Unit 8 Lecture Notes PDF

[Lecture Notes] If as a Defendant is served with a claim form, but no PoC, there is nothing you have to do yet -- service of the PoC triggers the need for a response (acknowledgement of service or a defence) -- CPR9.1 AND 9.2! If PoC has been served -- what 3 docs might defendant serve? 1. Ackno...

[Lecture Notes] If as a Defendant is served with a claim form, but no PoC, there is nothing you have to do yet -- service of the PoC triggers the need for a response (acknowledgement of service or a defence) -- CPR9.1 AND 9.2! If PoC has been served -- what 3 docs might defendant serve? 1. Acknowledgement of service a. Filing this gives you 28 days thereafter (instead of 14) to file a defence 2. Defence 3. Admission (rare, people tend to file defences with admissions) See prep questions and notes made there. See also engage task 2 for exam questions done closed book **Question 1** LegalBeagle Stationary Ltd (LBS) has been sued by Chambers Distributors Ltd (CDL). The claim form (accompanied by the particulars of claim and a response pack) was served upon the defendant seven weeks ago at the defendant\'s registered office at 50 Chancery Lane, London. Solicitors for CDL have heard nothing from LBS and LBS have taken no steps either to acknowledge service or to file a defence. CDL wishes to enter judgment in default against LBS. CDL may obtain judgment in default of an acknowledgment of service only if LBS has not filed an acknowledgment of service or a defence to the claim or any part of it, and time for doing so has expired.   As regards those times, which one of the following statements is correct? A. The period for filing an acknowledgment of service is within 14 days after service of the claim form where, as in this case, LBS has been served with a claim form accompanied by particulars of claim. B. The period for filing a defence in this case is within 21 days after service of the particulars of claim or, if LBS file an acknowledgment of service, within 28 days after service of the particulars of claim. C. The period for filing a defence in this case is 14 days after service of the particulars of claim or, if LBS file an acknowledgment of service, 21 days after service of the particulars of claim. D. The period for filing a defence is, in this case, 28 days after service of the particulars of claim, whether or not LBS files an acknowledgment of service. **Question 2** What happens if you forget to deal with an allegation when drafting your defence? Will be deemed to be admitted. **Question 3** Where there is discretion in setting aside the judgment, in considering whether to set aside or vary a judgment entered under part 12, the court must:   (i)         Have regard to whether the defendant has a real prospect of successfully defending the claim and whether there is a good reason why it should be set aside or the defendant should be allowed to defend the claim. -- this is wrong because 13.3 says OR (this says and) (ii)       Have regard to whether the application has been entered promptly. (iii)     Have regard to whether the defendant has a real prospect of successfully defending the claim or whether there is a good reason why it should be set aside or the defendant should be allowed to defend the claim. (iv)     Have regard to whether the claimant has a real prospect of succeeding on its claim or whether there is a good reason why the claim should be heard at trial.   Select ONE of the following: (i), (ii) and (iii) are the only correct answers \(i) and (ii) are the only correct answers \(ii) and (iii) are the only correct answers (ii) and (iii) are the only correct answers (ii), (iii) and (iv) are the only correct answers **Question 4 \^** 6.26 -- deemed service of other documents Chris Costigan, a plumber, is a sole trader. He was sued in the County Court for a breach of contract for plumbing services. The claim form and response pack was personally served on him at 3pm on 7 October 2024. Has to do nothing at this point The particulars of claim were sent to Mr Costigan by first class post, posted on Wednesday 16 October 2024. So they are deemed served on 18^th^ October (Friday) He filed an acknowledgment of service on 30 October. Within the 14 days. It is now 18 ^th^ November. He has not yet filed a defence but has just received notice that default judgment was entered on 13 November. Was this too early? If deemed date of service is 18^th^ October -- (14 days would've been 1^st^ nov -- he filed AOS in time) Add another 14 **[Final date is 15^th^ November -- and the first day on which judgment on default could be entered would've been 18^th^ as (16/17 is a weekend)]** Which one of the following statements is correct? a. Default judgment has been validly entered under the CPR. Mr Costigan cannot properly contend that the court must set aside the default judgment. b. Mr Costigan acknowledged service on 30 October. That meant that he had until the 29 November to file his defence. Therefore the mandatory ground to set aside the default judgment under Rule 13.2 applies. c. Default judgment has been entered in favour of the Claimant too early. Mr