Defence & Counterclaim

Filing Defence

The defendant who enters an appearance must deliver his defence and counterclaim if any, if he wishes to resist the claim. If he does not request a statement of claim, he must do so within 56 days of appearance.  In other cases, he must do so within 56 days of service of the statement of claim. These periods were formerly 28 days.

A defence may be delivered late with the consent of the other party or the court’s consent. The court is likely to consent, at least to a short and reasonable extension of time, unless this would prejudices the claimant.

Where leave has been given to a defendant to defend, he shall deliver his defence (if any) within such time as shall be limited by the order giving leave to defend or, if no time is thereby limited, within fourteen days from the order.

Defence Content I

The defence must set out the defence and/or counterclaim in accordance with the principles of pleading set out above A setoff or counterclaim is a claim arising from the same or related facts such that it should be disposed of in the same proceedings.

A counterclaim is effectively a claim by the defendant.  The courts will adjudicate on the the claim and the counterclaim in the same proceedings.

The denials in the Defence must be clear and go to the substance of the matter.  An evasive or technical denial of something in terms, which are technically true, but in substance misleading, are prohibited.  The denial must not evasive in relation to the  substance of the matter.

A defence may involve the denial of the facts alleged by the claimant. It may involve acceptance for the alleged facts and allege the existence of other facts, which may found a defence.

Where a defendant intends or proposes to offer expert evidence on any matter (including on any matter arising only in connection with a counterclaim) at the trial, the defence (or, as the case may be, the counterclaim) shall disclose that intention or proposal and state succinctly the field of expertise concerned and the matters on which expert evidence is intended or proposed to be offered. This rule does not apply to personal injuries actions.

Defence Content II

The defendant must raise the relevant facts which constitute a defence.  For example, a claim may be barred under the Statute of Limitations. There may be illegality, fraud, release, misrepresentation, et cetera.  I

t is not enough, for example, to deny that there is a contract, where reliance is placed on a specific defence which negates it. The defence must be pleaded.

In actions for a debt or liquidated demand in money a mere denial of the debt shall be inadmissible. In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact, e.g., the drawing, making, indorsing, accepting, presenting, or notice of dishonour of the bill or note.

No denial or defence shall be necessary as to damages claimed or their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted.

In actions) upon a contract express or implied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt); or on a bond or contract under seal for payment of a liquidated amount of money; or, a defence in denial must deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold, or sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed; in an action for money had and received, it must deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff.

Where the Court shall be of opinion that any allegations of fact denied or not admitted by the defence ought to have been admitted, the Court may make such order as shall be just with respect to any extra cost occasioned by their having been denied or not admitted.

Effect of Non-Denial

Where a fact is not denied in the defence, it is taken as admitted.  This does not apply to a person who is under age or of unsound mind.  It is not necessary to deny damages claimed or their amount, as these are deemed disputed unless expressly admitted.

As an alternative to a denial, a party may expressly not admit an alleged fact. In this case, the claimant or defendant must prove the relevant fact. A denial may occur by necessary implication from another denial.

If the defendant does not deny critical matters in his defence, it may be possible for the claimant to make an application for judgment, based on the uncontested facts as pleaded.

Specific Defences Pleading

Several defences must be specifically pleaded.  They include defences alleging the following

• Statute of Limitations;
• former proceedings;
• release;
• rescission ;
• former settlement;
• tender of performance;
• payment;
• fraud;
• privilege;
• equitable defences;
• settled accounts,
• setoff and counterclaim

Counterclaim

The counterclaim is a standalone claim.  It  may proceed even if the principal claim is dismissed or discontinued.If, in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with.

Where in any action a set-off or counterclaim is established as a defence against the plaintiff’s claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall in his defence, state specifically that he does so by way of counterclaim.

A third party can be added for the purpose of being a defendant of the counterclaim. Where any such person mentioned above is not a party to the action, he shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the same rules as are herein before contained with respect to the service of a summons, and every defence so served shall be indorsed in the specified form.

The plaintiff  shall add to the title of his defence a further title similar to the title in a statement of claim setting forth the names of all the persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action . He shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.

A party on whom the counterclaim has been served, typically the claimant, must deliver a reply to the counterclaim unless he admits the claim made.  The same principles apply as applied to a defence apply to the reply to the counterclaim.

The court may order on foot of an application, that the counterclaim be dealt with and tried separately.  An application may be made by any party to the counterclaims.

Reply

The claimant may by reply join issue on the defence and this operates as a  denial of allegations in the defence other than those expressly admitted.  It’s not necessary to deliver a further reply which denies statements of facts in the defence.  If the claimant wishes to plead new matters to defeat a defence, a reply is necessary to set them out.

Where reply is to be delivered, it must be done within 14 days of the defence or delivery of the last defence.  The period may be extended by consent or by the court.

The reply may deal only with matters raised by the defence.  New issues may not be introduced.  Claims of facts inconsistent with those claimed in the statement of claim are not permitted.

In principle, a defendant may issue a rejoinder to a reply.  However, this is not generally necessary.  The court rules provide that when pleadings are closed, the statements of fact in the last pleading delivered are deemed to be denied and put in issue.

If the claimant does not deliver a  reply or the defendant does not delivery or rejoinder within the relevant period, the pleadings are deemed closed.  The period may be extended by consent.