2

Suppose that I have issued a civil claim against a defendant under the UK's Civil Procedure Rules [CPR] §8, which is a simplified procedure often used if no material disputes of fact are involved. The court has served the notice of issue of my claim on what I believe to be the defendant's address -- my reasons for which are documented in the claim -- and the court considers it to be served two business days after posting. If the defendant does not respond within the required 14-day period, under the rules, they are not allowed to submit evidence of a defence without the court's explicit permission.

Yet what happens if they claim no service at all -- or would, if they responded to it? What if the address is wrong, they have moved, or similar? How, practically, in the UK, are these issues decided?

Under CPR § 7 ("normal") proceedings, if they did not respond, I could file a request for judgement (quite simply -- e.g. using form N225 if a specific monetary amount is claimed) and, if everything proceeded "smoothly" to my benefit, and the judge was satisfied the claim was served correctly, I would likely win, and could therefore claim damages through recovering money from the defendant's bank account(s) should I know them. Yet CPR §8 specifically forbids requests for summary judgement, and as far as my reading goes, the entire rest of the procedures the rules as described assume that the defendant engages with them.

What happens, frankly, if they don't? Would it be likely that one would win a successful judgement against a defendant at an incorrect address? Or would the defendant likely request that the judgement be set aside and the case started anew, once they had "discovered" my pending action?

2

Rule 8.4 covers what happens if the defendant fails to file an acknowledgement of service:

8.4

(1) This rule applies where –

(a) the defendant has failed to file an acknowledgment of service; and

(b) the time period for doing so has expired.

(2) The defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission.

It may be possible that the defendant has a good reason for failing to file the acknowledgement of service, in which case the court may allow the defendant to participate in the hearing like a normal case. Otherwise, the hearing would proceed and the case would be decided as normal.

The reason you can't request default judgement per Part 12 when making a Part 8 claim is because of the nature of Part 8 claims:

[where the claimant] seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact

The intended purpose of Part 8 is to seek answers to questions. For example, seeking guidance from the court on the proposed actions of trustees or what the correct interpretation of a deed of trust is. There's no real injustice to be remedied for the successful party in such cases—as opposed to most Part 7 claims, where the successful party usually wants a financial award or some other material remedy—so default judgement would be inappropriate to grant.

Would it be likely that one would win a successful judgement against a defendant at an incorrect address?

This is a mere technical defect to cure. The court would simply direct that efforts be made to ascertain the correct whereabouts of the defendant and a new notice of claim would be served upon them. The case would be adjourned until reasonable efforts to serve the claim were made. It is not a pre-requisite that the service be successful, otherwise people up and down the country could simply claim not to have been served and that's not in the interests of justice.

would the defendant likely request that the judgement be set aside and the case started anew, once they had "discovered" my pending action?

Assuming that, for whatever reason, service was unsuccessful, and you managed to obtain default judgement (under Part 7 since Part 8 no longer applies here because Section 214 claims no longer need to be made under Part 8 per Part 56), the defendant could apply to have the judgement set aside but whether that would be granted is highly fact-specific.

It would be perverse for a defendant to deliberately claim to be ignorant of a claim against them and seek to "go back in time" for their own advantage without compelling reasons why. The claimant deserves justice equally as much as the defendant does.

4
  • Excellent answer – but I have a few additional questions. It is my understanding that one use of CPR §8 is in claiming for disputes over tenancy deposits (see, e.g. england.shelter.org.uk/legal/housing_options/deposits/…) where financial remedy is sought. What happens if the defendant continues to not communicate until, say, they discover damages being taken from their bank account – and then claims to not have received notice of service? – Landak Jul 23 '20 at 17:23
  • 1
    I looked at the relevant practice rule but it seems that Section 214 claims no longer need to be made under Part 8, so it appears you could make a Part 7 claim and obtain default judgement. I will answer the rest in a separate comment. – Matthew Jul 23 '20 at 20:21
  • 1
    In the hypothetical scenario, the defendant could apply to have the judgement set aside. Whether it would succeed is another matter entirely. I would imagine the court would set aside the judgement and order a new trial in the interests of justice, but it's very fact-specific. – Matthew Jul 23 '20 at 20:22
  • 1
    @Landak I have updated my answer to more comprehensively address the other sub-questions raised in your initial query. – Matthew Jul 23 '20 at 20:41

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.