Responding to the claim

Early steps available

What steps are open to a defendant in the early part of a case?

A defendant has two options when he or she is served with proceedings: filing an acknowledgement of service (AoS) or a defence. If a defendant wishes to dispute the Court’s jurisdiction, then he or she must file the AoS followed by an application to dispute jurisdiction. If a defendant files a defence and not an AoS, it will be a strong indication that he or she has submitted to the Court’s jurisdiction.

A defendant can dispute jurisdiction by principally relying on two distinct set of private international law rules: those provided under EU law (eg, the Brussels I recast) and those applicable at common law. Under the former, a defendant could argue, for example, that the courts of other member state have mandatory and exclusive jurisdiction over the subject matter of the dispute, or that the courts of other member states have been first seised of the proceedings. At common law, a defendant will dispute jurisdiction on the ground of forum non conveniens (eg, that the claim is more closely connected with the courts of another jurisdiction).

A defendant who wishes to make a counterclaim against the claimant can do so by including a particulars of counterclaim with his or her defence. He or she does not need court permission for including a counterclaim when it is filed with the defence, but permission is required at any other time.

It is also possible to make a counterclaim against a person other than the claimant, but an application for an order that that person be added as an additional party must be filed. Further, it is also possible to make an additional claim for contribution or indemnity against a person who is already a party to the proceedings by filing a notice containing a statement of the nature and grounds of his or her additional claim and serving the notice on that party.

Defence structure

How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?

A defence must be filed within 14 days of service of the particulars of claim or, if the defendant files an AoS indicating that he or she wishes to defend the claim and not dispute jurisdiction, 28 days of the service of the particulars of claim. The defence must admit, deny or require the claimant to prove each of the allegations included in the particulars of claim. As per question 23, if a defendant considers that it has a counterclaim against the claimant, he or she can include particulars of the counterclaim with his or her defence.

Changing defence

Under what circumstances may a defendant change a defence at a later stage in the proceedings?

Once a defence is filed and served, amendments to the defence can be made if all parties consent to them. In the absence of agreement, court permission will be required.

Sharing liability

How can a defendant establish the passing on or sharing of liability?

In negligence cases, a defendant can pass or share liability with the claimant if there is contributory negligence on the claimant’s (or other third party’s) part.

If the defendants enter into a joint and several liability agreement (typically, each defendant is liable for the entire performance of the agreement irrespective of liability to the claimant), then the claimant may opt to proceed against the most resourced defendant.

Avoiding trial

How can a defendant avoid trial?

A defendant could avoid trial by successfully disputing the Court’s jurisdiction (see question 23) or, alternatively, by successfully striking out a claim. The CPR impose a high threshold for strike-out applications. The defendant will need to show that:

  • the statement of case (ie, claim form and particulars of claim) discloses no reasonable grounds for bringing or defending the claim;
  • the statement of case is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
  • there has been a failure to comply with any CPR rule, practice direction or court order.

In the absence of an application to dispute jurisdiction, strike out application or out-of-court settlement, it is difficult for a defendant to avoid trial.

Case of no defence

What happens in the case of a no-show or if no defence is offered?

If a defendant fails to enter an appearance (eg, by not filing an AoS or a defence within the time frame stipulated by the CPR) then the claimant can apply for judgment in default. A defendant may then apply to have the default judgment set aside, but he or she will need to show that he or she has a real prospect of successfully defending the claim or demonstrate that there is another good reason to allow him or her to file the defence.

Claiming security

Can a defendant claim security for costs? If so, what form of security can be provided?

Yes; once proceedings have commenced, a defendant (or respondent in an appeal) can apply for security for costs. A claimant can also apply for security for costs for his or her defence to any counterclaim. The application must be made promptly. The most common ground to apply is the belief that the respondent will be unable to pay the applicant’s costs if ordered to do so. An application for security for costs can be an effective tool of litigation because the Court will generally not allow a party to continue with proceedings if he or she is unable to meet adverse costs orders. The form of security will typically involve a sum of money paid into the Court.