What do I do if...I am served English court papers?

00:00:05 David Lee, Host

Hello and welcome to Podcasts by Brodies. I'm David Lee and in this series we take an in depth look at some common and not so common questions and scenarios that Brodies lawyers have faced over the years that relate to English Law. In each episode we'll hear from Brodies experts and some special guests to hear their insights and experiences that allow them to take the right approach when asked the deceptively simple question, 'What do I do if...?’.

In this episode I'm joined by two experts from Brodies partner, Jared Oyston, and associate, Amina Jamil, who both specialise in English litigation and they are discussing the question, ‘What do I do if... I'm served English Court papers?’. Welcome Jared and Amina.

Jared, first of all, let's start with first principles, what do we mean by an English claim?

00:01:02 Jared Oyston, Partner

What we mean by an English claim is a set of court proceedings which have been raised by a party before the courts of England and Wales, and this typically occurs where there's a dispute between two parties, or more parties, and one of those parties requests that the English court grants a judgement or makes an order in its favour against the other party.

You'll have noticed there that I referred to the courts of England and Wales, and that's because England and Wales have a unified court system as opposed to Scotland and Northern Ireland, which have their own separate systems. With apologies to our Welsh friends, in this podcast, I think we will use the term English courts to refer to that unified system that we have in England and Wales.

There are several reasons why, in a dispute, it might be appropriate for proceedings to be issued before the English courts. It may be that the defendant, so the party against which proceedings are issued, is domiciled in England and Wales.

But a party certainly doesn't need to be domiciled in England and Wales in order for the English court to have jurisdiction in relation to a dispute.

The English court might have jurisdiction over an individual or a business based in, say, Scotland, or indeed elsewhere in the world if the dispute arises under a contract in which the parties have agreed to the jurisdiction of the English courts. So it's perfectly possible, and indeed quite common for proceedings to be issued before the English courts, despite one or more, or indeed all of the parties being based somewhere outside that jurisdiction.

00:02:31 David Lee, Host

Amina, if you are served with an English claim, how should you respond in the first instance and what are the sort of deadlines that you would need to adhere to?

00:02:43 Amina Jamil, Associate

So hopefully an English claim shouldn't come out of the blue. There are strict guidelines on how parties correspond with each other at a pre-action stage, so for example, that can include the prospective claimant setting out the details of their claim in a letter and allowing any defendants an appropriate amount of time for a response, and the parties entering into discussion to try and settle or resolve the claim at an earlier stage. If that's unsuccessful and their claim is issued, there are strict deadlines to meet and so parties would need to move quickly.

As an overview, English litigation is governed by what we call ‘The Civil Procedure Rules’ or ‘the CPR’ and that is a set of rules which set out key timings and procedural guidance for applications and other English litigation court documents.

The time frame for responding from an English claim is calculated from the service of what we call, particulars of claim, these are usually sent with the claim form, but it's possible for the claimant to send them up to 14 days after serving their claim form.

In terms of what a claim form and particulars of claim are, a claim form is a short court document which sets out some basic details, so for example, the names and addresses of the parties and the exact remedy which is being sought from the court.

Particulars of claim follow on from the claim form and essentially provide a bit more detail about the claim and the background to the dispute. For example, any background to the parties relationship, if there are any supporting contractual documents and details of what is being sought in terms of the value, and if there is any interest how that's being calculated. So, it goes into a lot more detail about the background to the litigation.

Once that's being served on the defendant and they then have 14 days to file an acknowledgment of service or a defence. An acknowledgment of service is a short court form stating whether the defendant intends to defend, admit the claim or challenge jurisdiction and if an acknowledgment of service is filed it allows a further 14 days to file a defence.So essentially a defendant can be provided with up to 28 days from service of particulars of claim to file a defence.

These deadlines are on the basis of a claim which is served within the jurisdiction of England and Wales. If the claim is being served in a party outside of the jurisdiction, the timings are slightly different and they can vary depending on the specific country. So we're not planning to cover them all off today here, but taking the example of Scotland, you have an additional seven days, so a total of 21 days, for filing the acknowledgement of service and up to 35 days of filing a defence from the date of service of particulars of claim. These deadlines can be extended up to a further 28 days, and that's by written agreement of the parties. Any further extension past the 28 days, if the parties can't agree an extension, an application to the court is needed.

00:06:01 David Lee, Host

. And what about the implications if you don't respond to the claim or you don't meet those deadlines. What happens then?

00:06:11 Amina Jamil, Associate

It's incredibly important that if an English claim is received, that it is responded to in some way. If no defence is filed in time, the claimant is able to seek what's known as ‘default judgement’ that essentially ask the court to determine the claim in favour of the claimant and provide a court order to that effect.

