In our recent podcast episode, "What do I do if… I am served English Court papers?" Jared Oyston and Amina Jamil discuss some of the things to think about when you receive English claim documents, including timings, steps to take when preparing a defence and counterclaim and considerations for settlement.
One of the key things to be aware of when served with English Court papers is the deadline for a response and the implications if a response is not received in time. However, if for some reason you fail to respond in time, all is not lost, as we explore in this blog.
Deadlines to remember
Once a Claim has been received, it is important that key deadlines are diarised and complied with where possible. A Defendant has 14 days from the date on which Particulars of Claim were served to file either an Acknowledgement of Service (AoS) or a Defence. An AoS is a short Court form setting out whether the Defendant intends to defend or admit the claim or challenge the Court's jurisdiction. If an AoS is filed, this allows a further 14 days to file and serve a Defence, setting out the detailed response to each of the allegations in the Particulars of Claim.
It should be noted that the above deadlines are in respect of a Claim served on a Defendant in England & Wales. Different deadlines apply where a Claim is served outside the jurisdiction. For example, if the Claim is served in Scotland, the timescales would be 21 days from receiving the Particulars of Claim to file and serve an AoS or a Defence and 35 days from receiving the Particulars of Claim to file and serve the Defence (if an AoS had previously been filed).
It is possible to extend these deadlines by up to 28 days upon written agreement of the parties. However, an application to the Court is required if the parties cannot agree an extension or if an extension of more than 28 days is required. Any requests for extensions should be made as soon as possible to avoid the risk that no extension is agreed and a Defence or an application to the Court has to be prepared at very short notice.
Implications of not responding in time
It is very important that a response to an English Claim is made in time or an extension is agreed. This is because, if no response is received, the Claimant will be entitled to seek a default judgment. This is a request to the Court to make a final judgment in the matter in the Claimant's favour which then stands as a Court order and is enforceable against the Defendant.
If the judgment is not fulfilled by the Defendant (for example if the sums claimed are not paid), the Claimant would then be able to take steps to enforce the judgment. This can include obtaining a charging order against any land owned by the Defendant or a writ of control to seize goods. It is also possible to petition for the bankruptcy of the Defendant (if it is an individual) or its winding up (if it is a company).
Can I apply to set aside the judgment?
If a judgment has been obtained against you as a Defendant, do not panic! It is possible to apply to set it aside, which, if granted by the Court, would essentially reverse the judgment. If an application to set aside a judgment is granted, the Court would ordinarily set a further deadline for the filing and service of a Defence.
In deciding whether to grant an application to set aside a judgment, the Court would consider factors including whether:
- The Claim has been served correctly and in time;
- The Defendant has a real prospect of successfully defending the claim; and
- There is some other good reason why the judgment should be set aside/varied or the Defendant should be allowed to defend the Claim.
The Court would also have regard to whether an application was made promptly. Therefore, as with an application to request an extension of deadlines, an application should be made as soon as possible. If a substantial amount of time has lapsed since the default judgment was obtained (and brought to the Defendant's attention) a Court will be reluctant to set it aside without a compelling reason for the delay.