Defending a claim
A defence must answer the allegations made in the particulars of claim and it must be filed at court within 14 days of service of the claim, or 28 days if you have acknowledged service. An extra five days are allowed for service of money claims issued through the Northampton Business Centre, giving you a total of 33 days from the date printed on the claim form, to file a defence. Defences for claims issued electronically can be filed online on the Money Claim Online (MCOL) site. See responding to a claim.
You don’t need a solicitor to prepare a defence, however, you need to make sure you understand the particulars of claim and to be aware of what constitutes a valid defence. Being unable to pay the amount claimed is not a defence. That being the case, you need to either:
- File an admission and request time to pay. This will result in judgment being requested against you. See admissions
- Offer the claimant a lump sum for an amount lower than the claim, in settlement of the account. See full and final settlements.
- Negotiate with the claimant a suitable repayment arrangement, usually embodied in a Tomlin order. See consent and Tomlin orders.
You can defend a claim if:
- It refers to an account you didn’t have or money you don’t owe;
- You have already paid the money claimed or arranged to have it credited, refunded, etc.
- The debt is statute barred under the Limitation Act. See statute barred debt.
- The creditor has been unable to prove that the money is owed or that they have the right to issue a claim by providing copies of relevant documents. See requests for documents.
- The account is unenforceable due to defects with the credit agreement. See Consumer Credit Act.
For more information regarding the form and content of a defence, see defences.
You may be able to defend claims even when they are issued for money you owe in certain circumstances, when the accounts could be unenforceable. This apply most often to accounts regulated under the Consumer Credit Act, which have specific requirements for them to be enforceable. Cases where regulated accounts may be unenforceable are:
- Where the creditor is unable to supply you with a copy of your credit agreement as required by sections 77/79 of the Consumer Credit Act. The creditor can remedy this breach at any time by sending you a true or reconstituted copy of your agreement. See CCA requests.
- Where you didn’t sign a credit agreement containing all the prescribed terms at the time of opening the account, provided the account was opened before April 6th 2007. See prescribed terms.
- Where your account was originally a limited use storecard and was later upgraded to a general purpose credit card without supplying you with a new agreement. See storecards turned credit cards.
If you decide to defend a claim, it’s always advisable to request information from the claimant. You should start by sending a CPR 31.14 request to the claimant’s solicitors asking them to disclose the documents mentioned in the particulars of claim and, in the case of accounts regulated by the Consumer Credit Act, a CCA request to the claimant. See CCA requests and requesting documents. In some cases you may also need to request additional information to be able to defend or asses your position. See requests for further information.
It is important that you use the Civil Procedure Rules to obtain the information necessary for you to be able to prepare a suitable defence to the Claim. Filing a holding defence instead of pleading your defence properly puts you at risk of an application from the claimant to strike out your Defence.
Page 473 of the Whitebook refers to holding defences.