13. Defence and Counterclaim PDF

Preview

Summary

Defence and Counterclaim...

Description

Defence and Counterclaim Time Limits for Defence CPR 15.4 (a) 14 days after the Particulars of Claim have been served (b) Where D acknowledged service, 28 days after Particulars of Claim have been served Example:     

Particulars of Claim (DX) Deemed date of service Acknowledgement of Service Defence due Judgment (in default)

30 October 1 November 4 November 29 November 30 November

Responding to a Particulars of Claim (Appendix C(6) flowchart) 1. Ignore proceedings (don't do this) If the defendant fails to file an acknowledgement of service or defence within the relevant time, the claimant may obtain judgment in default on application to the court. 2. Admit the claim (CPR 14) (1) in whole (Table 1, Appendix C(7))  if specified pay the full amount  if unspecified, make no offer of payment and allow court to enter judgment for damages to be assessed (2) in part (Table 2, Appendix C(8))  if specified, offer to make part-payment  if unspecified, make an offer to pay a sum of money. If claimant doesn't accept, allow court to enter judgment for damages to be assessed 3. Acknowledge the Particulars of Claim within 14 days (CPR 10) The period for acknowledging the particulars of claim (CPR 10.3(1)): (1) Defendant served with claim form which states that particulars of claim are to follow, 14 days after the service of the particulars of claim (2) Defendant served with claim form with the particulars of claim, 14 days after service of the claim form. How to acknowledge service (Form N9) 1. State full name of the defendant  If partnership, acknowledge in name of partnership (PD 10, para 4.4)  If registered company, person holding senior position may sign the acknowledgement (PD 10, para 4.2) 2. State defendant's address for service, including postcode (residence, business or solicitor's address if service form signed by solicitor); 3. State whether the defendant intends to defend all of the clam, part of the claim, or wishes to contest jurisdiction. 4. File the completed acknowledgement of service form at the court where claim was issued 4. File Defence within 14 days, or 28 days where acknowledgement sent (CPR 15.4(1)) How to file a defence: (i) Specified claim - Form N9B (or drafted by a solicitor as a separate document). (ii) Unspecified claim - Form N9C (or drafted by a solicitor as a separate document).  defence is filed at court  copy must be served on the other parties

Drafting the Defence

  

Appendix B(4) - template for defence Appendix B(5) - template for defence and counterclaim Appendix D(5) - example defence and counterclaim

Heading (PD7A para 4.1)  Name of court (top left)  Claim number (top right)  Name of parties (centre of page), with their status (claimant/defendant) in the right-hand margin  "DEFENCE" below the names of the parties  Below "DEFENCE" put the following: "1. In this Defence references to paragraphs are unless otherwise indicated to paragraphs of the Particulars of Claim." Format  Where the defendant is an individual, they must include their date of birth in the defence unless already stated in the acknowledgement (PD16 para 10.7)  Numbered paragraphs (PD5A para 2.2(5))  All numbers expressed as figures (PD5A para 2.2(6) )  Be as brief and concise as possible and confine the defence to setting out facts and not the evidence (QBD guide para 5.6.4.1)  Facts should be set out in chronological order so far as possible QBD guide para 5.6.4.4  Continue with same definitions as POC QBD Guide para 5.6.4.9 Content  Go through each paragraph in the particulars of claim on a point by point basis and state which allegations are (CPR16.5(1)): (1) denied (a) state the reason why they are denied; and (b) if putting forward a different version of events, state that version (CPR16.5(2)) (2) unable to admit or deny [because of lack of knowledge] (3) admitted 

Deal with every allegation as a defendant who fails to deal with an allegation is taken to admit it (CPR 16.5(5)) except where he has set out the nature of his case in relation to that allegation, or where it amounts to money and he has not expressly admitted it, then both of these require proving (CPR 16.5(3) and (4))

Ending  It must be signed in the law firm's name (PD5A, para 2.1), so after the last numbered paragraph : "Dated... [date] 

[NAME OF SOLICITOR]"

Must be verified by a statement of truth (PD16, para 3.4): "[I believe] [the defendant believes] that the facts stated in this defence are true"



Must contain defendant's address for service if no acknowledgement of service filed (CPR 16.5(8)) "The Defendant's solicitors are [name] of [address] where they will accept service of proceedings on behalf of the Defendant"



At the very end of the document: "To the Court and the Claimant"

Defence and Counterclaim

(CPR 20)



  

Where the defendant counterclaims, the defence and the counterclaim should form one document (i.e. if the last numbered paragraph of the defence is 5, the first numbered paragraph of the counterclaim should be 6 - PD20, para 6.1) Use the title "DEFENCE AND COUNTERCLAIM" Below this, put the subheading Defence and then draft the defence as above. When you've finished putting forward the defence, put the subheading "Counterclaim" and then draft the counterclaim as though it were the particulars of claim.

NB: If you wish to file a counterclaim having already filed a defence, court permission will be required. Reply to counterclaim  

The claimant is under no obligation to reply to a counterclaim, and is not taken to admit anything in the defence and counterclaim by virtue of not filing a reply (CPR 16.7(1)) If he decides to, he must file the reply when he files his allocation questionnaire and he will also need to serve the reply on the other party (CPR 15.8)...