Unit 8 Defence, Default Judgment and relief from sanctions

Question 1

When may the claimant obtain default judgment?

Answer 1

If a defendant fails to file an acknowledgement of service within the period specified and does not file a defence of admission.

Question 2

Can the court grant a remedy which is not specified on the claim form?

Answer 2

The court may grant any remedy to which the claimant is entitled even if that remedy is not specified in the claim form.

Question 3

What 3 categories must the claimant choose from in outlining how much money he expects to recover on his claim form?

Answer 3

2. The claimant must, in the claim form, state—
   a. the amount of money claimed;
   b. that the claimant expects to recover—
   i. not more than £10,000;
   ii. more than £10,000 but not more than £25,000; or
   iii. more than £25,000; or
   c. that the claimant cannot say how much is likely to be recovered.

Question 4

On a PI claim form, what must the claimant indicate in terms of general damages?

Answer 4

1. In a claim for personal injuries, the claimant must also state in the claim form whether the amount which the claimant expects to recover as general damages for pain, suffering and loss of amenity is—
   a. not more than £1,000; or
   b. more than £1,000.

Question 5

On a Landlord/Tenant claim form, what additional damages information must be included?

Answer 5

(4)In a claim which includes a claim by a tenant of residential premises against a landlord where the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises, the claimant must also state in the claim form—
a. whether the estimated costs of those repairs or other work is—
I. not more than £1,000; or
II. more than £1,000; and
b. whether the value of any other claim for damages is:
I. not more than £1,000; or
II. more than £1,000.

Question 6

What must a High Court claim form include?

Answer 6

(5) If the claim form is to be issued in the High Court it must, where this rule applies—
a. state that the claimant expects to recover more than £100,000;
b. state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment;
c. if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or
d. state that the claim is to be in one of the specialist High Court lists and state which list.

Question 7

When calculating how much he expects to recover, what must the claimant disregard?

Answer 7

(6)When calculating how much the claimant expects to recover, the claimant must disregard any possibility—
a. that the court may make an award of—
I. interest;
II. costs;
b. that the court may make a finding of contributory negligence;
c. that the defendant may make a counterclaim or that the defence may include a set-off; or
d. that the defendant may be liable to pay an amount of money which the court awards to the claimant to the Secretary of State for Social Security under section 6 of the Social Security (Recovery of Benefits) Act 1997.

Question 8

Is the High Court limited to awarding damages to the amount on the claim form?

Answer 8

No. The statement of value in the claim form does not limit the power of the court to give judgment for the amount which it finds the claimant is entitled to.

Question 9

If a claimant does not reply to a defence, are they taken to have admitted it?

Answer 9

(1)A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.
(2)A claimant who—
a. files a reply to a defence; but
b. fails to deal with a matter raised in the defence,
shall be taken to require that matter to be proved.

Question 10

Who may apply for a stay to be lifted?

Answer 10

Any party.

Question 11

How long does a statement of case have to be to require a short summary?

Answer 11

More than 25 pages.
If exceptionally a statement of case exceeds 25 pages (excluding schedules) an appropriate short summary must also be filed and served.

Question 12

What address must the claimant include on his claim form?

Answer 12

The claim form must include an address at which the claimant resides or carries on business. This paragraph applies even though the claimant’s address for service is the business address of his solicitor.
Where the defendant is an individual, the claimant should (if he is able to do so) include in the claim form an address at which the defendant resides or carries on business. This paragraph applies even though the defendant’s solicitors have agreed to accept service on the defendant’s behalf.
Address must include post codes.
If the claim form does not show a full address, including postcode, at which the claimant(s) and defendant(s) reside or carry on business, the claim form will be issued but will be retained by the court and will not be served until the claimant has supplied a full address, including postcode, or the court has dispensed with the requirement to do so. The court will notify the claimant.

Question 13

What must a claimant be sure to include in a PI claim form? (4)

Answer 13

1. The claimant’s date of birth, and
2. brief details of the claimant’s personal injuries.
3. The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims.
4. Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.

Question 14

If a claimant wishes to rely on a conviction as evidence, what must they include in their claim form? (3)

Answer 14

He must include a statement to that effect and give the following details:
• (1) the type of conviction, finding or adjudication and its date,
• (2) the court or Court-Martial which made the conviction, finding or adjudication, and
• (3) the issue in the claim to which it relates.

Question 15

What matters must the claimant specifically set out in his particulars of claim where he wishes to rely on them in support of his claim? (8)

Answer 15

1. any allegation of fraud,
2. the fact of any illegality,
3. details of any misrepresentation,
4. details of all breaches of trust,
5. notice or knowledge of a fact,
6. details of unsoundness of mind or undue influence,
7. details of wilful default, and
8. any facts relating to a claim for mitigation expenditure.

Question 16

What is default judgement?

Answer 16

“default judgment” means judgment without trial where a defendant—

a. has failed to file an acknowledgment of service; or
b. has failed to file a defence.

