What happens if the defendant cannot serve his defence on time?

After the claimant serves the claim with particulars of the claim on the defendant, the defendant must response within a specified period of time. He must either acknowledge the service and subsequently serve a defence or serve a defence directly. It is essential to deal with all the allegations stated in the claim so that the defence is effective. Failure to file the defence on time may have severe consequences i.e. judgment in default. It is also interesting and necessary to consider what happens if the Claimant believes that the defendant has no real defence to the claim and there is no real prospect in succeeding to defend his case, in this instance the claimant could apply for a summary judgment. Both judgments will be considered below.

What is a defence

The defence is a document which is written in response to the claim. The defendant sets out his statements of case in this document. He refers to the particular allegations made in the claim and he admits, denies or requires proof of them. The defence must be filed at court and served on every party. If the defendant admits the allegations stated in the claim, there is no need for the claimant to bring any evidence in support of this. If the defendant has no knowledge of the allegation in the claim he can deny it and require proof of the matter stated if the defendant is unable to admit or deny the allegation. It is important to deal with all the allegations in the claim or particulars of the claim as if he fails to deal with some he will be deemed to admit them. However if it is a money claim the defendant will not be deemed to admit it unless he specifically admits it. In case that the defendant disputes the value of the claimant’s claim he should state why he is doing so and what the estimated value according to him is.

Serving the defence

It is important to serve the defence on time. As in accordance with the Civil Procedure Rules, the defence must be filed at court and served on the other party within 14 days of the particulars of the claim or 28 day if the acknowledgement of service was filed.

Filing and serving defence late

If the defendant fails to serve the acknowledgement of service or a defence and the time for doing so already expired, the claimant may obtain judgment in default. There are certain circumstances in which the claimant cannot obtain judgment in default, these include; claim for delivery of goods, or if the practice direction provides so or if the alternative procedure for claims is followed. According to Civil Procedure Rules, the claimant cannot obtain judgment in default if the defendant has applied for the claimant’s statement of case to be struck out or if he applied for a summary judgment. Summary judgment will be considered below. The claimant may obtain the judgment in default by filing a request ‘in a relevant practice form’ if the claim is for a specified sum of money or an amount to be decided by the court. The claimant must make an application in accordance with Part 23 Civil Procedure Rules if the defendant wishes to obtain default judgment on a claim for other remedy.

What happens if the Claimant believes that the Defendant has no reasonable defence?

If the claimant believes that the defendant has no defence, the claimant can apply for a summary judgment against the defendant. The defendant can apply for a summary judgment against the claimant if it believes that the claimant has no case. The court may therefore fix the summary judgment hearing. If the claimant wants to apply he must wait until the defendant has served the defence or acknowledgement of service unless the court gives permission. If the claimant applies for the summary judgment before the defendant served a defence, the time for serving the defence will be extended until after the hearing. It is not possible for the claimant to obtain judgment in default until the summary judgment application is disposed of. As in accordance with the Civil Procedure Rules in order to be eligible to apply for summary judgment it is necessary to fulfil these criteria, i.e. the defendant  has ‘no real prospect of successfully defending the claim’ and’ there is no other compelling reason why the claim should be disposed of at a trial’. Therefore the application notice must be served. Such a notice must clearly state any points of law on which it wants to rely and the reasons why it thinks the other party does not have a defence. The court may decide to give the judgment on the claim, dismiss the claim, a conditional order imposing conditions upon continuing to defend, dismiss the application, or give further directions or a costs order.

In all the circumstances it is essential that both the claimant as well as the defendant comply with the court’s directions, orders and complete everything on time in order to avoid any penalties.