Responding to a claim Flashcards
When to acknowledge service?
The general rule is that the period for filing an acknowledgment of service is:
- where the defendant is served with a claim form which states that the particulars are to follow, 14 days after service of the particulars of claim; and
- in any other case, 14 days after service of the claim form
Deadline for defence with and without sending particulars of claim
- If the defendant does not file an acknowledgment of service, it must file and serve a defence within 14 days of the deemed date of service of the particulars of claim.
- If the defendant does file an acknowledgment of service indicating an intention to defend the claim, it extends the deadline for serving the defence to 28 days after the deemed date of service of the particulars of claim
How to extend the time to serve a defence?
The defendant and claimant can agree an extension of time for serving the defence of up to 28 days
If an extension of time is agreed, the court must be notified in writing (but no application to court is required).
If even more time is needed or the claimant refuses to agree the extension of up to 28 days, D can apply to court for an order allowing an extension of time
How and when to admit the claim?
A defendant wishing to admit the whole or part of a claim completes the relevant admission form and sends this to the court (or to the claimant directly if admitting a specified claim in full) within 14 days of deemed service of the particulars of claim.
What happens if D does not respond to the claim form within the time limit?
The claimant can request or apply for a judgment in default
C won due to the fact that D failed to respond, and not due to the merits of the claim
Counting time rules
Rule: the day on which a period begins is never included so you would always start counting on the following day. When counting the 14 days, you do not count the day on which the period begins ie the day on which the particulars of claim are served.
if the end of the period is defined by reference to an event (for example, a hearing or trial), the day on which that event occurs is not included.
where the specified period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count.
How to count days if the deadline is on a day at which the court’s office is closed?
Where a deadline relates to doing any act at the court office (such as filing a document at court); and
Applying the first three rules explained in this element, the deadline for doing that act ends on a day on which the court office is closed:
Then the act is treated as on time if done on the next day on which the court office is open
How to respond to allegations in defence to the claim form? - 3 options
Admit the allegation;
Deny the allegation; (and give reasons for denial) or
Require proof of the allegation.
Consequences of failure to deal with allegation in the defence statement
If the defendant omits to deal with any allegation made by the claimant, the defendant will be deemed to admit it, unless it has set out its own case in respect of that allegation, in which case it will be deemed not to admit it, ie to require the claimant to prove it.
In a money claim, however, it will always be understood that the amount claimed is not admitted unless the defendant specifically admits it.
What is default judgment?
Key word: Default judgment means applying for judgment to be granted in the claimant’s favour without a trial if the defendant has not responded to the claim by either serving an acknowledgment of service or a defence within the prescribed time limits
What must the claimant show to obtain default judgment?
At the date on which judgment is entered, time has expired for filing an acknowledgment of service (and the defendant has not filed either an acknowledgment of service or a defence) or time has expired for filing a defence (where the defendant has filed an acknowledgment of service but not a defence).
The claim has not been admitted or satisfied by the defendant.
No application for summary judgment or strike out has been made by the defendant.
Procedure for obtaining a default judgment
Specified money claims - request that is dealt with on paper
Unspecified money claim - request for a judgment, there is a hearing to decide the amount
Non-money claims - apply for a judgment, there’s a hearing
When does the court must and may set aside a default judgment?
Cases where the court must set aside judgment (CPR 13.2)> If judgment was wrongly entered> Reasons:
- The time limit for acknowledging service or serving a defence has not, in fact, expired when judgment was entered; or
- An acknowledgment of service or defence had, in fact, been filed on time; or
- Summary judgment or strike out had been applied for before judgment was entered; or
- The defendant had, in fact, satisfied the whole of the claim before judgment was entered or admitted the claim or required time to pay.
Cases where the court may set aside judgment (CPR 13.3)> If judgment was correctly entered>Reasons the court may exercise its discretion:
- The defendant has a real prospect of successfully defending the claim; or
- It appears to the court that there is some other good reason why judgment should be set aside or varied or the defendant should be allowed to defend.
Cases where the court ‘may’ set aside are treated as applications for relief from sanctions.
Other consideration when setting aside default judgment
The court must also consider how promptly the defendant made its application to set the judgment aside
