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 Know the Law: Filing a Defence

Know the Law: Filing a Defence

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By Ravi Nanga

ONCE a person is served with a Claim Form and Statement of Case, he is required to file an Appearance and file a Defence.

Such a person is referred to as the defendant. The defendant has eight days from the date that they were served with the claimant’s documents in order to enter an appearance in court, which involves the completion of a standard form indicating that he is entering an appearance and giving notice of the intention to file a defence.

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Should a defendant fail to enter an appearance within the eight days, the claimant can request judgment in default of appearance against him.

It is possible that in some cases a defendant may be advised that the claimant’s claim should not be heard by the court and a defendant can apply to the court for an order striking out the claim.

In order to do so, an appearance must first be entered, and then the application can be made. If the court is of the view that the claim cannot proceed, the claim will be struck out.

In the event the court decides that the claim should proceed, it is then incumbent on a defendant to file a defence, indicating why the claimant is not entitled to the claim being made and putting forward the reason why the defendant is disputing the claim.

A defendant has 28 days from the date when he was served with the claim form and statement of case within which to file a defence. In the event the defendant is served with only the claim form, the 28 days will start from the date on which the statement of case is served on him.

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In the event a defendant is unable to file a defence within the time limited, he can seek an extension from the claimant. The claimant and the defendant can only agree to one extension, and such extension can be up to a maximum of three months.

Even if the claimant does not agree to the maximum extension permissible, the parties cannot agree to a second extension, and if the defendant requires more time to file his defence, it will be necessary to apply to the court for an extension.

Like in the case of an appearance, should a defendant fail to file a defence within the time limited, the claimant can request that judgment in default of defence be entered.

A defendant against whom default judgment is entered can apply to the court to set aside the default judgment.

If a default judgment is not set aside, it has the same effect as a final judgment, meaning that the claimant will be entitled to relief that he asked for in the claim corm and statement of case.

In preparing a defence, a defendant has certain rules that needs to be complied with. A defendant must set out the facts that he intends to rely upon in disputing the claimant’s statement of case and is required to state all the facts that he intends to rely upon at the trial of the matter.

In the event a defendant fails to set out a fact, he may be prevented from relying on that fact at the trial of the matter. In addition to stating all the facts that he intends to rely upon, the defendant is required to answer the claimant’s statement of case in detail.

The defendant is required to indicate which parts of the statement of case he admits, which parts he denies and which parts he can neither admit nor deny and wants the claimant to prove.

Where the defendant denies or does not admit a particular fact in the statement of case, he must state the reason for so doing, and if he intends to put forward an alternative set of facts, he must state what those facts are in the defence.

Like in the case of a statement of case, in the event the claim involves personal injuries, the defendant is required to state whether he agrees to the medical reports being relied upon by the claimant, and in the event he does not agree with the slaimant’s medical reports, he must state the reason why he does not agree.

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In the event the defendant has his own medical report to dispute the claimant’s medical report, he must attach such report to the defence.

Therefore, once a person is served with a claim form and statement of case, this signals the commencement of an action against him.

It is important to enter an appearance and file a defence in order to be able to defend the matter.

Failure to do either one may result in a default judgment being entered against the defendant. In preparing a defence, it is also important to fully understand what is stated in the statement of case and carefully prepare the defence, ensuring that the defendant state all the facts that he intends to rely upon at the hearing of the matter.

Ravi Nanga is an attorney-at-law

[Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations].

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