Defence and Counterclaim

Our previous article dealt with Acknowledgment of Service, that is, the mechanism by which a Defendant acknowledges the Particulars of Claim served by the Claimant.

Following Acknowledgment of Service (or if no Acknowledgement of Service is filed), a Defendant will have to actively engage with the claims process in order to protect their position by filing a Defence, and, if appropriate, a Counterclaim.

What is a Defence?

 A Defence is, as the name suggests, a Defendant’s opportunity to defend the allegations made in the Claimant’s Particulars of Claim. A Defence is a formal legal document which should respond to each statement made in the Particulars of Claim in turn.

For each statement made the Defendant can:-

• “Admit” the statement - It is possible (and quite likely) that a number of the statements contained within the Claimant’s Particulars of claim are true. This may be simple background facts, such as the relationship between the parties (i.e. they are neighbours), parties addresses, or allegations. There may be costs consequences if the Defendant fails to admit allegations that are true.
• “Deny” the statement - Where an allegation is denied, the Defendant must explain why they deny it, setting out their own version of events, if relevant.
• “Not admit” the statement -  

A third option, is to “not admit” a statement. This usually occurs where the Defendant does not have the requisite knowledge or information to admit or deny the statement, but requires the claimant to prove the statement that has been made.

 If an allegation is “denied” or “not admitted”, the burden is usually on the Claimant to prove that the statement is true. This is called the burden of proof and, in civil claims, the evidential threshold to overcome is the “balance of probabilities”.

In addition to knowing how best to respond to the statements made in the Claimant’s Particulars of Claim, there may be other defences available, such as the defence of limitation, contributory negligence or the Claimant’s failure to mitigate a loss (to name but a few). A poorly drafted Defence can set the precedent for an entire case and so it is important to get it right. It is for this reason that a Defendant should always seek professional legal advice if they are unsure of the defences that are potentially available.

How long do I have to file a Defence?

 The time limit for filing a Defence with the court depends on whether or not the Defendant has filed an Acknowledgment of Service. If the Defendant has correctly filed an Acknowledgment of Service with the court then they will have 28 days from the date the Particulars of Claim were served on them to file a Defence. Contrast this with a mere 14 days where no Acknowledgment of Service has been filed and it is easy to see why carrying out this step can be crucial in providing enough time to investigate the claim and produce a robust Defence. Once a Defence has been filed with the court, a copy of the defence must be served on every other party.

What is a Counterclaim and do I need one?

 Whilst drafting a Defence, it is crucial to consider whether a potential Counterclaim exists against the Claimant. This is in effect a role reversal whereby a Defendant makes a claim against the Claimant. For example, Company A issues an invoice for refurbishment work carried out on Company B’s premises. Company B fails to pay the invoice and so Company A pursues a claim for the unpaid invoice. However, Company B refused to pay the invoice because Company A failed to complete the refurbishment work as set out in the contract between the parties and had to pay another contractor to finish the work. As part of Company B’s Defence, it may wish to make a Counterclaim against Company A for the costs of the replacement contractor.

Each case will turn on its own facts and whilst one may present a potential Counterclaim, another may not. Again, this is where it is paramount for a Defendant to seek expert legal advice so that they can properly understand the merits and/or pitfalls of their case and make an informed decision on the best course of action.

When do I file a Counterclaim?

 A Counterclaim is most commonly filed within the same document as the Defence and thereby would need to be filed within the timeframes set out for filing a Defence, above. However, it is worth noting that a Counterclaim, or additional claim against a third party (such as for an indemnity), may be filed at any time in the proceedings with the court’s permission.

A Claimant has 14 days to file a Defence with the Court in response to the Defendant’s Counterclaim.

Can I draft a Defence and Counterclaim myself?

 Whilst it is of course up to a Defendant whether they chose to represent themselves in legal proceedings, in all but the most straightforward cases, it is strongly recommended that legal advice is sought as soon as a Defendant is served with a claim, or before, if they suspect Court proceedings will be issued against them. Apart from the considerable stress caused by litigation that legal representation can alleviate, seeking professional advice can often be considered money well spent where potentially large sums of money are at risk.

Where professional advice is sought later on in proceedings (after statements of case have been filed), it is often the case that issues with a Defence and/or Counterclaim are found. Whilst pleadings can be amended with the Court’s permission, this approach is normally less cost effective than seeking professional advice early on.

Rollits’ Dispute Resolution team have a wealth of experience in dealing with commercial disputes and guiding clients through the legal process of bringing or defending a claim. If you are involved in legal proceedings and feel that you could benefit from a discussion with one of our team, please do not hesitate to get in touch.