Responding to a Claim

Difficult Issues: Tomlin Orders (order or schedule?); contest jurisdiction;

Once a claim form AND particulars of claim have been served, what are the defendant's options?

Respond using 'N9 Form'. Contains following options:

1. File an admission

2. File an ‘acknowledgment of service’. Adds 28 days from date when particulars of claim served.

3. File a defence

NOTE - Point (2) important to note. Do not add 14 days from when acknowledgement of service filed. Look to date when particulars of claim served.

Outside of the options listed under the N9 Form, can the defendant do anything else?

Yes.

Ignore claim entirely.

BUT - Risk judgment in default.

What is the time limit to respond once a defendant receives a claim form AND particulars of claim?

14 days.

What options are available to a defendant where they file an admission of a specified claim?

1. Admit entire claim - Offer income details + payment plan. If CL rejects then judge decides.

2. Admit part claim

If a defendant only admits to pay part of a specified claim, what can the claimant do next?

CL has 14 days to decide if…

• Accept part admission as full satisfaction of claim. Apply court order.

• Accept part admission. But not D's payment proposal. Judge decides if suitable.

• Reject offer. Proceed with claim.

What is the process for admission of unspecified claims?

D admits liability. Offers sum of money.

Court serves notice on CL to see if accept / reject.

Offer accepted? Enter judgment for amount offered.

Offer rejected or D makes no offer; CL enter judgment for damages at disposal hearing.

True or False: A defendant's defence submission can only address the particulars of claim raised by the claimant.

False.

Can include 'counterclaim'.

Example - Action for late payment delivered furniture.

Counterclaim = Furniture unsatisfactory quality. Demand deposit back.

Is it possible for the deadline to be extended past the acknowledgment of service deadline?

Yes.

Extra 28 days.

Other parties must consent. Result? 56 days maximum.

What must the claimant prove before the court enters a default judgment?

1. Particulars of claim served on D; and

2. D has not filed acknowledgment of service OR defence within deadlines.

What must a claimant provide to the court when applying for judgment in default of a specified sum?

- Indicate date payment was due;

- Calculate up-to-date total for interest claimed;

- State daily rate interest accrues.

Payment due within 14 days.

If the default judgment application is for an unspecified amount, is a further hearing necessary?

Yes.

Goes before disposal hearing.

Calculate damages payable.

So…CL won’t be paid within 14 days as occurs under specified claims.

If the default judgment application is for a specified AND unspecified amount (e.g. profits), can it be decided without a disposal hearing?

NO.

If claim contain both specified AND unspecified claims.

Treat as UNSPECIFIED.

On what grounds can a D set aside a default judgment?

1. Mandatory ground - Wrongly entered (i.e. claim already paid, judgment delivered before deadline).

2. Discretionary ground

What two factors does the court consider under the discretionary ground to set aside a default judgment?

1. D has real prospect of successful defence;

2. Some other good reason D allowed defend (i.e. ill, abroad).

^ Work pressures / misplaced docs insufficient.

Speed of D's response also important factor.

What form is used to file an application to set aside default judgment?

Form N244 + witness statement support evidence.

Once an N244 is received, what orders can the court make?

1. D wins. Set aside default judgment. D continues defence.

2. CL wins. Default judgment remains. Proceed to enforcement.

3. Conditional order. Judgment set aside on condition D pay monies.

If an application is accepted on a mandatory ground, who pays costs?

CL will. Pay D's costs

Why? Entered default judgment when non-entitled to do so.

If an application is accepted on a discretionary ground of good reason for default, who pays costs?

Neither party.

Why? Its no one's fault.

If an application is accepted on a discretionary ground of real prospect of success at trial, who pays costs?

D will. Pay CL's costs.

Why? D's fault initially deal with proceedings.

If an application fails, who pays costs?

D will. Pay CL's costs.

Can a CL withdraw from proceedings at any time?

Yes. Called 'discontinuance'.

Serve notice on all Ds.

Liable for costs of proceedings.

If there is more than one CL, can a unilateral discontinuance occur?

No.

Discontinuance requires consent of all CLs.

If a settlement is reached after the issue of proceedings, how do the parties ensure that it is enforceable?

Write up 'consent order'.

- Order composed of agreed terms;

- Expressed as being 'by consent'

- Signed by each parties' legal reps

Are there any disadvantages to a 'consent order'?

Yes.

- Publicly available. Lack privacy.

- Only terms within court power usable (i.e. payment of money).

What happens if a party breaches the consent order?

Consent order stays proceedings until conditions met (i.e. debt payed via payment plan).

If breach - can reissue proceedings.

What is a Tomlin order?

Stays claim on agreed terms.

Benefits? Keep certain terms confidential.

Terms outlined in two sections:

1. Tomlin Order itself (viewable)

2. Separate schedule (not viewable)

Parties’ solicitors hold (2) themselves.

What are the advantages of a Tomlin order?

Record basic / mandatory terms on order itself (i.e. confirm stay, enforcement, pay another's costs etc.)

BUT - record separate private terms on documents held by own solicitors.

Select options not available to court.

When must a defendant dispute the jurisdiction of the court to rule on the claim?

On acknowledgment of service.

14 days from then to make challenge.

What is the effect if a court agrees that it lacks jurisdiction?

Service of claim form set aside.

Proceedings end.

What is the effect if a court disagrees that it lacks jurisdiction?

Original acknowledgment of service has no effect.

Must file another acknowledgment within 14 days.

Proceedings continue in normal fashion.

What must you include on the Tomlin Order itself?

• ‘By consent’ - Fact agreement exists between parties.

• ‘Stay of proceedings’ - Confirms proceedings are paused

• ‘Liberty to apply’ - Parties can apply to lift suspension and resume original proceedings.

• ‘Payment of costs’ - One party to pay another and wants courts to assess. Must include in Order.

• ‘Signed by parties’ solicitors’ - Signify consent.

At what specific time does the deadline of 14 days to respond to proceedings expire?

At midnight on the day of expiry.

Example - Claim form and particulars of claim submitted 11th May.

Day of expiry = 25th May.

Expires at 12 midnight on 25th May.

So can only issue default judgment proceedings on the 26th May.