Civil Litigation Procedure - Part 2
In our last article on Civil Litigation, we outlined some of the history of the current litigation rules and what should be considered before a legal claim is issued. In this article, we will consider some of the steps that a Defendant can take when responding to a claim.
Avoidance is the best policy
With any litigation, you should be given one or more written warnings before proceedings are taken against you. It is usually in the interests of all the parties to avoid litigation, if possible. Ignoring a demand for payment because it has come at a bad time or because you are to busy to respond is a very risky policy. It is not unusual for a Claimant to accept payments by instalment or even a smaller sum to avoid the expense and time needed to pursue a claim through the courts. For many Claimants, the issuing of a claim is a last resort, but once issued, there is little incentive to settle a claim for a lesser amount. There is also the possibility that if the claim is successful, you will be liable for additional expenses such as the court issue fees and possibly the Claimant’s legal costs.
What to consider when defending a claim
Assuming that you have not been able to reach a compromise and a claim has been issued, you have the following options:
Ignore the claim and risk having a judgment in default made against you. The procedure for obtaining a default judgment is relatively easy. It is possible to appeal a default judgment, but you should ask yourself the question “Do I actually owe any of the money?” If the answer to this question is yes, then delaying payment will only cost you more in the long run.
Admit the claim to limit the amount of court costs that you will be liable to pay. This option may let you offer to pay in instalments or to make a reduced offer (usually based on you making a counterclaim at the same time). The key disadvantage of taking this route is that you will have a county court judgment registered against you that can be enforced if you miss any payments.
File a Defence within 14 days of receiving the claim form – or within 28 days if you file an acknowledgment of service. It is a sad truth that some disputes can only be settled by a Judge at a final hearing. If you are at total odds with the Claimant and there is no possibility of settling a matter, then consider the following points when preparing your Defence:
1. Put forward a brief but full version of events.
2. Only deal with allegations that are included in the claim.
3. Include any documentary evidence that supports your claim. Examples of evidence appropriate for including with a Defence could include financial statements, invoices, letters or copy contracts. As matters progress, it may be appropriate to also include witness statements or expert reports.
Defending a claim (in a similar way to making a claim) can be stressful, time consuming and expensive. There are many good reasons to avoid the process, but if a claim is made against you and you are not clearly at fault, you have nothing to fear from the process of defending a claim.