court staff v preacher

[preacherman]

Just read it. Then read it again. And again. Until you understand it.

what do you make of this sparky!

"There is nothing in the CPR which prevents a defendant from filing a defence after the set time for doing so has elapsed, as long as default judgment has not been given.CPR 12.1 (b) states that a claimant may request default judgment if the defendant fails to file a defence. in this case Mr x had filed his defence prior to preachy requesting judgment"

isn`t that selective plucking? as it does not include the last part. 'and the time for doing so has expired'.

12.3
1) The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.

sorry, he was reading 12.1(b)
2.1 In these Rules, ‘default judgment’ means judgment without trial where a defendant –
(a) has failed to file an acknowledgment of service; or
(b) has failed to file a defence.

[Smouldering Stoat]

Yes. Both conditions must be fulfilled. Default judgment may be obtained when no defence has been filed, and the time for doing so has passed. Once the defendant has entered a defence, default judgment is not possible because one of the conditions no longer applies.

[preacherman]

Yes. Both conditions must be fulfilled. Default judgment may be obtained when no defence has been filed, and the time for doing so has passed. Once the defendant has entered a defence, default judgment is not possible because one of the conditions no longer applies.

hey stoaty thanks, sounds pretty smooth.

if the defence is filed late though, then its not been filled surely, hence why the application can be made? I mean its late, so the time for doing so has passed.

The letter I had said that a defence was filed.(but it was out of time)

12.1(b) has failed to file a defence.

still waiting on HHJ Atticus.

I see 12.1 more as an 'interpretation' of the word Default Judgment and 12.3 is how you go about getting such

In these Rules, ‘default judgment’ means judgment without trial where a defendant –
(a) has failed to file an acknowledgment of service; or
(b) has failed to file a defence.

[atticus]

A defence that is filed late has self-evidently been filed.

There is no requirement for a defence to be filled.

[preacherman]

A defence that is filed late has self-evidently been filed.

There is no requirement for a defence to be filled.

correct it was out of time.

are you saying no requirement for out of time defence to be filed?

so is 12.1(b) a bit of a lame reason for a default judgment to be defeated?

"12.1 (b) states a claimant may request default judgment if D fails to file defence, In this case Mr x had filed a defence prior to your request"

[atticus]

No. I said what I said. Read it.

[preacherman]

ok got it, but not the context. its a good argument though.No requirement for a late defence to be filed within the conditions to be satisfied:
12.3
1) The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.

[Smouldering Stoat]

Again, both conditions must be fulfilled. Once a defence is filed, default judgment is not possible.

A defendant may file a defence out of time, so long as he does so before the claimant makes an application for default judgment. A defence made out of time has nonetheless been filed. It is incumbent on the claimant to apply for default judgment in good time.

If the defendant in your case filed a defence after the deadline, but before your application for default judgment, then the defence has been filed properly, which was fatal to your application.

[preacherman]

No. I said what I said. Read it.

can you help me with an update atticus. Hope you are well.

I was asked to file an amended claim particulars, which I did. There was a direction hearing, which at the last minute I could not attend (good genuine reason) so I emailed the court.

The judge was pretty sound with his order, he has given the small claim matter a hearing date, but there is no order telling the defendant to file a defence to the amended particulars? surely a new defence should be filed before a hearing of the matter? (responding to the amended particulars), then my 'response to defence' could be sent.

I would have brought it up had I been there.

[atticus]

Write to the court. Enquire politely. I cannot say - in some cases an amended defence is not necessary, the original is more than adequate.