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Matthew J
Matthew J, Solicitor
Category: UK Law
Satisfied Customers: 671
Experience:  4 y PQE (Partner) - Commercial / Residential Property & Property and Civil litigation experience
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The defendant has served his defence out of time i want to

Customer Question

The defendant has served his defence out of time i want to send the defence back unopened is this okay?
Submitted: 2 years ago.
Category: UK Law
Expert:  Matthew J replied 2 years ago.
HI I will try and help
Expert:  Matthew J replied 2 years ago.
Have you applied for summary judgement for failure t file the defence?
Customer: replied 2 years ago.

No the defendant has done that. But he has served me four days late and I want to send the defence back unanswered and apply for default judgment as I have suffered enormous prejudice from years of their failures in service. this is the last straw now. If i send it back unopened will that have an impact on me? And wht is the time scale for replying to their defence? is it from the time it SHOULD have been served or from the time it WAS served?

Expert:  Matthew J replied 2 years ago.
Ok so first thing is that a Defence is deemed served when received. It doesnt matter if you open the deference or not, the Defendant will be able to state when they put it in the post and therfore when it was eventually received by you (i.e if first class post them deemed served 2 days later). The fact that it was served late however is contrary to the CPR rules and you can apply for summary judgement notwithstanding that you have received it. It would be up to the Court to decide whether to allow the Defense to be relied on, and would have to weigh up the prejudice caused to you versus allowing justice to be done and seen to be done. There will probably have to be a hearing to cover this question.
Expert:  Matthew J replied 2 years ago.
I hope this helps. Do ask any follow up questions. If you are happy then please leave positive feedback so I can be paid for my time. The question wont close and if you think of any questions later down the line you can come back to the question and post again