Responding to a claim-FS Flashcards
(60 cards)
What must a defendant do when admitting a specified claim in full, and what happens if the claimant rejects their proposed payment terms?
🔹If the defendant fully admits a specified claim, they must provide income and expense details and propose payment terms.
🔹The claimant can request judgment.
🔹If the claimant rejects the terms, a judge will set the payment rate, often without a hearing.
What options does a claimant have within 14 days if the defendant admits only part of a specified claim, and what factor often influences the decision?
If the defendant admits only part of a specified claim, the claimant has 14 days to:
(a) Accept the admission and request judgment.
(b) Accept the admission but reject payment terms, in which case the court will decide.
(c) Reject the offer and proceed with defending the rest of the claim
The decision often depends on the defendant’s ability to pay.
In an unspecified claim, what happens if the defendant admits liability and offers a sum, and how is the case handled depending on whether the claimant accepts or rejects the offer?
In unspecified claims, where the defendant admits liability and offers a sum, the court will notify the claimant. If accepted, the claimant may enter judgment for that amount, and payment terms are handled as with specified claims. If the claimant does not accept the offer, the court will assess damages at a hearing.
Acknowledgment of Service
If the defendant intends to defend the claim but needs more time, they can file an acknowledgment of service. This extends the deadline to file a defense from 14 days to 28 days. It buys time to gather evidence before submitting a full defense.
When must a defendant file a full defence, what forms are typically used, and who is responsible for serving the defence on the other parties?
🔹 The defendant must file a full defense within 14 days of receiving particulars of claim, or 28 days if an acknowledgment of service was filed.
🔹 Defenses can be filed using response pack forms or detailed solicitor-prepared documents.
🔹 A copy of the defense must be served on all parties, usually by the court unless otherwise instructed.
How can a defendant extend the deadline for filing a defence, and what is required for an extension beyond 56 days?
If the defendant cannot meet the defense deadline, they can extend it by up to 28 days with the other party’s agreement, giving a total of 56 days. Any further extension requires court approval.
What are the exceptions that can prevent a default judgment from being granted, and what must happen before default judgment can proceed in such cases?
- Exceptions to Default Judgment: Default judgment may be prevented if there is a pending summary judgment application or a motion to have the claimant’s statement of case struck out. These applications must be resolved before default judgment can be granted.
Default Judgment
🔹 Default Judgment:
Entered when the defendant fails to respond. Allows the claimant to obtain judgment without proving the case.
🔹 Process:
Claimant applies under CPR Part 12, confirming service of particulars and no acknowledgment or defence filed in time.
What are the two grounds a defendant go about Setting Aside a Default Judgment
If a default judgment has been entered, the defendant may seek to have it set aside under CPR Part 13. There are two grounds for setting aside:
- Mandatory Ground: The court must set aside the judgment if it was wrongly entered, such as if the defendant’s time to respond had not expired or if the claim was paid in full before judgment was entered.
- Discretionary Ground: The court may set aside the judgment if the defendant has a real prospect of defending the claim or there is another good reason (e.g., illness or being away) why the defendant should be allowed to defend the claim.
Excuses such as the pressure of work or the documents being misplaced would not be sufficient.
What information must a claimant provide when seeking default judgment in specified claims, and how is the amount determined in unspecified claims?
🔹 Specified Claims: For debts, claimants must provide payment due date, current interest, and daily interest rate so the court can calculate the total owed. Payment is typically required within 14 days of judgment.
🔹 Unspecified Claims: Where the amount is uncertain (like damages), a default judgment may be granted, but the exact sum is determined later at a disposal hearing.
Mandatory Ground for Setting Aside Judgment
The court must set aside a default judgment if it was wrongly entered, which occurs if the defendant’s time to file an acknowledgment of service or defense had not yet expired, or if the claim had been paid in full before the judgment was entered. This is a mandatory ground under CPR Part 13, and the judgment will be reversed without any discretion from the court.