That would then act as a court order, which can then be enforced in the usual way. So, some examples of that, for example, a charging order against property, winding up if the defendant is in a company, or seeking a writ or warrant of control which would allow an enforcement officer to come and secure goods.

So as you can see, it's incredibly important that if there is a defence to the claim that the default judgement is not sought against the defendant.

00:07:08 David Lee, Host

And in the case of an English claim, Amina, can anyone challenge the jurisdiction of the claim and actually challenge the very validity of it?

00:07:20 Amina Jamil, Associate

Yes, so as I mentioned previously, in the acknowledgment of service, there's actually a box which can be ticked by the defendant where they want to specify that they intend to challenge the Court's jurisdiction. This must be done within the time period for filing the acknowledgment of service.

And after that, an application to challenge the Court's jurisdiction must be made within 14 days after filing the acknowledgement of service.In terms of grounds for challenging jurisdiction, this can be on several grounds, including where the court does not have jurisdiction to try the claim, or if an argument is to be made that it shouldn't exercise its jurisdiction in this particular claim. It's also possible to challenge the Court's jurisdiction on grounds that the claim has not been served properly or within the specified time limit.

Once this application has been made, the time period for filing the defence is frozen. So if a defendant is challenging the court's jurisdiction, there are no further steps to be taken until the application is determined by the court. So there's no need to worry about the claimant getting a default judgement in instances where the defendant is already challenging the court's jurisdiction.

00:08:35 David Lee, Host

OK, so let's assume you accept the jurisdiction and you meet the deadline. What about the next step, actually starting to prepare a defence?

00:08:45 Amina Jamil, Associate

The defence is essentially the response to the particulars of claims. So within that, the defendant needs to address each paragraph and every allegation in the particulars of claim and have a response for that.

Generally, there are three options for response - the defendant can either admit, deny, or put the claimant to proof.

In terms of an admission, it does what it says on the tin, the defendant is admitting that particular allegation or that particular statement. If the defendant is denying that allegation or statement, it should set out its own version of events and what happened and, if possible, provide supporting evidence.

If the claimants are being put to proof, the defendant is asking the claimant to prove their case, whether by factual or expert evidence. And this is something that can sometimes be dealt with further down the line and litigation if the claimant is unable to prove it in their reply to defence.

A defence should have supporting evidence to support the position, this will usually need to be disclosed to the claimant when the defence is served. So any key correspondence, or any documents which support the position being put forward.

One important thing to note is a defence needs to be signed by a statement of truth which confirms that the information in the document is true and accurate. It also confirms that consequences of knowingly filing the documents which is verified by a false statement of truth, and the main consequence of a false statement of truth is contempt of Court.

Statement of truths need to be signed by e-mail, either a legal representative, or the party. Where the party is a company, this would be signed by a person holding a senior position in the company, for example a director or their Chief Executive or other officer. So, when drafting a defence, it's important to know that the defendant needs to get to a point where they're willing to sign the statement of truth, so it's important to take the time to ensure that all the details in a defence are accurate and true.

In terms of the statement of truth it's not just the defence which has this, its other pleadings, so the particulars of claim, the reply to defence, which is an optional step which the claimant can take after the defence and other key documents, for example, witness statements are all verified by a statement of truth as well.

So these are the type of documents which are put before the court and have a certain weight attached to them, which is why they need to be verified by a statement of truth.

00:11:26 David Lee, Host

OK Jared, to bring you back in, another option I understand is a counterclaim. What would that involve?

00:11:35 Jared Oyston, Partner

When a party is served with English court proceedings, there can be a tendency, particularly if the party is unfamiliar with the process, just to focus on what needs to be done in order to defend the claim, and in particular meeting those key deadlines that Amina referred to. But it is also very important, at the same time, the party considers what counterclaims it might wish to bring, if any.

When parties reach the point of falling out so badly that legal proceedings are issued, it will often be the case that both parties alleged wrongdoing by the other. For example, one party might be suing a another for unpaid invoices, but the party being sued might want to allege that actually the services that were provided or the goods that were supposed to be provided in return for the payment of these invoices didn't meet near the required standards, so they'll often be claims and cross claims.

