I sometimes hear people say they have received some sort of ‘notice’, or the sheriff delivered something at their house a while ago, but that they are simply ignoring it in the hope that it would disappear. The problem is that it is probably not going to disappear, and the next time they will hear anything about it, it might just be from the sheriff knocking on the door with a warrant to attach their assets. This is something that nobody wants.

So, what should you do when you receive a notice or a summons?

1.    What a summons is and making sense of it?

Understanding a summons is actually quite simple. A summons is the first court document in litigation, a court case, to be served by the sheriff. It is usually preceded by a letter of demand through the post, which people often refer to as ‘a lawyer’s letter’. The summons is important, because it gives you all the information you need and explains to you what you need to do. The heading of the summons will tell you in which court the matter is, what the case number is, and who the parties are. You can check that you are indeed the Defendant, and that they have not perhaps served the wrong person.

The summons will also set out what the case against you is. Sometimes it will be a brief explanation in the summons itself, and sometimes it will be a more detailed document, attached to the summons, aptly called the ‘Particulars of Claim’.

Furthermore, the summons will tell you what you need to do: you need to file at court and serve on the Plaintiff* a notice if you intend to defend the matter (called a ‘Notice of Intention to Defend’), within 10 court days (which is often the same as business days, 15 December to 16 January are not considered to be court days for this purpose) of the receipt of the Summons. It will also tell you that you need to file and serve your answer to the Particulars of Claim within 20 court days after the Notice of Intention to Defend has been filed, if there is a Particulars of Claim annexed to the summons.

The summons will also have a space where you can consent to the judgment. And importantly, the summons will contain the details of the Plaintiff’s attorneys.

It is important to note that it is a criminal offence to avoid a summons being served on you. You therefore cannot hide from the sheriff or have someone lie on your behalf with regards to your whereabouts. Rather accept the summons and then deal with it properly.

2.    Ignoring a summons

The worst thing you can do after being served with a summons is to ignore it. People generally think that because they hear nothing for 3 months, the issue has disappeared. This is however not the case. If you do not respond to a summons, you will not hear anything about the matter again until the sheriff arrives at your door with a Warrant of Execution! You are hearing nothing, not because it has died a natural death by ‘the blind eye’, but probably because the attorneys submitted a request for default judgment, and they are waiting for the court to grant it.

Once they have the default judgment, they are in a position to enforce the judgment by attaching your assets, to be removed and sold in execution, calling you for a financial enquiry, et cetera.

All they need for obtaining judgment against you is to send the letter of demand and serve the summons. If you fail to respond within the prescribed 10 day period, the court will, subject to certain criteria, grant a judgement against you as you have defaulted by not responding!

So how should you inform them that you intend to defend the matter?

3.    Avoiding judgment and defending the matter

The summons has a Notice of Intention to Defend incorporated in the document. You can therefore complete it, make 2 copies, take one the original court and have it stamped and filed (the clerk /registrar of the court should assist you), and take one to the Plaintiff’s attorneys or the address on the summons which is nearest the court. Make sure that the copy you will keep is stamped by the court and the Plaintiff’s attorney. You have to do this within 10 court days from the day that you received the summons.

If you missed the 10 days mark, do it in any case – it is likely still be possible to avoid default judgment. You can even email or fax the Notice to the attorneys if you will only be able to deliver the notice a few days later. However, you will still have to deliver the Notice itself, and you must always file the Notice at court.

You can also contact an attorney and instruct them to act on your behalf in the matter, and they will send the Notice of Intention to Defend. Ensure you are given an indication of the costs of instructing the attorneys, as the cost of litigation can sometimes accumulate quickly and give you an unpleasant surprise.

Always consult with an attorney if you think you do have a defence, if the matter is complicated, or if it is for a large claim.

If you know for sure that you do not have any defence to the claim, it will not help to defend it. Consult an attorney to ascertain whether you might have a defence, and whether it is worth it to pursue it. Remember that whoever loses the case will have to pay the legal fees of the other side.

4.    Finding out more and understanding more

The sheriff is an unbiased officer of the court, with the duty to explain the summons to you. Ask him what is required of you, and ask him to explain the process to you.

You can also phone the attorney for the Plaintiff and ask that they explain what is going on. The Plaintiff’s attorneys’ details are usually at the end of the summons. If there are details of two attorneys, first phone the attorneys whose details are listed first, before you try the correspondent attorneys, whose address will be preceded by ‘c/o’, meaning ‘care of’. Always confirm in writing whatever is discussed over the phone.

Especially if the summons is for a debt that you know you owe and have no defence, it can help you avoid having to pay enormous legal costs of the Plaintiff in recovering the debt, if you phone the attorney and discuss the matter. It is in both parties’ best interest to avoid litigation and resolve the matter outside of court, if possible.

You can also possibly avoid judgment being taken against you, by being proactive in the matter.

Whatever you do, do not ignore a summons.

 

‘Plaintiff’ is the person that has a claim and starts the court proceedings. ‘Defendant’ is the person against whom the claim is.

 

Sanmari Maritz