Defences

How to draft a defence

Looking through OPCA websites I have seen a common thread of poorly drafted defences.

Whilst, as I have said elsewhere the bulk of defences advocated by getoutofdebtfree.org and other websites are ill founded and have no real prospect of succeeding I think in the interests of a just disposal of the proceedings it would be prudent to give some advice on how to draft a defence with some template examples. As always I provide no warranty as to the accuracy of this advice and suggest that anyone in the position of defending a claim of any kind takes urgent independent legal advice.

The starting point is the basic rules for defences as set out in CPR r16.5 http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5

I’ll deal with each in turn:

(1) In his defence, the defendant must state –

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and

(c) which allegations he admits.

This means that for every single point raised in a Claim form or Particulars of Claim you have to respond to each point and either admit, deny or “put to proof”.  You must give one of these 3 responses to each point of the claim.

Admitting

It is usual to admit anything you know to be true and also anything uncontroversial.  Doing otherwise wastes the court time and will not go down well with the judge. The most obvious thing to admit is the parties,  dates of contract formation etc.

Denying

If you deny an allegation you must be prepared to make a positive case which contradicts the allegation in question. You cannot just deny an allegation and expect that to be enough. Every allegation you deny you must be prepared to produce evidence and/or a counter argument.

Unable to admit or deny but require to prove     

This is generally for things outside of your knowledge which you can’t admit or deny but want them to prove.

(2) Where the defendant denies an allegation –

(a) he must state his reasons for doing so; and

(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.

This is the rule against “bare denials” and is very important.

I think it’s important here to compare the position in civil claims to criminal law.

In criminal law essentially a bare denial is permitted. You can simply say “not guilty” then (subject to a few exceptions) remain totally silent and ask the prosecution to prove each and every element of the offence.

In civil law the rules are crucially different. In civil “he who asserts must prove” that means that the claimant has a burden to prove their claim but also the defendant has a burden to prove their defence.  Thus a bare denial or simply putting the Claimant to proof is not generally enough. Its important to bear this in mind when considering any defence.

Reasons  and own version of events

If you deny and allegation you have to give your own version of events and why you deny it. This can sometimes appear pedantic but is essential to follow the rules.

A defence essentially has two purposes: to deal with the Claimant’s allegations and to put your own case in response.

(3) A defendant who –

(a) fails to deal with an allegation; but

(b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,

shall be taken to require that allegation to be proved.

This simply states that you can, in some cases, implicitly put the claimant to proof on an allegation if you put forward a different version of events in your whole defence.

(4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

This is straightforward enough

(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.

Again consider the difference between criminal and civil cases. Failing to deal with an allegation is a good as admitting it. That is why you need to be very careful with what you deny and admit because silence equals admitting.

Formalities

Whilst not essential for litigants in person, it is good practice to get the formalities right. Here are a few pointers:

  1. A defence is a statement of case not a letter or essay or anything else
  2. Do not address your defence to anyone
  3. Title your defence “Defence”
  4. Write in numbered paragraphs
  5. Put the proper headings including the name of the court, claim number and party names
  6. Refer to the Claimant as the Claimant and yourself as “the Defendant”
  7. Write in the 3rd person “It is denied that the Defendant…” not  “I deny that I…”
  8. Always end your defence with the usual statement of truth

 

Examples

Here are some worked examples:

First I think its useful to look at a Particulars of claim – this is the long form particulars of claim although you will often see creditors using the short form.

 

IN THE MOLD COUNTY COURT                                                                       Claim Number 1234

 

A Bank Ltd

Claimant

and

Mr David Debtor

Defendant

PARTICULARS OF CLAIM

  1. On or around 15 December 2010, the Claimant entered into a written credit card agreement with the Defendant (‘the Agreement’), a copy of which is attached
  2.  The following were express terms of the Agreement:
                •         the Claimant would provide the Defendant with a credit card;
                •         the Claimant would provide the Defendant with running-account credit for, among other things, cash withdrawals and purchases made by the Defendant using the card;
                •        the Claimant would provide the Defendant with monthly statements showing the balance outstanding under the Agreement;
                •       the Defendant would make minimum payments each month of 3% of the balance shown to be outstanding under the Agreement in the monthly statement for the previous month or, if less, £5, or the entire balance if it was less than £5, by the date stated in the monthly statement, which would be at least 20 days after the date of the monthly statement;
                •       interest would be charged at a variable rate, currently: 8% per month on cash withdrawals, purchase of currency, and travellers cheques, 12% per month on other drawings, interest (other than interest on default sums3) and charges,

6save that interest would not be charged in respect of any purchase where the Defendant repaid the credit provided for the purchase by the payment date following the monthly statement in which a record of the purchase appeared;

  •   interest would be calculated on a daily basis and added to the balance on each monthly statement date;
  •  the Claimant could terminate the Agreement at any time by giving the Defendant at least 2 months’ written notice, beginning with the day after the day on which the notice was served
  • on the expiry of such a notice, the Defendant was immediately to pay the balance outstanding under the Agreement to the Claimant.

7. On 10 February 2014 the Claimant served written notice on the Defendant, by which the Claimant terminated the Agreement on 10 April 2014 and required the Defendant to repay the balance outstanding under the Agreement on that date

8. On the date of termination, the balance outstanding under the Agreement was £10,000 The Defendant has failed to pay that sum or any of it.

