DR2 - Responding to a claim

Question 1

Within what time limit must a defendant respond following receipt of the Particulars of Claim?

Answer 1

14 days

Question 2

What are the 3 things a defendant can do in their response?

Answer 2

1. Admit the claim in whole or part
2. File and serve a defence to the claim
3. Acknowledge service and indicate they propose to defend the claim
4. Ignore proceedings (judgement in default which claimant can do)

Question 3

How can the time limit to respond be extended, and what is the maximum extension?

Answer 3

By agreement of the parties.

For a further 28 days but not to exceed 56 days in total from the date of deemed service of the Particulars of claim including the extra 14 days from filing the Acknowledgement

Question 4

What are the steps fot the defendant if D admits the whole claim, and the amount at issue is a specified sum?

Answer 4

Defendant
* Complete the admission form offering to pay the claim in full within a specified time period
* Defendant to provide details on the admission from (N9A) of assets, income, expenditure and a propsal of instalment payments. This will be sent to the claimant by the court

Claimant - Will either accept the terms or raise objection
* Claimant objects - court wil either set the instalement figures and time period or set matter down for a disposal hearing (to listen to each sides POV)
* Claimant accepts - following receipt of the admission from the defendant, the claimant will also be entitled to apply for judgement in their favour based on the defendant’s admission

Question 5

What will the court do if the claim is for an unspecified amount?

Answer 5

• Court will stay or put hold proceedings and arrange to list the matter for a disposal hearing.
• At this hearing the court will determine the sum that is payable by the defendant to the claimant in respect of the claim.

Question 6

What are the steps for the defendant and claimant if they admit only part of a claim for a specified amount?

Answer 6

Defendant
* Complete the admission form admitting part of the claim and make an offer to the claimant to settle the whole matter

Claimant
* Will have 14 days to make a decision on the offer

Claimant accepts offer
* Court will proceed to make a judgement for the sum agreed if the claimant requests it to do so
* The claimant accepts the offer amount but rejects the proposals for payment, then the court will list the matter for a disposal hearing

Claimant rejects offer
* The matter will proceed as a disputed case and the defendant will be required to file a defence

Question 7

What does it mean when a defendant admits liability but disputes quantum?

Answer 7

They accept responsibility for the breach, accident or event

Deny that it caused injury, damage or loss to the extent claimed by the claimant.

Question 8

If a defendant wishes to withdraw an admission, what 5 things will the court consider in determining whether to grant permission for this?

Answer 8

1. Prejudice to the parties
2. Reason the admission was made
3. Stress the party was under when they made the admission
4. Interest of the public
5. The timing of the application of the application to withdraw

Question 9

When will a defendant not have to file an Acknowledgement of Service?

Answer 9

If they file a defence within 14 days of service of the Particulars of Claim

Question 10

What 3 things can the defendant achieve on the acknowledgement of Service form?

Answer 10

1. Indicate intention to dispute but claim an additional 14 days
2. Admit some of the claim but ask for time to pay
3. Dispute the jurisidiction of the court

Question 11

What type of defendants will the above time limits not apply to?

Answer 11

Defendants outside the jurisdiction

Question 12

What happens if a time limit will expire on a day the court office is closed?

Answer 12

The time limit will be deemed to expire at the end of the next day on which the court office is open

Question 13

If the claimant wishes, what two things can they apply for when the defendant files and Acknowledgement of Service?

Answer 13

1. Summary judgement
2. Interim payment

Question 14

What Part 20 claim will always require the court’s permission?

Answer 14

Counterclaim against a non-party

Question 15

Whether three considerations will the court weigh up in determining whether a Part 20 claim should be separate from the main claim?

Answer 15

1. Connection with the main claim
2. Whether the Part 20 claimant is seeking substantially the same remedy which some other party is claimaing from him
3. Whether Part 20 claimant wants the court to decide on question connected to the proceedings.

Question 16

What are the 4 types of Part 20 claims?

Answer 16

20.4 - counterclaim against the claimant
20.5 - counterclaim against non-party
20.6 - additional claim for contribution and indemnity
20.7 - other additional claim by the defendant

Question 17

If only a claim form is served and particulars of claim are marked ‘to follow’ - what is requried by the defendant?

