Responding to Proceedings

Question 1

List the four option to D when being served with a claim.

Answer 1

1) File an admission;
2) File an acknowledgment (gives the defendant 28 days to file a full defence);
3) File a defence;
4) Ignore the claim (which will lead to a default judgement)

Question 2

Explain option of full admission in relation to specified claims.

Answer 2

• D must provide their admission and details of expenditure and income.
• They must make an offer to make payment either in full or by way of instalments.
• upon receipt of the admission claimant can then file for a judgment.
• if claimant rejects D’s payment terms, judge will decide appropriate rate of payment.

Question 3

Explain option of admission of part in relation to specified claims.

Answer 3

• claimant has 14 days after receiving the admission of part, and decide their next course of action out of the following options:

a) accept part admission as full satisfaction of claim and request that judgment be entered by the curt for that amount;
b) accept part admission but not D’s proposals for payment (then the court will decide the suitability);
c) reject offer entirely an proceed with claim as a defended action.

Question 4

Explain admission in relation to unspecified claims.

Answer 4

-if D adits liability for unspecified amount, court will serve notice on C asking whether they accept the figure as satisfaction of the claim.
- if offer is accepted, C may enter judgment for the amount offered.
- if D makes no offer to pay but admits liability, or C rejects offer, C will enter judgment for damages to be assessed at a disposal hearing.

Question 5

Explain acknowledgement of service.

Answer 5

Where D acknowledges claim (and is planning to defend it) but needs more time to draft the full defence (eg they are still gathering evidence).
- This will mean that they then have 28 days to file a full defence.

Question 6

When should a counterclaim be served?

Answer 6

Alongside the full defence sent by the defendant.

Question 6

Explain the action claimant can take where D fails to respond.

Answer 6

A default judgment will occur. To obtain this, a claimant needs to make an application under CPR Part 12, requiring them to complete a request to the court.

To do so, they must satisfy the court that:

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

Question 6

Can the limit to send a full defence be extended?

Answer 6

-Yes provided this is agreed by all of the parties involved.
-The effect of this would be D has a maximum of 56 days to submit their full defence.
-Further extension of this 56 days will need court’s permission.

Question 7

Can a default judgment be obtained if D files an acknowledgement and then missed the deadline to submit their full defence?

Answer 7

Yes.

Question 8

Give the two main reasons why a request for default judgment would be rejected by the court.

Answer 8

1) Where there is a pending application by D for a summary judgment; or
2) There is a pending application by D to have C’s statement of case struck out.

Question 9

Three pieces of info C must include in their request for a default judgment.

Answer 9

1) Indicate the date the payment was due;
2) Calculate up-to-date total for interest claimed;
3) State a daily rate at which interest accrues.

Question 10

Court will grant C’s request for a default judgment for an unspecified claim but what else will be required here?

Answer 10

A further disposal hearing to determine the damages.

Question 11

Explain the two ways D can have a default judgment set aside.

Answer 11

1) Mandatory ground - court must set aside default judgment if wrongly entered (eg if it was entered too early, before time for filing an acknowledgement/ defence expired), or because the claim has been paid in full.

2) Discretionary ground - court has discretion to set aside default judgment where:

a) D has real prospect of defending the claim; or
b) There is a good reason why the D should be allowed to defend the claim.

Question 12

Give an example where discretionary ground to set aside a default judgment may be appropriate.

Answer 12

D was ill or away and could not respond to C’s issue of proceedings.

Question 13

Give an example of something which would not be sufficient for discretionary ground to set aside a default judgment.

Answer 13

D having heavy workload or documents being misplaced would not be sufficient.

Question 14

What form is used for an application for a default judgment?

Answer 14

Form N244

Question 15

List the three possible orders a judge can make in response to an application for a default judgment to be set aside.

Answer 15

1) D succeeds and the initial default judgment is set aside, allowing the D to continue their defence action;

2) C wins and the judgment remains in place (enforcement is then proceeded with);

3) Conditional order is made (ie judgment is set aside on condition D pays ones into court eg for the amount of the claim). Least likely and usually used where court suspects D is using this as a delay tactic.

Question 16

Explain costs implications of default judgments being set aside.