Costigan can insist that the court set aside the default judgment but it would be best to ask the claimant to consent to this as soon as possible to avoid the necessity of an application. d. Mr Costigan acknowledged service on the 30 October. That meant that he had until close of business on 15 November to file his defence. The mandatory ground to set aside the default judgment, under CPR 13.2, **does not therefore apply**. RELIEF FROM SANCTIONS In order to mitigate the potential harmful and embarrassing consequences/effects of not doing something eg. in time or procedurally correctly -- you can apply for 'relief from sanctions'. A sanction may be costs etc. You can make this application for any number of things (not just confined to what default judgment applies to) eg. if you fail to provide a witness statement etc. The more serious or significant the breach (failure to comply with a rule) -- the less likely the court is to allow relief from a sanction. However, where there is good reason for a significant breach, then there is a chance. Examples of sanctions or penalties: - Strike out - Eg. def must file expert report by X date, failing which the defence will be struck out DENTON CASE IS THE KEY CASE 1. STAGE 1 -- identify the seriousness of the breach (or significance) 2. STAGE 2 -- why did the default occur? 3. STAGE 3 -- having regard to all the circumstances of the case (3 stage test at para 24 of the judgment) Application for relief requires 1. Evidence -- usually a witness statement Nb. It makes no diff if applicant for relief is litigant in person or not **Mr David Anderson is a litigant in person in a case brought by Sage Logistics Ltd.** **The claim form and particulars of claim were correctly served on Mr Anderson but due to a series of mishaps, he did not receive the relevant paperwork.** **In light of the perceived failures on Mr Anderson's part (no defence and no acknowledgment of service filed and served in time), Sage Logistics sought and was granted Judgment in Default.** **Several months later Mr Anderson was informed of the Judgment in Default order.** **Several weeks later Mr Anderson sought to have it set aside under CPR 13.3 claiming he needed to book an appointment to get advice from a Law Centre / locate some witnesses. He also stated that his English was poor and that his address is sometimes confused with a similar sounding address just outside Worthing.** **This application was rejected by the presiding District Judge at Worthing County Court. Mr Anderson was given leave to appeal to the Court of Appeal.** **Applying the *Denton* 3 stage test to the facts, what advice would you give Mr Anderson as to how the Court of Appeal might deal with the case?** The guidance given in [Denton](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2033751050&pubNum=6448&originatingDoc=I4E6424A031A911E89FBBB4885873D0FB&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=e5b26634fbff41ca8282be18a32c7f18&contextData=(sc.Category)) may be summarised as follows: **a judge should address an application for relief from sanctions in three stages.** - The first stage is to identify and assess the seriousness and significance of the "failure to comply with any rule, practice direction or court order" which engages [r.3.9(1)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0375489011&pubNum=121175&originatingDoc=I4E6424A031A911E89FBBB4885873D0FB&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=e5b26634fbff41ca8282be18a32c7f18&contextData=(sc.Category)). - If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The court stated that in many circumstances whether or not a breach imperilled future hearing dates or otherwise disrupts the conduct of litigation (including litigation generally) would be the most useful measure of whether a breach has been serious or significant. Failure to file (vs filing late) does disrupt the conduct of litigation. In class note: breach -- in not responding to a claim form & PoC -- there has been a serious and significant breach. - The second stage is to consider why the default occurred. Did the documents get sent to the wrong address? He was consulting legal advice Further complicated by the fact that he didn't receive all the material from the claimant that would've assisted him in filing a defence. In class note: address issues, seeking advice, language issues -- a lot of judges will take sympathy to these factors and be lenient at stage 2 - The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including [r.3.9(1)(a)(b)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0375489011&pubNum=121175&originatingDoc=I4E6424A031A911E89FBBB4885873D0FB&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=e5b26634fbff41ca8282be18a32c7f18&contextData=(sc.Category)). In class note: he is a litigant in person (supposed to be treated the same but you would still make the submission) He did not receive the decision until 7 months later. Conclusion: a lenient CC judge would give him a change but he has no guarantee. FXF v English Karate (2023) -- CoApp said the DENTON principles should be applied to a default judgment issue as well!