Responding To A Claim Flashcards
What happens after proceedings are issued?
The defendant is COMPELLED to take action, unless they are prepared for the claimant to win outright
When must the D respond/react to the claims form?
Once the claim form and POC have been served.
What is the form that the D will receive to respond to a claim?
N9. This is a response pack which explains how the D should respond and the time limits for doing so.
What are the 3 options for the defendant after being served?
To file an admission - part 14
To file an acknowledgement of service - part 10
To file a defence - part 15
What is the time limit for the defendant to do “something”
14 days of deemed service from CF and POC
What happens if the defendant admits the entire claim?
They must provide details of their income and expenditure, and make an offer of payment.
Claimant may file a request for judgement.
What happens if a D admits part of a claim?
Claimant has 14 days to consider any offers and decide the next course of action:
Accept part admission
Accept, but not the D proposals of payment
Reject offer entirely and proceed with claim
What is an acknowledgement of service?
Defendant may want to defend claim, but are not ready yet to drat a full defence.
This enables them time to do it. Instead of 14 days, you then have 28 days since service of POC
What is the defence?
D responds to proceedings by filling a full defence.
Once D has been filed, a copy must be served on all other parties. Court will be responsible for this.
What is a counter claim?
As part of the D response, they may wish to pursue their own claim against the claimant.
How do you extend the time limit on the defence? And how long?
You can add 28 days, meaning a total of 56 days from the date of service. Any FURTHER will need courts permission
What is default judgement?
If the D takes no action at al, the claimant can FORCE the issue. This is known as default judgement.
Means the claimant obtains a judgement without there being any consideration of the facts involved.
What is the procedure for default judgement?
Claimant makes an application under CPR PART 12. This will require them to complete a request for default judgement.
For default judgement, what must the claimant show the court?
The particulars of claim have been served on the D
The D has NOT filed an acknowledgment of service or. A defence within relevant time period
What must the claimant show when applying for default judgement for a SPECIFIED SUM?
Indicate the date payment was due
Calculate interest claimed
State daily rate at which interest accrues
When will payment be required when a specified sum default judgement is entered?
14 days after final judgement has been entered
What are the 2 grounds under CPR PART 13 where the defendant can rely on for this application to SET ASIDE default judgement?
Mandatory ground
Discretionary ground
What is the mandatory ground for setting aside default judgements?
Court is obliged to set aside, if it was WRONGLY entered.
Occurs where judgement has been entered too early, before time for filing an acknowledge of service or defence has expired, or becuase claim has already been paid in full
What is a discretionary ground or setting aside default judgement?
Court has the POWER to set aside, in circumstnaces where the defendant has:
- a real prospect of successfully defending the claim, or
- there is some other good reason why the D should be allowed to defend the claim . (Ill, holiday etc- NOT work pressures)
What is the form for application notice of setting aside default judgement?
N244
What is N244?
The applciation made to set aside summary judgement
What are the 3 possible orders the court can make after N244 has been applied?
D succeeds, and judgement is set aside, allowing them to continue to defend action
Teh claimant wins and judgement remains in place. Proceed to enforcement
Conditional order is made - judgement is set aside, on condition the D pays monies into court. LEASE LIKELY
What are the costs for default judgements/interim applications?
If application is granted on MANDATORY grounds, claimant will be at fault, therefore liable to pay D costs
Where D establishes discretionary grounds, neither is at fault.
Where D only establishes discretionary grounds with a real prospect of success, D is at fault for failing to deal with proceedings, and must pay C costs.
If application fails, D will pay claimants costs of the applciation
What is discontinuance?
Claimant may decide not to pursue claim. Claimant can discontinue at any time during proceedings without permission, against ALL or ANY of the defendants.
What is the procedure for discontinuance?
Claimant must file and serve a notice of discontinuance on the parties of the proceedings. If consent is required, a copy of this must be attached to the notice.
What is the effect of discontinuance?
Proceedings are brought to an end against D on the date of the notice of discontinuance. Claimant is liable for costs of proceedings, unless court states otherwise.
What are pre-action settlements?
Where settlement is reached prior to issue of proceedings. The prospective claimant will NOT be entitled to recover their legal costs.
What happens if settlement is reached AFTER issue of proceedings? (2)
It is preferable for this to be recorded in a court order or judgement so it’s enforceable.
Consent orders
Tomlin orders
What are consent orders?
Where none of the parties is a litigant in person, it’s possible to AVOID an application to court, by drawing a consent order.
Court retains power not to approve proposed order, but usually do.
What are the formalities of consent order?
Order agreed by parties must be drawn up in terms agreed
Must be expressed as being “by consent”
Signed by legal representatives acting for each of the parties
What is a Tomlin order?
Stays the claim on agreed terms that are set out either in a SCHEDULE to the order, or SEPARATELY.
Tomlin order includes terms that the court cannot impose.
This is to keep various items discrete and confidential. Court does NT have the power to order must be set out in schedule to Tomlin order or separate document.
What happens if a D wishes to dispute the courts jurisdiction?
This must e stated on acknowledgement of service.
D then ahs 14 days to make a challenge.
If court refuses, the original acknowledgement of service ceases to have effect, and D must file a FURTHER acknowledgement of service within 14 days.
