responding to a claim

Question 1

What happens if a defendant admits the entire claim for a specified amount?

Answer 1

The defendant must provide details of their income and expenditure and make an offer of payment, either in full or by instalments. The claimant can request judgment. If payment terms are rejected, a judge will decide the payment rate, usually without a hearing.

Question 2

What happens if a defendant admits part of a claim for a specified amount?

Answer 2

The claimant has 14 days to decide on the next steps:

(a) to accept the part admission in full satisfaction of the claim and request that judgment be
entered by the court for that amount;

(b) to accept the part admission but not the defendant’s proposals for payment in which case
the court will decide on their suitability; or

(c) to reject the offer entirely and proceed with their claim as a defended action

Question 3

What is the purpose of filing an acknowledgment of service form?

Answer 3

Filing an acknowledgment of service form extends the time the defendant has to file their defence from 14 days to 28 days after service of the particulars of claim.

Question 4

How many days does the defendant have to file a defence if they do not file an acknowledgment of service form?

Answer 4

The defendant has 14 days from the service of the particulars of claim.

Question 5

Why might a defendant choose to file an acknowledgment of service form?

Answer 5

To gain additional time to investigate the claim, gather evidence, or seek legal advice before filing a defence.

Question 6

What is a counterclaim in legal proceedings?

Answer 6

As part of the defendant’s response, they may wish to pursue their own claim against the
claimant and this is known as a counterclaim

Question 7

What can a defendant do if they cannot meet the deadline for filing a defence?

Answer 7

The defendant can extend the deadline by up to 28 days with the agreement of the other parties.

Question 8

How much total time does a defendant have to file their defence if they obtain an extension?

Answer 8

The defendant has a total of 56 days from the date of service of the particulars of claim. - any further extension requires courts permission.

Question 9

What is a judgment in default?

Answer 9

it ensures defendants cannot evade liability for monies owed by simply
doing nothing. Claimant can force the issue when a defendant takes no action.

Question 10

What must the claimant satisfy the court of to obtain a default judgment?

Answer 10

1. The particulars of claim have been served upon the defendant.
2. The defendant has not filed an acknowledgment of service form or a defence within the relevant time period.

Question 11

What must the claimant provide when applying for default judgment for a specified sum?

Answer 11

1. The date payment was due.
2. An up-to-date total for the interest claimed.
3. A daily rate at which interest accrues.

Question 12

What is the usual payment requirement once final judgment for a specified sum is entered?

Answer 12

Payment is usually required within 14 days.

Question 13

What happens if the claim is for an unspecified sum and default judgment is granted?

Answer 13

the case will need to come back before the court to decide the amount
of damages payable at a disposal hearing.

Question 14

Under what mandatory ground must the court set aside a default judgment?

Answer 14

The court must set aside the judgment if it was wrongly entered, such as:
1. where judgment has been entered too early, before the time for filing an acknowledgment of service or a defence.
2. the claim was already paid in full.

Question 15

What are the discretionary grounds for setting aside a default judgment?

Answer 15

The defendant:

1. has a real prospect of successfully defending the claim; or
2. there is some other good reason why the defendant should be allowed to defend
   the claim e.g., D is away on holiday or is ill.

Question 16

Why is promptness important when applying to set aside a default judgment?

Answer 16

Promptness ensures compliance with the overriding objective of dealing with cases expeditiously and fairly

Question 17

What is the procedure for applying to set aside a default judgment?

Answer 17

The application is made by filing an application notice (form N244), usually supported by a witness statement outlining the defendant’s submissions.

Question 18

What are the three possible orders a judge can make in determining an application to set aside a default judgment?

Answer 18

(a) The defendant succeeds, and the judgment is set aside, allowing them to continue to defend the action.

(b) The claimant wins, and the judgment remains in place, allowing them to proceed to enforcement.

(c) A conditional order is made, setting aside the judgment on the condition the defendant pays money into court.

Question 19

Who is liable for costs if the application to set aside a default judgment is granted on a mandatory ground?

Answer 19

the claimant is liable to pay the defendant’s costs because the claimant was at fault for entering judgment when they should not have.

Question 20

Who is liable for costs if the defendant establishes a discretionary ground of a good reason for the default?

Answer 20

neither side is at fault, and costs are usually in the case.

Question 21

Who is liable for costs if the defendant only establishes a discretionary ground of a defense with a real prospect of success at trial?

Answer 21

Defendant at fault for failing to deal with the proceedings initially. As a result, the defendant usually has to pay the claimant’s costs.

Question 22

Can a claimant discontinue all or part of their claim?

Answer 22

Yes, a claimant may discontinue all or part of their claim at any time during the proceedings.

Question 23

Why might a claimant decide not to pursue their claim even if no settlement has been reached?

Answer 23

A claimant might decide to discontinue their claim if, after further consideration of the evidence, they conclude their chances of success at trial or recovering money from the defendant are not likely.

Question 24

Is permission required for a claimant to discontinue a claim?

Answer 24

Not usually, but permission is required if the court has granted an interim injunction or in certain other circumstances.

Question 25

can a claimant discontinue their claim if there is more than one claimant?

Answer 25

A claimant may not discontinue unless every other party consents in writing or the court gives permission.

Question 26

What is the procedure for discontinuing a claim?

Answer 26

The claimant must file and serve a notice of discontinuance on the parties involved. If consent is required, a copy of the consent must be attached to the notice.

Question 27

What is the effect of a notice of discontinuance?

Answer 27

The proceedings are ended against the defendant when the notice is served. The claimant is liable for the costs of the proceedings unless the court orders otherwise.

Question 28

Can a claimant recover legal costs if a settlement is reached before the issue of proceedings?

Answer 28

No, the claimant cannot recover legal costs unless this has been specifically agreed upon by both parties.

Question 29

Why must settlement terms be recorded in writing before the issue of proceedings?

Answer 29

Settlement terms must be recorded in writing to ensure the agreement can be enforced if one of the parties defaults on their obligations

Question 30

What should happen if a settlement is concluded after proceedings have started?

Answer 30

It is preferable for the settlement to be recorded in a court order or judgment, so that enforcement proceedings can be initiated if the agreement is not honored

Question 31

What are the formalities for a consent order?

Answer 31

(a) The order must be drawn up in the terms agreed by the parties.

(b) It must be expressed as being “By Consent.”

(c) It must be signed by the legal representative for each party involved in the order.

Question 32

Are the terms of a consent order open to public inspection?

Answer 32

Yes, the terms of a consent order are open to public inspection.

Question 33

Where must terms that are confidential or beyond the court’s powers be set out

Answer 33

Such terms must be set out in a schedule to the Tomlin order or in a separate document.

Question 34

How must a defendant dispute the jurisdiction of the court?

Answer 34

The defendant must state their intention to dispute the jurisdiction on the acknowledgment of service form.

Question 35

How long does a defendant have to challenge the court’s jurisdiction after filing the acknowledgment of service?

Answer 35

The defendant has 14 days after filing the acknowledgment of service form to make a challenge.

Question 36

What happens if the defendant does not challenge the court’s jurisdiction within the 14-day period?

Answer 36

The defendant will be treated as having submitted to the court’s jurisdiction.

Question 37

What happens if the court refuses the defendant’s application to dispute jurisdiction?

Answer 37

The original acknowledgment of service ceases to have effect, and the defendant must file a further acknowledgment within 14 days. The proceedings will then continue in the usual way.