#19722 - 8. Bpc Civil Litigation 2023 2024 Defences, Default Judgments And Relief From Sanctions - BPC Civil Litigation

• The claim form must contain:

  • A concise statement of the nature of the claim;

  • Specify the remedy which the claimant seeks;

  • A statement of value where the claimant is making a claim for money;

  • A statement of the interest accrued on that sum where the only claim is for a specified sum; and

  • Any such other matters.

• Where a defendant has received a claim form which states that particulars of claim are to follow, he need not respond to the claim until particulars of claim have been served on him.

• The particulars of claim must include:

  • A concise statement of the facts on which the claimant relies;

  • If the claimant is seeking interest, a statement to that effect and under what basis they are claiming interest;

  • A statement to the effect of grounds for claiming damages;

  • If for PI, the claimant’s date of birth and details of injury;

  • If relating to an injunction it must state whether it relates to a residential premises and identify the land;

  • For possession of goods it must contain a statement showing the value of the goods;

  • Written documents the claim is based on; and

  • If for an oral agreement it must set out the words used, by whom, to whom, when and where they were spoken.

• If the claimant seeks to rely on any of these, they must be included:

  • Allegation of fraud;

  • Fact of illegality;

  • Details of any misrepresentation;

  • Details of all breaches of trust;

  • Notice or knowledge of fact;

  • Details of unsoundness of mind or undue influence;

  • Details of wilful deceit; and

  • Mitigation expenditure details.

• A defendant must file an acknowledgment of service if they are unable to file a defence within the specified period or they wish to dispute the court’s jurisdiction.

• This must be filed 14 days after the particulars of claim where the defendant is served with a claim form which states that particulars of claim are to follow; and 14 days after service of the claim form in any other case.

• A defendant who wishes to defend all or parts of a claim must file a defence.

• This must be filed 14 days after service of the claim form, or if the defendant files an acknowledgement of service, 28 days after service of the particulars of claim.

• The parties may agree to extend this time period by up to 28 days. If they do so, the defendant must notify the court in writing.

• The claimant’s reply should be one document responding to the defence and counterclaim.

  • A party may not file or serve any statement of case after a reply without the permission of the court.

• Where the claim is for money and the defendant states in his defence that he has paid to the claimant the amount claimed, the court will send notice to the claimant requiring the claimant to state in writing whether the claimant wishes for proceedings to continue. If the claimant fails to respond within 28 days after service of the court’s notice the claim shall be stayed. They can then apply for the stay to be lifted with an explanation.

• Where at least 6 months have expired since the end of the period for filing the defence and no defendant has served an admission or defence and no party has applied for a judgement or strike out, the claim shall be stayed. This stay may be lifted by an application which must include an explanation for the delay in proceedings.

Content of defence:

• The defendant must deal with every allegation in the particulars of claim, stating:

  • Which of the allegations are denied;

  • Which allegations they are unable to admit or deny, but which they require the claimant to prove; and

  • Which allegations they admit.

• Where there is a denial, the defendant must give their reason for doing so.

• If the defendant fails to deal with an allegation, but sets out a defence, the claimant is required to prove that allegation.

• Failure to deal with an allegation means it is taken to be admitted.

• In personal injury, must state that they either agree, dispute or ‘neither agree nor disputes but has knowledge of’ matters contained in the medical report.

Set off:

• Where a defendant–

  • Contends that they are entitled to money from the claimant; and

  • Relies on this as a defence to the whole or part of the claim,

The contention may be included in the defence and set off against the claim, whether or not it is also an additional claim.

• Where a defendant serves a counterclaim the defence and counterclaim must form one document with the counterclaim following the defence.

When can the claimant obtain default judgment:

• If the defendant does not file an acknowledgment of service within the specified period, the claimant may obtain default judgment.

• If a defendant fails to file a defence, the claimant may obtain default judgment.

• A claimant may not obtain default judgment for:

  • On a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974;

  • Where they use the procedure set out in Part 8;

  • In any other case where a rule or practice direction says that the claimant may not obtain default judgment.;

  • The defendant has applied to have the claimant’s statement of case struck out or for summary judgment;

  • The defendant has satisfied the whole claim; and

  • The claimant is seeking judgment on a claim for money, and the defendant has filed an admission together with a request for time to pay.

Procedure for obtain default judgment:

• By filing a request in the relevant practice form.

• The claimant must make an application where the claim is against a child or protected party or it is a claim in tort by one spouse or civil partner against the other.

• Where the defendant is an individual, the claimant must provide the defendant’s date of birth (if known) where required in the form.

• Where proceedings are against the crown, a request for a default judgment must be considered by a Master or District Judgment, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown in accordance with section 18 of the Crown Proceedings Act 1947 and Rule 6.10.

Nature of Judgment:

• Where the claim is for money, the claimant may request the date by which the whole of the judgment debt is to be paid or times and rate at which it is to be paid by instalments.

• A default judgment on a claim for a specified amount of money obtained on filing a request, will be judgment for the amount of the claim (less any payments made) and costs, to be paid by the date or at the rate specified in the request for judgment; or if none is specified, immediately.

• Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for an amount to be decided by the court together with costs.

• Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be judgement requiring the defendant to deliver the goods or (if they do not do so) pay the value of the goods as decided by the court (less any payments made); and pay costs.

• It may include an amount for interest.

Claim against more than one defendant:

• A claimant may obtain a default judgment against one of two or more defendants, and proceed with a claim against the other defendants. This can only be done where the claim can be dealt with separately. If it cannot be, the court will not enter default judgment and all the claims must be dealt with at the same time.

• A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless:

  • They have obtained a judgment for possession or delivery (whether or not obtained under this part) against all the defendants to the claim; or

  • The court gives permission.

• The court must set aside where:

  • Judgment in default was wrongly entered as a defence or acknowledgement of service was properly entered.

  • The whole of the claim was satisfied before judgment was entered.

  • The defendant has a real prospect of successfully defending the claim; or

  • It appears to the court that there is some other good reason why the judgment should be set aside or varied, or the defendant should be allowed to defend the claim.

• In considering whether to set aside or vary a default judgment, the court must have regard to whether the person seeking to set aside the judgment made an application to do so promptly.

• A person who is not a party but who is ‘directly affected’ appears to be able to apply to have it set aside.

• An application will be sent to the hearing centre/court.

• On an application for relief from any sanction, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need for litigation to be conducted efficiently and at a proportionate cost; and to enforce compliance with rules, practice...