TB - responding to a claim

Question 1

what’s the difference between a specified claim and an unspecified claim?

Answer 1

specified claim - type of claim that’s issued for a fixed amount of money allegedly owed by the defendant to claimant

unspecified claim - particular type of claim in tort where the amount of money to be awarded is left to the court to determine

Question 2

what four options does a defendant have when they are served with a claim form and particulars of claim?

Answer 2

D can either admit the claim, file an acknowledgement of service, file a defence or ignore the claim

Question 3

if a defendant applies to set aside a judgement in default, the court must grant the defendants application.

true or false?

Answer 3

false

if D applies on a mandatory ground and is able to provide evidence to prove their application, the court must set judgement aside

alternatively, the court has discretion over whether to grant the application

Question 4

why is a Tomlin order a beneficial type of consent order for a claimant to use following settlement of a claim with the defendant?

Answer 4

a tomlin order is appropriate where the parties have agreed a settlement and payment terms, but there’s a risk that D will default on those terms in the future

a tomlin order stays proceedings rather than terminating them, meaning it’s easier for C to return to court to enforce the terms of the judgement

Question 5

what procedural steps does the claimant need to take if they want to discontinue proceedings?

Answer 5

the claimant must first file and serve a notice of discontinuance on all of the parties to proceedings.

Question 6

when a defendant is served with claim documentation, what’s the first step they must take?

Answer 6

they must ascertain exactly what that documentation is
- this will dictate how they should respond to it

Question 7

if the claim document served is a claim form alone where the particulars of claim are to follow as a separate document - how should a defendant respond?

Answer 7

there’s no need for the defendant to do anything if they have only been served with a claim form without the particulars of claim

Question 8

if the claim document served is a claim form with the particulars of claim attached, or particulars of claim when the claim form has already been served - how should a defendant respond?

Answer 8

the defendant needs to act at this point

they have several options of how to deal with a claim once the particulars of claim have been served on them.

they can
- admit the claim in whole or part
- file an acknowledgement of service
- file a defence
- ignore the claim and allow the claimant to apply for judgement in default

Question 9

What is an acknowledgement of service?

Answer 9

a formal document which is filed with the court by the defendant to acknowledge that they have been served with the claim form and particulars of claim

Question 10

what is meant by judgement in default?

Answer 10

the term for judgement being awarded in the claimants favour on the basis that the defendant has failed to respond to the claim form and particulars of claim being served on them within the relevant time

Question 11

when a defendant is served with a claim, they are also provided with a ‘response pack’. this contains forms which give the defendant options in terms of how they wish to respond. What are these forms?

Answer 11

• admission form
• acknowledgement of service form
• defence and counterclaim form

Question 12

if the defendant acknowledges that they’re liable for the whole or part of the claim, it makes good sense for them to admit that as early a stage as possible to enable matters with the court to be concluded. the process for this differs depending on …

Answer 12

whether they admit the whole of the claim or just part of it

whether the claim is specified or unspecified

Question 13

what is a specified claim?

Answer 13

a type of claim that’s issued for a fixed amount of money allegedly owed by D to C

Question 14

what is an unspecified claim?

Answer 14

a particular type of claim in tort where the amount of money to be awarded is left to the court to determine

Question 15

what are the steps for the defendant and claimant if the whole of the claim is admitted?

Answer 15

• D to complete the admission form offering to pay the claim in full within a specified time period
• D to provide details on the admission form (N9A) of assets, income, expenditure and a proposal for instalment payments. this will be sent to C by court
• C will either accept the terms or raise objection to them. If C raises objection, the court will either set the instalment figures and time period or set the matter down for a hearing to hear each side’s POV = disposal hearing
• following receipt of the admission from D, C will also be entitled to apply for judgement in their favour based on D’s admission

Question 16

what are the steps for the defendant and claimant if part of the claim is admitted?

Answer 16

• D to complete the admission form admitting part of the claim and often making an offer to C to settle the whole matter
• C will have 14 days to make a decision on the offer
• if C accepts the offer, the court will proceed to make a judgement for the sum agreed if C requests it to do so
• if C accepts the offer amount but rejects the proposals for payment, then the court will list the matter for a disposal hearing
• if C rejects the offer, matter will proceed as a disputed case and D will be required to file a defence

Question 17

if D files an admission of liability in an unspecified claim, what will the court do?

Answer 17

the court will stay, or put on hold, proceedings and arrange to list the matter for a disposal hearing

Question 18

what will happen in the disposal hearing?