Answer 17

No action is required by the defendant.

Question 18

When a particulars of claim is served on the defendant what must D do?

Answer 18

• Must do something within 14 days of deemed service.

Admit claim, acknowledgement of service, defence or ignore proceedings

Question 19

When is a default judgement entered into?

Answer 19

Once proceedings have been served upon the defendant and the defendant doesn’t respond at all.

• Claimant obtains judgement without there being any consideration of the facts involved - automatic judgement

Question 20

What is the procedure for claimant to obtain a default judgement?

i.e. when the Defendant doesn’t reply

Answer 20

Claimant will need to make an application under CPR 12 and will require them to complete a request for a default judgement.

Must satisfy to the court that
1) particulars of claim have been served upon the defendant
2) the defendant has not filed an acknowledgement of service form or a defence within the relevant time period

Question 21

What are the different types of default judgements?

Answer 21

Specified sum
* claimant must indicate the date the pay was due
* calculate an up to date total for the interest claimed
* state a daily rate at which interst accrues

Unspecified sum
* Court will grant the claimant’s request for the default judgement, but the case will need to come back before the court to decide the amount the defendant should pay (disposal hearing)

Question 22

What are the 2 grounds available for the defendant to set aside default judgements?

Mandatory ground - must
Discretionary ground - may at courts discretion

Answer 22

Yes, a defendant may apply for a default judgement to be set aside
1) Mandatory ground
Court must set aside a default judgement if it was wrongly entered into - e.g. judgement has been entered too early, before time for filing an acknowledgement of service or a defence epxired or the claim has been paid in full

2) Discretionary ground
Court can set aside a default judgement and the defendant must show that they had a
* A real prospect of successfully defending the claim
* There is some other ground reason why the defendant should be allowed to defend the claim

Done via Application Notice N244 form which is supported by a witness statement outlining the defendants submissions.

Question 23

What are examples of ‘real prospect of defending the claim’?

Defence of default judgement

Answer 23

Merits of the defence
- High chance of success and therefore should be allowed to re-open the claim

Question 24

What are examples of ‘reasonable reasons’ in terms of discretionary grounds of defending judgement in default?

Defence of default judgement

Answer 24

• Defendant was on holiday / could not respond within the time constraints
• Court will also take into account the promptness of the defendant’s application to set aside - essential that the defendant issues their application for a defence against a summary judgement asap to comply with the overriding objective of ensuring that the case is dealt with expeditiously and fairly

Question 25

What are the 3 orders that a judge can make for a judgement in default?

Answer 25

1) Defendant succeeds and judgement is set aside - allow them to continue to defend the action
2) Defendant loses and the judgement remains in place - claimant may proceed with enforcement
3) Conditional order is made - application is successful but the defendant pays a certain amount of money into court as security by a specific deadline, If the defendant fails to pay the amount into court, the judgement in default will stand.
(common when court is concerened the defence is being pursued as a delaying tactic where the defendant does not have money to pay)

Question 26

In an unspecified claim, what can the defendant do?

Answer 26

Defendant can make an offer that accompanies their admission of liability.

• Court will serve a notice on the claimant asking whether or not they accept the figure in satisfaction of the claim.
• If offer is accepted - court may enter judgement for that amount
• If claimant accepts offer, but not for the amount proposed by the defendant - the court will make an offer based on the assets, income, and expenditure of the defendant

Question 27

Can the defendant dispute the court’s jurisdiction?

Answer 27

If D doesn’t believe that the court of England and Wales has jurisdiction to hear a claim.
* They must indicate this on acknowledgement of service form
* Defendant then has 14 days from the date of filing the acknowledgement of service to make an application to the court disputing jurisdiction
* **Defendant must submit supporting evidence **to show court why they do not have jurisdiction
* If D fails to make an application within 14 day window - court will assume that the defendant accepts jurisdiction and defence must be filed

Court grants the defendant’s application
* Claim form will be set aside and proceedings closed

Court rejects application
* Defendant will be required to file a further acknowledgement of service within 14 days of the date of order dismissing the application and the proceedings can continue

Question 28

In what circumstance is it likely that the claimant will fail to obtain a default judgement?