The Claimant is entitled to and seeks interest:

  1. on £1500 of the balance outstanding at the date of termination, which arose from cash withdrawals and purchase of currency, at the contractual rate of 8% per annum from 10 April 2014 until the date of issue of the Claim Form and thereafter until judgment or sooner payment;
  2. on £5000, the remaining balance outstanding at the date of termination, at the contractual rate of 12% pa from 10 April 2010 until the date of issue of the Claim Form and thereafter until judgment or sooner payment.

 

AND THE CLAIMANT CLAIMS

 

(1)     £10,000 

(2)     Interest

 

STATEMENT OF TRUTH

The Claimant believes that the facts stated in these Particulars of Claim are true.

 

[signed]

 

 


 

IN THE MOLD COUNTY COURT                                                                   Claim Number AB1234

A Bank Ltd

Claimant

and

Mr David Debtor

Defendant

DEFENCE

1)      Paragraphs 1 to 8 of the Particulars of Claim are admitted but it is denied, for the reasons set out below, that the Claimant is entitled to the relief claimed or any relief.

2)      On 10 January 2014, the Defendant sent a written request to the Claimant, together with payment of £1, in respect of the agreement referred to in paragraph 1 of the Particulars of Claim (‘the Agreement’), asking for:

a)      a copy of the document which embodied the terms of the Agreement and which had been signed by or on behalf of the parties (‘the Executed Agreement’);

b)      a statement signed by or on behalf of the Claimant showing:

i)        the state of the account;

ii)       the amount, if any, then payable under the Agreement by the Defendant to the Claimant; and

iii)     the amount and due date of any payment which, if the Defendant did not draw further on the account, would later become payable under the Agreement by the Defendant to the Claimant.

3)      Contrary to Section 78(1) of the Consumer Credit Act 1974 (‘the Act’), the Claimant has failed to comply with the request referred to in paragraph 2 above.

4)      On 20 January 2014, the Claimant sent the Defendant a document which it described in its covering letter as a copy of the Executed Agreement, together with a statement of account in respect of the Agreement but the said document:

a)      was illegible contrary to regulation 2(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘the Copies of Documents Regulations’)3; and

b)      did not contain [the statutory statements of protection which would have been contained in the Executed Agreement as required by regulation 2(3) and Schedule 2 to the Consumer Credit (Agreements) Regulations 19834 or the statement explaining how and when the Defendant can terminate the Agreement which would have been contained in the Executed Agreement as required by regulation 3(2) and paragraph 29 of Schedule 1 to the Consumer Credit (Agreements Regulations 20105], contrary to regulation 3(1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘the Copies of Documents Regulations’)

5)      By reason of the facts and matters set out in paragraphs 2 to 4 above and by reason of Section 78(6)(a) of the Act, the Claimant is not entitled to enforce the Agreement.

 

Dated 8 March 2014

STATEMENT OF TRUTH

I believe or that the facts stated in this Defence are true.

[signed]

 


 

You’ll see in this defence the Defendant has admitted pretty much everything but is questioning the enforceability of the agreement.

 

Here is another example with short particulars of claim:


 

Particulars of Claim

‘1. The Claimant claims the sum of £3000.00 being monies due from the Defendant to the Claimant under a regulated agreement between the Defendant and A Bank PLC, Account number 123455 and assigned to the Claimant on 15 January 2014 notice of which has been provided to the defendant.

2. The defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant to the Consumer Credit Act 1974

3. The Claimant claims the sum of £3000.00 and costs

4. The Claimant has complied with the Practice Direction on Pre-action conduct.


 

[Headings as above]

Defence

1)      Save to admit that there is a regulated agreement between the Defendant and A Bank PLC; paragraph 1 of the particulars of claim is denied. The Defendant did not receive notice of the alleged assignment until 20 February 2014. In the notice the date of the alleged assignment was stated to be 1 February 2014 and the notice is therefore ineffective.

2)      The Defendant admits the non-payment set out in paragraph 2 of the Particulars of Claim but denies that he is liable to pay the Claimant pursuant to the demands or at all.

3)      The default notice referred to in paragraph 2 (‘the Default Notice’) did not comply with the requirements of Section 88 of the Consumer Credit Act 1974 (‘the Act’) and was not in the form prescribed by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (‘the Regulations’)

Particulars

 a)      The amount payable to remedy the breach was stated to be £4500 when in fact the amount payable by the Defendant under the Agreement was £2500

b)      There was no statement in the form prescribed by regulation 2(2) and paragraph 7 of Schedule 2 to the Regulations

c)        Contrary to Section 88(2) of the Act, the date specified as the date by which the amount referred to in paragraph 2.1 above was required to be paid was 15 January 2014, which was less than 14 days after the date of service of the Default Notice, which was sent to the Defendant by second-class post on 8 January  2014 and was not delivered until 10 January 2014.

4)      By reason of the facts and matters set out above, the Defendant denies that the Claimant is entitled to the relief claimed in the Particulars of Claim or to any relief.


 

I hope that is of some use.

Remember defending a claim is not always the best approach. Even if you feel you have a good defence be aware of the risks of engaging in ligation and the additional costs that could be incurred by defending a claim if you are unsuccessful.

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