Effectively, where somebody who is in receipt of an English claim wishes to make a cross claim like that, it is known as a counterclaim and it's very important that a party considers at this early stage whether they do have a counterclaim that they want to bring. The reason for considering it at this early stage is that, generally speaking, parties will be expected to bring any counterclaim at the same time as they file their defence, and in fact, if a party fails at the time that they put in their defence to include a counterclaim, they will generally require the permission of the court in order to bring that counterclaim later, and there's no guarantee that the Court will allow it. So it's very important at the same time as considering what your defence to the claim is, you consider as well whether you have a counterclaim. Very often there will be significant overlap between the two in practice.

But it is important to bear in mind that any counterclaim will need to be properly particularised at the same time as preparing the defence. So like the defence, it will need to be set out very clearly in numbered paragraphs, it will need to be executed by an authorised signatory with a statement of truth as Amina just outlined.

So it's very important that parties consider counterclaims very early, and certainly as soon as they become aware of a claim being issued and served on them, because there might well be significant work to be done in order to ensure that it can be properly articulated, properly signed off by someone suitably senior with a statement of truth on the exact same timescales, essentially, that Amina just outlined for the defence.

00:14:04 David Lee, Host

OK, and what about settlement as well, Jared, when does that come into the conversation?

00:14:11 Jared Oyston, Partner

Well, the Civil Procedure rules are explicit and very clear about the fact that parties to disputes are under an ongoing obligation at all times to give appropriate consideration to settlement. That includes the immediate period after a claim has been served on them. I think again, a little bit like counterclaims, this is a point that parties can lose sight of when rushing to meet those deadlines for defending a claim. They're so focused on defending the claim, they don't necessarily stop to think whether there's perhaps a deal that could be done that would avoid the need to file a defence at all.

As Amina mentioned earlier, parties are expected to go through pre-action correspondence prior to issuing proceedings, with a view to narrowing issues and potentially reaching a compromise. So in an ideal world, the parties will have already discussed the dispute in some detail prior to proceedings being issued, and in those cases, the parties might have already concluded that there's no settlement to be done at that juncture. But in other cases, particularly cases where there's been an element of misunderstanding or miscommunication - for example, demand letters not being received by the appropriate person - the service of claim form might actually be the point at which a sensible discussion can be had between the parties, which results in a resolution at a very early stage and avoids the defendant committing time and money to preparing a defence.

So obviously, whilst it is crucial that parties served with English court proceedings, take the steps required to defend the claim, it's important they don't get so swept along that they don't consider the possibility of whether there's a resolution that could be reached without the proceedings needing to go any further.

00:15:50 David Lee, Host

You mentioned there that there's a tendency, if you do get served an English claim, potentially to rush in, particularly if you're unfamiliar with the process.

Is that something you find with organisations and businesses and individuals that predominantly are based in Scotland and might find an English claim a little bit out of the blue.

00:16:11 Jared Oyston, Partner

It can be yes. So to take the example you give of businesses or individuals based in Scotland, they may be relatively well practised with litigating before the Scottish court, there is a degree of novelty to being served with something in the English courts. They'll be aware, perhaps of some of the potentially quite draconian and damaging consequences of failing to file their defence in time and that is understandably their priority to ensure that they get that defence in on time, in order to preserve their position.

Whereas they may be less aware, for example of the fact that they can continue to have settlement discussions, they may be less aware of the fact that is the time at which they need to be considering counterclaims.

So yes, there can be a tendency to really focus on getting the defence in at the expense of other key considerations.

00:17:11 David Lee, Host

OK, thank you and let's say we are heading for litigation. What are the key considerations there, especially around the retention of documents?

00:17:24 Jared Oyston, Partner

Once a party is served with English court papers, if not before, it's extremely important that they take steps to preserve the documents and information that they're going to need in the litigation going forward, if it can't be resolved at an early stage.

So in most cases, before the English courts, the parties will be required to undergo what's called disclosure, and that's where the parties are required to search their records -directly including records of third parties over which they may have control - and to search those for, and then provide to the other side, relevant documents that are available to them, including, importantly, documents which may be adverse to their case. The duty to disclose relevant documents and the duty to search properly for them, is a strict one, and it's taken very seriously by the English courts.

So it's essential that upon being served with a claim, if they haven't already, parties take appropriate steps to ensure that relevant documents are not destroyed. There are two main reasons for that. Firstly, procedurally, if a party can be shown in due course to have failed to meet its disclosure obligations, that can have real adverse impact on their position. So the court might draw an adverse inference from a party's failure to produce certain documents, and it will be no excuse for that party to say, "well, actually I did have those documents, but they were lost or they were destroyed inadvertently," or "we kept them in accordance with our standard document retention and destruction policies, and they've been destroyed as part of that."

Parties are expected essentially to halt those kinds of processes when they know that there is the real prospect of a dispute and therefore disclosure obligations, so obviously it's very important that parties don't fall foul of their disclosure obligations.

