Responding to a Claim

Question 1

Must you do anything when the claim form has arrived but the particulars of claim have not arrived yet?

Answer 1

No - no need to respond

Question 2

Must you do anything once both the particulars of claim and claim form have arrived?

Answer 2

Yes - D must respond at this point

Question 3

What options does the defendant have in responding once the claim form and particulars of claim have arrived?

Answer 3

• admit the claim in whole or in part
• file an acknowledgement of service
• file a defence
• ignore the claim and allow the claimant to apply for judgment in default

Question 4

Wha is the acknowledgment of service?

Answer 4

Formal document which is filed with the court by the defendant that have been served with the claim form and particulars of claim

Question 5

What is judgment in default?

Answer 5

Term for judgment being awarded in the claimants favour on the basis that the defendant has failed to respond to the claim form and particulars of claim being served on them within a relevant time

Question 6

What is a specified claim?

Answer 6

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

Question 7

What is unspecified claim?

Answer 7

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

Question 8

How does D admit the whole of a specified claim?

Answer 8

• D completes admission form offering to pay claim in full within a specified time period
• D to provide details on the admission form (N9A) of assets, income, expenditure and a proposal for instalment payments which is sent to court
• Claimant will either accept the terms or raise objection to them. If either the claimant raises objection, the court will either set the instalment figures and time period or set the matter down for. hearing to hear each side’s point of view.
• Following receipt of the admission from the defendant the claimant will also be entitled to apply for judgment in their favour based on the defendant’s admission

Question 9

How does D admit the part of a specified claim?

Answer 9

• D completes the admission form admitting part of the claim and often making an offer to the claimant to settle the whole matter
• claimant will have 14 days to make a decision on the offer
• if the claimant accepts the offer the court will proceed to make a judgment for the sum agreed if the claimant requests it
• if the claimant accepts the offer amount but rejects the proposals for payment then the court will list the matter for a disposal hearing
• if the claimant rejects the offer, the matter will proceed as a disputed case and the defendant will be required to file a defence

Question 10

What happens if D admits liability of an unspecified claim?

Answer 10

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

Question 11

What is the effect of filing an acknowledgment of service?

Answer 11

The amount of time for filing a full defence is extended from 14 days after particulars of claim to 28 days

Question 12

What needs to be in done if D intends to defend the claim?

Answer 12

They will need to complete the defence form found in the response pack and file within 14 days of particulars of claim of 28 with acknowledgement of service

Question 13

Can the defendant submit a counterclaim?

Answer 13

Yes at the same time as the defence

Question 14

When can the claimant file for judgment in default?

Answer 14

If D ignores the claim and the maximum period for acknowledgment of service or defence has passed.

Question 15

If the claimant files for judgment in default, what amount will judgment be issued for?

Answer 15

The amount claimed by claimant

Question 16

Can the parties between themselves agree an extension for filing defence?

Answer 16

Yes of a further 28 days without court permission meaning maximum is potentially 56 days

Question 17

How will the claimant be notified of D’s defence/counterclaim?

Answer 17

The court will serve the defence and counterclaim on the claimant once D has filed them at court unless D indicates that they would like to do this themselves

Question 18

If D wishes to dispute the court’s jurisdiction to hear the dispute what must they do?

Answer 18

They must indicate so on the acknowledgment of service form and then within 14 days of submitting the acknowledgement of service they must make an application to the court disputing jurisdiction.

Question 19

What happens if the court grants D’s application disputing the jurisdiction of the court?

Answer 19

The claim form will be set aside and the proceedings closed.

Question 20

What happens if the court does not grant D’s application disputing the jurisdiction of the court?

Answer 20

D will be required to file a further acknowledgement of service within 14 days of the date of the order dismissing the application, and the proceedings can continue

Question 21

What happens if D fails to make an application to dispute jurisdiction after filing acknowledgment of service?

Answer 21

Court will presume that D accepts the jurisdiction of the court and defence must then be filed

Question 22

Will the court grant judgment in default on its own accord?

