Flashcards in Unit 8: Default Judgment, Defences and Relief from Sanctions Deck (61)
Under CPR 3.9, what will the court consider when dealing with applications for relief from sanctions?
All the circumstances of the case, so as to enable it to deal justly with the application. This includes:
- The need for litigation to be conducted efficiently and at proportionate cost;
- To enforce compliance with rules, practice directions and orders.
TRUE or FALSE. r3.9 only comes into play where a sanction is imposed as a result of a failure to comply.
what was the intention of the amended r3.9?
For courts to be less ready to grant relief from sanctions for procedural defaults.
What are the three stages for applications for relief from sanctions, as proposed in Denton?
Identify and assess the serious and significance of the failure.
Why did the default occur?
Evaluate all the circumstances of the case, to enable just dealings.
If there is a serious breach without good reason, will relief from sanctions automatically fail?
No; 'all the circumstances of the case' must also be considered.
Give examples of what is considered in the third stage of Denton test
- the effect of the breach
- importance of compliance
- proportionate sanction
- prompt application for relief?
- poor record for compliance
Both factors (a) and (b) in 3.9!
Are factors (a) and (b) r3.9 of paramount importance in the third stage of the Denton test?
Lord Dyson and Vos LJ both say they are of particular importance.
Lord Justice Jackson dissented and said they carry no greater weight than other considerations.
What is the limit for reasonable extensions on time limits?
28 days, as per r3.8(4)
Can parties take advantage of minor inadvertent errors committed by the opposition re compliance?
Under CPR 10.1(3), a defendant may file an acknowledgement of service if-
(a) he is unable to file a defence within the period specified in rule 15.4; or
(b) he wishes to dispute the court's jurisdiction.
What is the consequence of not filing an acknowledgement of service, as per CPR 10.2?
The claimant may obtain default judgment if Part 12 allows it.
What is the general period for filing an acknowledgement of service?
14 days after service of claim form; or
14 days after service of PoC where the claim form stated that PoC is to follow.
What is default judgment?
A trial where the defendant fails to file an acknowledgement of service or defence.
What are the scenarios where default judgment cannot be obtained? (3)
(a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974;
(b) where Part 8 procedure is used;
(c) in any other case where a PD says C cannot get default judgment.
When can judgment be obtained in default of an acknowledgement of service?
Where it is the date on which judgment is entered and:
D has not filed AoS or a defence to claim and the time for doing so has expired.
When can judgment be obtained in default of defence?
Where AoS filed but no defence filed by date of judgment; or
In a 20.4 counterclaim, no defence filed by date of judgment.
And, in either case, the time period has expired.
Can default judgment be obtained if D has applied to have C's SoC struck out?
Can default judgment be obtained if D has filed or served an admission and requests time to pay, (for money claims)?
Under 12PD4, for requests and applications for default judgment, the court must be satisfied that:
The Particulars of claim have been served on the defendant;
Either D has not filed an AoS or a defence, and the period for doing so has expired;
D has not satisfied the claim;
D has not returned an admission to the claimant or filed an admission with the court.
The court must set aside a judgment under Part 12 if judgment was wrongly entered because either:
no AoS filed/defence filed and time expired;
D has applied for stike out/summary judgment.
The whole claim was satisfied before judgment.
For money claims, D has filed/served admission and seeks time to pay
The court MAY set aside Part 12 judgments if:
D has a real prospect of successfully defending the claim; or
It appears that there is a good reason for setting aside/varying/D should be allowed to defend.
the court must have regard to whether the person seeking to set aside the Part 12 judgment applied promptly.
Does CPR Part 15 (Defence and Reply) apply where Part 8 procedure is used?
The general rule is that th period for filing a defence is:
14 days after PoC service; or
If D files AoS, 28 days after service of PoC.
How long can C and D agree to extend the period for filing a defence?
Must the court be notified where C and D agree to extend the period for filing a defence?
Yes - in writing.
Where does Part 20 apply?
To a defendant who wishes to make a counterclaim.
If a claimant replies to a defence, the claimant must;
File their reply with a directions questionnaire;
Serve his reply on the other parties at the same time as it is filed.
TRUE or FALSE. A party can file/serve any statement of case after a reply without the permission of the court.
FALSE. Permission needed.
C claims for a specified amount of money. D states in his defence that he has paid it.
1. What will the court send to C?
2. What happens if C fails to respond within 28 days?
1. The court will send notice to C requiring him to state in writing whether he wishes the proceedings to continue.
2. The claim shall be stayed.