WS2: Responding to a claim

Question 1

What three options does the defence have once it has been served with a particulars of claim?

Answer 1

Admission
Defence
Acknowledgement of service

Question 2

Why might a defendant want to acknowledge service?

Answer 2

Needs longer than 14 days from the DDS of the POC to serve a defence

Question 3

What is the time limit for serving the defence?

Answer 3

14 days from DDS of POC

Question 4

What is the effect of acknowledging service?

Answer 4

D gets 28 days from the DDS of the POC to serve defence

Question 5

What should parties both prepare to do once an acknowledgement of service has been filed? What will the court do?

Answer 5

Court will notify the claimant that this has happened, and D’s solicitors may notify C’s solicitors also.

Claimant should prepare to apply for judgment in default if the deadline expires and no defence is filed and served

Defence should prepare the defence to be filed within time limits

Question 6

How can the time to serve the defence be extended? What formalities must happen?

Answer 6

Parties can agree an extension of us to 28 additional days

Court must be notified in writing, but no need for an additional application

Question 7

What is the maximum amount of time D could theoretically have from the DDS to file the defence, without having to apply to the court

Answer 7

56 days from the DDS

Question 8

If the claimant refuses to grant a 28 day extension to the defendant, what can the defendant do?

Answer 8

D can apply to court, and the court will consider if the extension furthers the overriding objective.

Question 9

What should a defendant do in the situation that they are served with a claim for a specified amount of money, but they have already paid the claimant before receiving the claim?

What happens after that?

Answer 9

‘Money paid’ defence - a note saying that the money has been paid

Claimant must respond within 28 days, and serve a copy of this on the defendant

Question 10

Within what time frame must a claim be admitted?

Answer 10

14 days of the DDS of the particulars of claim

Question 11

When is a claimant able to admit in full to a specified claim?

Answer 11

Amount known, interest can be calculated, on the fixed costs regime, court fees known.

Question 12

If a defendant admits in full, when can a claimant not enter judgment against the defendant for the admitted sum and interest?

Answer 12

If one of the parties is a child or a protected party.

Question 13

What happens if a defendant admits a claim in part?

Answer 13

Admission for the part, coupled with a defence for the unadmitted element of the claim.

Question 14

What options are available to the defendant if they are admitting an unspecified claim?

Answer 14

Admit liability to pay whole claim for unspecified amount, or admit liability and offer an amount in satisfaction.

Question 15

If the defendant requests time to pay, and the claimant does not grant this, what will the court do?

Answer 15

Court itself will determine any rate of payment considering information supplied by defendant, compared to any objections raised by the claimant

Question 16

Why might a defendant be keen to settle and pay out of court instead of having judgment entered against them?

Answer 16

Judgments create enforcement proceedings and any judgment for money would be placed on a public register for 6 years - parties with rather settle using a Tomlin Order / claimant agreeing to withdraw the claim for money.

Question 17

What payments will be included in the judgment for specified claims?

Answer 17

Amount of claim
Interest to date of issue of claim
Interest since the date of issue
Court fees
Fixed costs
LESS any amount already paid by D

Question 18

How will the amount to be paid be calculated if the defendant admits to an unspecified claim?

Answer 18

Quantum listed for a later hearing

Judge will hand down amount due, including interest and provision for costs

Statutory interest if no other provision.

Question 19

How long does a claimant have to reply to an admission form?

Answer 19

14 days from receiving notice of admission

Question 20

Once judgment is entered, how long does the defendant have to pay?

Answer 20

14 days

Question 21

What is the clear days counting time rule?

Answer 21

Any reference to a number of days means clear days - the day on which a period begins is never included.

Question 22

How are counting time rules changed if the end of a period is defined by reference to an event?

Answer 22

The day on which the event occurs is not included - e.g. if hearing is on the 5th May, May will never be included.

Question 23

What is the counting time rule about days that ‘do not count’?

Answer 23

If the specified period if 5 days or less – it is business days only - Saturdays, Sundays, Bank Holidays, Christmas Day / Good Friday do not count.

Question 24

What happens if a deadline for an act at the court office, calculated, falls on a day where the court office is shut?

Answer 24

The act e.g. filing a document will be considered on time if done on the next day the court office is open.

Question 25

What structure will a defence take?

Answer 25

Tends to follow the structure of the claimant's particular of claim.

Question 26

What three options does a defendant have within their defence submission?

Answer 26

Admit a claim [admission], deny the allegation, or require proof of the allegation.

Question 27

What kind of things should a defendant admit in order to further the overriding objective?

Answer 27

Anything non-controversial e.g. elements that are not contested - there will be costs consequences for not doing this.

Question 28

What can a defendant do if they feel like they do not have sufficient knowledge to admit or deny the allegation?

Answer 28

Ask for proof

Question 29

What is the consequence of failing to deal with an allegation?

Answer 29

Considered admitted - unless a money claim, where it should be always understood that the amount claimed is not admitted unless D specifically admits it

Question 30

What optional statement of case can be served by the claimant? Why might they choose to do this?

Answer 30

Claimant can serve a reply to a defence - they might do this if 'new' points have been raised in the defence which were not tackled in the claim itself.

Question 31

What options do parties have if a statement of case is unclear?

Answer 31

Can apply for the following: - Strike out -Summary judgment -Clarification -Request for further information

Question 32

What is a default judgment?

Answer 32

An application for judgment to be granted in the claimant's favour within a trial if the defendant has not responded to a claim within prescribed time limits.

Question 33

For which types of claim can default judgment not be obtained?

Answer 33

* Claims for delivery of goods subject to agreement regulated by the Consumer Credit Act 1974 * Part 8 claims * Any other claims where a practice direction provides that the claimant may not obtain default judgment

Question 34

What must a claimant show to obtain default judgment?

Answer 34

That on the date on which the judgment has been entered, the time for filing an AOS / defence has expired and nothing has been filed.

Question 35

What is the difference between default judgment and strike out?

Answer 35

Strike out – statements of cases which aren’t a legally recognisable claim / defence Default judgment – cases where D has failed to respond to claim

Question 36

What is the difference between default and summary judgment?

Answer 36

Default – D has not responded to the claim – procedural Summary -cases where the facts are weak – merits based

Question 37

What is the procedure to obtain default judgment?

Answer 37

Money claims, specified sum: C can file a request on paper for judgment, court will make judgment Money claims, unspecified sum: C can file a request on paper; court will enter for judgment for unspecified sum and a timetable to decide the sum Non-money claims: C applies for a default judgment hearing, where court will hear from claimant - e.g. cannot be a simple paper applicaiton.

Question 38

When can a default judgment include the amount of interest?

Answer 38

* Particulars of claim include details of the interest * Statutory interest claimed?  rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued * Claimant’s request for judgment includes a calculation of the interest claimed to the date of the request for judgment

Question 39

If a claim is against multiple defendants, can you obtain default judgment from one of them?

Answer 39

Yes - only if the claim can be separated.

Question 40

When MUST a court set aside a default judgment?

Answer 40

If it was wrongly entered - e.g. time limits had not expired

Question 41

When CAN a court set aside default judgment?

Answer 41

It was correctly entered, but the defendant has a real prospect of successfully defending the claim or there is some other good reason why it should be set aside or varied / D should be allowed to defend it. Examples of 'some other good reason'; public interest, C lulled D into believing claim was not forthcoming Court might also consider tests for relief from sanctions from Denton.

Question 42

To what type of cases does the 'filter system' test apply? What is the test itself?

Answer 42

D has a real prospect of successfully defending the case, or some other good reason Applies to setting aside cases, summary judgment, permission to appeal.