By Ravi Nanga
OVER the past two weeks we looked at what is required when filing a Claim Form and Statement of Case and an Appearance and Defence.
Once a defence is filed, the court fixes a date for a case management conference, which will be the first time the matter will come up for a preliminary hearing before the judge who will hear and determine the matter. If the court does not fix a date for the case management conference, the claimant is required to apply to the court to fix the date.
Once the defendant files and serves his defence, if the defence raises new issues that the claimant could not anticipate, and as such he did not address these new issues in his statement of case, the claimant may wish to file a reply to the defence in order to address these issues.
Before a claimant can file a reply the claimant is required to either obtain the defendant’s consent if the reply is to be filed before the case management conference or where the defendant does not consent, the claimant is required to obtain the court’s permission at the case management conference.
A reply must specifically address new issues raised and is not to be a defence to the defendant’s defence. What this means is that the reply must not seek to respond to the entire defence or repeat issues that were addressed in the claimant’s statement of case.
Where the claimant is seeking to file a reply, it is advisable (and some courts require it) that the claimant identify the specific paragraphs of the defence that require an answer and prepare a draft reply.
If the claimant prepares a draft reply, this will make it easier for the defendant to determine whether to consent to the reply or for the court to determine whether to grant permission.
If the defence raises an issue that should have been addressed in the statement of case, the best course to adopt will be to amend the statement of case before the first case management conference is heard, instead of filing a reply.
Once the first case management conference comes to an end, it will be necessary to obtain the court’s permission to amend the statement of case.
Once a reply is drafted, in the case where the defendant’s consent is sought, the defendant will be required to review the draft and indicate whether he consents to the filing of the reply. If there is no consent, or partial consent, the defendant should indicate the reason(s) why there is no or partial consent to the reply. In the event the claimant does not accept the defendant’s position in relation to the draft reply, the claimant can apply to the court for permission in order to file a reply.
In the event the court’s permission is sought, the court will examine the draft reply in order to determine whether it is a proper reply to the defence, and it does not seek to simply address the entirety of the defence or restate what is contained in the statement of case.
Once the court is satisfied that the reply is properly drafted, the court will give permission to file the reply. In the event the court is of the view that the reply does not address new issues, and is simply a defence to the defence or a restatement of the claimant’s case, the court will refuse to grant permission to file a reply.
Once the court deals with the issue of a reply, the court will then proceed to manage the case and give further directions towards the hearing and determination of the case.
Ravi Nanga is an attorney
[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].