Starting a claim is one thing. Having a claim started against you is something else.
If you have been sued it can be a stressful experience, especially when it is without warning.
If the Claimant follows the correct procedure, you will already have engaged in correspondence and dialogue before the claim reaches court. You will already understand what the claim is about and know why you can’t agree on the matter. You may even have tried to strike a deal.
But being sued without warning can come as an unpleasant shock. But don’t panic. Make sure you read the paperwork that arrives as the court will send various documents accompanying the claim form to set out what you need to do and when.
Being the defendant in a claim is like finding yourself on a rollercoaster you didn’t want to get on in the first place. You aren’t in control and unless the Claimant puts on the breaks, you are going to have to hold tight and follow the course to its end (the trial).
The first thing to check is what the deadline is to file the defence. Miss the date to file the defence and the Claimant can ask the court to order whatever it has asked for in the claim form by obtaining default judgment. It is possible to set aside judgment in default but not easy or straight forward. There is no guarantee a judge will allow a default judgment to be set aside.
Generally, you have 14 days from deemed service to file the defence at court and to serve the other side with a copy. Deemed service is usually the second day after the court posts the claim form out. The court papers might specify the date on the papers you receive. It is best to call the court for confirmation of the date to ensure you don’t get the deadline wrong.
If you need longer than 14 days to complete the defence, you can file at court the acknowledgment of service form, which gives you 28 days instead of 14 days. The acknowledgment of service form should be one of the forms you receive with the claim form.
What To Include
The rules relating to defences are set out in CPR 16.5
Basically, you need to work your way through each of the issues and allegations in the claim form and particulars of claim, setting out which you agree to, which you can’t respond to (for example because you don’t know whether it is accurate or not) and those you disagree with. Where you disagree you need to state why.
The defence isn’t intended to be a witness statement setting out all your evidence. It is to deal with the allegations and legal issues.
It is an important document and one of the key documents the Judge looks at, when the trial takes place. You should take the document seriously and give it the time it deserves when preparing it.
There is a standard defence form in the documents received with the claim form but if you need more space, you can use continuation sheets. Just make sure each sheet contains the claim number in case it becomes detached.
If you want to bring a counterclaim, you must include the details in the defence document and include a separate section making it clear there is a counterclaim and what the allegations are. If you bring a counterclaim, you will need to pay a court fee.