Answer 18

the court will determine the sum that’s payable by D to C in respect of the claim

Question 19

REVISION TIP

Answer 19

in unspecified claims, D can make an offer to settle that accompanies their admission of liability. the court will serve a notice on the claimant asking if they accept the offer. if the claimant accepts, the court will enter judgement in that amount. if the claimant accepts the amount offered but not the defendants proposals for payment, the court will make an order based on the assets, income and expenditure of the defendant

Question 20

What can the defendant do if they don’t wish to admit the claim but aren’t immediately in the position where they feel able to submit a full defence to it?

Answer 20

they can file an acknowledgement of service with the court

Question 21

What does filing an acknowledgement of service with the court do?

Answer 21

extends the amount of time they have to file a full defence from 14 days after the particulars of claim is served on them to 28 days

Question 22

the third option for a defendant when they’re served with the particulars of claim is to file a full defence to the claim. what does this involve?

Answer 22

this involves completing the defence form found in the response pack sent to the defendant alongside the particulars of claim

Question 23

is it open to the defendant to submit a counterclaim, if relevant, at the same time as the defence?

Answer 23

yes

Question 24

if the defendant ignores the claim, what can the claimant apply for once the max period for filing an acknowledgement of service or defence has passed?

Answer 24

the claimant will apply for judgement in default once the max period for filing an acknowledgement of service or defence has passed

Question 25

what will the court do once a claimant has applied for judgement in default?

Answer 25

the court, in the absence of any defence from the defendant and on application from the claimant, will grant judgement on the amount claimed = judgement in default

Question 26

once the court has granted judgement on the amount claimed, what is the defendant required to do?

Answer 26

defendant will be required to pay the full amount of the judgement to the claimant

Question 27

after service of proceedings, the defendant has the following timescales to respond..

Answer 27

• a max of 14 days from the date of service of the particulars of claim to file an acknowledgement of service
• if an acknowledgement of service is filed, a max of 28 days from the date of service of the particulars of claim to file a defence and counterclaim

Question 28

EXAM WARNING

Answer 28

the CPR 1998 do allow parties to agree to extend the deadline for filing a defence and, if applicable, a counterclaim between themselves without any court involvement

such an extension is limited to a further 28 days, which would mean that the defendant would have a total of 56 days to file their defence and counterclaim, if appropriate

Question 29

Once a defence and counterclaim have been filed with the court, who will serve the relevant documents on the claimant?

Answer 29

the court will
unless the defendant has indicated in their response that they wish to serve the document on the claimant directly

Question 30

if the defendant doesn’t believe that the court of england and wales has jurisdiction to hear the claim, where must they indicate this?

Answer 30

on the acknowledgement of service form

Question 31

how long does the defendant have from the date of filing the acknowledgement of service to make an application to the court disputing jurisdiction?

Answer 31

14 days from the date of filing
- D would have to submit supporting evidence to show the court why they do not have jurisdiction

Question 32

if the court grants the defendants application disputing jurisdiction, what will happen?

Answer 32

the claim form will be set aside and the proceedings closed

Question 33

if the court rejects the defendants action, what should the defendant do?

Answer 33

D will be required to file a further acknowledgement of service within 14 days of the date of the order dismissing the application, and the proceedings can continue

Question 34

if the defendant fails to make an application disputing jurisdiction, within the 14 day time period of filing their acknowledgement of service, what will the court do?

Answer 34

the court will assume that the defendant accepts the courts jurisdiction and a defence must then be filed

Question 35

Judgement in Default

Answer 35

judgement in favour of the claimant that’s based on the defendant’s failure to plead their defence

one of the options available to the defendant after they’ve been served with the particulars of claim is to ignore it

if they fail to file an acknowledgment of service or a defence within 14 days, or file an acknowledgement of service and fail to file a defence within 28 days, the claimant is entitled to apply for judgement in default

Question 36

Set Aside meaning

Answer 36

when the court declares a previous decision invalid

eg when a judgement in default is set aside, the court action will proceed as if that judgement was never granted

Question 37

NOTE

Answer 37

SQE1 may ask about the procedure the claimant must follow to apply fir judgement in default, or the way in which an application can be made and the grounds that must be proven by the defendant to set aside the judgement in default

Question 38

Can the court grant judgement in default on its own or does the claimant have to apply for it

Answer 38

the claimant has to apply for and ask the court to grant them the judgement

Question 39

The CPR set out the criteria the claimant must satisfy. What are they?

Answer 39

• particulars of claim have been validly served on the defendant and
• the defendant hasn’t filed an acknowledgement of service or defence within the relevant time period

Question 40

is it easy factually easy for a claimant to meet these criteria and be awarded judgement in default?

Answer 40

yes, given the fact that the courts record is likely to prove both of these criteria
(unless the claimant has requested to serve the claim form and particulars of claim themselves)

Question 41

what is the only circumstance in which the claimant will fail in this application?

Answer 41

if the defendant has already made an application for summary judgement or to have the claimant’s claim form and particulars of claim struck out

Question 42

What is summary judgement?

