Responding to the claimEarly steps available
What steps are open to a defendant in the early part of a case?
Once the court verifies the claim and considers all legal provisions are met, the document will be served on the defendant, who then has 25 days to draft and submit a statement of defence.
The statement of defence must include all arguments in favour of the defendant, such as:
- procedural incidents (lack of jurisdiction, lack of legal standing, inadmissibility);
- the legal and factual reasons for which the claim is ungrounded;
- possible third parties that should be part of the litigation; and
- evidence in support of the counterarguments.
The defendant could file a counterclaim together with the statement of defence either as part of the document or as a separate document. The counterclaim must respect the legal conditions for a main claim. Usually the claim and the counterclaim are decided together, but if the second is delaying the claim too much, the judge has the power to bifurcate the said motions.
The defendant also has the option to make his or her counterclaim a separate claim before the same court.Defence structure
How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?
There are no legal provisions regarding the structure of the statement of defence, but the document should:
- be submitted within the 25-day legal limit (the term may vary in cases where a special procedure is chosen);
- evoke all applicable procedural incidents; and
- submit appended all referred-to evidence or, in the event that the evidence must be produced during trial (cross-examination, expertise, documents held by the counterparty, witnesses, etc), then the defendant should present in his or her statement of defence the arguments that support the admission of such evidence.
Should the defendant fail to attach or to request the above, the court will not allow the said evidence to be administered.Changing defence
Under what circumstances may a defendant change a defence at a later stage in the proceedings?
Should the claimant amend the claim, the defendant will have the possibility to change its defence accordingly. A change in defence strategy is allowed throughout the litigation in accordance with the position of the other parties. However, a radical change in arguments could lead to a lack of credibility before the court. Usually, deep changes in defence happen when new documents are discovered during litigation.Sharing liability
How can a defendant establish the passing on or sharing of liability?
The defendant must raise the issues of passing on or sharing liability in the statement of defence, or if such issues arise during the trial, at the moment they are evoked by other parties.
In these instances, the court will regularly postpone judgment until all parties have the chance to express their position on the passing on or sharing of liability.Avoiding trial
How can a defendant avoid trial?
All defences for avoiding trial, including motions to dismiss, counterclaims and procedural incidents, must be presented within the statement of defence. Once the trial begins, the court will discuss any procedural incidents that may lead to the dismissal of the claim without ruling on the merits.
The parties are free to settle at any time during the litigation.Case of no defence
What happens in the case of a no-show or if no defence is offered?
Even in the absence of a statement of defence, the court will analyse the available evidence to render a solution. With the exception of certain special procedures, a lack of defence is not considered a recognition of the claimant’s claim. However, in the case of no defence, the court will judge based solely on the evidence provided by the claimant and the applicable legislation.
Should both parties fail to show before the court, and if neither of them requested that the judgment take place in their absence, the court will stay the case.Claiming security
Can a defendant claim security for costs? If so, what form of security can be provided?
Security can be granted in limited cases and usually in relation to the object of the claim. For instance, a party claiming the insolvency of another may be compelled to provide a security.
Costs will be covered subsequently by the losing party.