#16055 - Acknowledgement Of Service Defences - BPC Civil Litigation

Statements of Case acknowledgement of service, defence, reply to defence)

RESPONDING TO A CLAIM

When a PoC Is served on a D, the D may:

1. File or serve an Admission (admits the claim)

2. File a defence [[NB: he can both admission and defence, if admits only part of the claim]]

3. File Acknowledge of service [[part 10]]

4. Or Simply pay the damages claimed in full (with interest and costs)

CPR Part 10, Acknowledgement of Service (A/S)

• Where C uses Part 8 procedure: this Part applies subject to modifications in r8.3.

• 10.1, Acknowledgment of Service (A/S):

  • A D may file an A/S IF:

  • (a) he is unable to file a defence within period specified in r15.4; OR

  • (b) he wishes to dispute the court’s jurisdiction [see Part 11]].

• EFFECT: of filing an A/S

  • period to serve defence is extended to 28 days after service of PoC, r15.4]].

  • OR D then has 14 days to make application to dispute court’s jurisdiction under Part 11

• 10.2, Consequence of not filing an A/S:

  • If D fails to file an A/S within time period (r10.3);

  • AND does not within that period file a defence (in accordance with Part 15) or serve or file an admission (Part 14)

  • THE C may obtain DEFAULT JUDGMENT if part 12 allows it.

• 10.3, The time Period for filing an A/S: general rule:

  • (a) where D is served with a claim form which states that PoC is to follow: 14 days after service of PoC (where PoC served later than claim form);

  • (b) In any other case [[where PoC is served with or in claim form]], 14 days after service of claim form.

• General rule re timing subject to following rules:

  • (a) r6.35 (where claim form served out of jurisdiction)

  • (b) r6.12(3) (court specifies period for responding to PoC);

  • (c) r6.37(5) (courts specifies period for A/S by reference to PD 6B re giving permission to serve claim form out of jurisdiction.

CPR Part 15, Defence & Reply [[+ PD 15, paras 1-3, integrated]]

NB: time limits for filing A/S and defence compared:

• time limit for filing Defence always runs from date of service of PoC (14 days, extended to 28 if an A/S has been served);

• CF time limit for filing A/S (14 days) runs from date of serve of claim form if PoC served at same time as claim form; if not (if PoC is served later than claim form), runs from date of service of PoC]]

DEFENCE

• 15.1: this Part does not apply where C uses Part 8 alternative procedure [[repeated in PD 15, no Defences in Part 8]].

• PD 1.2: re specialist proceedings (CPR Part 49): special provisions for defence & reply are made, Part 15 provisions only apply to extent are not inconsistent.

• 15.2: a D who wishes to defend all/part of a claim MUST file a DEFENCE. [[see Part 14 where D admits a claim]]

• 15.3, CONSEQUENCE of NOT filing a defence within time period (or within extended time period if A/S served): C may obtain default judgment if Part 12 allows it.

• 15.4, PERIOD for filing a defence:

  • 14 days after service of PoC;

  • OR, if D files an A/S under Part 10 28 days after service of PoC.

  • General rule subject to:

    • (a) r6.35 (where claim form served out of jurisdiction)

    • (b) rule 11 (where D makes an application disputing the court’s jurisdiction, D need not file a defence before the hearing)

    • (c) rule 24.4(2) (if C applies for summary judgment before D has filed defence, D need not file defence before that summary hearing)

    • (d) r6.12(3) (court specifies period for responding to PoC);

  • [15.5]: Parties can AGREE to extend period [in 15.4] for filing defence, by up to 28 days:

    • if such an agreement is made, D must NOTIFY THE COURT in writing of this agreement.

• 15.6, Service of a copy of defence: a copy of defence must be served on every other party.

• PD, 1.3: Form N9B (specified amount) or N9D (unspecified amount or non-money claims) may be used for purpose of defence, and is included in the response pack served on D with particulars of claim.

• STATEMENT OF TRUTH (PD 15, para 2 & PD 16 para 11): Part 22 requires a defence to be verified by statement of truth.

  • Form of statement: “[I believe] [ the defendant believes] that the facts stated in this defence are true”.

  • See rule 32.14 re consequences of verifying a statement of case containing a false statement without an honest belief in its truth contempt of court]].

• 15.7, Making a counterclaim: Part 20 applies if D wishes to make counterclaim.

  • [PD 15 3.1], Where a D serves a counterclaim (under Part 20) the defence and counterclaim should normally form one document with counterclaim following on from the defence.

  • PD 3.2: Where C serves a reply and a defence to the counterclaim the reply & defence to counterclaim should normally form one document.

