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What to do if you get Sued: Civil Procedure for Civilians

It can happen any day at any time to anyone. You might be at your office, you might be at home, you might even be grocery shopping – if a person comes over to you and hands you a document headed with any of the following titles: ‘Plaint’; ‘Claim Form’; or ‘Fixed Date Claim Form’; – you are being sued. 

For many people, their initial reaction to being handed a lawsuit is far from prudent. DO NOT throw it away. A lawsuit doesn’t disappear because you throw it away. Many before you have tried this and have lived to regret it because you cannot win a lawsuit which you do not read. DO NOT try to give it back to the process server. The court deems the lawsuit as properly delivered (i.e. served), once the document has been placed in your hand or at your feet, or otherwise left in your presence and brought to your attention. Even if you try to give it back, the law considers you to be in possession of it. DO NOT try to argue with or shout at or use profanity against the person who has just given you the lawsuit. I assure you, he or she is just doing their job and is not deserving of your wrath. Most times the process server has no clue about the details of the document he’s just handed you. More importantly, such emotional reactions will not solve your problem and may very well worsen it, if, in outrage, you begin spewing out information which could be used against you… in the presence of the process server… the same one who likely works for the lawyer of the person suing you. Not wise. That is not how you will win this fight.  In this situation you are far better off remaining calm and thanking the process server for his or her kind delivery of the document. 

Now that you’ve been served, it’s time to examine the suit. The first priority, after retaining a competent attorney, is to confirm which court you are being sued in. This will determine your next step. There are two main types of courts in which one can be sued in Jamaica: A Parish Court or the Supreme Court. The document should bear the court’s stamp, most often found in the top right corner of the first page. The stamp will specify the court. Note well that if the document does not have a court stamp on it then it is not an official lawsuit and someone may just be trying to scare or intimidate you. Having seen the stamp, if your lawsuit is titled “Plaint” and states that it relates to proceedings “Holden at [the address of a Parish Court]” -Sutton Street for example–, then you are being sued in a Parish Court. Your next step in this scenario is to, in consultation with your attorney, begin preparing your defence. You will also need to make arrangements with your employer for you to be able to attend court on the date stated in the Plaint. If, on the other hand, the document served on you is headed “Claim Form” or “Fixed Date Claim Form” followed by the words, “In the Supreme Court of Judicature of Jamaica” , then you are being sued in the Supreme Court and, having seen the stamp of the court at the top right of the document, the next step (after retaining a competent attorney) is for you to file in the Supreme Court an Acknowledgement of Service of the document on you.  Civil Procedure Rules 9.2(1) and 9.3(1) state that:

9.2(1) – “A defendant who wishes:

  1. to dispute the claim; or 
  2. to dispute the court’s jurisdiction, 

must file at the registry at which the claim form was issued, an acknowledgment of service… and send a copy of the acknowledgment of service to the claimant or the claimant’s attorney-at-law.”

9.3(1) – “The general rule is that the period for filing an acknowledgment of service is the period of 14 days after the date of service of the claim form.”

The Civil Procedure Rules govern the administration of claims in the Supreme Court and a smart Defendant ensures that he or she is in compliance with those rules. As such, once you have been served, you must immediately understand that your fourteen (14) days for filing your Acknowledgement of Service have began to run. Luckily for you however the Rules also state:

“8.16 – When a claim form is served on a defendant, it must be accompanied by  

  1. a form of acknowledgment of service (form 3 or 4); 
  2. a form of defence (form 5); 
  3. the prescribed notes for defendants…

This means that a blank Acknowledgement of Service form and form of Defence must be attached to the lawsuit for your use.  If you are able and wise, you will have already retained an attorney to assist you, and your attorney will take responsibility for ensuring the Acknowledgement of Service is dealt with.  But, even then, you must remember that you are still the one being sued and should, therefore, ensure you receive from your attorney a copy of the Acknowledgement of Service he filed and served on your behalf, so that you can confirm for yourself it has been done.  If (because you won’t or can’t engage him) you choose not to use the services of an attorney-at-law, find the blank Acknowledgment of Service in the envelope served on you, fill it out, file it, and serve it at the address for service set out in the document, all within two weeks of receiving the envelope from the process server.

Failure to file your Acknowledgement of Service gives a tactical advantage to the person suing you and makes your problem worse. This is because Rule 9.2 (6) states:

Where a defendant fails to file either an acknowledgment of service or a defence, judgment may be entered against that defendant…”

What this rule means is that after 14 days, the person suing you can go to the court and essentially say “Hi Court, I served him with the lawsuit but he clearly thinks he’s above the law because he still has not responded to the lawsuit. Please enter judgment against him”. Believe me, the last thing you need in this situation is for the court to think you’re above the law, because it will shortly make you aware of the true order of things by entering judgment against you in default of you having taken the steps required by the rules. If default judgment is entered against you, it means you have lost the lawsuit, and ‘by default’ is simply the worst way to lose a fight. To lose before you can even throw a punch? Shameful. Far better to give yourself a fighting chance and file your Acknowledgement of Service. After you’ve done that, the rules give you an entire six (6) weeks from the date you encountered the process server, to plan and prepare the top tier defence you are sure you have. Rule 10.3 states that:

The general rule is that the period for filing a defence is the period of 42 days after the date of service of the claim form.”

If you are unfortunate enough to have judgment entered against, and served upon, you in default of you filing the required response in time, then you have my sympathy. But there is hope if you have a good reason for having not responded to the claim within the timeline stipulated in law. If a default judgment is served on you, contact your attorney immediately because he/she may be able to use that good reason to have the judgment against you set aside, and put you back in a position of being able to fight, defend yourself, and (hopefully) win!

Jamaiq Charles is an associate at Myers, Fletcher & Gordon and is a member of the firm’s litigation department. Jamaiq may be contacted via jamaiq.charles@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.

This article is for general information purposes only and does not constitute legal advice.

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