Answer 22

No - claimant must apply for it

Question 23

What criteria must the claimant satisfy for the court to grant judgment in default?

Answer 23

• show the particulars of claim have bene validly served on the defendant and
• D has not filed an acknowledgement of service or defence within the relevant time period

Question 24

When will the claimant’s application for judgment in default likely fail?

Answer 24

When D has already made an application for either summary judgment or to have the claimant’s claim form and particulars of claim struck out

Question 25

What is summary judgment?

Answer 25

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

Question 26

What is ‘struck out’?

Answer 26

When the court orders written material to be deleted so that a party can no longer rely on it

Question 27

What will the court need when issuing judgment in default for a specified amount?

Answer 27

Claimant will have to provide court with confirmation of the date payment was due as well as up-to-date interest figure and daily rate of interest

Court the enters judgment for up-to-date amount as well as ordering daily interest

Question 28

What will the court do when entering judgment in default for an unspecified claim?

Answer 28

The court will enter judgment in claimant’s favour then schedule a hearing so that they can determine the amount which the defendant shall pay

Question 29

What would be the effect of a successful application by D to set aside judgment in default?

Answer 29

Judgment in default would be declared invalid and proceedings will continue as if judgment was never entered

Question 30

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

Answer 30

Court must set aside judgment if D can prove that they:

• did in file their defence/acknowledgement of service in time

OR

• settled and paid the claim prior to judgment in default being entered

Question 31

What is the discretionary ground for setting aside judgment in default?

Answer 31

• D must show they have. real prospect of defending the claim

OR

• they have good reason why the should be allowed to defend the claim
• D must also make application to set aside judgment in default promptly

Question 32

What condition may the court attach for a successful application to set judgment in default aside?

Answer 32

They may not set judgment aside unless D pays a certain amount of money into the court as security by a specific deadline.

If they fail to do so judgment in default will stand

Question 33

What is discontinuance?

Answer 33

Termination of a legal action by a claimant

Question 34

Why may the claimant discontinue a legal action?

Answer 34

• the court action is taking too long and is too expensive to continue
• the claimant has discovered that D does not have the means to pay any judgment
• the claimant has re-evaluated their case and decided it would be unlikely to be successful

Question 35

What does the claimant need to do to discontinue proceedings?

Answer 35

• must file and serve a notice of discontinuance on all of the parties to proceedings

Question 36

What does the claimant need to do to discontinue proceedings where there are multiple claimants?

Answer 36

• the other claimants must provide their written consent to the proceedings being discontinued, which should be attached to the notice of discontinuance
• if the multiple claimants refuse to provide their consent, the claimant who wishes to discontinue must apply for the permission of the court to do so

Question 37

When will proceedings be deemed to be discontinued?

Answer 37

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

Question 38

What penalties does the claimant face for discontinuing proceedings?

Answer 38

Claimant will be liable to pay the defendant’s costs on the standard basis in relation to either the whole of the action or alternatively the part of the action that has been discontinued

Question 39

What is the standard basis of costs?

Answer 39

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

Question 40

What is settlement?

Answer 40

Where proceedings are voluntarily brought to an end because the parties have reached a settlement

Question 41

What will the parties need to do to end proceedings as a result of settlement?

Answer 41

They will need to draw up and agree the terms of a consent order

Question 42

What is a consent order?

Answer 42

An umbrella term for all orders that record settlements which are reached between the parties to litigation and is way by which the claimant agrees to terminate proceedings in exchange for settlement sum

Question 43

What is a Tomlin order?

Answer 43

Special consent order where claim is stand or paused on terms that have been agreed between the parties and are then attached to order in form of confidential schedule.

Avoids need to issue fresh proceeding if a term of the order is breached by one of the parties

Question 44

What will a Tomlin order detail?

Answer 44

• not details of settlement as this is set out in a confidential schedule
• 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 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 life the stay, thereby allowing the innocent party to ask the court to enforce the settlement
• a direction as to which party is paying the other’s costs and whether those costs are to be assessed