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Civil Procedure

Civil Procedure. Responding to a Claim. How to respond to Particulars of Claim (CPR 9). Admission (Part 14) Defence (Part 15) Acknowledgement of Service (Part 10). Admission (CPR 14). Can admit the whole or part of the Claimant’s case

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Civil Procedure

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  1. Civil Procedure Responding to a Claim

  2. How to respond to Particulars of Claim (CPR 9) Admission (Part 14) Defence (Part 15) Acknowledgement of Service (Part 10)

  3. Admission(CPR 14) Can admit the whole or part of the Claimant’s case Can use forms specified or by giving “notice in writing” Can ask for time to pay (CPR 14.4) Claimant can only get “fixed commencement costs” (Table 1 in CPR 45) If only part of the claim is admitted, the rest will be dealt with in a defence

  4. Defence • Used to oppose the Particulars of Claim • Served within 14 days of service of particulars (CPR 15.4(1) (a) • -or within 14 days of acknowledgment of service (CPR 15.4(1) (b) • Can also agree a further 28 days extension (CPR 15.5) • Thomas v Home Office(19/10/06)

  5. Contents of a Defence • Should deal with everything in Particulars – can admit, deny or require to be proved • Lee Conservancy Board v Button (1879) 12 ChD 383 • Can’t use a “holding defence” – this will probably be struck out under CPR 3.4

  6. Contents of a Defence • “Requiring to be proven” – used where the defendant is unable to admit or deny (CPR 16.5(1) (b) • Denying – requires reasons and a different version of events –CPR16.5(2)

  7. Consequences of not dealing with matters raised in Particulars • Taken to require it to be proven (16.5(3) or admitted if not dealt with at all (unless it relates to a money claim – CPR 16.5(5) • Defence must also contain: • Dispute about statement of value 16.3 • Details of representative capacity 16.5(7) • Address for service 16.5(8)

  8. Matters to be pleaded • PI claims - Must deal with medical report and attach his own if he wants to rely on it – CPR 12.1(3) • Counter-schedule of special damages • Limitation and any Human Rights Act issues must also be included • Set-off may be included • Contributory negligence must be pleaded (Fookes v Slaytor [1978] 1 WLR 1293)

  9. Set-offs and counterclaims • Counterclaim = “ a claim brought by a defendant in response to the claimant’s claim, which is included in the same proceedings as the claimant’s claim” • Set off = a claim for money against the claimant in response to the claimant’s own claim for money which either reduces or obviates the claimant’s claim (can be total or partial)

  10. The Cheque Rule • The cheque rule is based on the notion that when goods or services are paid for by cheque, the buyer enters into two contracts. • The first is the agreement to buy the goods or services themselves, the second is the agreement to honour the cheque. This has been extended to apply to direct debit payments in Esso Petroleum Co. Ltd v Milton [1997] 1 WLR 938.

  11. The Cheque Rule • If the seller sues in respect of the agreement to honour a dishonoured cheque, then the buyer can only raise defences which are related to the cheque itself • However, defences related to the overall contractual agreement itself are not viable • Hickman Law Society's Gazette LSG Vol.98 No.39 Page 41 (2001) • Roe New Law Journal September 12th 1997 p1316

  12. Consequences of not responding • The Claimant may be able to get judgment in default (CPR 12.3) • Claimant will request using “the relevant practice form” (see PD12.3) • Not fixed sum – disposal hearing (PD26.12.4) • Coll v Tattum (2002) 99(3) LSG 26

  13. Setting aside default judgment • CPR 13 – governs situations where court must set judgment aside and situations where it may set it aside. • Apply using part 23 procedure • 13.2 – where judgment has been “entered wrongly”

  14. Setting aside default judgment • 13.3 – where a) the defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why –(I )the judgment should be set aside or varied; or (ii) the defendant should be allowed to defend the claim. • 13.3(2) the defendant should act “promptly” (MacDonald v Thorn plc [1999] All ER (D) 989)

  15. Setting aside default judgment • “a real prospect of successfully defending the claim” – Swain v Hillman(2001) 1 All ER 91), International Finance Corpn v Utexafrica Sprl ([2001] All ER D 101 (May)) • “some other good reason” - Capital Markets (UK) Ltd v Little Rock Mining [2001] 1 All ER (D) 104 (Jan)

  16. Summary Judgment • The Claimant can only apply for this for after acknowledgement of service or the defence has been filed (24.4(1) • heard before allocation • the court will give the parties 14 days notice (PD 26.5.4) • The application must be supported by evidence (25.3(2) • Notice period for service on the other side = 14 clear days before the hearing • Other side must file and serve any evidence in response 7 days before the hearing (further replies 3 days before hearing)

  17. Summary Judgment • Factors to consider – (24.2) • Swain v Hillman [2001] 1 All ER 91 • The court may make a conditional order (PD 24.4, PD 24.5.2).

  18. STRIKING OUT • CPR 3.4(2) (c ) • Repeated failures to comply with directions/court orders • Protracted delay in combination with a weak case on the merits • Conduct of the parties which puts the fairness of the trial in jeopardy

  19. Further Reading • CPR 12-16, 24 and 3

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