Week 2- Responding to a claim

Question 1

What are the 4 clear day rules for counting time?

Answer 1

1. Day 1 is the day after the date on which the period begins
2. If end of period is defined by ref to an event (eg trial), the day on which the event occurs is excluded
3. Where the specified period is 5 days or less, any wknds, Bank Holidays, Christmas Days or Good Fridays in the time period do not count.
4. Where a deadline relates to doing any act at the court office (such as filing a document at court) and applying the first three rules, the deadline for doing that act ends on a day on 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 2

What are D’s 3 options for responding to C serving a claim?

Answer 2

1. File admission of claim
2. Defend claim (in whole/part)
3. Acknowledge service of claim (usually to get more time to file defence)

Question 3

What is the deadline for acknowledging service where:
a) C states that particulars of claim are to follow (i.e. not attached to or included in claim form); or
b) All other cases?

Answer 3

a) Where D is served with a claim form which states that the POC are to follow, deadline for acknowledgement of service is within 14 days after service of POC;
b) In any other case, 14 days after service of the claim form (CPR 10.3).

Baso 14 days from deemed service of POC

Question 4

What is the deadline for filing a defence / admission / acknowledgement of service?

Answer 4

14 days of deemed date of service of POC

Defence/admission must be filed at court and served on all parties (CPR 15.6)

Question 5

If D files an acknowledgement of service, what is the new deadline for filing a defence?

Answer 5

28 days after deemed date of service of POC.

Question 6

What is the longest extension of time the parties can agree for D to file a defence?

Answer 6

28 days

Parties must notify the court of any agreement to extend time

CPR 15.5

Question 7

Describe the process for the following scenario: In a debt claim, D has already paid C before receiving the claim.

Answer 7

1. D will file a defence stating that it has already paid the debt.
2. Court sends a notice to C which, in effect, asks C whether the defence is correct.
3. C must respond within 28 days and the claim is stayed if they do not do so. Whatever their response, C must serve a copy of it on D.
4. If C does not wish to continue that is the end of the case. If C does wish to continue (because they do not agree that the debt has been paid or because, for eg, they still wish to recover interest and costs) the claim will proceed as a defended claim.

CPR 15.10

Question 8

What is the form for: Admission; Acknowledgment of service; Defence; Reply?

Answer 8

• Admit: Form N9A (specified amount); Form N9C (unspecified amount) indicating whether admitting in whole/part
• Acknowleging service: Form N9
• Defence:
• Reply: No specific form

Not sure on defence form?

Question 9

What happens if D admits the whole of the claim?

Answer 9

This deals with liability only; the court will hold a hearing and make a judgment and quantum and costs.

D might also make an offer in its admission to pay a sum in satisfaction of an (unspecified) claim. If C accepts this, then judgment can be entered into for this amount. If not, then court holds hearing to determine quantum.

Question 10

If D admits liability in a specified claim or C accepts D’s proposed sum in an unspecified claim, what can D do if it cannot/doesn’t want to pay the whole sum immediately?

Answer 10

D can make a request to pay by a certain date/pay in instalments. Should give reasons for request.

If C does not grant request, then D can apply to court, which will determine paymnt and rate of payment taking into account info (i.e. reasons) given by D and C’s objections.

CPR 14.9, 14.10

Question 11

Upon an admission of claim by D, must judgment be entered against D?

Answer 11

No- **C has the choice whether to enter judgment. **Where D has paid up on time in a specified claim, unlikely C will insist on entering judgment.

D would usually prefer to conclude by way of settlement/consent order/C withdrawing the claim.

Question 12

If D admits the claim and C wishes to enter judgment against D, how does C do this?

Answer 12

Files request for judgment within 14 days of service of D’s admission.

Question 13

What must D do in its defence? What are the consequences of not doing this?

What is the difference in a claim for money?

Answer 13

D must respond to every allegation (duty, breach, causation, damage) made by C in the POC by:
(1) Admit the allegation;
(2) Deny the allegation; or
(3) Require proof of the allegation.

Any allegation which D does not address in its defence is deemed to be admitted.

In a money claim, however, it will always be understood that the amount claimed is not admitted unless D specifically admits it (CPR 16.5(4)). BUT it is still good practice to ensure that every allegation set out in the particulars of claim is dealt with in the defence.

CPR 16.5(1), 16.5(3) + (5)

Question 14

Why is it important for D to admit non-controversial aspects of the case?

Answer 14

Helps narrow the issues, furthers OO and prevents later penalisation at costs.

CPR 44.2(5)(b)

Question 15

When would D deny an allegation? What must D do in support of the denial?

Answer 15

D would deny an allegation where **it is disputing any facts **which, if they had occurred, would have been within D’s knowledge.

Eg: C alleges D entered into an oral contract. D admits the meeting took place but denies the ps entered into an oral contract.

Every denial must be supported with reasons/D’s version of events.

CPR 16.5(2)

Question 16

When would D put an allegation to proof?

Answer 16

If D is unable to either admit or deny the allegation, because the fact alleged is something about which D does not know

Eg: in a contractual claim, D will often put to proof the particulars of loss/damage as D wont have personal knwoeldge about this

Question 17

What is a ‘general denial’?

