Responding to a claim - Acknowledging service and filing a defence and/or counterclaim

Learning Outcomes

This article outlines the essential initial steps a defendant must take when responding to civil proceedings commenced against them. It covers the requirements for acknowledging service of the claim form and particulars of claim, the options available for responding, and the procedural rules governing the filing of a defence and any associated counterclaim. After reading this article, you should understand the time limits involved, the consequences of failing to respond, and the basic structure and purpose of key response documents like the Acknowledgment of Service and the Defence, as required for the SQE1 assessment.

SQE1 Syllabus

For SQE1, you are required to understand the practical and procedural steps involved when a defendant responds to a claim. This includes knowing the options available to a defendant upon service of proceedings and the time limits within which they must act. You need to understand the purpose and effect of acknowledging service, filing a defence, and potentially making a counterclaim. Understanding the consequences of default is also critical.

As you revise this topic, focus on:

  • The different ways a defendant can respond to a claim (admitting, acknowledging service, filing a defence).
  • The time limits for responding to a claim as stipulated by the Civil Procedure Rules (CPR).
  • The procedure and effect of filing an Acknowledgment of Service.
  • The purpose, structure, and content requirements for a Defence.
  • The rules governing the making of a Counterclaim under CPR Part 20.
  • The circumstances under which a claimant can obtain Default Judgment and how a defendant can apply to set it aside.
  • The procedure for disputing the court’s jurisdiction.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. A defendant is served with a Claim Form and Particulars of Claim on Tuesday 2nd May. Assuming no bank holidays, what is the latest date the defendant must file either an Acknowledgment of Service or a Defence to avoid the claimant potentially entering default judgment?
    1. Tuesday 16th May
    2. Wednesday 17th May
    3. Tuesday 23rd May
    4. Tuesday 30th May
  2. Which of the following actions automatically extends the time limit for filing a Defence from 14 days to 28 days after deemed service of the Particulars of Claim?
    1. Sending a letter to the claimant requesting more time.
    2. Filing an application with the court for an extension.
    3. Filing a valid Acknowledgment of Service within 14 days.
    4. Filing a Defence admitting only part of the claim.
  3. If a defendant fails to respond to an allegation in the Particulars of Claim when filing their Defence, what is the usual consequence under the CPR?
    1. The allegation is automatically denied.
    2. The claimant must prove the allegation at trial.
    3. The defendant is deemed to have admitted the allegation.
    4. The court will strike out the allegation.

Introduction

Once court proceedings have been validly commenced and the Claim Form and Particulars of Claim have been served, the defendant is required to respond formally. Failure to do so within the prescribed time limits can have severe consequences, potentially leading to judgment being entered against the defendant without the merits of the case ever being considered by the court. This article examines the procedural steps and options available to a defendant upon receipt of a claim, focusing on acknowledging service, filing a defence, and initiating a counterclaim.

Responding to the Claim Form and Particulars of Claim

Upon deemed service of the Particulars of Claim (whether included in the Claim Form or served separately), the defendant enters a critical timeframe governed by the Civil Procedure Rules (CPR). The defendant must choose one of several formal responses within this period to avoid the claimant obtaining judgment by default.

Time Limits for Response

The general rule under CPR Part 15 is that the period for filing a defence is 14 days after deemed service of the Particulars of Claim (CPR 15.4(1)(a)). However, this period can be extended.

If the defendant files an Acknowledgment of Service under CPR Part 10 within the initial 14-day period, the time limit for filing the defence is extended to 28 days after deemed service of the Particulars of Claim (CPR 15.4(1)(b)).

Key Term: Relevant Period
In the context of responding to a claim, this generally refers to the initial 14-day period after deemed service of the Particulars of Claim within which the defendant must file either an Acknowledgment of Service or a Defence. Filing an Acknowledgment of Service extends the period for filing the Defence to 28 days.

It is important to calculate these deadlines accurately, starting from the date of deemed service. Weekends and bank holidays count unless the period specified is 5 days or less (CPR 2.8(4)). If the deadline falls on a day the court office is closed, the deadline extends to the next day the office is open (CPR 2.8(5)).

Exam Warning

Missing the deadline to respond can allow the claimant to apply for judgment in default. Always calculate deadlines meticulously from the date of deemed service of the Particulars of Claim, not the Claim Form (if served separately).

Options for Response

The defendant typically has three main procedural options:

  1. Admit the claim: Accept liability for all or part of the claim (CPR Part 14).
  2. File an Acknowledgment of Service: Indicate an intention to defend the claim or dispute jurisdiction, thereby extending the time to file a defence (CPR Part 10).
  3. File a Defence: Formally contest the allegations made in the Particulars of Claim (CPR Part 15).

