Responding to a claim Flashcards
chapter 4
What are the three ways a defendant can respond to a claim under the Civil Procedure Rules (CPR)?
- File an admission (Part 14)
- File an acknowledgment of service (Part 10)
- File a defence (Part 15)
What happens if the defendant ignores the claim entirely?
The claimant can apply for a judgment in default.
What should a defendant do if they know they owe the money and have the means to pay?
Admit the claim, as this brings the matter to an early end and limits costs.
What are the two types of admission forms?
○ One for specified (debt) claims
○ One for unspecified claims (where damages are sought
What must a defendant do if they admit the whole claim for a specified amount?
○ Provide details of their income and expenditure
○ Make an offer of payment (in full or by instalments)
If a defendant admits part of a claim for a specified amount, what options does the claimant have?
The claimant has 14 days to:
○ Accept the part admission in full satisfaction of the claim and request judgment for that amount.
○ Accept the part admission but not the defendant’s proposed payment terms (the court will decide suitable terms).
○ Reject the offer and proceed with the claim as a defended action.
What happens if a defendant admits liability for an unspecified claim and offers a sum of money?
○The court asks the claimant if they accept the sum in satisfaction of the claim.
○If accepted, the claimant can enter judgment for the amount offered.
○If the claimant does not accept or the defendant makes no offer, the claimant enters judgment for damages to be assessed at a disposal hearing.
What is the purpose of filing an acknowledgment of service?
It gives the defendant extra time (28 days instead of 14) to draft a full defence.
What is a counterclaim?
A claim brought by the defendant against the claimant.
How long can the deadline for filing a defence be extended with the agreement of all parties?
A maximum of 28 days, giving a total of 56 days from the date of service of the particulars of claim.
What is a judgment in default (or default judgment)?
A judgment obtained by the claimant without consideration of the facts because the defendant failed to respond to the claim
To obtain a default judgment, what must the claimant prove?
○ The particulars of claim were served on the defendant.
○ The defendant did not file an acknowledgment of service or defence within the time limit.
What are the two types of default judgments?
○Default judgment for a specified sum
○Default judgment for an unspecified sum
When applying for default judgment for a specified sum, what must the claimant do?
The claimant must:
○ Indicate the date payment was due.
○ Calculate the up-to-date total interest claimed.
○ State the daily rate of interest accrual
On what grounds can a defendant apply to have a default judgment set aside?
CPR Part 13 provides two grounds:
○ Mandatory ground: The judgment was wrongly entered (e.g., entered too early or the claim was already paid).
○Discretionary ground: The defendant has a real prospect of successfully defending the claim or there is some other good reason why they should be allowed to defend.
What factors will the court consider when deciding a discretionary ground application to set aside a default judgment?
The court will consider:
○The merits of the defence
○The reason for the defendant’s failure to respond (e.g., illness, being out of the country)
○The promptness of the application
What are the possible outcomes of an application to set aside a default judgment?
○The defendant succeeds, the judgment is set aside, and they continue to defend the action.
○ The claimant wins, the judgment remains, and they can proceed to enforcement.
○ A conditional order is made (judgment set aside if the defendant pays money into court).
What is discontinuance?
When a claimant decides not to pursue their claim even though a settlement hasn’t been reached.
What is the effect of discontinuance?
○The proceedings end against the defendant on the date the notice is served.
○The claimant is usually liable for the costs of the proceedings
How should a pre-action settlement be recorded?
○In writing, either through an exchange of correspondence (for simple settlements) or
○A formal settlement agreement (for more complex settlements)
What are consent orders?
Court orders agreed upon by the parties, often used to record settlements reached after proceedings have begun
What are the formalities for a consent order?
○The order must be in writing and reflect the agreed-upon terms.
○It must be marked “By Consent.”
○It must be signed by the legal representative of each party.
What is a Tomlin order?
A special type of consent order that stays the claim on agreed terms, used when parties need confidentiality or to impose terms beyond a court’s power
How are confidential terms handled in a Tomlin order?
Confidential terms, or terms beyond a court’s power, are included in a schedule to the Tomlin order or a separate document
How does a defendant dispute the court’s jurisdiction?
○State the dispute on the acknowledgment of service.
○Make a challenge within 14 days of filing the acknowledgment of service.
○Support the challenge with evidence.
