Written Pleadings III

Question 1

What is the form for defences?

Answer 1

There is no form for the defences, only guidance for content of defences is included in OCR: RCS, r.9.6: where it says defences shall be in the form of answers, numbered paragraphs corresponding to articles of condescendence and shall have appended a note of the pleas in law of the defender.

Question 2

What is the function for the defences?

Answer 2

The function of the defences is to answer the pursuers case and plead any positive lines of defence.

Question 3

What is rule 9.6 OCR?

Answer 3

Defences

(1) Where a notice of intention to defend has been lodged, the defender shall (subject to paragraph (3)) lodge defences within 14 days after the expiry of the period of notice.
(2) Subject to rule 19.1(3) (form of defences where counterclaim included), defences shall be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and shall have appended a note of the pleas-in-law of the defender.
(3) In a family action (within the meaning of rule 33.1(1)) or a civil partnership action (within the meaning of rule 33A.1(1), neither a crave nor averments need be made in the defences which relate to any order under section 11 of the Children (Scotland) Act 1995.

Question 4

What is the heading in defences?

Answer 4

The heading and the instance are simply taken from the initial writ as Determined by the pursuer. Although the defender may challenge the court’s jurisdiction or the designation of the parties e.g. pursuer’s title to sue.

Question 5

How do you challenge the jurisdiction in the initial writ?

Answer 5

If you do wish to challenge jurisdiction must do at the outset, if not you will be taken to have consented to the court’s jurisdiction.

Question 6

What is the description in defences?

Answer 6

Is “Defences”.
“Defences for the first defender” (or as the case may be). (Must indicate there where there is more than one defender).
If the defences are for just one defender you should identify which one.
The defences in family actions may contain craves although this is not usual.
In ordinary actions there is no crave for the defences.

Question 7

How do you respond to the pursuer’s averments in the initial writ?

Answer 7

Introduction and general approach.

1. Answer the pursuers case by responding to each of the pursuer’s averments in formulaic way - must do this first.
2. Set out any factual propositions which explain the defenders lack of knowledge or explain away the pursuer’s case and plead any positive line of defence which you need to pursue in order to succeed. e.g. Aver in breach of contract case that the pursuer himself was in breach of contract and cannot enforce this due to the principal of mutuality or in delictual action you may need to plead a case of sole fault or contributory negligence in delict.

Question 8

How do you begin drafting defences?

Answer 8

Need to take statement from defender and obtain relevant information.
The pursuer’s initial writ will contain a number of articles of condescendence and the defences must be set out in corresponding numbered paragraphs to this.
The defender must go through each article of condescendence in turn nd sentence by sentence explain which averments are admitted, which are not known or not admitted and which are denied by him

Finally, there will be averments that you deny - by this stage you will have been through article of condescendece twice so remaining averments are denied. Must say (“quoad ultra (everything else) denied”) this is very important as if you fail to respond then if it is within your knowledge then you are deemed to have admitted it.

Question 9

What happens if you have information which supports the pursuer’s averment?

Answer 9

If there is information which compels you admit an averment then you must admit it. If you do not know from your papers whether it is true or not then it will be not known and not admitted.

Question 10

Why are italics important?

Answer 10

Also put the words in italics since it is a latin phrase and it catches the eye and marks the end of your formal response to the pursuer’s case and beginning of the substantive case.

Question 11

What are the general responses?

Answer 11

“Admitted”. That
“Not known and not admitted”. That
Denied that
Explained and Averred that

The general denial (“quoad ultra (everything else) denied”).

Question 12

What is the importance of the general denial?

Answer 12

Must say (“quoad ultra (everything else) denied”) this is very important as if you fail to respond then if it is within your knowledge then you are deemed to have admitted it.

Question 13

What happens if there is only one pursuer and one defender?

Answer 13

If there is only one pursuer and one defender then facts admitted become facts proved on the case and exclude the leading of evidence on the point. If there is more than one defender then it is conclusive on that point as between the pursuer and defender. You can delete admissions prior to record being closed but your witnesses can be cross examined about that change of position. Once the record is closed then admissions are conclusive against the party which has made them. Although admissions are of course read in context, including the context of any explanation.

Question 14

What is the effect of failure to make appropriate admissions?

Answer 14

Failure to make appropriate admissions may sound in expenses and if a party admits a fact in evidence which is denied in the pleadings this may adversely affect his/her credibility.

Question 15

What are implied admissions?

