Who issues a claim- Court or claimant?

[ThedaBara]

as per the cpr linked, re 'deemed service'

6.26 no. 1, 6.29 no. 2 for eg

 

Yep! TB

[Guest]

no worries then

[ThedaBara]

no worries then

 

Hahaha… I wouldn't go that far! TB

[Guest]

Hahaha… I wouldn't go that far! TB

deemed served according to that cpr (it hasnt been returned to you), no worries

[ThedaBara]

deemed served according to that cpr (it hasnt been returned to you), no worries

 

Got a hundred worries but that ain't one! TB

[Guest]

Got a hundred worries but that ain't one! TB

[ThedaBara]

I meant 99, of course… TB:lol:

[Guest]

99 red balloons

[ThedaBara]

Haha!! Balons rouges…

 

We seem to be wandering off the plot here.

 

TB

[ThedaBara]

Actually, I wish you'd not said that… I now have a very annoying ear worm… TB

[Guest]

… I now have a very annoying ear worm… TB

[ThedaBara]

Just a thought;

The creditor has property all over the place and often goes away for months at a time… Can he say he didn't receive it and ask for a set-aside if he happens to be on holiday at one of his other houses? Presumably, though he will have made an arrangement for mail to be forwarded?

I think his relatives check on the house whilst he is away… I'm just worrying because this other neighbour has signed for it, so he can say he wasn't served it, can't he?

 

TB

[Guest]

again, as per the link andy posted, 'deemed service' under cpr;

6.14 re 7.5(1)

6.14

'A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).'

7.5(1)

'method of service

'First class post, document exchange or other service which provides for delivery on the next business day

step required

Posting, leaving with, delivering to or collection by the relevant service provider'

etc

justice.gov.uk

 

no worries, except the other 99 red balloons

 

there's no judgment yet, so 'set aside' is not an issue.

they have 14 odd days to do something, or not.

[ThedaBara]

Thanks, Ford… He is definitely there, anyway… passed him on the road yesterday… if looks could kill.

 

If I suddenly disappear… well, you heard it here first!

 

(He's got 6 days to respond).

 

TB

[Guest]

if still in doubt re deemed service (you did sd), double check with ganymede etc and/or check with the court re.

[ThedaBara]

Ok… thank you! He was deemed served on 10 August…. so he should acknowledge by 24th, (next Weds), I guess…

 

Do you know if he has to acknowledge to the court or to me directly… or file and serve to both? TB

[Guest]

see part 10 etc CPR

def at least to the court, court then shld notify the claimant accordingly.

[ThedaBara]

see part 10 etc CPR

def at least to the court, court then shld notify the claimant accordingly.

 

That sounds about right…so if the court doesn't get back to me by the end of the week, I should assume there has been no acknowledgement and ask for judgement by default? TB

[Guest]

check with the court, re the service as well, post back what they say.

but yes, def judgment is as per the CPR. as they said before, they wld need a cert of service.

[ThedaBara]

check with the court, re the service as well, post back what they say.

but yes, def judgment is as per the CPR. as they said before, they wld need a cert of service.

 

Sorry Ford… what do you mean by 'check with the court re service'? I have already sent the court a certificate of service…(sent by recorded, so I know they received it). TB

[ThedaBara]

Update: Nothing yet… TB

[ThedaBara]

Nothing yet… TB

[ThedaBara]

Hi, guys!

 

I was about to file a request with the court as the debtor has failed to acknowledge service of claim… but now I'm very confused again as I found the following advice, and it states I must wait 28 days… I don't want to mess up and would really appreciate your help… TB

 

 

A​p​​plying for default judgment - Step by step guide

 

Step 1: Find out date of​​ serv​​ice ​

 

You cannot get a default judgment unless 28 days have passed since the defendant was served with the Statement of Claim.

 

If you did not serve the defendant yourself, you can find out when they were served by:

 

calling the court, if the court served the Statement of Claim by post

looking at the Affidavit of Service prepared by the process server

asking the friend or relative who served the Statement of Claim.

For service by post on an individual or a company, the Statement of Claim is taken to be served on the 4 th working day after it was posted.

 

For service on a business running under a business name or a partnership, the Statement of Claim is taken to be served at the end of seven days after the day it was posted.

Step 2: Get the ​​​for​​ms

 

You need two forms:

 

Form 38 Notice of Motion - Default judgment for liquidated claim

Form 41 Affidavit of Service

You can get copies of forms from:

 

your nearest Local Court or

the Uniform Civil Procedure Rules (UCPR) website.

You will not need the Affidavit of Service form if the court served the Statement of Claim by post. If it was served by a process server, they will have already filled out and signed an Affidavit of Service.

Step 3: Arrange for Affidavit of S​ervice form to be filled out and signed or get completed for​m from the process server

 

For information on filling out and signing an Affidavit of Service, see Serving the Statement of Claim, Instructions for filling out an Affidavit of Service, Sample Affidavit of Service 1 and Sample Affidavit of Service 2.

 

Car icon If the claim is about a car accident and need to fill out and sign an Affidavit of Service, see Instructions for filling out an Affidavit of Service - car accidents, Sample Affidavit of Service 1 - car accidents and Sample Affidavit of Service 2 - car accidents.

Step 4: Fill out and ​s​​ign Notice of Motion form

 

You can fill out the Notice of Motion form in neat handwriting in blue or black pen. You can also fill it out on your computer screen. The guide Completing Approved Forms (52 kb) has instructions on how to do this.

 

 

To fill in the Notice of Motion form you will need to have the following information ready:

 

your case number (you will find this on your stamped copy of the Statement of Claim)

the date that the defendant was served with the Statement of Claim

the amount of any payments made to you by the defendant since the Statement of Claim was filed

a re-calculated amount of interest to include the extra days between filing the Statement of Claim and signing the Notice of Motion (see Interest, filing and service fees)

the name of the person who signed the Affidavit of Service and the date it was signed (not needed if the court served by post).

It will help to have your copy of the Statement of Claim and the completed Affidavit of Service with you while you fill out the Notice of Motion.

 

In the Notice of Motion form under the heading 'Affidavit' you need to set out:

 

the amount of the debt when you filed the Statement of Claim

any payments made by the debtor since you filed the Statement of Claim, or that no payment has been made

the amount of interest you are claiming up to the date of signing the Notice of Motion

the amount you are claiming for filing and service fees

how and when the Statement of Claim was served on the defendant

how you know about the information in the Affidavit.

For detailed instructions, see Instructions for filling out a Notice of Motion - Default Judgment for Liquidated Claim.

 

To look at a completed form, see Sample Notice of Motion - Default Judgment Liquidated Claim.

 

For more information on signing affidavits, see Affidavits.

[AndyOrch]

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. (33 days inc service)

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3

 

Andy

[ThedaBara]

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. (33 days inc service)

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3

 

 

Andy

 

Thanks, Andy… so I don't request a default judgement until 33 days has lapsed. Why does it state a 14 day limit for acknowledgement of service? Can the defendant just wait 30 days and then acknowledge? Are there any penalties for failing to acknowledge within the 14 day period?

Gosh… so complicated! TB