Defence, Counterclaim & Reply

Question 1

Defence’s purpose

Answer 1

Respond to every allegation

Question 2

Admitting an allegation – consequences

Answer 2

No further evidence required – uncontentious matters should be admitted.

Question 3

Denying the allegation – consequences

Answer 3

D must give reasons (bare denials are not accepted).

Question 4

Require proof of the allegation

Answer 4

Where D is unable to admit or deny the allegation. Only appropriate where D cannot accept/deny.

Question 5

Failure to deal with an allegation in the defence

Answer 5

Deemed to be admitted unless it is a money claim.

Question 6

Couterclaim

Answer 6

D sets out its own claim which normally follows the defence.

Question 7

Reply

Answer 7

Last statement of case. It is served by the claimant (optional) as a response to D’s defence.

Question 8

When should a reply be filed?

Answer 8

Alongside the direction’s questionnaire.

Question 9

Default judgmebt

Answer 9

Judgment can be granted in favour of the claimant without trial if D has not responded to the claim by an acknowledgment of service or defence within the prescribed time limits.

Question 10

Conditions to obtain default judgment

Answer 10

1. Time has expired for acknowledgment/defence;
2. Claim has not been admitted/satisfied by D;
3. No application for summary judgment or strike out has been made by D.

Question 11

Difference between summary judgment and striking out

Answer 11

1. Default judgment is procedural and occurs where there is a failure to respond to the claim (the merits of the claim are not assessed).
2. Striking out relates to the statements of case which do not amount to a legally recognisable claim/defence.

Question 12

Difference between default judgment and summary judgment

Answer 12

1. Default judgment is procedural and occurs where there is a failure to respond to the claim (the merits of the claim are not assessed).
2. Summary judgment relates to cases which are weak on the facts and whereby the court might decide on an issue/case without a trial.

Question 13

When MUST the court set aside a default judgment?

Answer 13

When wrongly entered.
1. Time limit hadn’t expired;
2. Acknowledgment of service/defence had been entered;
3. Summary judgment/strike out applied for before judgment was entered;
4. D satisfied/paid the full claim or admitted and required time to pay.

Question 14

When MIGHT the court set aside a default judgment?

Answer 14

Judgment was correctly entered but:
1. D has a reasonable prospect of successfully defending the claim;
2. Some other good reason to allow D to continue i.e. public interest.

Note – Denton test relevant i.e. whether a breach is significant and substantial. Court might sed aside default judgment with conditions attached.

Question 15

If a statement of case is unclear, what should the receiving party do?

Answer 15

1. Apply for summary judgment;
2. Apply to strike out;
3. Ask for clarification;
4. Request for further information (best option).

Question 16

Define counterclaim

Answer 16

Additional claim separate to the main proceedings and generally made at the same time as the defence (follows from defence on the same document). Parties must be suing/be sued in the same capacity but the counterclaim can be on different facts.

Note – if not served alongside the defence court permission is required.

Question 17

Set-off

Answer 17

Partial or complete defence that extinguishes any claim up to the same amount as asked from D.

Pleaded in the last paragraph of the defence before the counterclaim.

Question 18

When can set-off be claimed?

Answer 18

1. SOGA claims – breach of implied term of quality/fitness for purpose in response to a demand for the price of goods.
2. Defective services in response to a demand for the price of services.
3. Equitable set-off – where there is a close connection between the claims so that it would be unjust to allow one but not the other.

Question 19

Defence to counter-claim

Answer 19

Mandatory statement of case where a defence has been raised (otherwise default judgment can be entered into against the claimant). No requirement to acknowledge service.

Deadline – 14 days from DDS of the counterclaim.

Question 20

Reply

Answer 20

Optional and final statement of case served by C if they wish to reply to facts alleged in response to the defence which were not included in the counterclaim.

Deadline – filed alongside the directions’ questionnaire.