Answer 15

OCR - RCS, r.9.7. States that “every statement of fact made by a party must be answered by every other party, and if such statement within the knowledge of another party is not denied by another party that party should be deemed to have admitted that statement of fact” this reflects the ruling of LP and Lord Mackenzie in

Question 16

Central Motor Engineering Co v. Galbraith 1918 SC 755

Answer 16

it has sometimes suggested that the rule is that tany unanswered statement of fact is deemed to be admitted. This probably goes too far because it only extends to facts within your knowledge. The effect of not knowing si that you are putting your opponent to proof of that fact. A denial also puts your opponent to proof of the fact and allows you to put forward your own version of events to that particular fact. Safest course of action is to answer all the statements of facts made by your opponent.

The rule requires you to deny some facts which but for the existence of the rule are not known or not admitted. The main import of the rule is that you should be ready to explain why any rule is not known or not admitted particularly when it is something you would be expected to be liable to admit or deny.

Question 17

What is you wish to only admit part of an averment?

Answer 17

It is vital that you respond to the precise averment made by the pursuer. Do not try to paraphrase the pursuer’s averment to suit your case or if it is something you feel you ought to admit but cannot due to its formulation. In this case deny the pursuer’s averment and set out your own case as below.
It is possible to admit part of a sentence and deny the remainder.
This highlights the importance in drafting the initial writ of keeping sentences short.
If necessary, admit part only of the averment.
Abstract example.

A, B C and D
Admit A and D
Not know and not admitted that B
And C coevred by general denial

Question 18

What does ‘believed to be true’ mean?

Answer 18

Response to a fact where strictly speaking the defender does not know whether it is true or not
But for the purposes of the case is ready to accept it as true either because it is consequential or for the purposes of the case does not wish to put the pursuer up to prove the fact

Purpose and effect - same as an admission. If you wish to respond in averment say: believed to be true that (repeat material averment)

Question 19

Abstract example where sentence 2 is believed to be true.

Answer 19

“Admitted that 1. Admitted that 5. Admitted that 9. Believed to be true that 2. Not known and not admitted that 2. Not known and not admitted that 6. Not known and not admitted that 10. Quoad ultra denied” or

“Admitted that 1. Believed to be true that 2. Admitted that 5. Admitted that 9. Not known and not admitted that 2. Not known and not admitted that 6. Not known and not admitted that 10. Quoad ultra denied.”

This response could either be placed in admission after sentence 1 or after all the other admissions but before the not knowns and not admitteds on the basis that although equivalent to an admission it is a different form of response.

Question 20

What does defender’s explanation do?

Answer 20

Explanation may explain your position and/or qualify any partial admission and/or explain the defender’s lack of knowledge.
Having responded to each averment must put forward each explanation in order to explain defender’s lack of knowledge of any matter and set out defence which goes beyond bare denial of pursuer’s factual case. To do this, after the words Quoad ultra denied begin positive averments with the sentence:
“Explained and averred that….”Followed by narrative of events constructed in a similar way to averments in the writ.
The phrase should appear only once in each answer - indication that you have moved to setting out your own case
It is not possible to be specific about content of explanation as content in given case depends on substantive law in that area and facts of case. The explanation should however follow a logical structure.
Content will depend on the facts of the case and the underlying law.

Question 21

How do rules about relevancy and specificiation apply to defences?

Answer 21

Rules about relevancy and specification apply to the defences as they do to the initial writ.
There are two main problems which bedevil this area of pleading - parties not brave enough to make admissions they should responsibly make however if there is information which compels you to admit a fact then you must admit it This could have adverse consequences on expenses.

By denying you are making a positive assertion that that statement is wrong - this can be Consequences of lack of candour in defences - Lack of candour is entitle to the pursuer to proof dangerous to second guess whether a responsible pursuer in fact has a solid basis for the denial of averments.

Bare denial not treated as irrelevant per se

Question 22

Gray v. Boyd 1996 SLT 60

Answer 22

inner house said that a defence which based solely on the word “denied” could not be said to be irrelevant and that the previous authorities which had treated such lack of candour as an implied admission were incorrectly decided but cf. Urquhart v. Sweeney 2006 SC 591 — obiter comments)

Question 23

What does a denial permit?

Answer 23

If the lack of candour about a particular matter is inconsistent with another aspect of defence including bare denial of some other matter then the defence may be irrelevant in that the pursuer does not have fair notice about what the defence actually is.

A denial allows you to put forward your own version of events to that particular fact. The lack of candour in response may cause problems in expenses but the real problems lie elsewhere. The rules of pleading apply equally to defences and initial writs. So in the lack of any substantive evidence you will not be allowed to lead evidence/

Question 24

What is the order of pleas in law for defences?

