Responding Default Judgment Amendments Notes

Responding & Default Judgment

When to respond?

• If CF served with PoC, D must reply within 14 days (r10.3)

• If PoC served separately, PoC must be served within 14 days of service of CF, and the DDoS is the second business day after posting (see post mark) (r6.14)

• The Deadlines for replying are:

  • Acknowledgment of Service (Form N9)

    • AoS must be filed and served within 14 days (r10.3(1)). This extends the deadline for the DS (not admissions) to 28 days. Must be signed by D or his authorised litigator (r10.5). Used to:

      • Dispute the Court’s jurisdiction; (Then file an application within 14 days of filing AoS, or 28 days in Commercial Court to reject jurisdiction). If he doesn’t make application, he is deemed to submit to the court’s jurisdiction.

      • Unable to file a defence within the period below.

  • Admissions

    • D must file his admission within 14 days of DDoS of PoC (whether with or separately from CF) (r14.2).

  • Defence Statement

    • D must file a defence statement (r15.2) and the consequence is deemed admission giving C a right to default judgment (r15.3). It must be filed within 14 days of DDoS of PoC, or if D has acknowledged service, within 28 days of DDoS of PoC (r15.4). A copy must be served on all parties (r15.6).

      • NB: A response to the Defence Statement is discretionary (r15.8).

      • Can’t file a Statement of Case after a rely without permission of Court (r15.9).

      • Under r15.5 the parties may agree to extend the time limits for filing the defence statement by up to 28 days!

Consequences of Failure to Respond?

r15.11 - Where 6m have expired since the filing the defence, no defendant has served or filed an admission, defence, or counterclaim, and C has not entered or applied for default or summary judgment, the claim shall be automatically stayed. The stay can be lifted on application (r15.11).

What are Admissions?

• There are six types of admission:

  • “Formal Admissions” in the Response Pack - Judgment can be obtained under r14.

  • Pre-Action Admissions after the receipt of Letter of Claim - Judgment obtained under r23.

  • Debtor’s admission of Debt.

  • Admissions in SoC;

  • Admissions at Hearings;

  • Admissions made by counsel at trial etc.

• As an admission is thus agreed between the parties, neither party can henceforth adduce evidence upon it. The admission must be one of fact not law.

Required Admissions (Notice to Admit)

Making Formal Admissions

• Within 14 days of the DDoS of the PoC (whether with, or separate from CF) - r14.2.

  • N9A - Claims for specified sums of money

  • N9C - Claims for unspecified amounts of money, non-money claims, and return of goods

• A party can make an admission of the whole or any part of another’s case (r14.1).

• Notice may be given in writing (r14.1(2))

Consequences of Admission

• Where D makes an admission, C has a right to enter judgment which must be made under Pt 23 except where:

• D is a child or PP because r14.1(4) confirms that r21.10 any settlement made by, or against, a child/PP is not valid without the approval of the Court.

• r14.3 ANY other party may apply for judgment on D’s admission.

Withdrawing Admissions

• BEFORE Commencement of Proceedings

  • Can withdraw an admission by giving notice in writing if:

    • The person to whom it was made agrees (r14.1A(3)(a));

• AFTER Commencement of Proceedings

  • Can withdraw an admission by giving notice in writing if:

    • ALL parties agree (r14.1A(3)(b));

    • With the Permission of the Court (r14.1A(3)(b));

      • Permission to withdraw must be made under Pt 23.

What Factors should be applied to withdrawing admissions?

• PRE APRIL 6 2007

  • If D is seeking to withdraw an admission, the court must consider:

    • All the circumstances;

    • Give effect to the overriding objective;

    • The balance of prejudice to the parties;

    • Whether any party has been the author of any prejudice they may suffer;

    • The prospects of success arising from the withdrawal of the admission;

    • The public interest

    • The closer the application is to final hearing

  • Smith LJ in Stoke on Trent CC v John Walley that:

    • If C wishes to challenge D’s application to withdraw a pre-action admission, C must apply to strike out the full/part defence under r3.4(2) on grounds of abuse of process or obstructing the just disposal of the case.

      • C would need to show D acted in bad faith in order to establish the AoP; or

      • C would suffer some prejudice that would affect the fairness of the trial to argue the withdrawal of D’s admission will obstruct the just disposal of the case.

• POST APRIL 6 2007 -PD14(7.1)

  • This protocol only applies to pre-action admission in:

    • Personal Injury Protocol;

    • Clinical Disputes;

    • Disease and Illness Claims; (PD14(2)(a)-(c))

  • It does not apply to contractual disputes. In this case, Smith LJ’s factors above apply.

  • All of the circumstances and in particular:

    • Grounds;

    • Conduct of the parties;

    • Prejudice caused to any person by making, or refusing the withdrawal;

    • Stage in the proceedings;

    • Prospects of success;

    • Interests of the administration of justice.

Admitting Liability but disputes over Quantum

Who determines rate to pay if unspecified?

• Court Officer (r14.11)

  • A court officer may determine the quantum if the amount outstanding (including costs, and assumedly interest) is not more than 50,000.

  • This is done without a hearing.

  • There is a “right of redetermination” (by either party) by a judge (r14.13)

• Judge (r14.12)

  • If the amount outstanding exceeds 50,000. Proceedings in the HC or CC will be sent to D’s “Home Court” if for a specified amount of money, and D is an individual.

  • This may be done without a hearing. If there is a hearing, there requires 7 days notice.

  • There is a “right of redetermination” (by either party) by a judge (r14.13)

Varying the Payment

• PD14(6.1) - If there is a change in circumstances since the date of...

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