Drafting - defence & CC

Question 1

What is the defence?

Answer 1

The statement of case in which the defendant sets out their response to the case put forward by the claimant in the particulars of claim.

Question 2

What are the three ways in which the defendant can respond to the allegations made by the claimant in PoC?

Answer 2

Every allegation must be dealt with; Deny - with reasons and own version of events if different; Not admitted - if no knowledge of the particular matter; Admitted.

Question 3

To avoid confusion, what definitions does the defence usually adopt?

Answer 3

There is used in the particulars of claim.

Question 4

What is the nature of the content of the defence?

Answer 4

Brief, concise, facts not evidence, logical order.

Question 5

Where POC make allegations on a point by point basis, what should the defence do?

Answer 5

Answer each and every point.

Question 6

How are numbers and dates expressed in the defence?

Answer 6

Figures.

Question 7

When will an allegation be not admitted?

Answer 7

Lack of knowledge of their particular matter alleged.

Question 8

What must be given if any limitation period is relied on in the defence?

Answer 8

Details of the expiry.

Question 9

What details of allegations should be given if relevant in the defence?

Answer 9

Details of any allegations of contributory negligence / failure of C to mitigate loss.

Question 10

What comes at the bottom of the defence/counterclaim?

Answer 10

SOT, signed, name, position, date, claimants address, to the claimant and court manager.

Question 11

What is an example of a counterclaim?

Answer 11

Where the defendant defends the claim and makes their own claim e.g. plumber installs bathroom sees client for payment. Client defends claim and counterclaim is for damage for loss arising from plumber’s negligent installation.

Question 12

What is the wording for admitting an allegation in the defence?

Answer 12

The defendant in this paragraph X of the particulars of claim.

Question 13

What is the wording where a defendant admits part of an allegation and denies part of it?

Answer 13

Save that the defendant admits that he did X and that it happened, the defendant denies for the reasons that followed that he drove negligently/breached the terms of the contract alleged in paragraph x or at all or that the matter complained of caused as alleged or at all.

Question 14

What is the wording if a defendant claims contributory negligence?

Answer 14

Further or alternatively, the act was caused or contributed to by the [breach of [statutory] duty] of the Claimant.

Question 15

What must a defendant set out in the defence if they claim the damage/loss was caused by the Claimant?

Answer 15

Particulars of breach e.g.
The claimant acted in breach of duty in that they:
a) x
b) x
c) x

Question 16

What wording should be used if the D defendant admits paragraph 1?

Answer 16

The defendant admits paragraph 1 -x of the POC. [The Claimants were the occupiers of the property and the Defendant was a visitor within the meaning of the Occupiers Liability Act 1957 (the ‘Act’). The defendant visited the property at the claimants invitation on [date] to do x under an agreement made on x.]

Question 17

What wording should be used if the defendant denies the claimant is entitled to relief claimed?

Answer 17

In the circumstances, the defendant denies that the claimant is entitled to the relief claimed in paragraph X or any relief.

Question 18

Where does the counterclaim come in the drafting?

Answer 18

After the response to relief.

Question 19

What can the defendant do for the counterclaim?

Answer 19

The Defendant may repeat paragraphs 1-x of the Defence if they have set out D’s version of events already.

Question 20

What must the defendant state has occurred for negligence in a counterclaim?

Answer 20

Owing to the above matters, the defendant has suffered loss and damage -> particulars of loss and damage (for negligence).

Question 21

What comes after the counterclaim?

Answer 21

Summary of relief (e.g. claim damages and interest).

Question 22

What does the defendant counterclaim for?

Answer 22

Defendant therefore counterclaims from the claimant damages in respect of the above.
The Defendant claims interest under Xx on the damages awarded to him at such rate and for such a period of the court thinks that.

Question 23

When does the defendant need to prove their own allegation?

Answer 23

Yes if not admitting/denying. Set out reasons and own version of facts. No if admitted.

Question 24

How should the defence deal with multiple allegations in a paragraph of the POC?

Answer 24

Take each point and deal with them in turn.

Question 25

What must be given in the defence if the defendant alleges that the relevant limitation period for the claim has expired?

