Responding to a Claim Flashcards
what must D do within 14 days of service of the POC?
Within 14 days of service of the POC (not the CF), D must do one of the following or C can apply for default judgment:
o File an admission
o File an AOS
o File a defence
what happens if D does not take one of the prescribed steps in 14 days?
C can apply for default judgment
re: admission
give an overview of admissions
- Separate admission forms for specified claims and unspecified claims
- The forms asks the amount admitted, employment and financial information and details of any offer of payment (i.e. date for payment or by instalments)
D can admit all or part of the claim
re: admission
if an admission form is entered, what can C do?
- An admission gives C the right to enter judgment against D.
re: admission
what happens if D admits the whole of a specified claim?
o D sends Form N9A to the claimant who will then enter judgment
o If D has made a request for time to pay and C does not accept the proposals, the court will determine a payment plan
re: admission
what happens if D admits part of a specified claim?
D sends Form N9A and Form N9B (defence form) to the court
The court send this to C who has 14 days to decide whether to:
Accept part admission and request judgment;
Accept part admission but not D’s proposals for payment (the court will then decide);
Reject offer entirely. The matter proceeds as defended.
re: admission
what happens if D admits all of a unspecified claim and makes an offer?
D can admit liability of the claim on Form N9C.
o Complete Form N9C and sends this to the court
o The court send a notice to C asking whether they accept this sum
o If the sum is accepted, C can request judgment. If C does not accept the payment proposals, the court will determine a payment plan
re: admission
what happens if D admit liability but makes no offer or C does not accept the offer?
C will enter judgment for damages (plus costs) to be assessed by the court (maybe at a disposal hearing)
re: acknowledgement of service
when must this be filed?
within 14 days of deemed service of POC
re: acknowledgement of service
what is the effect of filing this?
If an AOS is filed within 14 days of deemed service of the POC, D will have 28 days from the date of deemed service of the POC to file the defence
o i.e. POC filed 2 Nov, defence due 16 Nov unless AOS filed by 16 Nov, in which case defence is due 30 Nov
what must D do if they dispute the court’s jurisdiction?
- If D disputes the court’s jurisdiction, this must be stated on the AOS
- Within 14 days of filing the AOS, D must make the application disputing the court’s jurisdiction
o NB: application must be filed within 14 days of the AOS. It doesn’t mean D has 28 days from the date of deemed service to make the application
if D contests the court’s jurisdiction and this application is granted, what happens?
- If granted (i.e. court doesn’t have jurisdiction) > service of the claim form will be set aside and the proceedings come to an end
if D contests the court’s jurisdiction and this application is refused, what happens?
- If refused > the original AOS ceases to have effect and D must file a further AOS within 14 days.
re: defence
how can this be prepared?
D can either complete the appropriate form in the response pack or prepare the defence in a separate document.
re: defence
what may the defence include?
a counterclaim
re: defence
when must the defence be filed?
This must be filed and served within:
o 14 days; or
o 28 days if AOS filed; or
o Up to 56 days after service if POC, if agreed by parties
o Any further extension requires permission of the court
re: default judgment
when can C apply for a DJ?
- C can apply for DJ if they have served the POC and D has not responded to the claim
re: default judgment
when can C apply for DJ?
- C can make the application the first day after expiry of the relevant time limits
re: default judgment
when might DJ be refused?
- A DJ might be refused if there is a pending application by D for summary judgment / to have the case struck out
what is the effect if the claim includes specified and unspecified elements?
IMPORTANT TO REMEMBER:
the entire claim is treated as unspecified
re: default judgment
what effects the DJ process?
whether the claim is specified or unspecified
re: default judgment
what is the process in relation to a specified claim?
C files the request for judgment form with the court. Information on form:
o Confirmation that neither an admission or defence has been filed
o Confirmation that C has served the POC
o Judgment details, i.e.:
Date payment was due
Up to date total for interest claimed (C may be entitled to contractual / late payment interest. C is also entitled to interest from the date of issue to the date of judgment)
Daily rate at which interest accrues
Court fees and legal costs
Whether any money has been paid since issue
D usually has to pay the judgment debt within 14 days
re: default judgment
what information is on the DJ form for a specified claim?
Confirmation that neither an admission or defence has been filed
Confirmation that C has served the POC
Judgment details, i.e.:
Date payment was due
Up to date total for interest claimed (C may be entitled to contractual / late payment interest. C is also entitled to interest from the date of issue to the date of judgment)
Daily rate at which interest accrues
Court fees and legal costs
Whether any money has been paid since issue
re: default judgment
what is the process in relation to an unspecified claim?
