Part 10 – Defence

Scope of this Part

10.1

1. The Rules in this Part set out the procedure for disputing the whole or part of a claim.
   • Part 18 deals with the procedure for making a counterclaim.

The defendant – filing defence and the consequences of not doing so

10.2

1. A defendant who wishes to defend all or part of a claim must file a defence (which may be in Form 5).
2. If –
   1. a claim is commenced by a fixed date claim form in Form 2 and there is served with that claim form an affidavit instead of a statement of claim; or
   2. any rule requires the service of an affidavit; the defendant may file an affidavit in answer instead of a defence.
3. In this Part the expression “defence” includes an affidavit filed under paragraph (2).
4. If a defendant fails to file a defence within the period for filing a defence, judgment for failure to defend may be entered if part 12 allows it.
   • Part 14 deals with the procedure to admit all or part of the claim.

The period for filing defence

10.3

1. The general rule is that the period for filing a defence is the period of 28 days after the date of service of the claim farm.
2. If a claim form is issued in one Member State, Territory or circuit and served in another, the period is 42 days after the date of service of the claim form.
3. If permission has been given under rule 8.2 for a claim form to be served without a statement of claim, the period for filing a defence is the period of 28 days after the service of the statement of claim.
4. If the defendant within the period set out in paragraph (1), (2) or (3) makes an application under any relevant legislation relating to arbi¬tration to stay the claim on the grounds that there is a binding agreement to arbitrate, the period for filing a defence is extended to 14 days after the determination of that application.
5. The parties may agree to extend the period for filing a defence specified in paragraph (1), (2), (3) or (4).
6. The parties may not make more than two agreements under para¬graph (5).
7. The maximum total extension of time that may be agreed is 56 days.
8. The defendant must file details of such an agreement.
9. A defendant may apply for an order extending the time for filing a defence.
10. The general rule is subject to –
    1. rule 5.17(4) (service of claim form on agent of overseas principal);
    2. rule 7.5(2) (service of claim form outside jurisdiction);
    3. rule 9.7 (procedure for disputing court’s jurisdiction); and
    4. rule 59.3 (claims against the Crown).

Service of copy of defence

10.4

1. On filing a defence, the defendant must also serve a copy on every other party.

Defendant’s duty to set out case

10.5

1. The defence must set out all the facts on which the defendant relies to dispute the claim.
2. Such statement must be as short as practicable.
3. In the defence the defendant must say which (if any) allegations in the claim form or statement of claim –
   1. are admitted;
   2. are denied;
   3. are neither admitted nor denied, because the defendant does not know whether they are true; and
   4. the defendant wishes the claimant to prove.
4. If the defendant denies any of the allegations in the claim form or statement of claim –
   1. the defendant must state the reasons for doing so; and
   2. if the defendant intends to prove a different version of events from that given by the claimant, the defendant’s own version must be set out in the defence.
5. If, in relation to any allegation in the claim form or statement of claim, the defendant does not –
   1. admit it; or
   2. deny it and put forward a different version of events; the defendant must state the reasons for resisting the allegation.
6. The defendant must identify in or annex to the defence any document which is considered to be necessary to the defence.
7. A defendant who defends in a representative capacity must say –
   1. what that capacity is; and
   2. whom the defendant represents.
8. The defendant must verify the facts set out in the defence by a certificate of truth in accordance with rule 3.12.

Special requirements applying to claims for personal injuries

10.6

1. This rule sets out additional requirements with which a defendant to a claim for personal injuries must comply.
2. If the claimant has attached to the claim form or statement of claim a report from a medical practitioner on the personal injuries which the claimant is alleged to have suffered, the defendant must state in the defence –
   1. whether all or any part of the medical report is agreed; and
   2. if any part of the medical report is disputed, the nature of the dispute.
3. If the defendant intends to rely on a report from a medical practitioner to dispute any part of the claimant’s claim for personal injuries and the defendant has obtained such a report, the defendant must attach that report to the defence.

Consequences of not setting out defence

10.7

1. The defendant may not rely on any allegation or factual argument which is not set out in the defence, but which could have been set out there, unless the court gives permission or the parties agree.
   • Rule 20.1 contains provisions about amendments to statements of case.

Defence of tender

10.8

1. The defence of tender is not available unless the defendant pays into –
   1. an interest bearing account with the agreement of the claimant or the permission of the court; or
   2. court; the amount alleged to have been tendered within the period for filing a defence.
2. If the claimant does not give notice accepting the payment into court within 28 days of service of the defence, the defendant may apply for payment out of the monies.• Rule 10.3 states the period for filing a defence.
   • Part 36 deals with payments into court.

Reply to defence

10.9

1. A claimant may file and serve a reply to a defence –
   1. 14 days after the date of service of the defence; or
   2. At any time with the permission of the court.
2. Where the defence contains a counterclaim, Part 18 shall apply.
   • Part 18 deals with a defence to an ancillary claim including counterclaims