Answer 42

a special type of application that’s made by the claimant or defendant on the basis that the claim or defence has no reasonable prospect of success at trial

Question 43

struck out meaning

Answer 43

when the court orders written material to be deleted so that a party can no longer rely on it

Question 44

if the claim is for a specified sum, to allow the court to make judgement in default, what must the claimant have to provide the court with?

Answer 44

the claimant must provide the court with
- confirmation of the date that payment was due
- up to date interest figure and daily rate of interest

this enables the court to enter judgement for a specific and up to date amount, as well as ordering that additional daily interest is payable by the defendant until the point at which they settle the debt

Question 45

if the claim is for an unspecified sum, what will the court do?

Answer 45

the court will enter judgement in the claimants favour but then schedule a hearing so that they can determine the amount which the defendant should pay

Question 46

if the defendant receives the judgement in default, and wishes to contest the proceedings, can they apply to set aside the judgement in default?

Answer 46

yes

Question 47

if the defendant receives the judgement in default, wishes to contest the proceedings, and are successful in their application to set aside the judgement in default - what effect would this have?

Answer 47

this would have the effect of the judgement being declared invalid and the proceedings continuing as if judgement were never entered

Question 48

The CPR set out two grounds on which a defendant can make an application to set aside judgement in default. What are these?

Answer 48

1) a mandatory ground - the court must set the judgement aside if the defendant can prove that they meet the relevant criteria

2) a discretionary ground - the court may set judgement aside depending on the circumstances pleaded by the defendant

Question 49

What must the defendant prove for a mandatory ground on which a defendant can make an application to set aside judgement in default?

Answer 49

in cases where the claimant has obtained judgement because the defendant hasn’t filed their acknowledgement of service or defence within the relevant time, the defendant must show they did file the document before the relevant deadline, or that the defendant settled and paid the claim prior to judgement in default being entered

Question 50

What must the defendant prove for a discretionary ground on which a defendant can make an application to set aside judgement in default?

Answer 50

the defendant must show either that they have a real (not fanciful) prospect of defending the claim, or that there’s some other good reason why they should be allowed to defend the claim (such as D being in hospital/abroad when proceedings were served)

court must also take into consideration whether the defendant applied promptly upon receipt of the judgement in default.

if the application hasn’t been made promptly with no real explanation as to why from the defendant, the court has the discretion to reject the application - this means the judgement will stand and the defendant will be required to pay the judgement sum

Question 51

once the court has considered the application, what orders can they make?

Answer 51

• application is successful, meaning judgement against defendant is set aside and they’re allowed to defend the court proceedings
• application is unsuccessful, meaning judgement against defendant stands and claimant can enforce that judgement
• application is successful but court attaches a condition that judgement will not be set aside unless D pays a certain amount of money into court as security by a specific deadline - if D fails to pay the amount into court, judgement in default will stand

Question 52

PRACTICE EXAMPLE

Climpton Finance Ltd are served with proceedings on 4 Jan. Due to an administrative mixup, they fail to open the letter in which the claim form and particulars are enclosed. they receive a further letter from court enclosing an order awarding judgement in default to the claimant on the basis of CFL’s failure to file an acknowledgment of service or a defence by the relevant days.
CFL wish to defend the proceedings. What can they do?

Answer 52

CFL can apply to set aside the judgement in default.

they would have to do so on a discretionary ground, and they would therefore need to provide the court with supporting evidence that they had a real prospect of successfully defending the claim or that there exists some other good reason why they should be allowed to defend the claim.

they would also need to apply promptly after having received the judgement in default, as the court are obligated to take this into consideration before exercising their discretion on whether to set judgement aside

Question 53

What are the two ways in which a claimant can voluntarily bring an end to proceedings without progressing to a judgement?

Answer 53

1) discontinuance
2) settlement

Question 54

What is discontinuance?

Answer 54

the termination of a legal action by a claimant

Question 55

is a claimant entitled to discontinue all or part of their proceedings at any point of a court of action?

Answer 55

yes

Question 56

A claimant may decide to discontinue a claim for a variety of reasons but mainly because…

Answer 56

• the court action is taking too long and is too expensive for the claimant to continue
• the claimant has discovered that the defendant doesn’t have, and is unlikely to have in the future, the means to pay any judgement awarded in favour of the claimant
• the claimant has re-evaluated the strength of their claim and decided that it’s unlikely they will be successful.

Question 57

NOTE

Answer 57

SQE1 may ask you about the procedure that a claimant would need to follow to discontinue proceedings and the potential consequences of them doing so

Question 58

What steps does a claimant need to take to discontinue proceedings?