- DJ can be entered but it will be on the basis of liability only with damages to be assessed by the court at a disposal hearing
what is a disposal hearing?
- disposal hearing = short court hearing where a judge can decide the amount of money a defendant must pay or give directions for the future of a case
re: setting aside a judgment
what should take place before an application is made?
- Whilst no formal requirement to do so, D should C whether they agree to the judgment being set aside.
re: setting aside a judgment
if agreement can’t be reached, what happens next?
- If C refuses, D must lodge an N244 with a witness statement and evidence as soon as possible. The court will consider any tardiness.
re: setting aside a judgment
what evidence will D need to provide with their application?
D must evidence they acted swiftly and the ground they seek to rely upon
re: setting aside a judgment
what are the grounds?
o Mandatory ground
o Discretionary ground
re: setting aside a judgment
explain the mandatory ground
the court must set aside the judgment if it was wrongly entered i.e. entered into early or the claim was paid in full
re: setting aside a judgment
explain the discretionary ground
the court may set aside the judgment if:
D has a real prospect of successfully defending the claim; or
There is another good reason why they should be allowed to defend the claim
re: setting aside a judgment
what order can the court make?
o DJ set aside and D can defend claim
o DJ remains in place and C can enforce judgment
o Conditional order > DJ is set aside on the condition D pays money
re: setting aside a judgment
what are the potential costs awards?
o Mandatory ground > C pays D’s costs
o Discretionary ground – good reason > costs in the case
o Discretionary ground – real prospect > D pays C’s costs
o Application fails > D pays C’s costs
re: setting aside a judgment
what is the cost award if the judgment is set aside on the mandatory ground?
o Mandatory ground > C pays D’s costs
re: setting aside a judgment
what is the cost award if the judgment is set aside on the discretionary ground?
o Discretionary ground – good reason > costs in the case
o Discretionary ground – real prospect > D pays C’s costs
re: setting aside a judgment
what is the cost award if the application fails?
o Application fails > D pays C’s costs
re: discontinuance
give an overview of discontinuance
- At any time, C can discontinue all / part of their claim against one of more Ds.
re: discontinuance
when will C need the court’s permission to discontinue a claim?
C will need the court’s permission if:
o There is an interim injunction; or
o A party has given an undertaking to the court
o There is more than 1 C and the others don’t consent
re: discontinuance
can C discontinue a claim if there is more than 1 C?
If there is more than one C, a C can only discontinue the claim if:
o They have consent of all other Cs; or
o The court gives permission
re: discontinuance
can C discontinue the claim if an interim payment has been made?
If an interim payment has been made, C can only discontinue the claim if:
o D who made the payment consents; or
o The court gives permission
re: discontinuance
how does C discontinue a claim?
- C must file and serve notice of discontinuance (inc. any consent)
re: discontinuance
what can D do if a notice has been served?
- A D can apply within 28 days of service to have the notice set aside
- If there is no response, proceedings are brought to an end.
re: discontinuance
what is the costs position?
- C will be liable for D’s costs unless the court orders otherwise
re: part 36 offers
how are these offers treated?
- P36 offers are treated as WPSATC
re: part 36 offers
what happens when an unaccepted offer has no effect on costs?
- Where non-acceptance of the P36 offer has no effect on costs, damages and costs will be assessed in the usual way (i.e. fixed costs/standard basis and as claimed in the POC), unless there is agreement or the court orders otherwise
re: part 36 offers
when will an offer be invalid?
if it doesn’t comply with formalities
re: part 36 offers
what are the formalities?
- A P36 offer will be invalid if it does not meet formalities:
o It must be in writing and clear it is made pursuant to P36;
o Specify a period of at least 21 days, during which if the offer is accepted, D will pay C’s costs (i.e. the ‘Relevant Period’)
o State whether it relates to whole or part of the claim and if any CC is inc.
re: part 36 offers
what is the position regarding interest and the initial offer?
- The offer is inclusive of interest until the Relevant Period expires
re: part 36 offers
when does a part 36 offer take effect from?
- The offer takes effect from the date of deemed service (use usual counting method to calculate the relevant period)
re: part 36 offers
what is the time period for offers?
They must be at least 21 days, but they can be longer
In practice, most P36 offers are 21 days. Below will refer to ‘Day 21’ and ‘Day 22’ but know it can be longer
re: part 36 offers
what is the deadline for acceptance?
- An offer can be accepted at any time until it is withdrawn or stipulates a deadline for acceptance (it can be withdrawn at any time before acceptance)
re: part 36 offers
what is the effect of acceptance?
