Responding to Proceedings

Question 1

When is an AOS due where the D is served with a claim form which states that particulars of claim are to follow?

Answer 1

14 days after service of the particulars of claim.

Question 2

When is an AOS due where the claim form and particulars are served together?

Answer 2

14 days after service of the claim form.

Question 3

If the D does not file an AOS, when must it file/serve a defence?

Answer 3

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

Question 4

What is the effect of filing an AOS?

Answer 4

It extends the deadline for serving the defence to 28 days after the deemed date of service of the particulars of claim.

Question 5

Can the parties agree an extension of time for filing/serving the defence?

Answer 5

Yes, the parties can agree up to a 28 day extension between them as per CPR 15.5.

Any extension of time must be notified to the Court in writing.

Question 6

When should a D wishing to admit whole or part of a claim do this by?

Answer 6

The D must complete the relevant admission form within 14 days of deemed service of the particulars of claim.

Question 7

If a specified claim is admitted in full, what happens?

Answer 7

Judgment can be entered for the debt, interest, Court fees and fixed costs, and the claim will be concluded.

Question 8

If a specified claim is admitted in part, what happens?

Answer 8

Judgment can be entered in part but the D must file a defence for the unadmitted part which will continue to trial.

Question 9

If an unspecified claim is admitted, what happens?

Answer 9

Judgment will be for liability only and there will be a subsequent hearing to determine quantum.

Question 10

What is a request for time to pay?

Answer 10

This is essentially a proposal to pay the specified sum in instalments/by a certain date. If the C does not accept this proposal, payment terms will be determined by the court.

Question 11

How does a C enter judgment following a claim being admitted?

Answer 11

C completes request for judgment and reply to admission form within 14 days of receiving notice of the admission.

Question 12

Describe the clear days (day on which period begins) rule in relation to counting time and provide an example.

Answer 12

Under the CPR, any reference to a number of days means ‘clear days’.

The day on which a period begins is never included so always start counting the following day. The day on which a period begins is ‘day zero’ and ‘day one’ begins the following day.

E.g. particulars of claim are served on Tuesday, day one for the purposes of counting time is on Wednesday.

Question 13

Describe the clear days (end of period defined by reference to an event) rule in relation to counting time and provide an example.

Answer 13

If the end of the period is defined by reference to an event, the day on which that event occurs is not included.

E.g. notice of an application must be served at least 3 days before the hearing, the day of the hearing would not be included when counting.

Question 14

Describe the clear days (days which do not count) rule in relation to counting time and provide an example.

Answer 14

Where the specified period is 5 days or less, weekends, bank holidays, Christmas and Good Friday in the time period do not count.

E.g. notice of an application must be served at least 3 days before the hearing, hearing is on Monday 10 January. Sunday 9 January and Saturday 8 January do not count.

Question 15

Describe the counting time rule in relation to deadlines on days on which the office is closed.

Answer 15

Where a deadline relates to doing any act at the Court office and the deadline for doing that act ends on a day 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 16

What is a defence and what three things can a D do in relation to each allegation made by the C?

Answer 16

The defence is the document in which the D sets out its case. It is the D’s response to the particulars of claim. The D can:

-admit an allegation

-deny the allegation to dispute facts within their knowledge but must give reasons

-require proof, if unable to admit or deny the allegation due to being outside of their knowledge

Question 17

What are the consequences for a D failing to deal with an allegation in their defence?

Answer 17

If the D omits to deal with an allegation made by the C, they will be deemed to admit it, unless they have set out their own case in respect of that allegation in which case they will be deemed not to admit it.

Question 18

What is a reply to defence?

Answer 18

A reply is an optional statement of case served by the C. Its purpose is to allege facts in answer to the defence which were not included in the claim.

The contents will therefore be factual allegations which answer ‘new’ points raised in the defence.

Question 19

When should a reply to defence be filed/served?

Answer 19

Should be filed with the DQ.

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 20

What is default judgment?

Answer 20

Default judgment means applying for judgment to be granted in the C’s favour without a trial if the D has not responded to the claim by either serving an AOS/defence within the prescribed time limits.

Question 21

What conditions must the C satisfy to obtain default judgment?

Answer 21

CPR 12.3:

-at the date on which judgment is entered, time has expired for filing an AOS/defence

-the claim has not been admitted or satisfied by the D

-no application for summary judgment or strike out has been made by the D

Question 22

What is the difference between default judgment and strike out and summary judgment?

Answer 22

Default judgment-procedural and covers cases where D has failed to respond. Court does not consider merits.

Strike out-focuses on statements of case which do not amount to a legally recognisable claim or defence.

Summary judgment-deals with cases that are weak on the facts, so Court considers merits.

Question 23

What is the procedure for obtaining default judgment for a specified money claim?

Answer 23

The C 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 24

What is the procedure for obtaining default judgment for an unspecified money claim?

Answer 24

The C 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 quantum hearing.

Question 25

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

Answer 25

Cannot be decided on paper. The C must apply for a default judgment hearing to be listed at which the Court will hear from the C as to why default judgment should be granted.

The Court will then give whatever judgment it considers appropriate.

Question 26

Who can set aside default judgment?

Answer 26

A default judgment can be set aside on an application by the D or by the court of its own motion.

Question 27

What are the reasons as to why the Court must set aside a default judgment?

Answer 27

If judgment was wrongly entered, the Court must set aside if:

-time limit for AOS/defence had not expired when judgment was entered

-AOS/defence was filed on time

-summary judgment/strike out applied for before judgment entered

-D has satisfied whole of the claim before judgment entered or admitted the claim or required time to pay

Question 28

What are the reasons as to why the Court may set aside a default judgment?

Answer 28

If judgment was correctly entered, the Court may set aside if:

-the D 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 D should be allowed to defend

Application should be made promptly.

Question 29

Can a C obtain a default judgment against one or more Ds when the claim against them can be dealt with separately from the claim against the other Ds?

Answer 29

Yes, as per CPR 12.9, a C may obtain a default judgment against one of two or more Ds and proceed with the claim against the other Ds if the claim can be dealt with separately from the claim against the other Ds.