Acknowledging Service and Filing a Defence and/or Counterclaim
When a defendant is served with a claim form, they must respond by acknowledging service and, if they intend to contest the claim, filing a defence and potentially a counterclaim. These steps are crucial in the litigation process as they inform the court and the claimant of the defendant's position. The Civil Procedure Rules (CPR) in England and Wales outline the procedures and time limits for these responses.
Acknowledging Service
Acknowledging service is the initial step a defendant must take to notify the court and the claimant of their intention to respond to the claim. This process involves the following steps:
- ★ Filing an Acknowledgment of Service Form: The defendant must complete and file the acknowledgment of service form (Form N9A) with the court and serve a copy on the claimant. This form indicates that the defendant has received the claim form and outlines their intention to either defend the claim or contest jurisdiction.
- ★ Time Limit: The form must be filed within 14 days of being served with the claim form. Filing an acknowledgment of service extends the time available to file a defence to 28 days from the date of service of the claim form.
- ★ Purpose: Acknowledging service provides the defendant with additional time to prepare their defence, gather evidence, and consider legal strategies. It also prevents the claimant from applying for a default judgment due to a lack of response.
Filing a Defence
If the defendant intends to contest the claim, they must file a defence. The defence sets out the defendant's response to the allegations made in the particulars of claim and should include the following:
- ★ Admissions, Denials, and Non-Admissions: The defence must clearly indicate which allegations the defendant admits, denies, or does not admit (Form N9A and Form N9C). For denials, the defendant must provide their version of events and any facts they rely on to dispute the claim.
- ★ Statement of Facts: The defendant should include any relevant facts that support their defence, providing a detailed account of the circumstances that counter the claimant's assertions.
- ★ Time Limit: The defence must be filed within 14 days of serving the acknowledgment of service, or within 28 days of the service of the claim form if no acknowledgment of service is filed.
- ★ Particulars of Defence: In some cases, the defence may be accompanied by detailed particulars, especially in complex cases where a more detailed explanation is required.
Filing a Counterclaim
A counterclaim is a separate claim brought by the defendant against the claimant, arising from the same facts or a related set of circumstances. The process involves:
- ★ Including the Counterclaim: The counterclaim can be included in the same document (Form N9B and Form N9D) as the defence or filed as a separate document. It must comply with the same rules as a particulars of claim, setting out the facts, legal basis, and relief sought.
- ★ Service of the Counterclaim: The counterclaim must be served on the claimant, who is then treated as a defendant for the purposes of the counterclaim and must respond accordingly.
- ★ Time Limit: The counterclaim should be filed within the same time limits as the defence. If necessary, the defendant can apply for an extension of time to file the counterclaim.
Consequences of Not Responding
Failing to acknowledge service, file a defence, or submit a counterclaim within the prescribed time limits can have significant consequences:
- ★ Default Judgment: The claimant may apply for a default judgment if the defendant does not respond within the time limits. This judgment may include the full amount claimed and any other relief sought by the claimant.
- ★ Loss of Right to Contest: The defendant may lose the opportunity to contest the claim, present evidence, or make legal arguments, effectively forfeiting their right to defend the case.
Case Law
Case Study - *Hussain v Mehdi* [2015] EWHC 1907 (Ch)
In this case, the defendant failed to acknowledge service or file a defence within the prescribed time limits. As a result, the claimant obtained a default judgment. The defendant's subsequent application to set aside the judgment was unsuccessful, demonstrating the importance of timely responses in litigation.
Examples
Example 1 - Acknowledgment of Service
Scenario:
A defendant in a breach of contract case files an acknowledgment of service, indicating their intention to defend the claim. This action extends the deadline for filing their defence, giving them more time to prepare.
Example 2 - Filing a Counterclaim
Scenario:
In a property dispute, the defendant files a defence denying the allegations and simultaneously files a counterclaim for damages caused by the claimant's alleged trespass. The counterclaim is served with the defence, ensuring the claimant is aware of the defendant's additional claims.
Conclusion
Acknowledging service and filing a defence and/or counterclaim are critical steps in the civil litigation process. They ensure that the defendant's position is clearly presented and provide the court and the claimant with a comprehensive understanding of the issues in dispute. Defendants must adhere to the procedural rules and deadlines set out in the CPR to avoid adverse consequences and to effectively protect their legal interests.