The other reason is a practical one. There may be documents that will help your case and obviously you will need those going forward and a party will get no traction if they go to court and say, "well, yes, unfortunately I can't prove this allegation with us because these documents were accidentally destroyed however many months ago," that won't wash with the court. So it's very important that as well as being able to meet your obligations, you don't hamstring yourself by inadvertently destroying documents which will support your case.

So that's the documentary angle, and then there's also, the human side of it as well. Human evidence which we refer to as witness evidence, and in most litigation before the English courts, parties will be expected to file witness statements in which individuals set out their recollections in relation to the relevant disputed events, whatever they may be. So, as with documents, it's important at a very early stage to speak with potential witnesses to gather their recollections.

And again, there are a number of reasons for that. One is the procedural, in that the parties will be expected to file appropriate evidence in due course, parties are expected to put forward evidence to prove their case, including witness statements, and it's obviously not helpful in your case, if there are glaring gaps in in that evidence. Obviously witnesses are individuals, they have busy lives, people change jobs, their memories fade, so the sooner you involve them in the evidence gathering process, the more likely it is that they'll be willing and able to provide a witness statement in the proceedings.

But also, as a matter of common sense and strategy, it makes sense to find out as early as possible what your witnesses are going to say. As Amina said, a defence has to be supported by a statement of truth and speaking with potential witnesses at the outset will hopefully mean you're going forward with the case, including preparing the defence, on as informed a basis as possible. There’s no real benefit to anyone, and in fact there can be really serious consequences, if you file a defence which just isn't going to be supported by the evidence of your factual witnesses in due course.

00:21:25 David Lee, Host

Okay, thanks Jared and so you know, we've accepted that sometimes, particularly for Scottish clients, an English claim might come a little bit out of the blue, don't rush in, take legal advice at an early stage, obviously. But what is your broad advice?

If a client served an English claim, they're unfamiliar with the process, what should they do? Take a deep breath and then do what? What are those key steps?

00:21:51 Jared Oyston, Partner

You’re absolutely right, take a deep breath. Once you've done that, get to grips straightaway with the key deadlines, get them diarised so they're not missed. Amina obviously outlined some of the consequences of missing deadlines and in practise, I think it's important to understand that parties will usually need to get to work straight away on responding to a claim.

14 days in which to file an acknowledgment of service and therefore decide whether to defend a claim, 28 days in which to file a defence. These aren't particularly long periods and they will fly for a busy individual or business. So the work of considering how to respond, preserving documents, speaking to witnesses, preparing a defence, making sure you've got someone appropriately senior who has reviewed the defence and is willing to sign off on it and the and the statement of truth. The sooner you can commence all that process the better.

Similarly, Amina mentioned that it's possible to seek an extension of time. If you're going to do that, ask for it early. Your prospects of obtaining your opponent's agreement are much greater if the request is made in a timely fashion.

And the other key point I would mention is, don't allow yourself to be swept along by the procedure, think about what it is you want to achieve. Is defending the claim actually right for you? Do you have a defence? Could the cost of preparing a defence or even looking into what's being alleged, outweigh the value of the claim? Are there settlement discussions to be had that could nip the proceedings in the bud at an early stage without incurring further time and costs?

So it's a balancing act, really, between ensuring that you hit the deadlines you need to hit, but without letting those drive the process and take over and distract you from the bigger picture and what it is you're really trying to achieve.

00:23:39 David Lee, Host

Okay, thanks Jared. Amina, a final word from you?

00:23:43 Amina Jamil, Associate

Just to add on what Jared said really, I would say another final point is don't panic, especially if it turns out a claim has been missed and the claimant has run off to court and got a default judgement. It is possible to apply to set that aside. Obviously the court won't do that in every case, there are only special circumstances, for example, if there is a real prospect of defending the claim, and if there's another compelling reason why the court should set it aside. But it is possible in certain circumstances to have a default judgement set aside, and that would essentially reverse the judgement and take the parties back to the original point of when the claim had been issued, so the court normally allows a bit of time to then file a defence.

So although it is incredibly important to obviously diarise key deadlines and make sure all the deadlines are met for a defence, if it turns out that has inadvertently somehow been missed and there is a default judgement against the individual or the company, it is possible to take steps to try and try and overcome that.

00:24:51 David Lee, Host

Okay, thank you very much Amina, and thank you Jared. So to summarise, don't panic, but still move quickly if you are served with an English claim and ensure you get to grips very quickly and get the right kind of advice to understand the process and to understand the important deadlines.

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