Responding to Proceedings Flashcards
Steps a defendant can take to respond to a claim
- file or serve an admission
- file a defence
- file an acknowledgement of service
(note: can file both an admission and defence if admitting part of the claim)
Why file an acknowledgement of service?
Will file either:
- if unable to file the defence in time and needs longer than 14 days from the deemed date of service of the particulars of claim in which to serve a defence; or
- if it wishes to dispute that the court has jurisdiction to hear the claim.
In practice common to file an acknowledgment
When to acknowledge service
General rule:
- where the defendant is served with a claim form which states that the particulars are to follow, 14 days after service of the PoC; and
- in any other case, 14 days after claim form
How to acknowledge service
- It is a simple form in which the defendant confirms their name is correctly stated on the claim form and gives their address for service of documents
- Defendant will also indicate by ticking the appropriate box on the form whether they intend to defend all or part of claim or whether they intend to contest the jurisdiction of the court to deal with the matter
Deadline for the defence
- If does not file an AoS, it must file the defence within 14 days of the deemed date of service of the particulars of claim
- If the defendant does file an acknowledgement 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 PoC
What happens after filing an acknowledgement of service?
Defendant: need to ensure that the defence is ready and filed by this date
Claimants: need to be ready to apply for judgment in default if the deadline expires and no defence is filed and served
When might there be an extended period for filing a defence?
A longer period for filing a defence might apply where:
- the claim form has been served out of the jurisdiction, longer periods apply depending on which other country is involved
- where a defendant makes an application disputing the court’s jurisdiction, the defendant need not file a defence before the hearing of that application
- where before the defence is filed, the claimant applies for summary judgment, the defendant need not file a defence before the hearing of that applcaiton
- where the court makes an order for service of a claim form on an agent of a principal who is overseas, the court will specify the period
Extending time to serve defence
Defendant and claimant can agree an extension of time for serving the defence of up to 28 days if the defendant needs more time to prepare the defence.
This means that it is possible for the defendant to have up to 56 days from the deemed date of service of the particulars of claim to file the defence without having to apply to the court for permission.
If an extension of time is agreed, the court must be notified in writing.
Application to the court for an extension of time
- not possible to agree to more than 28 days
- claimant refuses
In these instances will need to apply to the court:
- ensure overriding objective is furthered in deciding whether to grant the extension of time
- reasons
- impact of extra time on the conduct of the claim
Money paid
If defendant has already paid the claimant, they will respond to proceedings with defence which says debt has already been paid.
How to admit a claim
Admission form is sent with response pack (with particulars of claim). There are different versions depending upon whether the claim is for a specified amount, unspecified, non-money or return of goods.
A defendant wishing to admit the whole or part of a claim completes the relevant admission form and sends this to the court
Deadline for admitting a claim
Within 14 days of deemed service of the particulars of claim.
Admitting specified claims
- amount of money that needs to be paid is already known
- debt
- court fees
- interest
- fixed costs
- defendant can admit whole or only part of the claim (will indicated on Form N9A)
- except where one of the parties is a child/protected party, the claimant will have the right to enter judgement against the defendant for the admitted sum which will include interest
Admitting unspecified claims
- If unspecified sum is admitted, quantum and interest is not yet known.
- Defendant may admit liability to pay the whole claim for an unspecified amount or may admit liability and offer a sum.
- Will indicate this on form N9C
Whole claim: court will enter judgment
Requesting time to pay
- if admission is a specified amount of money, defendant can request time to pay
- request is: to pay by certain date or by instalments.
- Both versions of the admissions form make provisions for this request to be made at the same time as the admission and for the defendant to supply personal financial information. If the defendant is unable to pay can include reasons.
If claimant does not accept the proposal, court can determine the rate of payment, taking into account the information supplied by the defendant and the objections raised by the claimant
Entering judgment following the claim being admitted
- judgment is the ‘final order’ which disposes the claim, will usually indicate the claimant is either completely or to some extent the successful party
- claimant will be notified of an admission and has an option to enter judgment: usually prefer to have judgment entered
- defendant prefer not have judgment entered against them to avoid possibility of enforcement proceedings bc also judgments are placed on public register for 6 years and effect credit rating
If a specified claim has been admitted or paid in full within the 14 day period for responding to the claim, it is unlikely that a judgment will also be entered
Amount of judgment
- amount of the claim/debt including interest to the date of the issue of the claim
- interest since the date of issue
- court fees
- fixed costs
Credit will be given for any amounts already paid
Unspecified: judgement will be on liability only, amount will be listed for a subsequent hearing where evidence will be heard on the issue of quantum and the judge will hand down a judgment recording the amount due including interests and costs
How to enter judgement following a claim being admitted
Specified sum: simply file paperwork - no hearing
- Claimant completes a request for judgment and reply to admission form within 14 days of receiving notice of the admission
Will indicate judgement amount, including interest, court fees, and fixed costs as well as the amount of any payments made by the defendant
Unspecified: The claimant will make a request for judgment. On receipt of this request the court will enter judgment on liability with quantum (and costs) to be decided at a later hearing
After filing for judgment
- court staff enter judgment and send this to the parties
- once judgement is entered following the admission and amount payable has been determined, the claim is concluded
- unless otherwise agreed or stated on it, the judgment is payable by the defendant within 14 days
- enforcement proceedings can be taken to secure payment of any sums outstanding after the 14 days
Clear days: day on which period begins
The day on which the period begins is not counted.
If counting 14 days you would not include the day the PoC (for example) are served. So if served on a Tuesday, day one would be the Wednesday.
Clear days: end of period defined by reference to an event
If the end of the period is defined by reference to an event (e.g. trial bundled filed at least 3 days before day of trial), the day on which that hearing occurs is not included.
Clear days: days which do not count
If the period is 5 days or less, and Saturdays, Sundays, bank holidays, Christmas days or Good Fridays do not count
Clear days: deadline on a day where the office is closed
If the deadline is on a day on which the office is closed, the act is treated as done on time if it is done on the next day on which the court office is open.
Note: will not count if the act does not involve filing at the court office even if there is a holiday and the office is closed.
