The defendant will also receive what is called a ‘Response Pack’ with Notes. These explain how the defendant may deal with the claim form. There are five possibilities as listed below.
Acknowledging service. If the defendant is not ready to file a defence, he must acknowledge service of the claim form within 14 days of service. If the claimant has chosen to send his particulars of claim separately, acknowledgement is within 14 days of receipt of the particulars.
Filing a defence. Where the defendant wishes to defend the claim, he must file a defence within 14 days of service of the particulars of claim or, where service has been acknowledged, within 28 days of service of the particulars of claim. The forms which the defendant can use form part of the Response Pack. Where a solicitor is being used, a defence is normally prepared as a separate document. The time for filing a defence can be extended by agreement between the parties by a further period of up to 28 days, but the court must be informed. Our defendant company will deny that it is in breach of contract and will say that the seed supplied was of satisfactory quality and fit for the purpose. As regards the exclusion clause, a phrase such as the following might be used:
Further or alternatively, if (which is not admitted) the Claimant has suffered the loss and damage claimed it is within the Defendant’s exclusion clause in paragraph X of the contract.
Example. If the defendant is served with particulars of claim on Monday, 3 September and is ready to file a defence he or she must do so by Monday, 17 September. Defendants wishing to acquire time must file an acknowledgement by that date. These defendants will then have until Monday, 1 October to file a defence.
Filing an admission. An admission may be for the full amount of the claim, in which case, the claimant will ask the court for judgment. There may also be an admission for part only of the claim. In this case, the claimant may reject what is, in effect, an offer and proceed with the full claim. Alternatively, he may accept the offer and ask for judgment.
As regards service and timing, an admission of the claim where the claim is for a specified sum of money is sent to the claimant. In other cases, e.g. admission of part of the claim, the form of admission is sent to the court. An admission of claim must be made to the claimant or the court as the case may be within 14 days of service of the claim form if it has on it or accompanying it particulars of claim. Where particulars of claim are served later, an admission may be made within 14 days of service of the particulars of claim.
Defendant fails to respond – the default judgment. If, following service of proceedings, the defendant fails to acknowledge the same or to file a defence within the time scales allowed, the claimant may ask the court for a judgment in default against the defendant. Such a judgment will be obtained without a trial of the issues involved. There are several situations in which default judgments cannot be obtained, e.g., in claims for delivery of goods under a Consumer Credit Act 2006 regulated agreement, such as a hire-purchase agreement and mortgage claims. The court will need to be satisfied that the claim form and particulars of claim have been served on the defendant and that he has not made a response. A defendant against whom a default judgment has been made can apply to the court to have it set aside.
Counterclaim. The defendant may make a counterclaim against the claimant. This will not arise in our case, but if our claimant had not paid in full for the cabbage seed but merely paid a deposit, the defendant may well claim for the balance of the purchase price. Particulars of a counterclaim may be filed with the defence. Where this is done, the permission of the court to file a counterclaim is not required. It will be required if the counterclaim is made after the defence has been filed. The claimant need not acknowledge a counterclaim, but must file a defence within 14 days. This may be extended by agreement of the parties to 28 days over and above the initial 14-day period.
A counterclaim is a statement of case and must be prepared as such. Furthermore, if the claim is in the County Court a statement of value must be included to ascertain the whole value of the claim and counterclaim.