Last week, I ex­plained what a pre-ac­tion pro­to­col let­ter was, the need to have one is­sued be­fore pro­ceed­ing to court and the ben­e­fits of such a let­ter. We will con­tin­ue from that point. At this stage, we will con­sid­er that a pre-ac­tion let­ter was is­sued to a po­ten­tial de­fen­dant out­lin­ing a le­gal con­cern and re­quir­ing the po­ten­tial de­fen­dant to re­spond to the let­ter in 21 days, fail­ing which the mat­ter will pro­ceed to court. The po­ten­tial de­fen­dant, de­spite re­ceiv­ing the let­ter, fails to re­spond, make con­tact with your at­tor­ney, or re­solve the mat­ter in any mean­ing­ful way. It is now in­cum­bent on you to ad­vise your at­tor­ney to pro­ceed with fil­ing your le­gal ac­tion in court.

To start court pro­ceed­ings, at­tor­neys pre­pare a claim form and state­ment of case. A claim form will note the re­liefs be­ing sought by the po­ten­tial claimant and, in some in­stances, a very brief back­ground. Your state­ment of case will in­clude the de­tails of the po­ten­tial claimant’s is­sue, to­geth­er with copies of doc­u­ments which the po­ten­tial claimant be­lieves sup­port their case. For in­stance, should your mat­ter be a tres­pass is­sue, then copies of deeds, sur­vey plans and pho­tographs may be nec­es­sary; in mat­ters such as monies due and ow­ing, copies of agree­ments or re­ceipts.

No­tably, the po­ten­tial claimant has a du­ty to set out his/her case, so that the po­ten­tial claimant should en­sure that all per­ti­nent in­for­ma­tion is in­clud­ed. The claim form and state­ment of case are then filed in the court and when processed, con­tain a court stamp with the date of fil­ing promi­nent­ly not­ed on it. The filed doc­u­ments must now be served on po­ten­tial de­fen­dants; in the case of a pri­vate ac­tion, doc­u­ments must be per­son­al­ly served. Should the ac­tion be against a com­pa­ny, then the doc­u­ments can be served via reg­is­tered post to the com­pa­ny’s reg­is­tered ad­dress.

There are in­stances where the po­ten­tial de­fen­dant, be­ing aware of the im­pend­ing le­gal ac­tion, avoids ser­vice. Should a po­ten­tial de­fen­dant be ac­tive­ly avoid­ing ser­vice, then an ap­pli­ca­tion can be filed in court seek­ing an or­der for al­ter­na­tive ser­vice. These ap­pli­ca­tions seek per­mis­sion from the court to ei­ther serve the doc­u­ments via an ad­ver­tise­ment placed in a dai­ly news­pa­per or by us­ing an email ad­dress. The ap­pli­ca­tion should be ac­com­pa­nied by an af­fi­davit in­di­cat­ing that ser­vice was at­tempt­ed but fu­tile and out­lin­ing the need for al­ter­na­tive ser­vice.

Once served with the court doc­u­ments, the po­ten­tial de­fen­dant, once he/she wants to be heard and/or in­tend to de­fend the claim, should file an ap­pear­ance in court. The ap­pear­ance form is usu­al­ly at­tached to the doc­u­ments served by the po­ten­tial claimant. The po­ten­tial de­fen­dant or his/her at­tor­ney should com­plete the ap­pear­ance form and file same. In the usu­al course of deal­ing, a pe­ri­od of eight days is giv­en by the court to have this form com­plet­ed and filed.

The Civ­il Pro­ceed­ings Rules give the nec­es­sary guid­ance on time­frames and pro­ce­dures for mat­ters filed in civ­il court. The rule is that any po­ten­tial de­fence should be filed with­in 28 days of ser­vice. These 28 days are in­clu­sive of the time for fil­ing an ap­pear­ance. A de­fence, much like a state­ment of case, must con­tain all the facts and copies of doc­u­ments which a po­ten­tial de­fen­dant in­tends to de­pend on.

A po­ten­tial de­fen­dant who has been served with a de­fence should seek le­gal ad­vice im­me­di­ate­ly. There are con­se­quences for fail­ing to file a de­fence or fil­ing a de­fence out­side of the time pre­scribed by the rules. Should the time ex­pire for the fil­ing of a de­fence, the claimant’s at­tor­ney can make an ap­pli­ca­tion for de­fault judg­ment. This ap­pli­ca­tion sets out be­fore the court the date of the fil­ing of the claim, ev­i­dence that the claim was served on the de­fen­dant and fur­ther states that the de­fen­dant has failed to de­fend him­self/her­self. The court is then re­quest­ed to make the nec­es­sary or­ders as re­quest­ed by the claimant due to the de­fen­dant’s fail­ure to de­fend him­self/her­self.

The de­fault judg­ment, once grant­ed, is an or­der of the court and can be en­forced. Not all mat­ters are such that a de­fault judg­ment can be filed. In cer­tain in­stances, the claimant will need to seek di­rec­tions for an ex-parte tri­al; mean­ing the de­fen­dant has re­fused to file a de­fence and the claimant is seek­ing to com­plete the tri­al and se­cure the nec­es­sary or­ders.

Should the claimant be able to se­cure ei­ther an or­der through de­fault judg­ment or an ex-parte tri­al, then the claimant can en­force. In mat­ters con­cern­ing mon­ey, the claimant can at­tempt to en­force through levy pro­ceed­ings or com­mit­tal pro­ceed­ings (con­tempt) through the court. In in­stances of tres­pass, the court mar­shals, to­geth­er with pri­vate bailiffs, can en­ter in­to prop­er­ties and re­move tres­passers. There are var­i­ous ways in which or­ders can be en­forced. This will be ex­plored in greater de­tail at a lat­er time.

Mat­ters that are filed in court be­come time sen­si­tive, as the Civ­il Pro­ceed­ings Rules pre­scribe time­frames for the fil­ing of doc­u­ments. Due to this, the fail­ure to file doc­u­ments with­in the nec­es­sary time can at­tract sanc­tions. Per­sons who are served with le­gal doc­u­ments should not take for grant­ed their abil­i­ty to re­spond when­ev­er they see fit, but ap­pre­ci­ate the need for im­me­di­ate ad­vice to en­sure that they have am­ple time to pre­pare their prop­er re­spons­es for fil­ing in court.

Pavi­t­ra Ramharack is head of cham­bers at Pavi­t­ra Ramharack At­tor­neys at Law and can be reached at ramharack_pavi­t­ra@out­look.com