Discretionary Ground for Setting Aside Judgment
The court may set aside a default judgment at its discretion if the defendant:
- Has a real prospect of successfully defending the claim, or:
- There is some other good reason to allow the defendant to defend the claim, such as illness or absence during the time of the proceedings.
The defendant must file their application as soon as they become aware of the default judgment to comply with the overriding objective of handling cases expeditiously and fairly.
What are the possible outcomes when a defendant applies to set aside a default judgment, and in what circumstances might the court issue a conditional order?
🔹 Outcomes of a Default Judgment Set-Aside Application
- Set Aside – Judgment is removed; defendant can defend the claim.
- Maintain – Judgment stands; claimant may enforce it.
- Conditional Set Aside – Judgment set aside only if defendant pays into court; used where defense may be a delay tactic (least common).
Costs of Setting Aside Judgment Applications
🔹 Costs of Setting Aside Default Judgment:
* Mandatory ground: Claimant pays defendant’s costs for wrongful judgment entry.
* Discretionary ground (e.g., good reason): Costs usually shared between parties.
* Real prospect of success: Defendant pays claimant’s costs.
* Application fails: Defendant pays claimant’s application costs.
What happens were a claim includes both specified and unspecified amounts?
The entire claim is treated as unspecified.
Can a claimant discontinue all or part of a claim, and what is the procedure and who bears the costs?
🔹 A claimant can discontinue all or part of a claim anytime by filing and serving a notice of discontinuance, attaching any required consents.
🔹 Discontinuance ends the case for the defendant upon service.
🔹 The claimant usually bears costs unless the court orders otherwise.
Is permission required for discontinuance in all cases?
🔹 Claimants generally do not need permission to discontinue a claim.
🔹 Permission is required if:
* The court has granted an interim injunction.
* There are multiple claimants, all must consent in writing or court msut grant permission for disocuntiance to proceed
What happens if there is more than one defendant in a discontinuance?
If there is more than one defendant, the claimant may choose to discontinue the claim against all or any of the defendants. The process remains the same: the claimant must file and serve a notice of discontinuance, and the proceedings will end for the specified defendant(s) on the date they are served.
What are the cost implications for the claimant when discontinuing a claim?
When a claim is discontinued, the claimant is generally liable for the costs of the proceedings up to the point of discontinuance, unless the court orders otherwise.
What is the process for settling a case before issuing proceedings, and how are legal costs handled?
🔹 Before proceedings, claimants usually cannot recover legal costs unless agreed.
🔹 Settlements must be in writing for enforceability, if one party defaults on the agreemnt
How are settlements recorded after proceedings have started, and why is a court order preferred?
🔹 Settlement After Proceedings
If settlement occurs after proceedings begin, it should be recorded in a court order or judgment to:
* Enable enforcement if terms (e.g. costs) are not met.
* Avoid future disputes over the settlement terms.
What is a consent order, and what formalities must be followed?
🔹 Consent Orders
A consent order is a court order agreed upon by the parties, used to record the terms of a settlement.
When all parties have legal representation, court applications can often be avoided by submitting a consent order for court approval.
Key points:
* Records the terms of a settlement.
* Must state “By Consent” and be signed by all parties’ solicitors.
* If the settlement includes confidential or non-enforceable terms, a Tomlin order should be used instead.
What is a Tomlin order, and when is it used? and does it stay porceedings
🔹 A Tomlin order is a consent order that stays proceedings on agreed, often confidential or terms beyon the courts powers.
🔹 Core terms (stay of proceedings, costs) are public; detailed terms stay with the parties’ solicitors.
What happens if a defendant disputes the court’s jurisdiction, and what is the procedure?
🔹 If a defendant disputes court jurisdiction, they must state this in their acknowledgment of service.
🔹 They have 14 days from filing the acknowledgement of service to formally challenge jurisdiction.
🔹 If successful, the claim form service is set aside, and proceedings end.
🔹 If rejected, the original acknowledgment is invalidated; the defendant must file a new one within 14 days.
🔹 Proceedings then continue as normal.
