Responding To A Claim

Question 1

If the defendant is served with the claim form alone how should they respond?

Answer 1

There is no need for the defendant to do anything if they have only been served with a claim form without the particulars

Question 2

If the defendant has been served with the claim form and the particulars of claim attached or the particulars following from a claim form how should they respond?

Answer 2

The defendant can:
- admit the claim in whole or part
- file an acknowledgement of service
- file a defence
- ignore the claim and allow the claimant to apply for judgment in default

Question 3

What is a specified claim?

Answer 3

A type of claim that is issued for a fixed amount of money allegedly owed by the defendant to the claimant

Question 4

What is an unspecified claim?

Answer 4

A particular type of claim in tort where the amount of money to be awarded is left to the court to determine

Question 5

What are the steps if the whole specified claim is admitted?

Answer 5

1. defendant completes admission form offering to pay the claimant in a specified time
2. defendant provides details of assets, income, expenditure and proposal instalment payments
3. claimant either accepts or raises objection to the terms. If there is an objection the court will either set the instalment figures and time period or set the matter down for a hearing (disposal hearing)
4. following receipt of admission from the defendant, the claimant will be able to apply for judgment in their favour

Question 6

What are the steps if part of the specified claim is admitted?

Answer 6

1. defendant completes the admission form admitting to part of the claim and often making an offer to settle the whole matter
2. claimant has 14 days to make a decision on the offer
3. if the claimant accepts the court will proceed to judgment for the sum agreed if the claimant requests to do so
4. if the claimant accepts the offer but rejects the proposals for payment the court will list for a disposal hearing
5. if the claimant rejects the offer, matter will proceed as a disputed case and the defendant will be required to file a defence

Question 7

What happens if the defendant files an admission of liability in an unspecified claim?

Answer 7

The court will stay or put on hold proceedings and arrange to list the matter for a disposal hearing

Question 8

Can the defendant make an offer to settle in an unspecified claim?

Answer 8

Yes, it would accompany the admission of liability and the court would serve a notice on the claimant asking if they accept the offer. If they do, the court will enter a judgment in that amount. If they do but not the proposed payments the court will make an order based on assets, income and expenditure

Question 9

What should the defendant do if they have been served a claim form and the particulars and they do not wish to admit the claim but not in a position to immediately submit a defence?

Answer 9

File an acknowledgement of service as this essentially extends the amount of time they have to file a full defence from 14 days after the particulars are served to 28 days

Question 10

What are the timescales for the defendant after being served the claim form and particulars of claim?

Answer 10

• maximum of 14 days from the date of service of the particulars of claim to file an acknowledgement of service
• if acknowledgement served, a maximum of 28 days from the date of service of the particulars of claim to file a defence and counterclaim (if applicable)
• the parties can agree, without court involvement, to extend this another 28 days

Question 11

What should the defendant do if they do not think a court of England and Wales has jurisdiction to hear the claim?

Answer 11

They must indicate this on the acknowledgement of service form. The defendant then has 14 days from the date of filing the acknowledgement to make an application to the court disputing jurisdiction. If the defendant does not serve an application within 14 days the court will assume the defendant accepts jurisdiction and a defence must then be filed

Question 12

What happens if the court grants the defendant’s application regarding jurisdiction?

Answer 12

The claim form will be set aside and the proceedings closed

Question 13

What happens if the court rejects the defendant’s application regarding jurisdiction?

Answer 13

The defendant will be required to file a further acknowledgment of service within 14 days of the date of the order dismissing the application and proceedings can continue

Question 14

What could happen if the defendant failed to file either an acknowledgement of service or a defence within 14 days or files an acknowledgment of service and fails to serve a defence with 28 days?

Answer 14

The claimant is entitled to apply for judgment in default

Question 15

What criteria must a claimant satisfy to be able to apply for a judgment in default?

Answer 15

1. the particulars of claim have been validly served on the defendant, and
2. the defendant has not filed an acknowledgement of service or defence within the relevant time period

Question 16

What circumstances could mean a claimants application for a judgment in default will fail?

Answer 16

If the defendant has made an application for either a summary judgment or to have the claimant’s claim form and particulars of claim struck out

Question 17

What is a summary judgment?

Answer 17

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

Question 18

What can a defendant do if they receive a judgment in default?

Answer 18

If they wish to contest the proceedings they can apply to set aside the judgment and there are two grounds on which a defendant can make an application to set aside the judgment

Question 19

What are the two grounds on which a defendant can make an application to set aside the judgment in default?

Answer 19

The mandatory ground - the court must set aside the judgment if the defendant can prove that they did file the acknowledgement or defence within the relevant period or that the defendant settled and paid the claim prior to the judgment in default being entered
The discretionary ground - the court may set the judgment aside if the defendant can show they have a real prospect of defending the claim or that there is some other good reason why they should be allowed to defend the claim

Question 20

What are the two ways in which a claimant can voluntarily bring an end to the proceedings without progressing to a judgment?

Answer 20

• discontinuance
• by settlement

Question 21

When can a claimant discontinue proceedings?

Answer 21

They can discontinue all or part of their proceedings at any point of a court action

Question 22

What steps does the claimant need to take to discontinue a claim?

Answer 22

• claimant must file and serve a notice of discontinuance on all of the parties
• if there is more than one claimant the others have to provide their written consent to the proceedings being discontinued
• if the other claimants refuse to provide their consent the claimant who wishes to discontinue must apply for the permission of the court to do so

Question 23

What are the penalties for the claimant discontinuing?

Answer 23

The claimant will be liable to pay the defendant’s costs on the standard basis

Question 24

What is the standard basis of costs?

Answer 24

Costs, fees and expenses associated with the legal action claimed from the opposition must have been reasonably incurred and must be proportionate to the issues that the court has been asked to resolve

Question 25

If the parties reach a settlement and wish to voluntarily bring proceedings to an end, what do they need to do?

Answer 25

They need to draw up and agree the terms of a consent order which is essentially a contract by which the claimant agrees to terminate proceedings in exchange for a settlement sum

Question 26

What would happen if the defendant breached the terms of a consent order?

Answer 26

The claimant would have to issue a new set of proceedings based on breach of contract - the consent order - to enforce the terms

Question 27

What type of order would stop the claimant having to issue a new set of proceedings if the defendant breached the consent order?

Answer 27

A Tomlin order

Question 28

What is a Tomlin order?

Answer 28

A court order under which a claim is stayed or paused on terms that have been agreed between the parties and then are attached to the order in the form of a confidential schedule. This avoids the need of having to issue fresh proceedings if a term if the order is breached by one of the parties