Defending a claim

If you think you have a good argument to defend the claim, you need to make sure you obtain all the necessary information before submitting a defence. Bear in mind you can negotiate with the claimant or make an offer to settle the claim at any time if you don’t think you have a viable defence.
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Chess

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.

Because the claim form is deemed to be served five days after the date of issue, you have five extra days allowed for service, from the date printed on the claim form, in addition to the 14 days to acknowledge or defend and a further 14 days to submit a defence if you acknowledge. This gives you a total of 33 days (14+14+5 extra for service).

5.7 The claim form will be deemed to be served on the fifth day after the claim was issued irrespective of whether that day is a business day or not. ‘Business day’ has the same meaning as in rule 6.2(b).

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.

Although you don’t need a solicitor or legal advice to defend a claim, in many cases having a defence drafted by an expert in consumer credit and civil litigation can make all the difference.

For more information regarding the form and content of a defence, see defences.

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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.

To find out whether your account could be unenforceable, you need to read up on the Consumer Credit Act.

Legal

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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.

Holding defences

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.

15.5.3

Holding defence

A defendant cannot legitimately obtain more time for preparing their defence by filing the so-called “holding defence” such as “I deny this debt: full defence to follow”. Such a defence does not comply with Pt 16 (contents of defence). A defence which consists of a bare denial may be struck out under r.3.4 (see Practice Direction supplementing r.3.4 , para.1.6, see above para.3PD.1). Indeed on the filing of such a defence a court officer may refer it to a judge and the court may strike it out on its own initiative (see rr.3.2 and 3.3 ).

If you need more time to obtain documents from the claimant, you can ask their solicitors to agree to an extension to file your defence. The maximum allowed is 28 days.
It is possible to defend on the basis of not having received the documents relied on for the claim and put the claimant to strict proof that there was a properly executed agreement (if applicable), that a compliant default notice was sent to you and that they are entitled to the debt via assignment.
If you rely purely on lack of evidence and/or documentation in your defence, you may need to negotiate with the creditor or settle the claim if they are able to provide you with the evidence further down the line.
Submitting your defence is just the first step in what can be a long process, and you can expect to receive evidence at any point during the process. See court process.
Diagram
If you are defending a claim over £10,000, bear in mind costs are awarded against the losing party in the fast track. If your case goes all the way to trial and you lose, you may end up with a costs order as well as a CCJ and the claimant’s legal costs can be substantial. See costs. This doesn’t apply to the small claims track.
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To avoid default judgment, you need to file a defence in time even if you have not received any documents.
You have a maximum of 33 days from date printed on claim to file a defence.
Calculate your date.
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