Responding to the claim

Early steps available

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

A defendant may request the court to dismiss a case based on reasons other than those on the merits, such as lack of jurisdiction. The defendant must assert such defences before or at the same time as filing its defence on the merits. Even if a defendant is subject to a Japanese court’s jurisdiction, it may challenge the jurisdiction by asserting that there are special circumstances that would render it inequitable to either party or prevent a fair and speedy trial if the litigation takes place in a Japanese court. Factors considered in such challenge are, among other things, the nature of the case, the defendant’s burden to make an appearance and the location of evidence.

A defendant may also generally file a counterclaim if it is related to the claim pursued by the plaintiff or has a bearing on the means of defence, provided that the counterclaim is not subject to the exclusive jurisdiction of another court and would not substantially delay litigation proceedings. A defendant may also issue a notice of the litigation to a third party who has a legal interest in the outcome of the litigation, including those who may be liable in whole or in part for the claim.

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 defendant may assert defences on the merits as well as defences due to reasons other than those on the merits referred to in question 23. A defendant may deny the facts alleged by the plaintiff by providing the reason thereof in its answer or any other briefs, and the plaintiff bears the burden of proof for such facts. Facts of which a defendant indicates a lack of knowledge are deemed denied. However, facts to which a defendant admits or remains silent about will be treated as undisputed facts and do not require proof. A defendant may also present its affirmative defence based on facts in which the burden of proof lies with the defendant.

Defences must be accompanied by a copy of important documentary evidence for grounds that require proof, and must be presented at an appropriate time in accordance with the status of progress in the litigation. If a defendant submits such defence belatedly, whether intentionally or through gross negligence, and if the conclusion of the litigation will be delayed because of this, a court may dismiss such defence as untimely. Absent special circumstances, defences presented after the conclusion of preparatory proceedings will be deemed as untimely.

Changing defence

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

A defendant may introduce additional affirmative defence until the conclusion of the oral argument, unless the court dismisses it as untimely. See question 24.

Sharing liability

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

A defendant can pass on or share its liability by conveying a notice of the litigation to a third party who has a legal interest in the outcome of the litigation. Such third party may participate in the litigation as a supporting intervener. Regardless of whether the third party decides to intervene or not after the notice, such third party cannot dispute certain findings in the judgment from the litigation at another proceeding.

Avoiding trial

How can a defendant avoid trial?

A defendant can avoid trial if it agrees to settle before the conclusion of preparatory proceedings. A defendant can also avoid trial if its defence is based on reasons other than those on the merits (such as lack of jurisdiction; see question 23) is sustained, or otherwise convinces the court that the claim can be rejected on the merits without examining witnesses.

Case of no defence

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

If a defendant does not appear at the first oral argument without having submitted beforehand an answer or any other brief offering a defence or disputing the cause of action alleged in the complaint, the court may deem that the defendant has admitted the plaintiff’s factual allegations, and may conclude the proceedings and render judgment in the plaintiff’s favour.

Claiming security

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

If a plaintiff is not domiciled in Japan or does not have a business office or other office in Japan, a defendant may petition the court to order the plaintiff to provide security for court costs. A corporate defendant in certain actions concerning the organisation of a company may also claim the same. The defendant filing the petition may refuse to appear until the plaintiff provides security. If a plaintiff fails to provide security by the ordered deadline, the court may dismiss the action without prejudice unless the plaintiff provides security before the judgment is rendered. Note that security for court costs does not cover attorneys’ fees. A plaintiff may provide security by depositing money or certain securities with an official depository in the locality of the court that ordered the security to be provided, by entering into a contract for consignment of a payment guarantee with a financial institution, or in the manner specified in a special contract agreed by the parties. However, a plaintiff who is a national of one of the contracting states to the Convention on Civil Procedure and is domiciled in, or has a business office or other office in, that state is not required to provide security (unless that state declared its reservation pursuant to article 32, paragraph 1 of the Convention).