Answer 16

• If the application is granted on a mandatory ground, the claimant will have been at fault for entering judgment when they should not have done and, therefore, the claimant is liable to pay the defendant’s costs.
• Where the defendant establishes the discretionary ground of a good reason for the default, as neither side is at fault, costs are usually in the case.
• Where the defendant only establishes the discretionary ground of a defence with a real prospect of success at trial, the defendant is at fault in failing (initially) to deal with the proceedings. As a consequence, they normally have to pay the claimant’s costs.
• If the application fails, the defendant will pay the claimant’s costs of the application.

Question 17

Can a claim be discontinued and if so does this require permission.

Answer 17

A claim can be discontinued and does not usually require permission (unless court has granted something like an interim injunction). If there is more than one claimant then all claimants must give their consent to the claim being discontinued.

Question 18

Briefly explain the procedure for discontinuance of a claim.

Answer 18

• C must file and serve notice of discontinuance on all patties to proceedings;
• If consent is required, a copy of this must be attached to the notice.

Question 19

What is the effect of discontinuance?

Answer 19

• Proceedings are brought than end the day discontinuance is served on D;
• C will be liable for all cots of proceedings unless court orders otherwise.
• Crucial the solicitor explains this to the claimant prior to issuing proceedings.

Question 20

Can claimant recover legal costs if a settlement is reached prior to the issuing of proceedings?

Answer 20

No unless this is expressly agreed. Any settlement reached must be put in writing so it can be enforced if one of the parties defaults.

Question 21

What is a consent order?

Answer 21

An order which upholds/ affirms a settlement reached between the parties (making it binding).

Question 22

List the formalities for a consent order.

Answer 22

(a) the order agreed by the parties must be drawn up in the terms agreed;
(b) it must be expressed as being ‘By Consent’; and
(c) signed by the legal representative acting for each of the parties to whom the order relates.

Question 23

Explain D's possibility of challenging the courts jurisdiction.

Answer 23

D can do this but it must be stated on the acknowledgment of proceedings they file. D then has 14 days after this to make a formal challenge.

Question 24

What happens if the court agrees to D's claim the court has no jurisdiction?

Answer 24

Proceedings will come to an end and the claim form will be set aside.

Question 25

What happens if the court refuses D's claim the court has no jurisdiction?

Answer 25

Original acknolwedgment of proceedings is void and a new acknowledgement must be filed within 14 days. Proceedings will then connote in the usual way.

Question 26

What is the advantage of a Tomlin order?

Answer 26

It allows certain elements of a settlement agreement between parties to be kept confidential, by adding these either in a schedule to the consent order or in a separate document. By contrast consent orders are not necessarily always public.

Question 27

regarding claims for personal injury in the county court, where must the claim first be issued?

Answer 27

The County Court Money Claims Centre.

Question 28

True or False: A claim form does not require a concise statement of the nature of the claim and the remedy sought.

Answer 28

False. A concise statement summarising the claim swell as the remedy sought is required.

Question 29

True or False: Unless the court gives its permission, a claim form cannot be served by posting or delivering it to the address of a person who knows the defendant and who is likely to bring it to the defendant’s attention.

Answer 29

True.

Question 30

True or False: If a defendant fails to file an acknowledgment of service within the prescribed period, the claimant may obtain default judgment.

Answer 30

False. The general rule is that the period for filing an acknowledgment of service is: (a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and (b) in any other case, 14 days after service of the claim form.

Question 31

True or False: The court may, at its discretion, set aside a default judgment if (a) the defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why the judgment should be set aside.

Answer 31

True

Question 32

True or false: a claimant who discontinues their claim is automatically liable to pay the defendant’s costs on the indemnity basis.

Answer 32

False. Whilst the claimant usually will have to pay costs, the court can make an order to ensure this is not the case.

Question 33

True or False: Where one party is to pay another’s costs and/or the parties want the amount of those costs to be assessed by the court, this provision must go in the consent order.

Answer 33

True

Question 34

True or False: Terms which the parties wish to keep confidential must be set out in a separate document.

Answer 34

False. These terms can be contained within a schedule attached to the Tomlin order (although this is usually not the desired method and a separate document is used if the parties want the terms to remain confidential).

Question 35

Explain the differences between court orders and Tomlin orders and whether each of them are confidential.

Answer 35

A court order is confidential from the court but when enforced it may not be kept confidential. Tomlin order allows parties to either put extra terms in the schedule of the order, or extra terms in a separate document. When enforced, separate terms in a different document will be kept confidential. Tomlin orders especially useful were adding extra terms not related to normal damage (eg trading terms etc).