Responding to a claim Flashcards
What is responding to a claim?
The defendant may
File or serve and admission
File a defence
File or serve an admission and file a defence
File an acknowledgment of service
DOESN’T NEED TO REPSOND UNTILL SERVED PARTICULARS OF CLAIM
REPSONSE MUST BE WITHIN 14 DAYS OFF DEEMED SERVICE OF PARTICULARS OF CLAIM
Acknowledgment of service?
Acknowledgment of service
- Why? If unable to file defence in time, or needs longer that the 14 days deemed service of particulars of claim to serve a defence
- If it wishes to dispute that the court has jurisdiction to hear the claim
- When to? 14 days after service of particulars
- How to acknowledge service? Form N9 is sent in response pack they will indicate whether intend to defend all or part of the claim or whether they contest jurisdiction of court.
- Deadlines? If not filing an acknowledgment must be in 14 days of particulars of service. IF acknowledging the service then extends deadline to defend the claim to 28 days after deemed date of service of particulars of claim
- SO ACKNOLWEGDE WITHIN 14 DAYS AND THEN CAN SERVE A DEFENCE WITHIN ANOTHER 14 DAYS. SO GIVES MORE TIME.
- SECOND REASON – may want to dispute courts jurisdiction.
Defending a claim?
- When to defend – must file a defence which sets out why the claim is disputed – must be filed at court and served on all parties within the prescribed time limits as set out above. Sometimes longer time:
o If claim form has been served out of the jurisdiction, longer periods apply depending on which other country is involved
o Where a defendant makes an application disputing court jurisdiction
o Where before the defence is filed claimant applies for summary judgement
o Where court makes an order for service of a claim form on an agent of a principal who is overseas - Extending time by agreement – up to 28 days –
This means that it is possible for the defendant to have up to 56 days from the deemed date of
service of the particulars of claim to file the defence without having to apply to the court for
permission to extend the time for service
Counting time?
Days on which period begins is NOT INCLUDED – not date its served
Days on which period ends is included UNLESS PERIOD IS AN EVENT (TRIAL)SERVICE IS INCLUDED
PERIODS OF 5 DAYS OR LESS DO NOT COUNT WEEKENDS
COURT OFFICE CLOSED -if done on next day its done.
Admit the claim?
Admitting the whole of a specified claim
- Court will enter judgement for amount claimed - Exact amount can be calculated immediately
Admitting part
- Judgment in part – admitted part of debt and interest on admitted part
- Defence – disputed part of debt
Admitting unspecified claim
- Liability may now be resolved but quantum needs to be decided
- Judgement on liability BUT AMOUNT TO BE PAID WILL BE QUANTUM HEARING LATER
- May admit liability to pay whole claim or may admit liability and offer a sum in satisfaction of the claim
Entering judgement following a claim being admitted?
- Claimant will be notified of admission and has option to enter judgement against the defendant which means a final order which disposes of the claim. It declares claimant as successful part and as such ordinarily done by claimants.
- Defendants will not want an order to be made because of enforcement proceedings and most judgments will be places on public searchable register.
- Depending on parties may conclude by way of settlement instead of entering judgement, such as a Tomlin order. Or by claimant agreeing to withdraw the claim.
The amount of the judgement - Specified claims
- Amount of claim
- Interest since date of issue
- Court fees
- Fixed costs CPR 45
Unspecified claims - Judgment will be on liability only – so no amount of damages recoded -matter will be listed for subsequent hearing where evidence will be heard on issue of quantum.
How to enter judgement following a claim being admitted?
Claimants simply files correct paperwork, which is processed by court staff. The paperwork is a request for judgment and reply to admission from within 14 days of receiving notice of admission. Unless otherwise agreed, the judgement is payable by defendant within 14 days.
Default judgement?
Default judgement – is applying a judgement granted in claimants’ favour without a trial if the defendant has not responded to the claim by either serving an acknowledgment of service or a defence within the prescribed time limits. GIVEN PROCEDERAL REASON.
IF FOR UNSEPCEFIED SUM
- COURT WILL SET OUT TIMETABLE TO DECIDE SUM TO BE PAID
- If successful the claimant has won case
What must be shown for default judgement?
- At time of which judgement is entered, time has expired for filing an acknowledgment of service.
- Claim has not been admitted or satisfied by defendant
- No application for summary judgement has been made by defendant
Procedure for default judgement?
- Money claims – specified sum – request for judgement on specified form- and application is dealt with on paper
- Money claims – unspecified sum dealt with on paper – but enter a judgment AND set a timetable leading up to a hearing at which court will decide sum.
- Non-money claims – cannot be decided on paper – must apply for default judgment hearing
- Interest – may include amount of interest claimed to the date pf judgement –
Claim against more than one defendant - Can obtain default against a few defendants and continue against the others. 12.9
Setting aside default judgement?
- FROM DEFENDANTS POINT OF VIEW
MUST set aside – if judgement was wrongly entered - Reasons:
- Time limit has not in fact expired
- An acknowledgement had been filed
- Summary judgment or strike out had been applied for before judgment was entered
- Defendant has in fact satisfied the whole of the claim before judgement was entered into
MAY set aside - If correctly entered but at courts discretion
- Defendant has real prospect of successfully defending claim
- Appears court some their good reasons or where it’s supported by evidence
- Must act in accordance with the overriding objective and is at courts discretion.
Courts approach to setting aside: relief from sanctions - Tests from sanctions laid down in Denton and other applies.
What is a strike out?
Strike out focuses on a
statement of case and so covers cases which do not amount to a legally recognisable claim or
defence. Default judgment covers cases where the defendant has failed to respond to the claim
and does not look at the contents of the statement of case.
What is summary judgement?
In contrast,
summary judgment covers cases which are weak on the facts, so the court will consider the merits
of the case.
Request for further info?
Use procedure in CPR 18 – request for further info
- Formal request in writing – and needs to follow rules
- And if adequate response is not forthcoming – application then should be made to court
- Response to that is a statement of acse and must be given with a statement of truth
- Court can order to give information
Defending the claim - defence?
Dispute facts that would have been in defendants knowledge
Contents – general
- Usually follow particulars of claim
- Can either for each allegation:
- Admit the allegation
o Claimant then does not have to bring any further evidence in support of it
- Deny it
o If they had occurred would have been in defendants’ knowledge. Must give reasons. NOT POSISBLE TO JUST DENY
o Give reasons for denial.
- Require proof of it
o When direct knowledge is not a given.
Failing to deal with an allegation
- Consequences – defendant is deemed to have admitted it
- Unless sets out own case and includes this point then claiamint will need to prove it.
- In a money claim however it is not admitted unless expressly stated but still should be admitted.
Defence contents – specific
- Limitation – this is a defence to a claim BUT NOT A BAR –
- Disputing the statement of value
- In personal injury claims the defendants must state whether it agrees, disputed or has no knowledge of the matters in the schedule of past and future expensed.
- May SET-OFF try to say you owe me money
A reply is an optional statement of case served by claimant
- Should be filed with directions questionnaire