- Upon acceptance, the proceedings are stayed and D must pay money to C within 14 days,
re: part 36 offers
if an offer is accepted, what is the position on costs?
Unless otherwise agreed by parties, costs are as follows (this applies regardless of who made the offer):
1. Acceptance within RP > D pays C’s costs up to the date of service of the notice of acceptance
- Acceptance after RP:
a) D made the offer > D pays C’s costs up to the date of expiry of the RP & C pays D’s costs up to the date of acceptance
b) C made the offer > D pays C’s costs up to the date of service of the notice of acceptance
In all cases, costs will be summarily assessed by a judge on the standard basis unless costs are agreed or fixed costs apply
re: part 36 offers
what is the position on costs if the offer is accepted within the RP?
- Acceptance within RP > D pays C’s costs up to the date of service of the notice of acceptance
re: part 36 offers
what is the position on costs if the offer is accepted after the RP?
a) D made the offer > D pays C’s costs up to the date of expiry of the RP & C pays D’s costs up to the date of acceptance
b) C made the offer > D pays C’s costs up to the date of service of the notice of acceptance
NB: this is costs of the proceedings (inc. recoverable pre-action, not just costs from the service of the P36 offer)
re: part 36 offers
if the offer is accepted and money is not paid, what can C do?
the money must be paid within 14 days (unless otherwise agreed), if not judgment can be entered
re: part 36 offers
what is the effect of non-acceptance?
- Financial penalties may be imposed from the first day after the RP (i.e. Day 22) except in exceptional circumstances.
re: part 36 offers
what will the court consider when deciding whether to impose financial penalties?
The court will consider:
o All the circumstances (i.e. the information available at the time)
o When the offer was made and proximity to trial
o Party’s conduct and whether it was a general attempt to settle
re: part 36 offers
when may a court consider it unjust to impose financial penalties?
The court may consider it to be unjust where:
o The offeror hasn’t given sufficient disclosure for the offeree to make an informed decision; or
o The offer expired a few days before trial and crucial allegations that were not pleaded were raised at the beginning of the trial
re: part 36 offers - claimant’s offer
if C does not accept an offer made by D, when will this have an impact at trial?
If C made a P36 offer which was not accepted by D, this only has an impact where C obtains a judgment which is at least as advantageous as their Part 36 offer (i.e. C wins and is awarded a sum equal to / beats their offer).
re: part 36 offers - claimant’s offer
if C obtains a judgment which is at least as advantageous as their Part 36 offer, what are the consequences of this?
Damages awarded by judge
Payment of an additional amount:
Damages up to £500k D pays an additional 10% of sum awarded
Damages £500k - £1m D pays an additional 10% of the first £500k and 5% thereafter with a max of £75k
If the award is non-monetary, the ‘sum awarded’ will be the costs
Enhanced interest on damages
From date of loss up to and inc. Day 21, interest is awarded as claimed
From Day 22 to date of judgment, the court has discretion to award a rate of interest not exceeding 10% above the base rate
Costs
Multi-track costs on an indemnity basis
Fast & intermediate 35% of the difference between the fixed costs applicable at Day 22 and fixed costs at the date of judgment
Interest on costs
From Day 22 to date of judgment, the court has discretion to award a rate of interest not exceeding 10% above the base rate
re: part 36 offers - claimant’s offer
if C obtains a judgment which is at least as advantageous as their Part 36 offer, what effect does this have on damages?
o Damages awarded by judge + payment of an additional amount:
Damages up to £500k D pays an additional 10% of sum awarded
Damages £500k - £1m D pays an additional 10% of the first £500k and 5% thereafter with a max of £75k
If the award is non-monetary, the ‘sum awarded’ will be the costs
re: part 36 offers - claimant’s offer
if C obtains a judgment which is at least as advantageous as their Part 36 offer, what effect does this have on interest awarded on damages?
Enhanced interest on damages
From date of loss up to and inc. Day 21, interest is awarded as claimed
From Day 22 to date of judgment, the court has discretion to award a rate of interest not exceeding 10% above the base rate
re: part 36 offers - claimant’s offer
if C obtains a judgment which is at least as advantageous as their Part 36 offer, what effect does this have on interest awarded on costs?
Multi-track costs on an indemnity basis
Fast & intermediate 35% of the difference between the fixed costs applicable at Day 22 and fixed costs at the date of judgment
re: part 36 offers - claimant’s offer
if C obtains a judgment which is at least as advantageous as their Part 36 offer, what effect does this have on interest awarded on costs?
