Appearance & Defence

Appearance and Defence

The 2014 District Court (Civil Procedure) Rules provide for the filing of an appearance and defence for the first time.  Previously, it was generally sufficient for a respondent who wished to defend a claim,  to serve a notice of intention to defend, without setting out the grounds of defence.

A respondent who intends to defend civil proceedings must give by post to the claimant or his solicitor, an appearance and defence within 28 days of service of the claim notice. The appearance and defence is a single document in most cases. A copy must be filed with the District Court. A respondent on whom a civil summons which does not require the delivery of a written defence is served within the State is not required to serve or file such an appearance.

Where a claim notice or other document is served outside the State under the Rules, the time for filing of an appearance is five weeks from service, in the case service within the European Union and six weeks in the case of service outside the European Union, including the non-European Union territory of European Union States.

Were a civil summons which does not require the delivery of a written defence (or notice thereof) is served outside the State the respondent may notify his or her intention to appear and contest the claim by serving an appearance in the prescribed form on the claimant and filing a copy of his or her appearance with the Clerk within the period specified.

A defence must contain a statement that the respondent intends to defend the claim notice and state the name and address of the respondent and an address for service in the EU. If the respondent intends to defend by a solicitor, the defence must state the name of the firm and business address within the EU. The form contemplates that grounds of defence be set out.

Where a civil summons which does not require the delivery of a written defence or notice of it, is served outside the State, the respondent may notify his intention to appear and contest by appearance served on the claimant and filed with the Court within the period specified above.  A respondent on whom a civil summons which does not require delivery of a written defence is served within the State is not required to serve or file such an appearance.

Debt Claim

An appearance and defence in a debt case is required to be in a specific form. A defendant who intends to defend the debt claim must give or send by post, to the claimant or a solicitor for the claimant, an appearance and defence, not later than 28 days after the service of the notice.  He must file the appearance with the Clerk.

A defence in a debt claim must state whether the claim is disputed as to both liability and amount; disputed only as to amount and if so, what amount is admitted to be due; admitted in full and if so, whether the respondent proposes to pay immediately or requires time for payment.

Notwithstanding the above, a respondent who has entered an appearance and defence in a debt claim, is not required to serve and file a defence which complies with the requirements of the rules, unless an order has been made in the application for judgment on affidavit, refusing judgment and giving permission to defend, in which case, the respondent must serve and file a defence which complies with the requirements of the rule within 21 days after the order is made.

Unless the respondent requires further particulars of a statement of claim, the respondent to a claim other than a debt claim, who contests and disputes all or part of a claim must serve an appearance and defence on the claimant at the address specified.  He must file the appearance with the Clerk.

Requirements of Defence

The defence must state whether the facts stated in the statement of claim are admitted, denied or not admitted. A respondent who, in the defence, does not state whether a fact is admitted, denied or not admitted is deemed to admit that fact. A respondent who states that a fact stated in a statement of claim is denied must give reasons for denying the fact.  If the respondent intends to prove a fact different to that stated in the statement of claim, he must state with necessary particulars, the facts which the respondent intends to prove.

The respondent must state specifically with particulars, any fact or matter which makes the claimant’s claim not maintainable or if not stated specifically, might take the claimant by surprise or raise questions of facts not arising out of the statement of claim.  If the defence arises by or under any enactment, the defence must identify the specific provision relied on.

A defence must be divided into paragraphs, numbered consecutively.  Each fact or matter stated, insofar as practicable, must be contained in a separate paragraph. A defence must contain a list of all correspondence and other documents (other than those identified in the statement of claim) on which the respondent will rely at the trial, including the date if any and a brief description of each such document.

A respondent may not rely on the defence of tender unless, within seven days after the filing of the appearance and defence, he pays to the Clerk the amount alleged to have been tendered.

A respondent may serve an appearance and defence and file an appearance at any time after the service of a claim notice with the written consent of the claimant. An appearance and defence may not be served, except by permission of the Court, if the claimant has obtained a judgment in default of appearance.

Notwithstanding the above, a respondent who has required further particulars of the claimant’s statement of claim, may serve and file an amended defence not later than 28 days after receipt of further particulars of the claimant’s statement of claim or at any other time with the permission of Court.

A party suing or defending by a solicitor may change his solicitor and sue and defend in person.  A person suing in person may appoint a solicitor without an order.  Notice of change must be filed with the Clerk and served on the opposite party.

Further Documents

The following provisions do not apply to small claims unless the Court otherwise orders.  They do not apply to debt claims.

A respondent may at any time before delivery of a defence apply to the claimant in writing for copies of all documents listed in the statement of claim on which claimant relies or refer to in the statement of claim.  He may require the claimant to provide further particulars which the respondent asserts are reasonably necessary as to the specified matters in the statement of claim.

A claimant may within 28 days of delivery of the defence, apply to the respondent in writing, for copies of all documents listed in the defence on which the respondent relies or refers to in the defence.  He may require the respondents to provide further particulars which the claimant asserts are reasonably necessary.

If a party fails to comply with a notice requiring copies of listed documents or requiring further particulars within 21 days, the Court may make an order requiring the party to provide copies or the necessary particulars within a time specified.  The order may provide that on failure to do so, the claim or dismissed as the case may be, may be dismissed or struck out. An order must be sought on application made prior to the hearing of the claim notice.

A party who has required further particulars of another\’s pleading may serve and file an amended statement of claim or other pleadings within 28 days of receipt or at such other time as the Court allows with permission.

The provisions apply, with necessary modifications to a counterclaim and a claim by a third party notice.

