Responding to Proceedings

Question 1

What are the four ways in which a defendant can respond to proceedings?

Answer 1

1. File or serve an admission
2. File a defence
3. File or serve an admission + file a defence (if they admit to part of the claim)
4. File an acknowledgment of service.

Question 2

Why would a defendant file an acknowledgment of service?

Answer 2

If they need more time to file a defence or if they are disputing that the court has jurisdiction to deal with the claim.

Question 3

When must a defendant acknowledge service?

Answer 3

Remember this is NOT compulsory. However, if they do decide to acknowledge service:

*if the defendant is served with a claim form which states the particulars of claim are to follow, the acknowledgement of service should be filed within 14 days of the deemed date of service of the particulars.

*in any other case, 14 days of the deemed date of service of the claim form.

Question 4

What form does the defendant use to acknowledge service?

Answer 4

Form N9 is used (this is sent to the defendant in the response pack).

The defendant will state by ticking a box whether they intend to defend part or all of the claim or whether they intent to contest jurisdiction.

Question 5

What is the effect of acknowledging service?

Answer 5

It extends the time for filing a defence to 28 days from the deemed date of service of the particulars of claim.

Question 6

What happens once the defendant has filed the acknowledgment of service?

Answer 6

The court will notify the claimant in writing that this has been done and usually the defendant’s solicitors will notify the claimant/claimant’s solicitors too.

Question 7

When must a defence be filed if an acknowledgment of service is not being filed?

Answer 7

Within 14 days of the deemed date of service of the particulars of claim.

Question 8

Can the defendant and claimant agree an extension of time for serving the defence?

Answer 8

Yes, they can agree to an extension of up to 28 days (meaning it is possible for the defendant to have a total of 56 days to file)

If the extension is agreed, the court must be notified in writing.

Question 9

What happens if the defendant needs more than 28 day extension to file the defence or the claimant will not agree to a 28 day extension?

Answer 9

The defendant will need to apply to the court.

Question 10

How must a defence be filed/served?

Answer 10

It must be filed at the court and served on ALL parties.

Question 11

When might a longer period for filing a defence apply?

Answer 11

1. Where a claim form has been served out of jurisdiction.
2. Where a defendant makes an application disputing the court’s jurisdiction. There will be no ned to file a defence before the hearing of the application.
3. Where, before the defence is filed, the claimant applies for summary judgment. The defendant need not file a defence before the hearing.
4. Where the court makes an order for a service of a claim form on an agent of a principal who is overseas. The court will specify the period.

Question 12

If a defendant is served with a debt claim but states they have already paid, what is the process?

Answer 12

1. The defendant will respond to the claim with a defence which states that the debt has already been paid.
2. The court will send a notice to the claimant which in effect asks the claimant whether the defence is correct.

The claimant must respond to this within 28 days otherwise proceedings are stayed.

3. Whatever their response, the claimant must serve a copy on the defendant.
4. If the claimant does not wish to continue that is the end of the case.
5. If the claimant does wish to continue, the claim will proceed as a defended claim.

Question 13

Where can an admission form be found?

Answer 13

In the response pack sent to the defendant with the particulars of claim.

Question 14

What form must the defendant use to admit the claim if it is for a specified amount?

Answer 14

Form N9A

Question 15

What form must the defendant use to admit the claim if it is for an unspecified amount, non-money or return of goods?

Answer 15

Form N9C

Question 16

Who must the defendant send the admission to?

Answer 16

Must be sent to the court or the claimant if admitting a specified claim in full.

Question 17

What is the deadline for admitting the claim?

Answer 17

Must be sent within 14 days of the deemed service of the particulars of claim.

Question 18

What must the defendant do if they admit part of a specified claim?

Answer 18

They will need to file a defence in relation to the unadmitted balance.

There will be a judgment in part.

Question 19

Can the claimant enter a judgment against a defendant who has admitted in a specified claim?

Answer 19

Yes, except where one of the parties is a child or protected party.

Question 20

What is the defendants options when they admit unspecified claims?

Answer 20

The defendant may admit liability to pay the whole claim for an unspecified amount or may admit liability and offer a sum in satisfaction.

Question 21

Can a claimant enter judgment against a defendant for an unspecified claim?

Answer 21

Yes, except where one of the parties is a child or protected party.

Question 22

Can a defendant request time to pay?

Answer 22

Yes, if the admission amounts to a specified amount of money (i.e. a specified claim or an offer to pay an amount in satisfaction of an unspecified claim).

Question 23

How can a defendant request time to pay?

Answer 23

The request can be made using forms N9A and N9C and the defendant will be asked to supply financial information and any reasons why they are unable to pay immediately

Question 24

What happens if the claimant does not accept the defendant’s proposals for payment?

Answer 24

The court will determine the rate of payment taking into account the information supplied by the defendant and objections raised by the claimant.

Question 25

What does it mean if the claimant `enters judgment’?

Answer 25

It is a final order which disposes of the claim.

Question 26

Why do defendants prefer not to have a judgment against them?

