Disputes Resolution 3: Responding to Claim Flashcards
When must a defendant respond to a claim?
- Within 14 days of date of deemed service of Particulars of claim
- Date of deemed service of Particulars of Claim is different to that of claim form if they are sent separately
What is the deemed date of service of Particulars of Claim for post/dx, leaving at permitted address, fax, email, personal service?
First Class post/DX
- second day after posted (if business day)
- if not business day then next business day
Delivering to agrees, fax, email and personal service
- same day if completed before 4:30 on business day
- otherwise next business day
What happens it a defendant does not respond to claim in time?
time is 14 days after deemed date of service
- If defendant does not respond in 14 days of deemed date of service, claimant can obtain judgement
How can defendant respond to the claim (general)?
- admit
- file and serve defence
- acknowledge service and indicate they they propose to defend claim
How can defendant extend the time limit to file a defence
- gain additional 14 days when they acknowledge claim
- Parties can agree to extend for an additional 28 days (total of 56) - defendant must inform court of this
- additional extensions will require an application to the court
What is the effect of an admission made during protocol period?
Binding always if:
- claim is up to £25k
PI Cases (if after letter of claim/first step)
- C can apply for judgement on strength of admission
- D can withdraw (rules depending on when)
I D responds with full admission what is the next step? (specified vs unspecified sum)
Specified Sum
- Court issues judgment order to include accrued interest and fixed costs which D is required to pay
- D can ask for time to pay or to pay in instalment
- D must provide details of assets, income and outgoings
- C can accept or raise objections
- If C objects court will determine appropriate level of instalments or, list for a hearing to decide
Unspecified Sum
- Court will stay case and set it down for disposal hearing to determine appropriate level of damages
Other than a full admission what can D respond with if they admit so liability?
Partial Admission
- D will need to file defence to part that is in dispute
Admitting Liability / disputing quantum
- So deny injury caused, damages or losses to extent claimed by claimant
Can an admission be withdrawn?What should be considered?
Admission can be withdrawn with permission of court. Court will consider:
- The prejudice to the party
- Reasons why admission was made
- Stress that a part was under when they made admission
- Interests of the public
- Time when the application to withdraw the admission was made (eg. Pre or post action)
Can an admission be withdrawn in PI cases?
In PI, clinical negligence and disease and illness claims, if admission was made after LETTER OF CLAIM, a person may withdrawal pre-action admission
- With the consent of the person to whom it was made during pre-action; or
- After commencement, with permission of the court
When can a claimant make an application for summary judgement? What must they show?
Once d gives acknowledge of service claimant can make application for summary judgement if they can show:
- Defendant has no realistic defence to action
How can defendant dispute the jurisdiction of the court and what happens if this fails?
- Tick box in response pack
- Make application supported by written evidence within 14 days of filling acknowledgement of service
- Should not file defence until court has after court has heard application (otherwise taken submission to jurisdiction)
If application fails
- Required to file defence within 14 days
When can a defendant have a default judgement set aside?
Should always act promptly
- Application to set aside
To succeed in application D must show:
- D has real prospect of success; and
- There is some other good reason why judgement should set aside and D allowed to defend claim - judgement wrongly entered
Court must set aside default judgment if D can show it was wrongly entered, for example:
- Judgement was made too early;
- Application for default judgment was made after an application by D to strike out claim or dismiss claim summarily and application has not yet been considered;
- Claim has already been paid or claim has been settled; or
- D has already submitted an application for time to pay which has not yet been considered.
What conditions can a court impose if it agrees to set aside a default judgement?
If court agrees to set aside default it can impose conditions such as:
- Defendant paying sum of money into court
- Provide for defence to be served in 14 days
- Order that defence annexed to application to stand as defence in action without need for formal service
What must a defence generally include?
- response to each paragraph
- Address
- statement of truth
- Other defence (eg. limitation)
In what ways must defendant respond to each paragraph of Particulars of Claim? What are the consequences of each?
- Admission
- it is then no longer in dispute so C does not have to prove it
- If D fails to respond to a paragraph it is deemed to be admitted - Denial
- D must state reason for denial
- Must set out alternative version of events
- Claimant must then prove this - Non-Admission
- States that they do not admit or deny if fact is outside the defendants knowledge
- Often applies to losses suffered by claimant
- Must be proven by claimant