Additionally, the defendant might incorporate a Counterclaim within their Defence (CPR Part 20). Failure to take any of these steps can lead to Default Judgment (CPR Part 12).

Acknowledging Service

Filing an Acknowledgment of Service (AoS) is a formal notification to the court and the claimant that the defendant has received the claim and intends to respond.

Purpose and Effect

The primary effects of filing an AoS under CPR Part 10 are:

  • Preventing Default Judgment: It stops the claimant from immediately obtaining judgment in default after the initial 14-day period expires.
  • Extending Time: It extends the deadline for filing a defence from 14 days to 28 days after deemed service of the Particulars of Claim.
  • Indicating Intent: It signals whether the defendant intends to defend the claim (all or part) or dispute the court's jurisdiction.

Key Term: Acknowledgment of Service
A formal court document filed by a defendant within 14 days of service of the Particulars of Claim, indicating receipt of the claim and their intention to either defend it or contest jurisdiction, thereby extending the time limit for filing a defence to 28 days.

Procedural Steps

  1. Use Correct Form: The defendant uses the relevant form from the Response Pack (Form N9 for most claims).
  2. File within Time: The AoS must be filed at court within 14 days of deemed service of the Particulars of Claim (CPR 10.3(1)).
  3. Indicate Intention: The defendant must state whether they intend to:
    • Contest the jurisdiction of the court (CPR 10.1(3)(b)).
    • Defend all of the claim (CPR 10.1(3)(a)).
    • Defend part of the claim (CPR 10.1(3)(a)).

If contesting jurisdiction, the defendant must then make an application under CPR Part 11 within 14 days of filing the AoS. Filing an AoS solely to extend time for the defence means the defendant accepts the court's jurisdiction.

Worked Example 1.1

A defendant is deemed served with Particulars of Claim on Wednesday, 7th June. They need more time to prepare their Defence. What is the latest date they must file an Acknowledgment of Service, and what will the new deadline be for filing the Defence?

Answer: The initial 14-day period for responding ends on Wednesday, 21st June (counting clear days from 7th June). The defendant must file the Acknowledgment of Service by 4 pm on 21st June. Filing the AoS extends the time for filing the Defence to 28 days from the deemed service date (7th June). The new deadline for the Defence will be Wednesday, 5th July.

Filing a Defence

The Defence is the defendant's formal written response to the allegations set out in the Particulars of Claim. It is a key document that defines the issues in dispute.

Purpose and Content (CPR 16.5)

The Defence must address each allegation in the Particulars of Claim, stating clearly:

  • Which allegations are admitted.
  • Which allegations are denied.
  • Which allegations the defendant is unable to admit or deny, but requires the claimant to prove (often referred to as 'putting the claimant to proof').

Importantly, where an allegation is denied, the defendant must state their reasons for the denial and, if they intend to put forward a different version of events, state their own version (CPR 16.5(2)). Failure to deal with an allegation will result in the defendant being deemed to admit it (CPR 16.5(5)), except for allegations relating to the amount of money claimed (CPR 16.5(4)).

Key Term: Defence
A formal statement of case filed by the defendant setting out their response to the allegations in the Particulars of Claim, indicating which allegations are admitted, denied (with reasons), or require proof.

The Defence should also state if the defendant is seeking to rely on a specific defence, such as limitation, or if they wish to make a claim for set-off (where the defendant claims the claimant owes them money which should be set off against the claimant's claim).

Revision Tip

When drafting or reviewing a Defence, methodically go through each paragraph of the Particulars of Claim. Ensure every point is addressed with an admission, denial (plus reasons/alternative facts), or a statement requiring proof. Missing an allegation can be treated as an admission.

Statement of Truth

Like the Particulars of Claim, the Defence must be verified by a statement of truth signed by the defendant or their legal representative (CPR 22.1).

Key Term: Statement of Truth
A declaration required on certain court documents (including statements of case like the Defence) confirming the party believes the facts stated in the document are true. Making a false statement verified by a statement of truth can lead to contempt of court proceedings.

Worked Example 1.2

The Particulars of Claim alleges in paragraph 4: "The Defendant drove negligently by exceeding the speed limit of 30mph." The Defendant admits they were driving but disputes they were speeding or negligent. How should the Defence respond to paragraph 4?*

Answer: The Defence should state: "Paragraph 4 is denied. The Defendant admits driving the vehicle at the time and place alleged but denies driving negligently or exceeding the speed limit. The Defendant was driving at approximately 25mph in accordance with prevailing road conditions." This denies the core allegation (negligence/speeding), gives reasons (was driving below limit), and provides an alternative version of events (driving at 25mph).