Answer 26

Most judgments will be placed on a public searchable register for a period of 6 years which can have an impact on an individual’s credit rating.

Question 27

Is there another way the parties may conclude an admitted claim other than entering a judgment?

Answer 27

Yes, by way of settlement. For example, a Tomlin Order.

Question 28

What is a Tomlin Order?

Answer 28

It recites that the parties have agreed terms of settlement, and orders that all further proceedings are stayed, but the parties are entitled to apply to court to enforce the agreed terms, should that become necessary, without having to commence new proceedings.

Question 29

In what circumstances is it unlikely that a judgment will be entered?

Answer 29

If a specified claim has been admitted and paid in full within the 14 day period of responding to the claim.

Question 30

What is the process for entering a judgment?

Answer 30

*The claimant completes a request for judgement and reply to admission form within 14 days of receiving notice of the admission.

*Claimant will indicate judgment amount, including interest, court fees, fixed costs and the amount of any payments made by the defendant.

*Court staff will enter judgment and send this to the parties.

*Unless otherwise agreed or stated on it, judgement is payable by the defendant within 14 days, otherwise enforcement proceedings.

Question 31

In specified claims, what will a judgment comprise?

Answer 31

The amount of the claim / debt including any interest to the date of issue of the claim;

Interest since the date of issue

Court fees

Fixed costs – there will be an amount of fixed costs as shown on the claim form and an additional amount to be added on entering judgment

Question 32

In unspecified claims what will the judgment comprise?

Answer 32

The judgment will be on liability only, so there will be no amount of damages recorded. The matter will be listed for a subsequent hearing where evidence will be heard on the issue of quantum and the judge will hand down a judgement recording the amount due, including interest and provision for costs.

Question 33

What are the rules in relation to counting time?

Answer 33

• When counting time, the day on which a period begins is never included.
• 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.
• Where a deadline relates to doing any act at the court office and 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.

Question 34

What is the purpose of a defence?

Answer 34

The purpose is to react to every point or allegation in the claimant’s particulars of claim; and

state full details of the defendants own case.

Question 35

Must a defence be filed and served?

Answer 35

Defence MUST be filed at court and served on the other parties.

Question 36

In a defence, what can the defendant do in relation to each allegation made by the claimant?

Answer 36

Admit the allegation;

Deny the allegation; or

Require proof of the allegation.

Question 37

What general matters must be included in a defence?

Answer 37

MUST include the defendants address for service in the jurisdiction (unless acknowledgement of service has already been filed); and

Where the defendant resides or carries on business (if the claim form does not contain such information)

Question 38

What should the defendant admit in a defence?

Answer 38

Defendant should admit anything that is not disputes or non-controversial to narrow issues and save costs and time.

Question 39

If the defendant denies allegations in its defence, what should it do?

Answer 39

It must give reasons.

If the defendant wishes to put forward a different version of events, it must state its version in the defence

A denial will have the effect that the claimant will have to prove the allegation.

Question 40

When should the defendant require proof in relation to the claimant’s allegations?

Answer 40

A defendant can require proof if the defendant is unable to either admit or deny the allegation because the fact that is alleged is something about which the defendant does not know. The defendant therefore asks the claimant to prove the allegation.

Question 41

What are the consequences of failing to deal with an allegation?

Answer 41

If the defendant omits to deal with any allegation made by the claimant, it will be deemed to admit it. Unless it has set out its own case in respect of that allegation.

In a money claim, it will always be understood that the amount claimed is not admitted unless the defendant specifically admits it.

Question 42

What matters should be included in the defence?

Answer 42

LIMITATION: This is a defence to a claim. If the defence of limitation is raised, the defendant must state the date on which the limitation period is deemed to have expired.

DISPUTING THE STATEMENT OF VALUE: A defendant may dispute the claimant’s valuation of the claim. If so, the defendant must state why it disputes it, and what it estimates the value to be.

Question 43

In a PI claim what matters should be included in the defence?

Answer 43

The defendant must state whether it agrees, disputes or has no knowledge of the matters in the schedule of past and future expenses and losses, and any medical report included with the particulars, giving reasons and its own counter-schedule and medical evidence.

Question 44

What mitigation or reduction of damages matters should be included in a defence?

Answer 44

SET-OFF: the defendant may claim he is owed money by the claimant, and may wish to rely on this as part of his defence to the claimant’s claim.

OTHER DEFENCES: the defence must also specifically set out any matter which is a defence to the claim or raises issues of fact not included in the claim e.g. fraud or illegality.

ANY HUMAN RIGHTS ARGUMENTS RELIED UPON

COUNTERCLAIM: against the claimant, and if it does so, the defence and counterclaim should normally form one document with the counterclaim following on from the defence.

Question 45

What is the standard structure of a defence?

