F. Responding to a claim

Question 1

The D must only…

Answer 1

respond to PoC

Question 2

So, if C serves only CF, with PoC to follow…

Answer 2

D doesn’t have to do anything until PoC arrives

Question 3

Once PoC arrives, there are 3 options

Answer 3

1. File AoS
2. File defence and/or counterclaim
3. Admit claim

Question 4

Once D received PoC, D can choose to file an AoS if:

Answer 4

• defence not ready or
• D wants to dispute court’s jurisdiction

Question 5

Filing AoS gives D more time to file defence. This is because once PoC served D has:

Answer 5

• 14 days from deemed service of PoC to file defence or
• if D files an AoS, a total of 28 days from the service of PoC to file defence.
• ref to days are clear days

Question 6

If D does want to file an AoS, they must to do within…

Answer 6

14 days of service of PoC.

The court will inform C in writing that an AoS has been filed.

Question 7

Remember PoC can be served with the CF or separately. So (and remember always clear days):

Answer 7

• CF and PoC served together = 14 days after deemed date of service of the CF
• PoC served after CF = 14 days after date of service of PoC

Question 8

What can be used to dispute the court’s jurisdiction?

Answer 8

AoS

Question 9

Disputing a court jurisdiction = should not be heard in England and Wales.

What should be done to dispute a court jurisdiction?

Answer 9

• D must indicate this on AoS
• Once AoS filed, D must make application to dispute the jurisdiction within 14 days after filing AoS. App supported with evidence

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Question 10

What if D fails to make application to dispute jurisdiction?

What if D’s application to dispute jurisdiction is successful/unsuccessful?

Answer 10

Fail = court assumes they have submitted to the jurisdiction

Successful = court set aside the claim

Unsuccessful = D must file another AoS within 14 days of the court’s declaration

Question 11

7 things to remember when making a defence and/or counterclaim

Answer 11

• to make defence and counterclaim, D must file their own particulars of counterclaim. Defence and counterclaim same doc.
• D files defence, also file counterclaim same time.
• D may want to counterclaim another party not C = D apply to court to join that party
• after filing counterclaim and defence, court will issue CF for counterclaim
• thic CF and doc containing defence and counterclaim must be served together after court issues the CF
• C has 14 clear days to file defence to the counterclaim or D can enter a default judgment
• C can also reply to defence. C must file reply at the same time as the directions questionnaire and serve reply on D. If C defends counterclaim and replies to the defence, this will form one doc.

Question 12

D can admit all/part of the claim. What should the parties be aware of when accepting specified and unspecified sums?

Answer 12

Specified = offering specific amount (C must accept) and a timing proposal (how that sum is to be paid)

Unspecified = D can (don’t have to) offer an amount (C can reject) and timing (which C can also reject).

Question 13

What happens if all the claim is admitted by D for a specified sum?

Answer 13

D must serve a form of admission within 14 days of service of PoC and must make payment offer (and timing i.e. lump sum/instalments).

C can accept D’s offer in which they file request for judgment of

C can reject D’s terms i.e. timing of payment, court determines this.

Question 14

What happens if all the claim is admitted by D for a unspecified sum?

Answer 14

D will either:

• make an offer (C can accept/reject). If C rejects, court determines amount to be paid
• admit and not make offer (C requests judgment and court determines the sum to be paid and how)

Question 15

What happens if part of the claim is admitted by D?

Answer 15

D therefore admits liability for a certain amount.

D files a form within 14 days of PoC.

The court notifies C, who within 14 days must:

• accept offer (in which case C files request for judgment)
• accept offer but rejects D’s proposal on payment timings. The court determines this or;
• rejects offer, in which case case proceeds

Question 16

What can a claimant do if D fails to file an acknowledgment of service or defence within 14 days of receipt of PoC?

Answer 16

C can obtain a judgment in default which means there is no trial.

Question 17

How can C make a judgment in default?

Answer 17

C must file a form requesting a default judgment as soon as D is late to file (day after 14 days expire)

Question 18

What happens if C is claiming a specified/unspecified sum in the default judgment?

Answer 18

Specified = file request with amount sought, costs and interests. court enter final judgment and send copies to C and D.

Unspecified = C make application, and court enter judgment and decide amount D should pay at the hearing. An interim judgment entered and directions and hearing date (to establish liability) are issued and set. Copy of interim judgment sent to C and D.

Question 19

What can D do once C makes a default judgment?

Answer 19

Accept it or apply to set it aside using either mandatory grounds or discretionary grounds

D must do so quickly (court will consider this) to set aside and file app notice + w/s

Question 20

What is the mandatory ground for setting aside a default judgment?

Answer 20

Judgment in default entered into by mistake - either D did have time to file or did in fact file.

Court must set aside judgment. Case continues.
C pays D’s costs

Question 21

What are the discretionary grounds for setting aside a default judgment?

Answer 21

1. D has real prospect of successfully defending claim
2. Good reason for allowing claim to continue i.e. being on holiday
   For 2. court assesses:
   - seriousness and significance of non compliance
   - consider why breach occurred
   - evaluate all circumstances of case so application dealt with fairly.

Question 22

If successful in proving discretionary grounds for judgment in default…

Answer 22

Judgment may be set aside.

Real prospect = D pays C’s costs.

Good reason = costs in the case (ultimate winner at trial pays)

Question 23

Settlement can be made any time and are made without prejudice. If reached after CF issued…

Answer 23

it can be recorded in a consent order/judgment in default for sealing by a court officer, which is a settlement agreement filed by both parties at court.

Makes it easier to enforce party if they breach. Enforcement proceedings sought if settlement monies not paid under order.

Consent order must be agreed by both parties and expressed as ‘By Consent’ and signed by parties’ sols.

Question 24

What is the usual order used to record settlement?

What is the consequence of not using an order?

Answer 24

Tomlin Order

If no order is used, there is no enforceable obligation regarding (i.e. automatic right to) payment.

Question 25

What are the two parts of a Tomlin Order?

What happens if a party defaults?

Answer 25

1. The order, which confirms the parties have agreed settlement and that the case is stayed pending the settlement terms being carried out, and
2. A schedule confirming the amount to be paid, by whom, and by what date

Proceedings can recommence

Question 26

In what two circumstances will court permission be required to discontinue a case?

What is the costs consequence for the claimant of discontinuing a case?

Answer 26

1. Court has granted an interim injunction
2. Claimant has received an interim payment (unless paying party consents)

Claimant liable to pay the defendant’s costs up until that point (subject to cost shifting applicable to personal injury)