| 5.1 | General:
|
| |
|
| 5.1.1 |
Responding to particulars of claim is dealt with in Part 9. A
defendant may respond to the service of particulars of claim by;
|
| |
| (1) |
filing or serving an admission in accordance with Part 14,
|
| (2) |
filing a defence in accordance with Part 15,
|
| (3) |
doing both if part only of the claim is admitted, or
|
| (4) |
filing an acknowledgement of service in accordance with Part 10.
|
|
| 5.1.2 |
Where a defendant receives a Claim Form that states that particulars
of claim are to follow, s/he need not respond to the claim until the
particulars of claim have been served on him.
|
| 5.1.3 |
If a defendant fails to;
|
| |
| (1) |
file an acknowledgement of service within the time specified in rule
10.3, and
|
| (2) |
file a defence within the time specified in Rule 15.4, or
|
| (3) |
file or serve an admission in accordance with Part 14
|
|
| |
the
claimant may obtain default judgment if Part 12 allows it. (See
paragraph 5.5 below for information about default judgments.)
|
| 5.2 | Acknowledgement of service:
|
| |
| 5.2.1 |
Acknowledgements of service are dealt with in Part 10. A defendant
may file an acknowledgement of service if;
| | |
| (1) |
s/he is unable to file a defence within the period specified in Rule
15.4, or
| | (2) |
s/he wishes to dispute the court’s jurisdiction. (CPR 11.7).
|
| | |
Filing
an acknowledgement of service extends the time for filing the defence
by 14 days.
|
| 5.2.2 |
A defendant who wishes to acknowledge service of a Claim Form should
do so by using form N9. Rule 10.5 states that the acknowledgement of
service must;
| | |
| (1) |
be signed by the defendant or his/her legal representative, and
|
| (2) |
include the defendant’s address for service which must be within
the jurisdiction of the court (CPR 6.5)
|
| | |
The
Part 10 Practice Direction contains information relating to the
acknowledgement of service and how it may be signed.
|
|
| 5.3 | Admissions:
|
| |
|
| 5.3.1 |
The manner in which a defendant may make an admission of a claim or
part of a claim is set out in Rules 14.1 and 14.2, and Rules 14.3 to
14.7 set out how judgment may be obtained on a written admission.
|
| 5.3.2 |
Included in the Response Pack that will accompany the Claim Form when
it is served on the defendant, is an admission form (form N9A for a
specified amount and form N9C for an unspecified amount). If the
defendant makes an admission and requests time to pay, s/he should
complete as fully as possible the statement of means contained in the
admission form, or otherwise give in writing the same details of
his/her means as could have been given in the admission form.
|
| 5.3.3 |
Where the defendant has;
|
| |
| (1) |
made an admission in respect of a specified sum and requested time to
pay, or
|
| (2) |
made an admission in respect of an unspecified sum, offered a sum in
satisfaction (which is accepted) and requested time to pay,
|
|
| |
and
the claimant has not accepted the request for time to pay, on receipt
of the claimant’s notice the court will enter judgment for the
amount admitted or offered (less any payments made) to be paid at the
time and rate of payment determined by the court.
|
| 5.3.4 |
Where the defendant has;
|
| |
| (1) |
made an admission for an unspecified amount, or
|
| (2) |
made an admission for an unspecified amount and offered in
satisfaction a sum that the claimant has not accepted,
|
|
| |
on
receipt of the claimant’s request for judgment the court will enter
judgment for an amount to be decided by the court and costs.
|
| 5.3.5 |
The matters that the court will take into account when determining
the time and rate of payment are set out in paragraph 5.1 of the Part
14 Practice Direction.
|
| 5.3.6 |
The court may determine the time and rate of payment with or without
a hearing, but, where a hearing is to take place, the proceedings
must, where the provisions of Rule 14.12(2) apply, be transferred to
the defendant’s home court. Where the Claim Form was issued in the
Royal Courts of Justice the defendant’s home court will be the
district registry for the district in which the defendant’s address
given in the admission form is situated. If there is no such district
registry the proceedings will remain in the Royal Courts of Justice.
|
| 5.3.7 |
The procedure for an application for re-determination of a decision
determining the time and rate of payment is to be found in Rule 14.13
and paragraphs 5.3 to 5.6 of the Practice Direction.
|
| 5.3.8 |
Where judgment has been entered for an amount to be decided by the
court and costs, the court will give any directions that it considers
appropriate, which may include allocating the case to a track. (See
paragraph 6.5 below about allocation.)
|
| 5.3.9 |
Judgment will not be entered on an admission where;
|
| |
| (1) |
the defendant is a child or patient, or
|
| (2) |
the claimant is a child or patient and the admission is made in
respect of
|
| |
| (a) |
a specified amount of money, or
|
| (b) |
a sum offered in satisfaction of a claim for an unspecified amount of
money.
|
|
|
| |
See
Part 21 and the Part 21 Practice Direction, and in particular Rule
21.10 which provides that, where a claim is made by or on behalf of a
child or patient or against a child or patient, no settlement,
compromise or payment shall be valid, so far as it relates to that
person’s claim, without the approval of the court.
|
| 5.4 | Defence:
|
| |
|
| 5.4.1 |
A defendant who wishes to defend all or part of a claim must file a
defence, and if s/he fails to do so, the claimant may obtain default
judgment if Part 12 allows it. The time for filing a defence is set
out in Rule 15.4.
|
| 5.4.2 |
A form for defending the claim is included in the Response Pack. The
form for defending the claim also contains provision for making a
counterclaim. Part 22 requires a defence to be verified by a
statement of truth (see the Part 15 Practice
Direction, paragraph 2; and see also Part 22 and the Part 22 Practice
Direction).
|
| 5.4.3 |
The parties may, by agreement, extend the period specified in Rule
15.4 for filing a defence by up to 28 days. If the parties do so, the
defendant must notify the court in writing of the date by which the
defence must be filed. If the Claimant will not agree to extend time
for filing of the Defence, or if a Defendant seeks further time
beyond 28 days for filing a defence, the Defendant must issue an
application (see Part 23) to obtain a court order for further time.
