Pleadings Issues

Statement of Claim

When the procedure is by special summons or summary summons, no statement of claim or other pleadings shall be delivered, except by the order of the court.  The court may order such statement of claim or other pleadings as appears to be requisite.

Where the procedure is by plenary summons, the claimant may deliver the statement of claim with the plenary summons or notice in lieu thereof, or at any time within 21 days of service. Where a defendant enters an appearance to a plenary summons and at the time of entering such appearance  gives notice in writing to the claimant or his solicitor that he requires the statement of claim to be delivered to claimant, then if he has not already done so, the claimant shall deliver a statement of claim within 21 days of receipt of such notice.

Subject to the above rules, where there is no appearance, no statement of claim need be delivered when the defendant fails to appear or fails to serve such notice as is mentioned above.  Where the claimant delivers the statement of claim without being required to do so or the defendant unnecessarily requires such statement, the court may make such order as to costs thereby occasioned, as shall be just, if it appears that the delivery of the statement of claims was improper or unnecessary.

Where a statement of claim is delivered, the claimant may therein alter, modify or extend his claim without any amendment of the endorsement on the summons.  Every statement of claim shall state specifically, the relief which the claimant claims either simply or in the alternative.  It shall not be necessary to ask for general or other relief which may always be given as the court may think just.  The same rules apply to any counterclaim by the defendant in his defence.

Particular Cases

Where a claimant seeks relief in respect of several distinct claims, causes of complaint on separate and distinct grounds, they shall be stated insofar as may be separately and distinctly.  The same principle applies to separate and distinct grounds of defence and counterclaim.

Where the defendant in a probate action has appeared, the claimant shall not be bound to deliver a statement of claim until eight days after the defendant has filed his affidavit as to scripts, (i.e. testamentary documents such as will, et cetera.)

In every case where the cause of action is a stated or settled account, the same shall be alleged with particulars.  In every case in which a statement of account is relied on by evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings.

In probate actions where the claimant disputes the interest of the defendant, he shall allege in a statement of claim that he denies the defendant\’s interest.  In such case, both parties may with and subject to permission of the court, produce evidence in the same trial of their interests respectively.  After delivery of the statement of claim, the interest of the party to whom it has been delivered shall not be disputed by the claimant unless by leave of court.  In interest causes the pleading of each party must show on its face that no other party exists having a prior interest to the claimant.

Defence / Counterclaim

Where a defendant enters in appearance to a plenary summons, he shall deliver his defence and counterclaim if any.  In case he does not by notice require a statement of claim, he must do so within 28 days of the entry of appearance. In any other case, he must do so within 28 days after the date of delivery of the statement of claim or from the time limited for appearance whichever shall be later.

For soon as any party has joined issue upon the below pleadings of the opposite party, simply without adding any further or other pleadings to it, or has made default in delivering a reply or later proceedings, the pleadings between the party shall be deemed to be closed.

Where relief has been given to the defendant to defend in the case of summary proceedings, he shall deliver his defence within such time as should be limited by the order giving leave to defend.  If no time is thereby limited, it is to be delivered within 14 days of the order.

In an action for a debt or liquidated, a mere denial of the debt shall be inadmissible. In actions on a bill of exchange, cheque or promissory note, a defence in denial must deny some matter of fact, for example, the making, accepting, presenting a notice of dishonour of the bill or note.

In actions for recovery of a debt or liquidated sum based on a contract or contract under seal, or bond, a defence in denial must deny such matters of fact from which the liability of the defendant is alleged to arise, are disputed.  For example, where goods are bought and sold or sold and delivered, the defence may deny the order, contract, delivery or the amount claimed.

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

If either party wishes to deny the right of the other party to claim as executor or trustee, whether in bankruptcy or otherwise or as representative in other alleged capacity or the alleged constitution or by a partnership, he shall deny the same specifically.

Where the court is of the opinion that any allegation of fact denied or not admitted by the defence ought to have been admitted, it may make such order in respect of extra costs occasioned by the denial or non-admission, as it shall see fit.

Counterclaim

Where the defendant seeks to rely on grounds supporting a right of counterclaim, he shall in his defence state specifically that he does so by way of counterclaim.  Where the defendant by his defence sets up any counterclaim which raises questions as between himself and the claimant and other persons, he may add to the title of defence or further title similar to the title in the statement of claim setting forth the names of all the persons who if such counterclaim were to be enforced in 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 in which he is required to deliver to the claimant. Where the persons mentioned above are not a party to the action, he may be summoned to appear,  by being served with a copy of the defence.  Such service shall be regulated by the rules of service of a summons and the defence so served is to be endorsed in the prescribed form.

If a person not a defendant in the action is served with a defence or counterclaim as above, he shall appear if he had been served with a summons to appear in the action.  A person named in a  defence, as a party to a counterclaim thereby made, may deliver a reply within the time in which he might have delivered a defence to a statement of claim.

