Disputes - Responses and Default Judgment (6) Flashcards
What are responses and default judgment?
Responses and Default Judgment: Once served with particulars, the Defendant must respond to the claim, otherwise the Claimant can enter judgment by default (meaning automatic success).
(1) Response Pack: Defendants receive a response pack outlining how and when to respond (Form N9). They can:
Admission: Admit to all or part of the claim.
Acknowledge: Acknowledge the claim, pending their full defence.
Defend: File a defence (and counterclaim).
Ignore: Ignore the claim (which permits judgment in default).
(2) Reply to Defence and Defence to Counterclaim: Defendants can reply to defences, and must defend counterclaims.
(3) Default Judgment: If the Defendant fails to respond, the Claimant can apply for judgment in default.
Counterclaim: The Defendant can also apply if the Claimant fails to defend a counterclaim.
(4) Part 20 Claims: Defendants can file additional claims against third-parties, usually for contribution or indemnity.
(5) Request for Information: Either party can request further information regarding a statement of case, to clarify points of confusion.
What is an admission?
Admission: The Defendant can admit part or all of the claim. This should be done expeditiously to avoid interest accruing.
Specified Claim
Specified Claim: Defendants can admit whole or partial liability to a specified claim.
(1) Whole: Defendant must provide details of their income and expenditure, and offer a settlement figure.
Response: Claimant can accept offer, or contest it at court.
(2) Partial: Defendant must provide a counter offer in respect of partial admission to a specified claim.
Response: Claimant within 14 days can either: a) accept admission and offer; b) accept admission and dispute offer at court; or c) reject admission and proceed to trial.
Unspecified Claim
Unspecified Claim: Defendants can wholly or partially admit to unspecified claims, and have discretion to offer settlement.
(1) Offer: The Claimant can accept the admission, and either accept the offer wholly, or reject it wholly. They can ask the court to determine the repayment schedule and the settlement figure itself.
(2) No Offer: The Claimant can accept the admission, and the court must assess damages at a disposal hearing.
What is acknowledgement of service?
Acknowledgement of Service: Defendants can acknowledge service of the claim within 14 days of the particulars being served, which extends their period of service for the defence from 14 days to 28 days from particulars (Form N9).
Challenging Jurisdiction
Challenging Jurisdiction: Defendants can indicate intention to challenge jurisdiction of the claim in the acknowledgement of service.
(1) Full Challenge: Defendants must then apply to court with evidence that England and Wales is the incorrect forum to handle the claim within 14 days of serving the acknowledgement of service.
(2) Effect of Challenge: If the court maintains jurisdiction, the Defendant must file a new acknowledgment of service within 14 days and the trial proceeds. If they reject jurisdiction, the claim is set aside and proceedings end.
What is a defence?
Defence: Defendants can serve a defence in respect of the claim (this can also include admissions to any agreed facts). These are typically drafted from scratch, as the form provided in the response pack is often too short.
(1) Service Deadline: The deadline for service is 14 days by default, 28 days if acknowledgement of service is filed, and up to 56 days if agreed with the Claimant. The court has discretion to extend further (see interim applications).
(2) Formalities: Defences must include the following:
Heading: Name and region of court, claim number, names of parties, and service details.
Statement of Truth: A signed statement of truth (same as particulars).
Signature and Date: The signature of the drafter, and the date.
Contents: The defence itself (below).
Contents
Contents: The defence must set out responses to every fact alleged by the Claimant, and refer to its own facts where relevant (but without attaching evidence). This narrows the issues in dispute. To each allegation, the Defendant must expressly either:
(1) Deny: Deny an allegation, followed by a counter-narrative (bare denials are prohibited).
(2) Not Admit: Not admit an allegation, if the Defendant has no knowledge.
(3) Admit: Admit an allegation (meaning no evidence is required at court).
Ignorance: Ignoring any alleged fact is taken as implied acceptance.
Limitation Period
Limitation Period: If the limitation period for claim has expired, the Defendant must also set out details here.
What is a counterclaim?
Counterclaim: Defendants can file a counterclaim setting out their own cause of action and losses, typically in the same document as the defence, titled ‘DEFENCE AND COUNTERCLAIM’.
