Defence and Counterclaim


Our last post in this series gave you a whistle-stop tour of starting proceedings in court by issuing a Claim Form and Particulars of Claim.

If such a document has been served on you, you are the “Defendant” in the proceedings and will need to respond by filing a “Defence” if you wish to defend the claim.  The party that issued the proceedings is the “Claimant”.

In its Defence, the Defendant can respond to each allegation in the Particulars of Claim by either:

  • Admitting the allegations which are not disputed;
  • Denying allegations and giving reasons why they are denied; or
  • Not admitting allegations which the Defendant is unable to admit or deny but which they still require the Claimant to prove.
  • Where an allegation made by the Claimant in its Particulars of Claim is denied or not admitted by the Defendant in its Defence, the burden is on the Claimant to prove that the statement is true.  However, if the Defence raises new facts, the burden of proof then rests with the Defendant.

    Where the Defendant fails to file a Defence, the Claimant may obtain Default Judgment. This means the Claimant wins the case without a trial as the Defendant failed to defend it. The Defendant can apply to court to have such a Default Judgment set aside but any such application must be made by the Defendant without delay and with good reason for not filing the Defence.

    When considering its Defence to a claim, the Defendant should also consider the following:

    1. Set Off

    Where both parties in a dispute owe each other money and one party issues a claim, the Defendant can plead a defence of “set off” and seek to deduct the sum of money that it says it is owed from the amount claimed by the Claimant. The debts can arise from unrelated facts, but they have to be clearly identifiable amounts of money.

    2. Additional Claims: Counterclaim

    A counterclaim will occur where a Defendant has a claim of its own that it wants to bring against the Claimant. To bring that counterclaim, the Defendant needs to file a “Defence and Counterclaim” instead of just a Defence.

    Procedurally, the Counterclaim is a separate claim brought by the Defendant against the Claimant albeit in the same proceedings. As such, once a Claimant has been served with a Defence and Counterclaim, the Claimant will need to file a “Reply and Defence to Counterclaim”. There may be a Court issue fee to pay on the Counterclaim.   Failure to file a Defence to a Counterclaim will put the Claimant at risk of the Defendant obtaining Default Judgement on the Counterclaim. The Counterclaim should arise from the same subject matter as the Claim and should fit the criteria in that it could have been issued as a separate claim. 

    In order to bring a Counterclaim against a person other than the Claimant, the Defendant will need to apply to court for an order that that person be added as an additional party to the court proceedings.

    3. Additional Claims: Indemnity or a Contribution from a Co-Defendant.

    Although less common, there are situations where the Claimant will have issued its claim against more than one Defendant (or you are a Defendant and you want to add another party as a Defendant).

    As one of the Defendants in the claim your position may be that it is the other Defendant that is entirely responsible/liable for the Claimant’s claim or that any loss to the Claimant is potentially a shared responsibility /liability between you and the other Defendant. In that circumstance, you can bring a claim against another Defendant for them to either indemnify you in respect of any judgment made against you or for them to make a Contribution towards any judgment made against you.

    Here are our top ten tips for preparing your Defence:

    1. Seek legal advice urgently – There are very specific rules and procedures that must be complied with if you have been served with a claim. It can be tricky to navigate these without the assistance of a solicitor. You should therefore seek urgent legal advice as soon as you have been served with a claim to ensure that you respond to it on time and to discuss whether you have any grounds for defending the claim.

    2. Analyse the Particulars of Claim – Consider the Particulars of Claim and determine which allegations are admitted, if any, which are denied and which are neither admitted nor denied. 

    3. Evidence – Collate any relevant documentary evidence that supports your defence to the Claim. Consider who you may call as a witness in support of your defence to the Claim.

    4. Set off – Consider whether you can reduce the value of the claim by pleading Set Off as a result of the Claimant owing you money.

    5. Counterclaim – Consider whether you have any grounds for bringing a Counterclaim against the Claimant or any third party.

    6. Indemnity or Contribution – Consider whether there is another party that is responsible for the Claimant’s claim or whether you are jointly liable for the claim with another party.

    7. Be careful about making admissions – Once an admission has been made, it can only be withdrawn with the Court’s permission.

    8. Claimant’s Reply to Defence – If you are the Claimant, consider whether, on receipt of a Defence, a Reply to Defence needs to be filed. A Reply should be filed if the Defence raises new issues not covered in the Particulars of Claim. If a Reply is not filed, you are not taken to admit the facts in the Defence but you will leave the Judge without an explanation for the point raised by the Defendant.

    9. Claimant’s Defence to Counterclaim – If you are the Claimant and the Defendant has served a Counterclaim with their Defence, a Defence to Counterclaim will need to be filed in response within a specific timeframe.

    10. Be pro-active – If you have a claim against a party that you know has a claim against you (and they are threatening to issue proceedings), take legal advice urgently before they issue proceedings against you.  If you are contemplating issuing proceedings, it is always better to be the Claimant rather than to be on the “back foot” as the Defendant.

    If you are in the midst of or are contemplating taking legal action in respect of a dispute, contact the Dispute Management team at Lupton Fawcett who will be happy to discuss your matter with you and advise you on the appropriate course of action to take.



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