Where the defendant sets up a counterclaim, then if the claimant or other person named in the manner above as party to such counterclaim contends that the claim thereby made ought not to be disposed of by way of a counterclaim, but in independent action, then he may at any time before reply, apply to court for an order that such counterclaim may be excluded.  The court may on hearing of such application may make such order as it shall consider just.

If in any case in which the defendant sets up a counterclaim, if the claimant or any other person named in manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, he may at any time before reply apply to the Court for an order that such counterclaim may be excluded, and the Court may, on the hearing of such application, make such order as shall be just.

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 judgement 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.

Some Particular Cases

In probate actions, the person opposing the will may in his defence give notice to the party setting up the will that he may insist upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side unless the Court shall be of opinion that there was no reasonable ground for opposing the will.

In every case in which a party shall plead the general issue intending to give the special matter in evidence by virtue of any statute, he shall insert in the margin of his pleadings the words “by statute”  together with the year in which the statute in which he relies was passed, and also the section of the statute.  He shall specify whether the statute is public or otherwise.  If he does not do so, the defence shall not be taken to be pleaded by virtue of the statute.

No plea or defence shall be pleaded in abatement.

No defendant in an action for the recovery of land upon the title, who is in possession by himself or his tenant, need plead his title unless his defence depends on an equitable estate or right or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. Except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff\’s statement of claim. He may, nevertheless, rely upon any ground of defence which he can prove except as hereinbefore mentioned.

In case of such an action being brought by some or one of several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener in possession may set forth in his defence that he is such joint tenant, tenant in common, or coparcener, and defends as such, and that he admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property, and upon the trial of such issue the additional question of whether an actual ouster has taken place shall be tried.

A person who has appeared in an action for the recovery of a holding, agricultural or pastoral, or partly agricultural and partly pastoral, in its character, for non-payment of rent, and has limited his appearance, shall deliver his defence (if any) within thirty-one days after his appearance.

Amending Pleadings I

The court may at any stage in the proceedings, allow either party to alter or amend his endorsement or pleadings in such manner and on such terms as may be just.  All such adjustments shall be made as are necessary for the purpose of determining the real questions in controversy between the parties.

The claimant may without leave, amend a statement of claim whether endorsed on the summons or not,  once at any time before the expiration of the time limited for reply or before replying or where no defence is delivered, at any time before expiration of four weeks from the appearance of the defendant who shall have last appeared.

A defendant who has set up any counterclaim or set off, may without leave amend such counterclaim or set off at any time within six days from the delivery of the reply or the expiration of the time allowed for delivery, whichever shall be shorter.

Where any party has amended his pleading, the opposite party may within eight days of delivery of the amended pleading, apply to the court to disallow the amendment or part of it.  The court may if satisfied that the justice of the case requires it, disallow the same or allow it subject to terms as to costs or otherwise as may be just.

Where any party has amended its pleadings above, the opposite party shall plead to the amended pleading or amend its pleading within the time, which he then has to plead or within eight days from the delivery of the amendment whichever is longer. In case the opposite party has pleaded before delivery of the amendment and does not plead again or amend within the time above, he shall be deemed to rely in his original pleading in answer to such amendment.

In all cases not provided by the above rules, application for leave to amend may be made by either party to the court before or at the trial of the action.  Such amendment may be allowed on such terms as to costs and otherwise, as may be just.

Amending Pleadings II

If a party who has obtained an order for leave to amend, does not amend accordingly within the time limited for that purpose by the order, or if no time is limited within 14 days from the date of the order, such order to amend, shall on the expiration of the time limited or such 14 days as the case may be become void,  unless time is extended by the court.

An endorsement or pleading may be amended by written alternations in the copy delivered and by addition on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than  144 words in one place or are so numerous or of such nature that the making of them in writing would render the document difficult or inconvenient to read.  In either of these cases, the amendment must be by delivering the documents as amended which shall be printed when printing is required.

Whenever the endorsement or pleading is amended, the same when amended shall be marked with the date of the order, if any, under which it is amended and of the date of such amendment. It shall be stamped” Amended today pursuant to an order of [                                  ]”.

Whenever any endorsement or pleading is amended, such amended document shall be delivered to the opposite party within the time allowed for amending the same.

Correcting Minor Errors

Clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission may be corrected at any time by the court and motion without appeal.

The court may at any time and such terms as the cost otherwise as the court may think fit, amend any defect or error in the proceedings and all necessary amendment shall be made for the purpose of determining the real question or issue raised by the parties or depending on the proceedings.  The costs occasioned by any amendment shall be borne by the party making the same unless the court otherwise orders.

Clerical mistakes in judgments and orders arising from any accidental slip may be corrected without an appeal.

With the parties  consent and with the approval of the court by the registrar

• an application to the registrar in writing of any party to which a letter of consent to the correction from each party shall be attached;
• or in receipt by the registrar of letters of consent from each party.

They may be corrected where the parties do not consent, by the court on application to the court by motion and notice to the other party or by on the listing of the proceeding by the court or the registrar on notice to each party.