Answer 17

Often included at end of defence, this denies C’s entitlement to the sum sought

Eg: In the circumstances, it is denied that the Claimant is entitled to the amount claimed or any amount

Question 18

What happens after D serves its defence?

Answer 18

C may serve a reply. This is optional.

Question 19

Why would C serve a reply?

Answer 19

To allege facts in answer to D’s defence **which were not included in the claim (CPR 15.8) **– the contents of the reply will therefore be factual allegations which answer ‘new’ points raised in the defence.

Question 20

List, in chronological order, the statements of case

Answer 20

1. Claim form
2. Particulars of claim (if not contained in CF)
3. Acknowledgement of service
4. Defence
5. Reply

Must obtain court permission to file further statements of case after reply (CPR 15.9).

Question 21

When is the deadline for C to file a reply?

Answer 21

Replies should be filed with the DQ. Parties are given at least 14 days’ notice of the deadline for doing this (15 PD 3.2A).

Check this

Question 22

What can C do if D fails to file acknowledgement of service/defence within time limit?

Be sure to distinguish from summary judgment and strike out

Answer 22

**Apply for default judgment **= Judgment given in C’s favour without a trial if D has not responded to the claim by either serving an acknowledgment of service or a defence within the prescribed time limits. **It is purely procedural. **

If application successful, C wins the case and gets award it claims for. NB if for unspecified amount, still need hearing on quantum.

CPR 12.1.

Question 23

What are the 3 conditions C must satisfy to be successful in an application for default judgment?

Answer 23

a. At the date on which judgment is entered, time has expired for filing an acknowledgment of service (and D has not filed either an acknowledgment of service or a defence) or time has expired for filing a defence (where D has filed an acknowledgment of service but not a defence).
b. The claim has not been admitted or satisfied by D.
c. D has NOT made an application for summary judgment or strike out.

CPR 12.3

Question 24

What is strike out?

Answer 24

Court may strike out a statement of case it if considers it does not amount to a legally recognisable claim or defence.

Question 25

Can interest be claimed on a default judgment?

Answer 25

A default judgement on a claim for a specified amount of money may include the amount of interest claimed to the date of judgment (CPR 12.7) provided:
a. The particulars of claim include details of the interest (as required by CPR 16.4);
b. Where statutory interest is claimed (under s.35A SCA 1981 or s.69 of the County Courts Act 1984), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
c. The claimant’s request for judgment includes a calculation of the interest claimed to the date of the request for judgment.

In any other case, the amount of interest will be decided by the court.

Question 26

Where C makes a claim against multiple Ds and obtains default judgment against D1, can C continue the claims against the remaining Ds?

Answer 26

C can only continue the claims against the remaining D(s) if the claim can be dealt with separately from the claim against the others.

**So, if the claims are connected (eg if D1 is liable, then D2 is not liable), then the application for default judgment must be dealt with at the same time as the claim against the other Ds. **

CPR 12.9

Question 27

In what circumstances must the court set aside a default judgment?

Answer 27

If judgment was wrongly entered, eg because:
* The time limit for acknowledging service or serving a defence has not, in fact, expired when judgment was entered; or
* An acknowledgment of service or defence had, in fact, been filed on time; or
* Summary judgment or strike out had been applied for before judgment was entered; or
* D had, in fact, satisfied the whole of the claim before judgment was entered or admitted the claim or required time to pay.

Baso if factually and administratively something has gone wrong which means that **default judgment was entered on basis of an incorrect version of events. **

CPR 13.2

Question 28

In what circumstances may the court exercise its discretion to set aside a default judgment?

Answer 28

1. D has a real prospect of successfully defending the claim (means beyond merely arguable); OR
   NB court will analyse D’s case in its application but will not conduct a mini-trial or take D’s evidence at face value
2. It appears to the court that there is **some other good reason **why judgment should be set aside or varied or D should be allowed to defend.
   eg: C failed to serve D with a response pack.

CRP 13.3

Question 29

What must D include in an application to set aside a default judgment?

Answer 29

Ev as to why any of the grounds apply.

Question 30

In exercising its discretion to set aside a default judgment, what will the court take into account?

Answer 30

1. OO
2. How promptly D made its application to set the judgment aside (CPR 13.3(2)). The need to comply with time limits and to act promptly is an important feature of the CPRs.

Question 31

What is the procedure for applying for default judgment?

Answer 31

The procedure is to file a specified form and seek default judgment without a hearing for money claims of a specified or non-specified sum.

For non-money claims, there must be an application (rather than simply a request using the form) and a hearing.

Question 32

What factors will the court consider when deciding whether to grant an extension of time for D to serve defence?

Answer 32

1. The court will ensure that the OO is furthered
   2**. The reasons for the extension being needed **
2. The impact of the extra time on the conduct of the claim

Eg: If D is waiting on evidence which will only be available after deadline expires, then court will consider whether it is just and proportionate to grant extra time so D can have all the evidence available for it to mount a proper defence.