Answer 28

• If the defendant has already made an application for either a summary judgement or for the claim form and particulars to be struck out.

Summary judgement - a special type of application that is made by either the claimant or defendant on the basis that the claim or defence has no reasonable prospect of success at trial

Question 29

What is a summary judgement?

Answer 29

A special type of application that is made by either the claimant or defendant on the basis that the claim or defence has no reasonable prospect of success at trial

Question 30

How are costs dealt with in a judgement in default claim?

Answer 30

Application granted on mandatory ground - claimant will have been at fault for entering judgement when they should not have done - claimant is liable to pay the defendant’s costs

Application granted on discretionary grounds of a good reason - neither side at fault, costs are usually in the case

Application granted on the discretionary ground of defence with a real prospect of success at trial - the defendant is at fault in failing (initially) to deal with the proceedings. As a consequence, they normally will have to pay the claimant’s costs

Application fails - defendant will pay claimants costs of the application

Question 31

What are the 2 ways that a claimant can voluntarily bring an end to proceedings without progressing to a judgement?

Answer 31

1) Discontinuance
2) Settlement

Can do this at any time.

Question 32

Why would claimant bring proceedings to an end by discontinuance?

Answer 32

A claimaint is entitled to discontinue all or part of their proceedings at any point of a court action.

Reasons why
1. Court action is taking too long and too expensive for claimant
2. claimant has discovered that the defendant does not have and unlikely to have means to pay any judgement awarded in favour of the defendant
3. claimant has re-evaluated the stregnth of their claim and decided it is unlikely that they will be successful

Question 33

What procedure does the claimant need to take to discontinue proceedings?

Answer 33

1) Claimant must first file and serve a notice of discontinuance on all of the parties to proceedings
2) If there is more than one claimant - the other claimants must provide their written consent to the proceedings being discontinued
3) If there are multiple claimants and they refuse to provide their consent, the claimant who wishes to discontinue must apply for the permission of the court to do so.

Question 34

After the relevant procedure for discontinuance, when will proceedings be deemed discontinued?

Answer 34

As soon as the notice of discontinuance is served on all other parties to the action, the claim will be discontinued.

Question 35

What penalties does the claimant face for discontinuing proceedings?

Answer 35

The claimant will be liable to pay the defendant’s costs on the standard basis in relation to either
1) Whole action
2) Part of the action that has been discontinued

Standard basis - one of the two methods by which the court calculates the level of legal costs, fees and expenses payable by one party to another. Using this method, costs, fees and expenses associated with the legal action and claimed from the opposition must have been reasonably incurred and must be proportionate tot he issues that the court has been asked to resolve.

Question 36

What is a pre-action settlement?

Answer 36

Where a settlement is reached prior to the issue of proceedings, the prospective claimant will not be entitled to recover their legal costs unless this has been agreed

Question 37

How can a claimant bring proceedings to an end through reaching a settlement while litigation is ongoing?

Answer 37

• If agreement is reached between the parties - need to draw up a consent order
• A consent order - contract by which the claimant agrees to terminate the proceedings in exchange for a settlement sum
• If defendant breaches any of the terms of consent order - claimant will need to issue new proceedings (based on breach of contract, the contract being the consent order)

Question 38

What are the formalities for a consent order?

Answer 38

1. Order agreed by the parties must be drawn up in the terms agreed
2. It must be expressed as being ‘By consent’
3. Signed by a legal representative acting for each of the parties to whom the order relates

Question 39

What is a Tomlin order?

Answer 39

• A court order under which a claim is stayed or paused on terms that have been agreed between the parties and are attached to the order in the form of a confidential schedule.
• Avoids the need to issue fresh proceedings if the term of the order is breached by one of the parties.
  NOTE - the actual order does not set out the terms of agreement between the parties (these are in a confidential schedule which is attached to the order)

Question 40

What is included in the Tomlin order?

Answer 40

• Statement that the parties have agreed terms of settlement
• Statement that all further proceedings are stayed
• Confirmation that the stay is based on the terms set out in the attached schedule are being complied with
• A statement that if the terms of the schedule are breached, the innocent party, can make an application to the court and request that they lift the settlement
• A directions as to which party is paying the others costs and whether those costs are to be assessed