Lecture 6: Serving Court Proceedings and Defences

Serving Proceedings

  • Service is the technical term meaning the process under which documents are sent and received by a party, in accordance with a rule.

  • If service is good then it means the rules were complied with, bad service means the opposite

  • Who must be served: The defendant or the defendants solicitor if they are instructed to accept service - CPR r6.7

  • Who serves the documents: Either the court (using first class post when they get round to it) or the claimaints solicitor whenever they decide to - CPR r6.4

  • When must documents be served by: Generally the claimant must complete the step in CPR 7.5 within 4 months of date issue (if within English and Welsh jurisdiction) unless the parties agree on an etension or the court grants one CPR r2.11 and r7.6

  • How to serve a claim form: personal service, first class post, fax email. Deemed service- a claim form is deemed to be servd on the second business day after completion of the relevant step under CPR 7.5(1)


Particulars of Claim

  • Must be served by the claimant to the defendant within 14 days of the service of the claim form.

Responding to the proceedings (the defendant)

  • Two ways to respond to a claim form: Can file a defence or send an acknowledgement of service to say you have received the documents

  • If an acknowledgement of services is sent you get 14 more days so 28 in total and if the other parties agrees in writing to an extension then you get 28 more days so 56 in total

    Default Judgement

  • If the defendant fails to file a defence or acknowledgment of service within 14 days of the service of the claim form then the claimant can apply for a default judgement which has no fee and is processed by a court officer who ensures the documents have or have not been filed etc

  • Two main types: if the claim is for a specified sum then judgement will be given for the claimant in the sum sought in the claim form. Unspecified sum: judgement will be given for the claimant on the issue of libility and the court will set a timetable to decide the value at a later date and defendant will only be allowed to defend the ammount not whether they are liable or not

  • Defendant can apply to get the default judgement set aside but must have proof e.g. if they were on holiday

  • When MUST judgement be set aside: court has a discretion to set the judgement aside if: the defednant can prove they have real prosepct of defending the claim or another good reason but the defendant must have acted “promptly” - CPR r13.3

Drafting a Defence - What should it contain

  • Headings, claim number, title, statement of truth.

  • In a breach of contract claim, a defence will need to deal with issues of whether there was a contract in place, if it was breached and the consequences of the breach along with any positive defence

  • Admission to allegation: claimant will no longer need to prove that allegation - saves money and time of both sides

  • Denial of Allegation: claimaint has to prove the allegation - more expensive, drawn out for everyone. Must give reasons why they denied it, state a reason and state his own version of events if he intends to do so - CPR r16.5(2)

  • Neither admit nor deny: Claimant must prove, more expensive slower etc