Unless otherwise ordered, the costs of requesting particulars may be allowed, only as part of the successful party’s costs against the unsuccessful party where the particulars are certified as necessary by the Court.  The costs of replying to particulars may be recovered by the unsuccessful party against the successful party where the particulars are not certified as necessary by the Court.

Counterclaim

A respondent may set off or set up any right or claim the respondent alleges he or she has against the claimant as a counterclaim against the claim of the claimant, whether the respondent’s claim is a claim in damages or not. A set-off or counterclaim has the same effect as a cross-action, so as to enable the Court to determine both the claim and the counterclaim at the same trial.

A respondent may set off or set up a right or claim against the respondent as a counterclaim against the claimant\’s claim.  The Court may then determine both the claim and the counterclaim at the same trial.  The Court may, on the application of the claimant prior to trial, refuse consent to have them both heard together at the trial if the Court is of the opinion that they cannot be conveniently disposed of at the trial.

The Court may, on the application of the claimant before the trial, refuse permission to the respondent to avail himself or herself of the counterclaim if in the opinion of the Court, the set-off or counterclaim cannot be conveniently disposed of in the trial of the claimant’s claim, or ought not to be allowed.

The rules apply to a counterclaim as if the claimant were the respondent and the respondent were the claimant. A respondent who counterclaims must file and serve the counterclaim with his or her defence unless the Court otherwise permits.

Striking Out Claim or Defence

The Court may strike out any claim or defence if

• it does not disclose a cause of action or defence;
• it is scandalous, frivolous or vexatious;
• it may prejudice, embarrass or delay the fair hearing of the proceeding; or
• is otherwise an abuse of the process of the Court.

Equivalent provision applies to counterclaims and third-party claims.

The Court may at any stage in civil proceedings order any matter in any pleading which is unnecessary or scandalous, to be struck out.  It may order the cost of the application to be paid as between solicitor and client (full basis).

The Court may order a pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer in any case.  Where a claim or defence is shown to be frivolous or vexatious, the Court may order the claim to be stayed or dismissed or judgment to be entered as the Court considers just.

Third Party Claims

Where in any civil proceedings a respondent

• claims contribution or indemnity from a third party who is not already party to the proceeding,
• claims remedy or relief against a third party, connected with the original subject matter of the proceedings and substantially the same as some relief or remedy claimed by the claimant; or
• requires that any question or issue raised related to or connected with the original subject matter of the proceedings should be determined not only as between the claimant and respondent but also as between either or both of them and a third party,

then the respondent may within ten days of service of the claim form or notice (or other pleading in other cases) issue a third party notice.

A third party notice must contain a statement of the nature of the claim against the respondent and the nature of the grounds of the respondent\’s claim against the third party or the question or issue to be determined. The respondent must serve a copy of the claim notice or notice of application on the third party with the third party notice.  The respondent must within ten days of service of the claim notice, serve a copy of the third party notice on the claimant and file a copy with the Court Clerk. The general provisions as to service apply the third party notices.

A third party becomes a party to civil proceedings on service in the same way in the same way as if he had been sued in the ordinary way by the respondent Where the third party disputes the claim, the above provisions apply as if the third party notice was a claim notice. The third party must, within 28 days serve a notice of appearance and defence. The general provisions of the Rules apply with modifications.

Where a third party fails to deliver a defence, he is bound by any judgment, including a consent judgment or decision in the proceedings in so far as it is relevant to any claim, question or issue stated in the third party notice.

Where a third party notice has been served, the Court may at or after trial or if the proceedings are decided otherwise by the trial, at an application by motion, grant such judgment or order to or against any third party as the nature of the case requires. Where an order is made against a third party in favour of the respondent, execution may not issue against the third party without leave of Court until the judgment against the respondent has been satisfied.

There is provision for claims against persons who are already party to civil proceedings.  The criteria are similar to those applicable to a third party claim.  The respondent may serve a notice in prescribed form against the existing party in the same manner as if it was a third party. Persons may be served who are outside the district who would not otherwise be amenable to proceedings within the district for this purpose.

Two or more claims may be made in one originating document, whether alternatively or otherwise, as long as the claims are not mutually inconsistent or based on inconsistent allegations of fact. The Court may order separate trials if the matters cannot be conveniently tried together.

Other Parties

Where numerous persons have the same interest in one claim whether as claimants or respondents, one or more of those persons may sue or be sued, or may be authorised by the Court to defend in civil proceedings, on behalf of or for the benefit of all of the interested parties.  No person may be made a claimant without his or her consent.

Persons may be joined as respondents in one civil proceeding against whom any right or relief is alleged to exist, whether jointly, severally, or in the alternative. Where the claimant is in doubt as to the person from whom he is entitled to redress, he may join two or more respondents, so that questions as to which of them is liable and to what extent may be determined as between all parties.

No claim or cause is to be defeated by reason of failure to join particular persons as parties.  The court may deal with the subject matter of the controversy insofar as regards the rights and interests of the parties actually before the Court.

The court may, at any stage of in the proceedings, either with or without application of a party and on such terms as it considers just, make an order striking out the name of a party, who has been improperly joined, adding as a claimant or respondent the name of a party who ought to have been joined or whose presence before the Court may be necessary, in order to enable the Court to adjudicate and settle all the questions involved in the proceeding.

A person may not be added as claimant without his consent or in the case of a person under a disability, by or with the consent of a guardian etc.  A person whose names is added as respondent must be served in the manner applicable to proceedings generally.  Proceeding are deemed to have begun on the date of filing of the application to join the party or where the Court adds the part of its own motion on the date of the Court order, the Court may not add a respondent of its own motion without the constant of all claimants.