From Day 22 to date of judgment, the court has discretion to award a rate of interest not exceeding 10% above the base rate
re: part 36 offers - claimant’s offer
when will C’s part 36 offer have no effect at trial?
- If C wins and is awarded a lesser offer or loses, the P36 offer has no effect
re: part 36 offers - claimant’s offer
if C obtains a judgment which is at least as advantageous as their Part 36 offer, when does enhanced interest, costs and interest on costs take effect from?
- Enhanced interest, costs and interest on costs only take effect from Day 22. In other words, costs will be assessed in the usual way up to and including Day 21 and the sanctions are imposed from Day 22
re: part 36 offers - defendant’s offer
when will D’s unaccepted offer have an impact at trial?
C wins but fails to beat the offer; or
C loses at trial
re: part 36 offers - defendant’s offer
what happens if C wins but fails to beat D’s offer?
- D will pay C’s costs from the date they were incurred up to Day 21 (either on a standard basis or fixed); and
o The effect of this is that C is liable for their own costs from Day 22 - C will pay D’s costs from Day 22 until judgment plus interest on those costs (usually 1% or 2% above the base rate)
- Counsel would invite the judge to make a split costs order
re: part 36 offers - defendant’s offer
what happens if C loses at trial?
- C will pay D’s costs (usual rule) + interest on costs from Day 22 until judgment (usually 1% or 2% above the base rate) as a penalty
re: settlement
what should happen if settlement is reached prior to issuing?
terms should be clearly drafted so court action can be taken if necessary. Prospective C is not entitled to costs
re: settlement
what should happen if settlement is reached after issuing?
should be recorded in a court order so enforcement proceedings can be commenced if it is not adhered to
re: settlement
what are the relevant court orders?
consent orders and tomlin orders
re: settlement
when can a court officer seal an agreed judgement/order?
if all parties are legally represent and it relates to one of the following:
o Consent judgment / order for payment or delivery of goods
o Dismissing proceedings wholly or in part
o Staying proceedings or enforcement of judgement on agreed terms
o Setting aside a DJ
o Discharge a party of liability
o Payment, assessment or waiver of costs
re: settlement
when will a court officer refer a consent order they could typically approve to a judge?
- The court officer may refer the order to a judge if it is unclear/incorrect
re: settlement
in relation to consent orders, what happens if one party is a LIP?
- Where a party is a litigant in person, any party will need to apply to the court for an agreed order/judgement
re: settlement
what are the formalities of a consent order?
Formalities of the order:
o The terms of the order must be agreed;
o It must be expressed as being ‘By Consent’; and
o It must be signed by the legal rep acting for each party or, where applicable, the litigant in person
re: settlement
what is the benefit of a consent order over a tomlin order?
- Consent orders are preferable over Tomlin Orders where the basis of settlement is a simple payment of money
re: settlement
what is the drawback of a consent order?
- Consent orders are limited to the powers of the court
- Consent orders are open to public inspection
re: settlement
what happens if D does not pay in accordance with a consent order?
- If D does not pay in accordance with the order, interest will start to run and the order can be enforced
re: settlement
what does a tomlin order consist of?
- A Tomlin order consists of a consent order (public) and an annexed schedule / settlement agreement (private).
re: settlement
what is the effect of a tomlin order?
it stays the proceedings
re: settlement
what information must be included in the consent order part of a tomlin order?
o That it is by consent;
o That proceedings are stayed;
o That there is liberty to apply;
o Payment of costs / detailed assessment of costs
o Signed by legal reps / LIPs
re: settlement
what information is contained in the schedule?
the agreed terms
re: settlement
why can a tomlin order be preferred over a consent order?
because the schedule is confidential and the terms do not need to be approved by the court because this is a contract between parties as opposed to a court order
re: settlement
what can a party do if a tomlin order is not complied with?
- If a party fails to comply with the terms set out in the schedule, a party can apply to the court to enforce the agreed terms within the existing proceedings, however the terms in the schedule cannot be enforced as a judgment because it is a contract between the parties
re: settlement
what is a drawback of a tomlin order?
the terms in the schedule cannot be enforced as a judgment because it is a contract between the parties
re: settlement
when is a tomlin order appropriate?
- A Tomlin order would be appropriate where:
o The terms of the agreement are complex
o The terms go beyond the boundaries of the claim
o The agreed terms are confidential or sensitive
re: settlement
when can a court officer approve a tomlin order?
if all parties are legally represented
re: settlement
when must the court approve a tomlin order?
if one party is a LIP