Question 17

Can a claimant obtain default judgement where the part8 procedure is used?

Answer 17

No.
(nor on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974, or in any other case where a PD provides it is unavailable)

Question 18

What conditions must be satisfied to obtain judgement in default of acknowledgement of service?

Answer 18

(1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered—
a. the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
b. the relevant time for doing so has expired.

Question 19

What conditions must be satisfied to obtain judgement in default of defence?

Answer 19

(2)Judgment in default of defence may be obtained only—
a. where an acknowledgment of service has been filed but at the date on which judgment is entered a defence has not been filed;
b. in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed,
and, in either case, the relevant time limit for doing so has expired.

Question 20

In what circumstances may a claimant NOT obtain default judgment in qualifying proceedings (i.e. not part8) ?

Answer 20

The claimant may not obtain a default judgment if—
a. the defendant has applied—
I. to have the claimant’s statement of case struck out under rule 3.4; or
II. for summary judgment under Part 24,
and, in either case, that application has not been disposed of;
b. the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment;
c. –
I. the claimant is seeking judgment on a claim for money; and
II. the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all of the money claimed) together with a request for time to pay; or
d. notice has been given under rule 82.21 of a person’s intention to make an application for a declaration under section 6 of the Justice and Security Act 2013 in relation to the proceedings, and that application has not been disposed of.

Question 21

When the claim is for money, what effect does default judgment have?

Answer 21

(2) a default judgment on a claim for a specified amount of money obtained on the filing of a request, will be judgment for the amount of the claim (less any payments made) and costs—
a. to be paid by the date or at the rate specified in the request for judgment; or
b. if none is specified, immediately.

Question 22

Where the claim is for the delivery of goods, what effect will the default judgment have?

Answer 22

(4) Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be judgment requiring the defendant to—
a. deliver the goods or (if he does not do so) pay the value of the goods as decided by the court (less any payments made); and
b. pay costs.

Question 23

What CPR part is default judgement entered under?

Answer 23

12

Question 24

When MUST the court set aside default judgement?

Answer 24

a. in the case of a judgment in default of an acknowledgment of service, any of the conditions was not satisfied;
b. in the case of a judgment in default of a defence, any of the conditions was not satisfied; or
c. the whole of the claim was satisfied before judgment was entered.

Question 25

When MAY the court set aside default judgment?

Answer 25

(1)In any other case, the court may set aside or vary a judgment entered under Part 12 if— a. the defendant has a real prospect of successfully defending the claim; or b. it appears to the court that there is some other good reason why— I. the judgment should be set aside or varied; or II. the defendant should be allowed to defend the claim. (2)In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

Question 26

What is the significance of the courts discretionary power to vary or set aside default judgment?

Answer 26

The use of the word “may” shows that the court has a discretion but must act in accordance with the Overriding Objectives. It is not enough to show an “arguable” defence; the defendant must show that they have “a real prospect of successfully defending the claim”. The discretionary power to set aside is unconditional. The purpose of the power is to avoid injustice. The major consideration on an application to set aside is whether the defendant has shown a real prospect of successfully defending the claim or some other good reason why judgment should be set aside or they should be allowed to defend the claim.

Question 27

If a defendant has not at all responded to the claim, are they still entitled to have default judgment set aside?

Answer 27

Not without good reason. A debtor who did nothing until the creditor sought to enforce the judgment, then applied to set aside, was refused permission to set aside, it being held that the debtor’s conduct amounted to an abuse of process. It is not good enough to rely on hiding behind legal reps or insurers as an excuse.

Question 28

Can a third party apply to have a default judgment varied or set aside?

Answer 28

Yes. A person who is not a party but who is “directly affected” by a judgment or order may apply to have it set aside.

Question 29

What is “relief from sanctions”?

Answer 29

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need— a. for litigation to be conducted efficiently and at proportionate cost; and b. to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence.

Question 30

What does the case of Denton apply to?

Answer 30

Relief from sanctions

Question 31

What is the guidance given in Denton for assessing relief from sanctions?

Answer 31

The guidance given in Denton may be summarised as follows: a judge should address an application for relief from sanctions in three stages. 1. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order”. If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. 2. The second stage is to consider why the default occurred. 3. The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The court also gave guidance as to the importance of penalising parties who unreasonably oppose applications for relief from sanctions.

Question 32

What is the difference between the deemed service day of a claim form and a PoC?

Answer 32

Claim form is always “deemed served” on the second business day, regardless of method of service. A PoC depends on the method of service.

Question 33

In applying the Denton test to relief from sanctions, should the court look more favourable on Litigants in Person?

Answer 33

Will the court consider this as a factor in attempting to determine whether they should be allowed relief? They shouldn’t be looked upon more favourably, but in practise, particularly in the lower courts (county court level), the judges can be known to take it into account even though they shouldn’t. Case law states that litigants in person should not be treated favourably.