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Civil Litigation > Unit 8: Default Judgment, Defences and Relief from Sanctions > Flashcards

Unit 8: Default Judgment, Defences and Relief from Sanctions Flashcards

1
Q

Under CPR 3.9, what will the court consider when dealing with applications for relief from sanctions?

A

All the circumstances of the case, so as to enable it to deal justly with the application. This includes:

  • The need for litigation to be conducted efficiently and at proportionate cost;
  • To enforce compliance with rules, practice directions and orders.
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2
Q

TRUE or FALSE. r3.9 only comes into play where a sanction is imposed as a result of a failure to comply.

A

TRUE.

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3
Q

what was the intention of the amended r3.9?

A

For courts to be less ready to grant relief from sanctions for procedural defaults.

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4
Q

What are the three stages for applications for relief from sanctions, as proposed in Denton?

A

Identify and assess the serious and significance of the failure.

Why did the default occur?

Evaluate all the circumstances of the case, to enable just dealings.

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5
Q

If there is a serious breach without good reason, will relief from sanctions automatically fail?

A

No; ‘all the circumstances of the case’ must also be considered.

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6
Q

Give examples of what is considered in the third stage of Denton test

A
  • the effect of the breach
  • importance of compliance
  • proportionate sanction
  • prompt application for relief?
  • poor record for compliance

Both factors (a) and (b) in 3.9!

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7
Q

Are factors (a) and (b) r3.9 of paramount importance in the third stage of the Denton test?

A

Lord Dyson and Vos LJ both say they are of particular importance.

Lord Justice Jackson dissented and said they carry no greater weight than other considerations.

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8
Q

What is the limit for reasonable extensions on time limits?

A

28 days, as per r3.8(4)

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9
Q

Can parties take advantage of minor inadvertent errors committed by the opposition re compliance?

A

No.

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10
Q

Under CPR 10.1(3), a defendant may file an acknowledgement of service if-

A

(a) he is unable to file a defence within the period specified in rule 15.4; or
(b) he wishes to dispute the court’s jurisdiction.

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11
Q

What is the consequence of not filing an acknowledgement of service, as per CPR 10.2?

A

The claimant may obtain default judgment if Part 12 allows it.

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12
Q

What is the general period for filing an acknowledgement of service?

A

14 days after service of claim form; or

14 days after service of PoC where the claim form stated that PoC is to follow.

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13
Q

What is default judgment?

A

A trial where the defendant fails to file an acknowledgement of service or defence.

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14
Q

What are the scenarios where default judgment cannot be obtained? (3)

A

(a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974;
(b) where Part 8 procedure is used;
(c) in any other case where a PD says C cannot get default judgment.

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15
Q

When can judgment be obtained in default of an acknowledgement of service?

A

Where it is the date on which judgment is entered and:

D has not filed AoS or a defence to claim and the time for doing so has expired.

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16
Q

When can judgment be obtained in default of defence?

A

Where AoS filed but no defence filed by date of judgment; or

In a 20.4 counterclaim, no defence filed by date of judgment.

And, in either case, the time period has expired.

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17
Q

Can default judgment be obtained if D has applied to have C’s SoC struck out?

A

No.

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18
Q

Can default judgment be obtained if D has filed or served an admission and requests time to pay, (for money claims)?

A

No.

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19
Q

Under 12PD4, for requests and applications for default judgment, the court must be satisfied that:

A

The Particulars of claim have been served on the defendant;

Either D has not filed an AoS or a defence, and the period for doing so has expired;

D has not satisfied the claim;

D has not returned an admission to the claimant or filed an admission with the court.

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20
Q

The court must set aside a judgment under Part 12 if judgment was wrongly entered because either:

A

no AoS filed/defence filed and time expired;

D has applied for stike out/summary judgment.

The whole claim was satisfied before judgment.

For money claims, D has filed/served admission and seeks time to pay

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21
Q

The court MAY set aside Part 12 judgments if:

A

D has a real prospect of successfully defending the claim; or

It appears that there is a good reason for setting aside/varying/D should be allowed to defend.

the court must have regard to whether the person seeking to set aside the Part 12 judgment applied promptly.

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22
Q

Does CPR Part 15 (Defence and Reply) apply where Part 8 procedure is used?

A

No.

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23
Q

The general rule is that th period for filing a defence is:

A

14 days after PoC service; or

If D files AoS, 28 days after service of PoC.

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24
Q

How long can C and D agree to extend the period for filing a defence?

A

28 days.

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25
Q

Must the court be notified where C and D agree to extend the period for filing a defence?

A

Yes - in writing.

26
Q

Where does Part 20 apply?

A

To a defendant who wishes to make a counterclaim.

27
Q

If a claimant replies to a defence, the claimant must;

A

File their reply with a directions questionnaire;

Serve his reply on the other parties at the same time as it is filed.

28
Q

TRUE or FALSE. A party can file/serve any statement of case after a reply without the permission of the court.

A

FALSE. Permission needed.

29
Q

C claims for a specified amount of money. D states in his defence that he has paid it.

  1. What will the court send to C?
  2. What happens if C fails to respond within 28 days?
A
  1. The court will send notice to C requiring him to state in writing whether he wishes the proceedings to continue.
  2. The claim shall be stayed.
30
Q

Where at least 6 months have expired since the end of the period for filing a defence, and:

D has not served/filed an admission/defence/counterclaim; and

C has not applied for default or summary judgment…

What will happen?

A

the claim will be stayed.

31
Q

Forms N9B and N9D are included in the response pack served on D with PoC. What do they deal with?

A

N9B (specified amounts)

N9D (unspecified amounts or non-money claims)

32
Q

Do defences have to be verified by statements of truth?

A

Yes, as per part 22.

33
Q

How can a defendant respond to allegations in a particulars of claim?

