Responding to a Claim Flashcards
Must you do anything when the claim form has arrived but the particulars of claim have not arrived yet?
No - no need to respond
Must you do anything once both the particulars of claim and claim form have arrived?
Yes - D must respond at this point
What options does the defendant have in responding once the claim form and particulars of claim have arrived?
- 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
What is the acknowledgment of service?
Formal document which is filed with the court by the defendant that have been served with the claim form and particulars of claim
What is judgment in default?
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
What is a specified claim?
A type of claim that is issued for a fixed amount of money allegedly owed by D to the claimant
What is unspecified claim?
A particular type pf tort where the amount of money to be awarded is left to the court to determine
How does D admit the whole of a specified claim?
- 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
How does D admit the part of a specified claim?
- 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
What happens if D admits liability of an unspecified claim?
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
What is the effect of filing an acknowledgment of service?
The amount of time for filing a full defence is extended from 14 days after particulars of claim to 28 days
What needs to be in done if D intends to defend the claim?
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
Can the defendant submit a counterclaim?
Yes at the same time as the defence
When can the claimant file for judgment in default?
If D ignores the claim and the maximum period for acknowledgment of service or defence has passed.
If the claimant files for judgment in default, what amount will judgment be issued for?
The amount claimed by claimant
Can the parties between themselves agree an extension for filing defence?
Yes of a further 28 days without court permission meaning maximum is potentially 56 days
How will the claimant be notified of D’s defence/counterclaim?
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
If D wishes to dispute the court’s jurisdiction to hear the dispute what must they do?
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.
What happens if the court grants D’s application disputing the jurisdiction of the court?
The claim form will be set aside and the proceedings closed.
What happens if the court does not grant D’s application disputing the jurisdiction of the court?
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
What happens if D fails to make an application to dispute jurisdiction after filing acknowledgment of service?
Court will presume that D accepts the jurisdiction of the court and defence must then be filed
Will the court grant judgment in default on its own accord?
No - claimant must apply for it
What criteria must the claimant satisfy for the court to grant judgment in default?
- 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
When will the claimant’s application for judgment in default likely fail?
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
What is summary judgment?
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
What is ‘struck out’?
When the court orders written material to be deleted so that a party can no longer rely on it
What will the court need when issuing judgment in default for a specified amount?
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
What will the court do when entering judgment in default for an unspecified claim?
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
What would be the effect of a successful application by D to set aside judgment in default?
Judgment in default would be declared invalid and proceedings will continue as if judgment was never entered
What is the mandatory ground for setting aside judgment in default?
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
What is the discretionary ground for setting aside judgment in default?
- 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
What condition may the court attach for a successful application to set judgment in default aside?
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
What is discontinuance?
Termination of a legal action by a claimant
Why may the claimant discontinue a legal action?
- 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
What does the claimant need to do to discontinue proceedings?
- must file and serve a notice of discontinuance on all of the parties to proceedings
What does the claimant need to do to discontinue proceedings where there are multiple claimants?
- 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
When will proceedings be deemed to be discontinued?
As soon as the notice of discontinuance is served on all other parties to the action, the claim will be discontinued
What penalties does the claimant face for discontinuing proceedings?
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
What is the standard basis of costs?
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
What is settlement?
Where proceedings are voluntarily brought to an end because the parties have reached a settlement
What will the parties need to do to end proceedings as a result of settlement?
They will need to draw up and agree the terms of a consent order
What is a consent order?
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
What is a Tomlin order?
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
What will a Tomlin order detail?
- 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