Answer 24

Same principles for pleas in law in the initial writ.
Customary order is slightly different in order of initial writ:
1-5. Preliminary pleas relating to jurisdiction, competency, title to sue, forum non conveniens, and lis alibi pendens ( 5 in this order) It can result in action being disposed of without proof.
6. General plea to the relevancy (6th) “the pursuer’s averments being irrelevant et separatim being lacking in specification, the action ought to be dismissed).
7. Specific plea to the relevancy (“the pursuer’s averments anent fault on the part of the defender being irrelevant et separatim being lacking in specification, the averments ought not to be admitted to probation and the action ought to be dismissed).
8. Pleas to the merits of pursuer’s case (e.g. “the pursuer’s averments in fact, insofar as material, being unfounded in fact, decree of absolvitor should be pronounced”). The reference to insofar as material means insofar as relevant and specific. Decree of absolvitor absolves the defender from blame.
9. Pleas to substantive defences (e.g. “the accident having been caused by the sole fault of the pursuer, the defender should be assoizied”).
10. Pleas regarding mode of proof (no longer applicable).
11. Pleas relating to quantum (e.g. “in any event, the sum sued for being excessive, decree should not be granted as craved”).
12. Pleas relating to any counterclaim for the defender.

As with the initial writ if defences are properly draft a person reading should have no difficulty understanding why the defender says the court should dismiss the action or grant decree of absolvitor.

Question 25

Miscellaneous Issues

Answer 25

Signature - the defences are signed as a matter of custom. The defences should contain the agent’s details.
Multiple defenders - each defender will have to respond to any substantive case advanced by pursuer or other defenders. Respond to pursuer in normal way and say “with reference to first pursuer’s averments”
Reference to documents, statutory provisions, etc. by the pursuer - it is common for defender to say the document is referred to for its term which no admission is made. The effect acknowledges the existence of the document but reserve opposition of its meaning. Be careful if maintain doc is a forgery.
Counterclaims - competent for defender to advance counterclaim of pursuer if chapter 13 of OCR are met. The rules of pleading as same as drafting the initial writ except the defender is pursuing and pursuer is defending.

Question 26

What is the effect of adjustments?

Answer 26

Combined effect of RCS, rr.9.2 and 9.8 - is an 8 week period of adjustment.
In ordinary action there is no form of “structured” adjustment (cf. commercial actions where it is not uncommon for pursuer to be allowed a certain time to adjust followed by period of defender to adjust with period at end to tie up any remaining issues).
So either party may initiate adjustment within the adjustment period (8 weeks).

Following lodging of defences if pursuer wishes to adjust it will be necessary to carry out further factual and legal analysis to deal with this.

Question 27

How does the pursuer pursuer wish to adjust to deal with defender’s explanation?

Answer 27

Admissions, etc. as per defences.
Formulation (“With reference to the defender’s averments in answer: Admitted that…. Believed to be true that….(averments of defender believe to be true) Not known and not admitted that….(deal with averments of defender) Quoad ultra the defender’s averments in answer are denied except insofar as coinciding herewith.” Add this to the end of the articles of condescendence.

Question 28

How do you respond to matters raised by defender in defences?

Answer 28

There may be admissions in defences in which you need to respond with explanation of your own. If possible, it is best to do this in body of original condescendence so averments end of emphatic denial.

In this situation it can be sufficient to rest on general denial as have put forward positive case of your own.

If you wish to clarify or deal with additional matter raised by defender e.g. Alleged breach by pursuer of own contractual obligations.

Can be done in separate doc called Note of Adjustments or marking changes on original pleadings.
The appearance of a note of adjustment is similar to minute of amendment the more common way is by incorproating changes into an original document e.g. By either track changes on word or highlighting changes by putting them in bold or underlined or strike through any deletions.

Question 29

What is the adjustment period?

Answer 29

following lodging of defences you have a period of 8 weeks to adjust the pleadings. In this time the court does not have any control over this. However after options hearing, only record is closed, the ability to alter the pleadings is restricted. In this time a party can only alter pleadings by amendment which is a process which requries leave of the court required to alter pleadings after expiry of adjustment period and requires leave of expenses.

Question 30

What happens at the end of the adjustment period?

Answer 30

At end of adjustment period pursuer is required to make up the Record.
The record brings together the initial writ and defences into a single document. It reproduces the crave followed by article 1 of the condescendence followed by answer 1 followed by article 2 followed by answer 2 followed by pleas in law for pursuer and then for defender. If there is more than one defender each defender’s answers appear after the relevant article of condescendence.

Question 31

What happens in pleadings are debated?

Answer 31

If pleadings are debated you might have to read the record to the sheriff - this is now rare. But if you are asked then there is a set way of doing it which shows importance of the way the pleadings develop - first read crave or craves, then first article of condescendence and then read corresponding para of the answers to show what was admitted, not known and not admitted, denied and read defenders explanation.
Then go back and read pursuer’s reply to explanation.
Etc.