Answer 25

When it began and expired, whether it ran under the terms of a contract or the LA 1980.

Question 26

Who has the burden of proof for showing whether the claimant's claim is time-barred under the limitation act?

Answer 26

Usually the claimant in its response to the defence but it will be on the defendant in relation to contributory negligence and failure by claimant must get lost.

Question 27

How do you know if a counterclaim is required?

Answer 27

There will be a counterclaim if the defendant has actually suffered loss attributable to the claimant.

Question 28

What if the defendant has a good reason for not paying money owed but has not incurred loss?

Answer 28

They only follow defence.

Question 29

How do you approach drafting a counterclaim?

Answer 29

Treat it as a standalone claim but don't repeat aspects already included in the defence.

Question 30

What does the CC usually consist of?

Answer 30

D repeats paras x-x of the Defence. Owing to the above matters, D has suffered loss and damage. PARTICULARS OF LOSS AND DAMAGE TOTAL. The D therefore counterclaims from the Claimant damages in respect of the above. The Defendant claims interest under x. Summary of relief (AND THE CLAIMANT COUNTERCLAIMS).

Question 31

What might the Claimant lodge after D lodges a defence and counterclaim?

Answer 31

Reply to the Defence - usually if Cl wants to respond to matters raised in defence not covered in PoC. Defence to the Counter Claim - if Cl disputes the CC.

Question 32

When must the claimant file a defence to a CC?

Answer 32

Within 14 days unless extension of 28 days agreed with D. Otherwise D can apply for default judgement.

Question 33

What is the title to a defence and counterclaim?

Answer 33

DEFENCE AND COUNTERCLAIM

Question 34

What is the title to a reply to defence and CC?

Answer 34

REPLY TO DEFENCE AND COUNTERCLAIM

Question 35

How do you draft a reply to defence and CC?

Answer 35

In the same way as a standard defence. For the Reply to the Defence, take each point raised in the defence and admit or deny, no-admit. For the Defence to CC, you can say that you repeat paragraphs/matters in the Reply and then will just address CC i.e. loss and damage and position as to Ds entitlement to relief.

Question 36

What comes at the end of a D, CC, Reply, or D to CC?

Answer 36

SoT, Sign, Date, Cl address, To the Party and the Court Manager.

Question 37

What does 'join issue' mean?

Answer 37

Disagree/contest.

Question 38

What should be the first paragraph before addressing the PoC?

Answer 38

The paragraph numbers referred to in this Defence are the paragraphs in the Particulars of Claim. The definitions used in the Particulars of Claim are adopted for the purpose of this Defence.

Question 39

What is some drafting wording where the Defendant admits that the contract was performed by both parties?

Answer 39

X was wholly in accordance with the terms of the Contract and constituted full and complete performance by the Defendant.

Question 40

What is some useful wording if D denies being in breach of contract and asserts that he did X with care and skill?

Answer 40

The Defendant denies that he was in breach of the Contract. The Defendant asserts that he [did X] exercising reasonable skill and care.

Question 41

If the Defendant is asserting a position, what is good wording?

Answer 41

It is the Defendant's case that...

Question 42

Where D does not admit liability for loss and damage, what is good wording?

Answer 42

It is not admitted that the Claimant suffered the alleged or any loss and damage as the Defendant has no knowledge of these matters. In the alternative, if, which is not admitted, the Claimant suffered any such loss and damage, it is denied that the Defendant caused this. It is the Defendant’s case that the Claimant caused his own loss by...

Question 43

If the Claimant is claiming remote loss, what can the Defendant say?

Answer 43

Further, as to the allegation of loss of [rental income] made in paragraphs x and x if, which is not admitted, that loss was sustained, then it is the Defendant’s case in reliance on paragraph 3 above that such loss is too remote.

Question 44

If D denies that the Claimant is entitled to any relief, what is useful wording?

Answer 44

It is therefore denied that the Claimant is entitled to any relief.

Question 45

What comes between the last point of defence and before the SoT?

Answer 45

Law firm name Date

Question 46

What comes after the SoT wording?

Answer 46

Signed Position/Party Dated To the : CL sol address To the : CM