Answer 45

If the claimant has used `defined terms’ in particulars of claim, it is usual to open the defence by adopting this terminology

First paragraph, is usually introduction to each party. As this is uncontroversial it can usually be admitted in the defence

The allegations in the particulars of claim will be admitted, denied or put to proof

At or near the end there is a `general denial’. This denies the entitlement of the claimant to the sum, or any part of the sum, being claimed

Question 46

What is a Reply?

Answer 46

A reply is an optional statement of case served by the claimant

It’s purpose is to allege facts in answer to the defence which were not included in the claim

The reply should be the last statement of case in a claim and permission of the court is needed to file any statement of case after the reply.

Question 47

When should a Reply be filed?

Answer 47

Replies should be filed with the directions questionnaire (this is a case management document which the court directs should be filed after a claim is defended. Parties are given at least 14 days’ notice of the deadline for doing this).

Question 48

What is a default judgment?

Answer 48

It means applying for judgment to be granted in the claimants 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.

Question 49

What are the types of claim in which default judgment may not be obtained?

Answer 49

Claims for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974.

Part 8 claims

Any other claims where a PD provides that the claimant may not obtain default judgment.

Question 50

What conditions must the claimant satisfy to obtain default judgment?

Answer 50

At the ate on which judgment is entered, time has expired for filing an acknowledgement of service or time has expired for filing 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

Question 51

What is the procedure for obtaining default judgment for money claims of a specified sum?

Answer 51

The claimant may file a REQUEST for judgment on the specified form and the application will be dealt with on paper. The court will make a judgment for the amount sought, fixed costs and interest accrued to the date of judgment.

Question 52

What is the procedure for obtaining default judgment for money claims of an unspecified sum?

Answer 52

The claimant may file a REQUEST for judgment on the specified form and the application will be dealt with on paper. The court will enter a judgment for a sum to be decided by the court and will set a timetable leading up to a hearing at which the court will decide that sum.

Question 53

What is the procedure for obtaining default judgment for non-money claims?

Answer 53

Non-money applications for default judgment cannot be decided on paper. Instead the claimant must APPLY for a default judgment hearing to be listed at which the court will hear from the claimant as to why default judgment should be granted and what judgment should be given. The court will then give whatever judgment it considers appropriate.

Question 54

What is the difference between default judgment and strike out?

Answer 54

The court has the power to strike out a statement of case. Strike out focuses on a statement of case and so covers cases which do not amount to a legally recognisable claim or defence.

Default judgment covers cases where the defendant has failed to respond to the claim and does not look at the contents of the statement of case.

Question 55

What is the difference between default judgment and summary judgment?

Answer 55

Default judgment is the consequence of the defendant failing to respond to a claim. Default judgment is therefore procedural: if a defendant fails to file an acknowledgment of service and/or a defence in accordance with the CPR time limits, the claimant can apply for default judgment. The court does not consider the merits of the case when ordering default judgment.

In contrast, summary judgment covers cases which are weak on the facts, so the court will consider the merits of the case.

Question 56

What conditions must be satisfied for a specified money claim to include the amount of interest claimed to the date of judgment?

Answer 56

Particulars of claim include details of interest;

Where statutory interest is claimed (Supreme Court Act 1981 or County Courts Act 1984), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and

The claimants request for judgment includes a calculation of the interest claimed to the date of the request for judgment

Question 57

What happens where the claim is against more than one defendant and the claimant wants to apply for default judgment?

Answer 57

A claimant may obtain a default judgment against one of two or more defendants and proceed with the claim against the other defendants if the claim can be dealt with separately from the claim against the other defendants.

Question 58

What are the cases where the court MUST set aside a default judgment?

Answer 58

If the judgment was wrongly entered:

o The time limit for acknowledging service or serving a defence has not expired when judgment was entered; or

o An acknowledgment of service or defence had been filed on time; or

o Summary judgement or strike out had been applied for before the judgment was entered; or

o The defendant had satisfied the while claim before judgment was entered or admitted the claim or required time to pay

Question 59

What are cases where the court MAY set aside a default judgment?

Answer 59

If the judgment was wrongly entered:

o The defendant has a real prospect of successfully defending the claim; or

o 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

Question 60

What does `real prospect of success’ mean in setting aside a default judgment?

Answer 60

o Not enough for the defendant to show an ‘arguable’ defence.

o The defendant must show that it has ‘a real prospect of successfully defending the claim’.

o In assessing prospects of success, the court MUST NOT conduct a mini trial, but neither should it accept everything in the defendant’s witness statement without analysis.

Question 61

What does ‘some other good reason why judgment should be set aside’ mean in relation to setting aside a default judgment?

Answer 61

o a good reason might be that the claimant lulled the defendant into believing a claim was not forthcoming;

o the claimant failed to serve a response pack; or

o the claim raises issues which should be given a full and fair hearing in the public interest.

Question 62

What must the court consider when deciding whether to set aside a default judgment?

Answer 62

Court must consider how promptly the defendant made its application to set the judgment aside.

Question 63

Is an order made if a default judgment is granted?

Answer 63

Yes, the court may set aside default judgment with conditions attached e.g. that the defendant pays the claimant’s costs of the hearing.