Answer 58

• they must first file and serve a notice of discontinuance on all parties to proceedings
• if more than one claimant, other claimants must provide their written consent to the proceedings being discontinues, which should be attached to notice of discontinuance
• if multiple claimants, and they refuse to provide their consent, claimant who wishes to discontinue must apply for the permission of the court to do so

Question 59

when will proceedings be deemed discontinued?

Answer 59

as soon as the notice of discontinuance is served on all other parties to the action, the claim will be discontinued

Question 60

what penalties does the claimant face for discontinuing proceedings?

Answer 60

the claimant will be liable to pay the defendants costs on the standard basis in relation to either the whole of the action or, alternatively, the part of the action that has been discontinued

Question 61

STANDARD BASIS

Answer 61

one of the two methods by which the court calculates the level of legal costs, fees and expenses payable by one party to another

using this method, costs, fees and expenses associated with the legal action and claimed from the opposition must have been reasonably incurred and must be proportionate to the issues that the court has been asked to resolve

Question 62

the second way for a claimant to voluntarily bring proceedings ti an end is through reaching a settlement with the defendant while the litigation is ongoing. If an agreement is reached, what will the parties need to do?

Answer 62

the parties will need to draw up and agree the terms of a consent order

Question 63

What is a consent order?

Answer 63

an umbrella term for all orders that record settlements which are reached between parties to litigation

a contract by which the claimant agrees to terminate the proceedings in exchange for a settlement sum

Question 64

if the defendant breaches any of the terms of a consent order, what does the claimant need to do?

Answer 64

the claimant will need to issue a new set of proceedings (based on breach of contract, the contract being the new consent order) to enforce the terms of that order

Question 65

why is it not ideal for the claimant to issue a new set of proceedings?

Answer 65

because the claimant will have already issued proceedings once and will not wish to issue them again to simply get what they should have been entitled to had they continued with the original court action

Question 66

What type of order can be drafted to avoid the eventuality of a claimant issuing another set of proceedings?

Answer 66

A special type of consent order - tomlin order

Question 67

What is a tomlin order?

Answer 67

a court order under which a claim is stayed or paused on terms that have been agreed between the parties and are then attached to the order in the form of a confidential schedule

this avoids the need for having to issue fresh proceedings if a term of the order is breached by one of the parties

Question 68

does a tomlin order set out the terms of agreement between the parties?

Answer 68

no - these are set out in the confidential schedule, which is attached to the order

Question 69

what does a tomlin order include?

Answer 69

• a statement that the parties have agreed terms of settlement
• a statement that all further proceedings are stayed
• a confirmation that the stay is based on the terms set out in the attached schedule being complied with
• a statement that if the terms of the schedule are breached, the innocent party can make an application to the court and request that they lift the stay, thereby allowing the innocent party to ask the court to enforce the settlement
• a direction as to which party is paying the others costs and whether those costs are to be assessed

Question 70

whichever type of consent order is used, the immediate proceedings are either brought to an end completely or paused subject to the terms of the order being complied with - what does this prevent?

Answer 70

this prevents further costs being incurred by either party in connection with the action

Question 71

upon receiving a claim form and particulars of claim, what can a defendant do?

Answer 71

a defendant may admit the claim in whole or part, file an acknowledgement of service, file a defence or ignore the claim

Question 72

is the defendant open to admit liability in respect of the whole claim or part of the claim?

Answer 72

yes

Question 73

if the defendant admits part of the claim, they may offer to settle the whole matter - how long does the claimant have to decide whether to accept the offer?

Answer 73

14 days

Question 74

What happens at a disposal hearing?

Answer 74

the court will determine the sum payable by the defendant to the claimant in respect of the claim

Question 75

if the defendant doesn’t wish to admit the claim but isn’t immediately in the position where they feel able to submit a full defence to it, what can they do?

Answer 75

they can file an acknowledgement of service with the court - this extends the amount of time they have to file a full defence from 14 days after the particulars of claim is served on them to 28 days

Question 76

can a defendant submit a counterclaim at the same time as their defence?

Answer 76

yes

Question 77

if the defendant simply ignores the claim, what can the claimant apply for?

Answer 77

a judgement in default on the basis that the particulars of claim have been validly served on the defendant and the defendant hasn’t filed an acknowledgement of service or defence within the relevant time period

Question 78

what is the defendant required to do if the court grants an order of default?

Answer 78

the defendant will be required to pay the full amount of the judgement to the claimant

Question 79

can a defendant make an application to set aside the judgement in default if they meet the relevant criteria laid out in the CPR?

Answer 79

yes

Question 80

a defendant has been served with a claim form, on the form it states the particulars of claim are to follow. what should the defendant do?

Answer 80

the defendant doesn’t need to respond after being served with the claim form - D isn’t required to do anything until the particulars of claim has been served on them