A Claimant may consent to such an application.
|
| 5.5 | Default judgment:
|
| |
|
| 5.5.1 |
A party may obtain default judgment under Part 12 except in the
circumstances set out in Rules 12.2 and 12.3(3) and paragraphs 1.2
and 1.3 of the Part 12 Practice Direction, which list the
circumstances where default judgment may not be obtained.
|
| 5.5.2 |
To obtain default judgment under the circumstances set out in Rules
12.4(1) and 12.9(1), a party may do so by filing a request. A court
officer deals with a request and provided s/he is satisfied that the
provisions of paragraph 4.1 of the Part 12 Practice Direction have
been complied with, s/he will enter the default judgment.
|
| 5.5.3 |
Default judgment in respect of claims specified in Rules 12.4(2)(a),
12.9 and 12.10 must be obtained by making an application to a Master.
The following are some of the types of claim that require an
application for default judgment;
|
| |
| (1) |
against children and patients,
|
| (2) |
for costs (other than fixed costs) only,
|
| (3) |
for declaratory relief,
|
| (4) |
by one spouse against the other on a claim in tort,
|
| (5) |
for delivery up of goods where the defendant is not allowed the
alternative of paying their value,
|
| (6) |
against the Crown, and
|
| (7) |
against a foreign State, diplomatic agents or persons or
organisations who enjoy immunity from civil jurisdiction under the
provisions of the International Organisations Acts 1968 and 1981Acts.
|
|
| |
Paragraph
4 of the Practice Direction provides information about the evidence
required in support of an application for default judgment.
|
| 5.5.4 |
Where default judgment has been obtained for an amount to be decided
by the court, the matter will be referred to a Master for directions
to be given concerning the management of the case and any date to be
fixed for a hearing.
|
| 5.6 | Statements of Case:
|
| |
| 5.6.1 |
Statements of case are defined in Rule 2.3(1) and comprise the
particulars of claim and defence in the main proceedings and any
further information given under Part 18 and also in any Part 20
proceedings, and any reply (which is optional); they are dealt with
in Part 16. (Part 16 does not apply to claims proceeding under Part
8.)
|
| 5.6.2 |
The particulars of claim, whether contained in the Claim Form or
served separately, should set out the claimant’s claim clearly and
fully. The same principle applies to the defence.
|
| 5.6.3 |
Part 16 sets out certain matters which must be included in a
statement of case. Paragraphs 8 and 9 of the Part 16 Practice
Direction contain matters, which should be included in the
particulars of claim in specific types of claim, and paragraph 10
lists matters, which must be set out in the particulars of claim if
relied on. In addition to the matters listed in paragraph 10, full
particulars of any allegation of dishonesty or malice and, where any
inference of fraud or dishonesty is alleged, the basis on which the
inference is alleged should also be included. Points of law may be
set out in any statement of case. For information in respect of
statements of case in defamation claims see the Part 53 Practice
Direction.
|
| 5.6.4 |
In addition to the information contained in Part 16 and the Part 16
Practice Direction, the following guidelines on preparing a statement
of case should be followed;
| | |
| (1) |
a statement of case must be as brief and concise as possible and
confined to setting out the bald facts and not the evidence of them,
|
| (2) |
a statement of case should be set out in separate consecutively
numbered paragraphs and sub-paragraphs,
|
| (3) |
so far as possible each paragraph or sub-paragraph should contain no
more than one allegation,
|
| (4) |
the facts and other matters alleged should be set out as far as
reasonably possible in chronological order,
|
| (5) |
the statement of case should deal with the claim on a point-by-point
basis, to allow a point-by-point response,
|
| (6) |
where a party is required to give reasons, the allegation should be
stated first and then the reasons listed one by one in separate
numbered sub-paragraphs,
|
| (7) |
a party wishing to advance a positive claim must identify that claim
in the statement of case,
|
| (8) |
any matter which, if not stated, might take another party by
surprise, should be stated,
|
| (9) |
where they will assist, headings, abbreviations and definitions
should be used and a glossary annexed; contentious headings,
abbreviations, paraphrasing and definitions should not be used and
every effort should be made to ensure that they are in a form
acceptable to the other parties,
|
| (10) |
particulars of primary allegations should be stated as particulars
and not as primary allegations,
|
| (11) |
schedules or appendices should be used if this would be helpful, for
example where lengthy particulars are necessary, and any response
should also be stated in a schedule or appendix,
|
| (12) |
any lengthy extracts from documents should be placed in a schedule.
|
|
| 5.6.5 |
A statement of case should be verified by a statement of truth. If a
party fails to verify his/her statement of case, it will remain
effective unless struck out, but that party may not rely on the
statement of case as evidence of any of the matters contained in it;
a statement of case verified by a statement of truth is advisable as
evidence only at hearings other than the trial (see Rule 32.6(2).
Any party may apply to the court for an order to strike out a
statement of case, which has not been verified.
|
|