(1) Permission: Court permission is only required for counterclaims not served with the defence.
(2) Drafting: Counterclaims are standalone claims, but can reference rather than repeat facts in the defence.
What is a reply to a defence and defence to counterclaim?
Reply to Defence and Defence to Counterclaim: Claimant can respond to defences with further facts, and must defend any counterclaims served by the Defendant.
Reply to Defence
Reply to Defence: Claimants may reply to a defence at their discretion, usually to clarify facts set out in the defence.
Defence to Counterclaim
Defence to Counterclaim: Claimants must defend a counterclaim to avoid default judgment.
(1) Service: Service is 14 days from service of counterclaim, or up to 28 days by agreement.
(2) Effect: Failure to defend a counterclaim permits default judgment in favour of the Defendant (below).
What is a default judgment?
Default Judgment: Parties can enter default judgment once their opponent misses the deadline to respond to a claim or counterclaim. If the party files a weak defence, they may have grounds for summary judgment (see interim applications).
Entering Judgment
Entering Judgment: Party applies to court with evidence that their claim or counterclaim was served, and that the other party did not respond by the deadline (Form N227).
(1) Rejection: The court may reject this if the response has been filed but is delayed (i.e. by post).
(2) Specified Sum: For specified claims, the party must specify the sum owed, the date due, any interest claimed and the daily rate at which interest accrues. The opponent must pay this sum within 14 days.
(3) Unspecified Sum: The court will determine the sum at a disposal hearing.
Challenging Judgment
Challenging Judgment: The opponent can challenge default judgment on three grounds (CPR 13).
(1) Mandatory: Court must set aside a default judgment if wrongly entered (i.e. too early or claim already settled).
(2) Discretional: Courts can also set aside a default judgment on either of two discretionary grounds. These must be argued on Form N244 with supporting witness statements (see interim applications).
Real Prospect: The applicant has a real prospect of success at trial.
Other Reason: The applicant has a good reason for failure to respond (i.e. illness - not disorganisation).
Outcome of Challenge
Outcome of Challenge: Outcome of challenge will differ.
(1) Mandatory: Courts will set aside judgment following a valid mandatory challenge.
(2) Discretional: Courts can set aside judgement following valid discretional challenge.
Conditional Order: Court can set aside judgment, on basis applicant pays money into court (deters fruitless trials). Money is lost if applicant loses at trial.
(3) Costs: Costs of the dispute will differ by outcome.
Mandatory Ground: Applicant pays for wrongful application.
Real Prospect of Success: Respondent pays if they had no good reason to delay.
Good Reason to Continue: Costs in case (as neither party was at fault).
Default Judgment Awarded: Respondents are liable if application is successful.
What is a Part 20 claim?
Part 20 Claim: The Defendant can make an additional claim against a third-party, usually for contribution or indemnity. These third-parties may do the same with further parties, known as an ‘indemnity chain’ (CPR 20).
(1) Contribution: Claims against parties partially responsible for the Claimant’s damage.
(2) Indemnity: Claims against parties that have agreed to indemnify the Defendant by contract or statute.
(3) Permission: No permission is required if the additional claim is filed with the defence or if the third-party is added to claim within 28 days of filing defence.
What is a request for further information?
Request for Further Information: Parties may request further information from their opponent to resolve clarity in a statement of case (CPR 18). If there is no information at all, summary judgement is better (see interim applications).
Request
Request: Requests are made in a single comprehensive document, setting out concisely any requests reasonably necessary and proportionate to permit the party to understand the case or prepare their response.
(1) Format: Requests are laid out in one column in separate numbered paragraphs, with a second column for responses. It must be headed with the court name, claim name, claim number, and be clear as a Part 18 request.
(2) Response Time: Respondents must be given a ‘reasonable time’ in which to respond.
Response
Response: Responses are written on the second column, and served on all parties and the court.
(1) Format: Includes responses, a statement of truth, and the signature and date of the drafting party.
(2) Response Time: Respondents must respond within the allotted period.
(3) Court Ordered Response: Courts can issue an ‘order to respond’ if the respondent fails to respond within 14 days to a question reasonably necessary and proportionate to understand the case or prepare a response.
