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

After the claimant serves the claim with particulars of the claim on the defendant, they must respond within a specified period of time. They must either acknowledge the service and subsequently serve a defence or serve a defence directly.

What is a defence?

The defence is a written response to the claim which sets out the defendant’s statements of case. It must be filed at court and served on every party.

The defendant must ensure they deal with all the allegations stated in the claim to ensure the defence is effective. Failure to do so may result in judgment being entered against them.

The defendant should admit, deny or require proof of each of the allegations in the claim. If they admit an allegation, there is no need for the claimant to bring any evidence in support of this. If they have no knowledge of or deny the allegations in the claim, they can deny it and require proof of the matter stated.

If the defendant fails to deal with allegations in the claim or particulars of the claim, they will be deemed to admit them (although in money claims they will not be deemed to admit them unless they do so specifically).

If the value of the claimant’s claim is disputed, the defendant should state why and what their estimated value is.

Serving the defence

Under 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 days if an 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 usually obtain judgment in default. The claimant cannot obtain judgment in default, if:

  • it is a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974;
  • a practice direction provides so;
  • they use the procedure set out in Part 8 of the Civil Procedure Rules (alternative procedure for claims).

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.

Summary judgment

If the claimant believes the defendant has no real defence to the claim and there is no real prospect in succeeding to defend their case, the claimant could apply for a summary judgment. The defendant can also apply for a summary judgment against the claimant if they believe the claimant has no case.

If the claimant wants to apply, they 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 has served a defence, the time for serving the defence will be extended until after the hearing. The claimant cannot obtain judgment in default until the summary judgment application is disposed of.

Under the Civil Procedure Rules, if a party applies for summary judgment it will have to show that the other party has no reasonable prospect of successfully defending or succeeding on the claim. The application notice must state any points of law on which the party wants to rely and the reasons why it thinks the other party does not have a valid claim/defence.

The court may decide to give the judgment on the claim, dismiss the claim, make a conditional order imposing conditions upon continuing to defend, dismiss the application, or give further directions or a costs order.

Striking out

Where there has been excessive delay by one party or they have little chance of success in bringing/defending the claim, the other party can apply for the ‘striking out’ of part or the whole of a claim or defence. If an application for striking out succeeds, the court will order that the issue, claim or defence be ‘struck out’ from the proceedings and the other party can no longer rely on them.

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Article written by...
Nicola Laver LLB
Nicola Laver LLB

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A non-practising solicitor, Nicola is also a fully qualified journalist. For the past 20 years, she has worked as a legal journalist, editor and author.