A

Admit
Deny
Unable to admit or deny

34
Q

What is judgment in default of acknowledgement?

A

Seeking default judgment where the defendant does not acknowledge PoC in the time period.

35
Q

What is judgment in default of defence?

A

Seeking default judgment where the defendant does not file their defence to the PoC in the time period.

36
Q

Is default judgment automatic?

A

No - C must trigger the process.

37
Q

When are default judgment sums payable?

A

By the day specified; or

If none specified, immediately.

38
Q

Can parties validly agree to extend the time period for filing a defence, provided that the court is notified of the agreement in writing?

A

They can extend for 28 days max, provided that the court is notified of this agreement. CPR 15.5

39
Q

Judgment entered under Part 12 (default judgment) must be set aside if entered wrongly because:

A

(a) In the case of a judgment in default of an acknowledgement of service, the defendant had filed an acknowledgement of service or a defence to the claim, or the relevant time for doing so had not expired.
(b) In the case of judgment in default of a defence, the defendant had filed a defence, or the relevant time for doing so had not expired.
(c) The defendant had applied to have the claimant’s case struck out under CPR 3.4 and that application has not been disposed of.
(d) The defendant has applied for summary judgment under Part 24 and that application has not been disposed of.
(e) The whole of the claim was satisfied before judgment was entered.

40
Q

TRUE or FALSE. Judgment in default is not available in part 8 claims.

A

TRUE - CPR 12.2.(b)

41
Q

TRUE or FALSE. A Claimant may not obtain default judgment if the Defendant applies for summary judgment.

A

TRUE - CPR 12.3(3)(a)(ii)

42
Q

TRUE or FALSE. Default judgments are not available in part 7 claims for non-payment of a debt.

A

FALSE. Debt is a clear example of a claim for a specified sum for which a request for default judgment would be made by filing a request.

43
Q

TRUE or FALSE. If parties agree a time extension for filing defence, but D fails, C cannot file a request for default judgment without first giving D notice of this intention.

A

FALSE. Notice is never required for filing a request for default judgment.

This is not a situation where C would need to make an application to obtain DJ.

Since courts must be notified in writing of extensions, the defendant was aware of the date.

44
Q

When a defendant files AoS for a PoC, how long does he have to file a defence?

A

28 days from service of the particulars of claim.

45
Q

TRUE or FALSE. Default judgment is an administrative procedure.

A

True. It is not a decision of the court, so it is not something which can be appealed.

46
Q

Part 13 CPR concerns…

A

…setting aside default judgment.

47
Q

Is paying off a judgment debt a pre-conditon for having it set aside under Part 13?

A

No.

48
Q

Can a defendant avoid default judgment by acknowledging service at any point before judgment is entered?

A

No. Position is judged at the date that the DJ request is made.

49
Q

In which circumstances must an application for DJ be made under CPR 23, rather than filing a request?

A

(i) Where the claim is made against a state
(ii) Where the claim is made against persons or organisations who enjoy immunity from civil jurisdiction pursuant to the provisions of the International Organisations Acts 1968 and 1981.
(iii) Where the claim is made against a child.
(iv) Where the defendant is domiciled in Scotland.

50
Q

TRUE or FALSE. In order to demonstrate that it has a real prospect of success for the purpose of an application to set aside judgement in default, the defendant must show that it has an arguable defence

A

FALSE. Not enough. You need a reasonable prospect of success in defending the claim.

51
Q

TRUE or FALSE. A person who is not a party but who is directly affected by a judgment may apply to have it set aside.

A

TRUE.

52
Q

TRUE or FALSE. If a defendant has not acted promptly in making the application the court may still set aside the judgment on the grounds that there is a good reason for the defendant to defend the claim at trial.

A

TRUE.

53
Q

TRUE or FALSE. If a defendant has failed to act promptly in making the application the court may refuse to set aside judgment even though the defence has a real prospect of success.

A

TRUE.

54
Q

TRUE or FALSE. Where the claim against one of two or more defendants cannot be dealt with separately the court will not enter judgment against the defendant but will deal with the application for default judgment at the same time as it disposes of the claim against the other defendants

A

TRUE.

55
Q

can claims against two defendants in the alternative be dealt with separately?

A

No.

56
Q

Does the 14 day period for filing an AoS begin upon service of the PoC or the claim form?

A

Claim form.

57
Q

If you forget to deal with an allegation when drafting the defence, you are taken to…

What are the exceptions?

A

…admit that allegation.

Exceptions:

  • You have set out your case in relation to that allegation, and your case contradicts that allegation.
  • You have failed to deal with any allegation relating to the amount of money claimed by the Claimant.
58
Q

TRUE or FALSE. Where there is discretion in setting aside the judgment, in considering whether to set aside or vary a judgment entered under part 12, the court must have regard to whether the defendant has a real prospect of successfully defending the claim and whether there is a good reason why it should be set aside or the defendant should be allowed to defend the claim.

A

FALSE.

59
Q

TRUE or FALSE. Where there is discretion in setting aside the judgment, in considering whether to set aside or vary a judgment entered under part 12, the court must have regard to whether the application has been entered promptly.

A

TRUE.

60
Q

TRUE or FALSE. Where there is discretion in setting aside the judgment, in considering whether to set aside or vary a judgment entered under part 12, the court must have regard to whether the defendant has a real prospect of successfully defending the claim or whether there is a good reason why it should be set aside or the defendant should be allowed to defend the claim.

A

TRUE.

61
Q

Where there is discretion in setting aside the judgment, in considering whether to set aside or vary a judgment entered under part 12, the court must have regard to whether the claimant has a real prospect of succeeding on its claim or whether there is a good reason why the claim should be heard at trial.

A

FALSE.

Civil Litigation (19 decks)

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