Drafting pleadings – defence

Introduction

Pleadings are an account of the claims and facts according to each party in a legal matter. The statement of claim, defence, cross-claim, reply, and any subsequent pleadings with leave from the court form parts of the pleadings. The function of pleadings is to state the facts the parties intend to rely on, give the other party an opportunity to meet the claim, define the issues in the subject proceedings, and make it possible to decide the relevance and admissibility of evidence.

Pleadings and particulars

Particulars are a part of the pleadings in a case; they are the subheadings in pleadings that specify the exact specifics of the general claims. Particulars serve two main functions, which are to define the pleadings and narrowing the scope of the issues in dispute. For example, a general claim in a pleading may state that one party owes another for unpaid bills, and the particular under such a claim may state that the debtor owes $5000.
If documents are pleaded or particularised, the other party has the right to serve a notice to produce for the documents or things referred to in the pleadings. Good pleadings and particulars are important to minimise the risk of delayed proceedings.

Tips for pleadings are:
• The active voice should be used;
Clear and precise language should be used;
• Negatives and double negatives should be avoided unless necessary;
• Use of pronouns should be avoided;
• “In or about” or “on or about” should be used where a date or place is not known with certainty; and
Identify the parties by their role in the proceedings and not by their actual names.

Preparing a defence

The main pleas for the defence are:
• Admit (admission);
• Does not admit (non-admission); and
• Deny (denials of all or some of the plaintiff’s allegations).
They can all be included in the same pleading.
Other pleas may be:
• Challenge the sufficiency of the plaintiff’s claim;
• Allege special matters of facts that defeat the claim; or
• Raise a set-off and counter-claim.
Every fact stated in the statement of claim should be addressed and answered in the defence. If not, the fact may be seen as an admission from the defendant’s side. A party may plead inconsistent and alternative versions of a claim or defence.

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