars of claim are attached to or served with the claim form in a separate document and contained in the same envelope, then there is some ambiguity in the rules as to whether the rules for service of the CF (CPR 6.14) apply to the particulars of claim too, or whether the rules for documents other than the CF (CPR 6.26) apply. This could lead to the claim form and particulars of claim being deemed served on different dates, despite being in the same envelope.
A party responding to proceedings would be prudent to act on the assumption that the particulars are served on the earliest possible date. Therefore, here, deemed service of the particulars of claim (served within England and Wales personally before 4pm on a business day) is the same day, Monday 5 July (CPR 6.26). A period of time expressed as a number of days is computed as clear days which means the day on which the period begins, 5 July, is not included. The day on which the period ends is not included if it ends in an event (otherwise, it is included).
This means counting time begins on a clear day, 6 July, and ends on the twenty-eighth day of counting, here, 2 August, as the period does not end in an event ie a hearing.
The claimant is an investor bringing a claim against a former advisor, alleging negligent advice. Your client is the defendant advisor. The claimant alleges in paragraph 6 of its particulars of claim that ‘in breach of the implied term of the contract to exercise reasonable skill and care, the defendant failed to provide the claimant with adequate information from which to make an informed decision as to whether or not to proceed with the investment’. The advisor tells you that this is not true and that the claimant was provided with adequate information in a letter dated 6 April from which to make an informed decision. Your case analysis confirms that the information in the letter was adequate to discharge the advisor’s duty of care.
How should the defendant respond to paragraph 6 of the particulars of claim in the defence?
A.’ The defendant admits paragraph 6 of the particulars of claim.’
B. ‘The defendant requires proof of paragraph 6 of the particulars of claim.’
C. ‘The defendant denies paragraph 6 of the particulars of claim.’
D. ‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
E. ‘The defendant requires proof of paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
D. ‘The defendant denies paragraph 6 of the particulars of claim as the claimant was provided with adequate information with which to make an informed decision in a letter dated 6 April.’
As your client has another version of events, your client can deny the paragraph and set out that other version of events. In relation to the other answers, it would clearly be wrong to admit the paragraph, and putting the claimant to proof is only appropriate if the defendant can neither admit nor deny.