Making a Counterclaim

A defendant may have their own claim against the claimant arising out of the same or related facts. They can bring this claim within the existing proceedings by making a Counterclaim.

Purpose and Procedure (CPR Part 20)

A Counterclaim allows the defendant to seek remedies against the claimant without starting separate proceedings.

  • It is usually included in the same document as the Defence (CPR 20.4(1)).
  • No court permission is needed if filed with the Defence (CPR 20.4(2)(a)). Permission is required if filed at a later stage.
  • The Counterclaim must set out the details of the defendant's claim against the claimant, similar to Particulars of Claim.

Key Term: Counterclaim
A claim brought by a defendant against the claimant within the same proceedings, typically included with the Defence.

If a Counterclaim is made, the claimant must file a Defence to the Counterclaim within 14 days of service (CPR 15.8), unless this period is extended.

Failing to Respond: Default Judgment

If a defendant fails to file an AoS or a Defence within the relevant time limits (14 days, or 28 days if AoS filed), the claimant may apply to the court for judgment in default under CPR Part 12.

Grounds and Procedure

The claimant can obtain default judgment if:

  • The defendant has not filed an AoS or a Defence by the deadline (CPR 12.3(1)).
  • Where an AoS was filed, the defendant has not filed a Defence by the extended deadline (CPR 12.3(2)).

The claimant applies by filing a request (Form N225 for specified amounts, N227 for unspecified amounts). For specified amounts, the court enters judgment for that sum plus costs and interest. For unspecified amounts, judgment is entered on liability, with the amount of damages ('quantum') to be determined by the court later.

Key Term: Default Judgment
A judgment entered against a defendant who has failed to respond to a claim (either by filing an Acknowledgment of Service or a Defence) within the time limits prescribed by the CPR.

Setting Aside Default Judgment (CPR Part 13)

A defendant against whom default judgment has been entered can apply to the court to have it set aside (cancelled).

  • Mandatory Grounds (CPR 13.2): The court must set aside a judgment entered wrongly (e.g., if entered before the deadline expired, or after the defendant had already filed an AoS/Defence, or if the claim was already paid).
  • Discretionary Grounds (CPR 13.3): The court may set aside judgment if:
    • The defendant has a real prospect of successfully defending the claim; OR
    • There appears to be some other good reason why the judgment should be set aside or varied, or why the defendant should be allowed to defend the claim.
  • Promptness: In exercising its discretion, the court must consider whether the application to set aside was made promptly (CPR 13.3(2)).

Key Term: Set Aside
A court order cancelling or invalidating a previous judgment or order, such as a default judgment.

Worked Example 1.3

Default judgment for £15,000 was entered against Dave because his Defence was filed one day late due to a solicitor's oversight. Dave has evidence showing he does not owe the money. Should Dave apply to set aside the judgment, and on what grounds?*

Answer: Yes, Dave should apply promptly under CPR 13.3. He cannot use the mandatory ground (CPR 13.2) as the judgment wasn't entered wrongly in terms of timing. However, he can rely on the discretionary ground (CPR 13.3(1)(a)) that he has a real prospect of successfully defending the claim, supported by his evidence. He should also explain the reason for the short delay (solicitor oversight) and emphasise the promptness of his application to set aside.

Disputing Jurisdiction

If a defendant believes the courts of England and Wales do not have the legal power (jurisdiction) to hear the claim, they must follow a specific procedure under CPR Part 11.

  • File an AoS indicating an intention to contest jurisdiction within 14 days of service of the Particulars of Claim.
  • Make an application to the court challenging jurisdiction within 14 days of filing the AoS.
  • Importantly: Do not file a Defence, as this may be treated as submitting to the jurisdiction.

If the challenge is successful, the court will set aside the claim form/service. If unsuccessful, the defendant must file a Defence within a period specified by the court.

Key Point Checklist

This article has covered the following key knowledge points:

  • A defendant must respond to the Particulars of Claim within 14 days of deemed service.
  • Filing an Acknowledgment of Service within 14 days extends the time for filing a Defence to 28 days.
  • A Defence must respond to each allegation: admitting, denying (with reasons), or requiring proof. Failure to respond can be deemed admission.
  • A defendant can make a Counterclaim against the claimant, usually filed with the Defence.
  • Failure to file an AoS or Defence allows the claimant to apply for Default Judgment.
  • Default Judgment can be set aside on mandatory grounds (if wrongly entered) or discretionary grounds (real prospect of success or other good reason), considering promptness.
  • Jurisdiction must be challenged using the specific procedure in CPR Part 11 after filing an AoS indicating this intention.

Key Terms and Concepts

  • Relevant Period
  • Acknowledgment of Service
  • Defence
  • Statement of Truth
  • Counterclaim
  • Default Judgment
  • Set Aside
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