REPLY to defence (optional)

• 15.8: a reply is optional.

• If C files a reply to defence, C must:

  • (a) file the reply with a directions questionnaire; and

    • PD 15, 3.2A, re a reply by C to a counterclaim: where the date by which C must file his directions questionnaire is later than date by which must file defence to counterclaim [because the time for filing the directions questionnaire under r26.3(6) is more than 14 days (small claims track) or more than 28 days (fast track and multi-track) after the date on which it is deemed to be served]

    • court will normally order that the defence to counterclaim must be filed by the same date as the reply.

    • Where court does not make such an order, the reply & defence to counterclaim may form separate documents.

  • AND (b) serve reply on the other parties at the same time as is filed

• [[also note, see PD 16 para 9.2 below: a reply to a defence cannot make a new claim, a SoC cannot be inconsistent with/contradict an earlier SoC]]. Appropriate course is to apply to amend.

• [[also note, from PD 15 above:: Where C serves a reply and a defence to the counterclaim the reply & defence to counterclaim should normally form one document.

• Reply must be verified by a statement of truth (Part 22)]].

[[for CONTENTS of defence & reply, see below, Part 16]]

NO SUBSEQUENT statements of case (after the reply) [15.9]

• No subsequent statements of case allowed after a reply, without court’s permission.

Claimant’s notice where defence is that money claimed has been paid [15.10]

• Where:

  • (a) the only claim (apart from for costs and interest) is for a specified amount of money; and

  • (b) D states in defence that he has paid to C the amount claimed

• the court will send notice to C requiring him to state in writing whether he wishes proceedings to continue.

• When C responds, he must serve a copy of his response on D;

• If C fails to respond within 28 DAYS after service of court’s notice under this rule the claim shall be STAYED.

• Where a claim is stayed under this rule any party may apply for the stay to be lifted the applicant should give the reason for delay.

• [[If C files notice he wishes proceedings to continue Part 26 procedure applies]].

6 months (after date for filing defence expired), C and D do nothing Claim stayed if not defended or admitted (15.11)

• If D has not served/filed an admission OR defence OR counterclaim;

• AND C has not entered/applied for default judgment or summary judgment

  • claim shall automatically be stayed 6 months after date for filing a defence has expired [in r15.4, i.e. 14 days after service of PoC, 28 days if A/S]].

• Any party may apply for the stay to be lifted the applicant should give the reason for delay.

Any party may apply for a stay (imposed under 15.10 or 15.11) to be lifted

• PD 15 3.4: the application should be made in accordance with Part 23, and should give the reason for the applicant’s delay in proceeding with/responding to the claim.

CPR Part 16, Statements of case [[with PD 16 interwoven]]

• 16.1: this Part does not apply where C uses Part 8 procedure. [[also in PD 16, 1.1]]

• PD 16, 1.2: where special provisions re statements of case are made (by rules and PDs), Part 16 and PD16 apply only to extent not consistent with those.

  • Egs of proceedings with special provisions re statements of case:

    • Defamation claims

    • Possession claims

    • Probate claims

• PD16, 1.4: Where a statement of case (exceptionally) exceeds 25 pages (excluding schedules) an appropriate short summary should be filed & served.

Contents of DEFENCE

16.5, Contents of Defence

• In the defence, D must state which allegations in the PoC he:

  • (a) denies;

    • Where D denies an allegation:

      • (a) he must state his reasons for doing so; and

      • (b) if he intends to put forward a different version of events, state his own version.

  • (b) is unable to admit or deny, but which he requires C to prove;

  • (c) he admits.

• PD 16, 10.2: A D should deal with every allegation.

• A D who fails to deal with an allegation taken to admit that allegation.

  • EXCEPTIONS, where D’s silence is taken to require that the allegation be proved:

  • (1) Where a D fails to deal with an allegation; BUT has set out in his defence the nature of his case re the issue to which that allegation is relevant is taken to require that allegation to be proved.

  • (2) Where the claim includes a money claim: a D shall be taken to require that any allegation re the amount of money claimed be proved; unless he expressly admits the allegation.

• If D disputes C’s statement of value (under r16.3), D must:

  • (a) state why he disputes it; and

  • (b) if he is able, give his own statement of the value of the claim.

• If D is defending in a representative capacity, he must state what that capacity is.

• If D has not filed an A/S (under Part 10) D must give an address for service.

• A defence must be verified by a statement of truth (Part 22). See above.

  • Form of statement: “[I believe] [ the defendant believes] that the facts stated in this defence...