Published: Wed, 07 Mar 2018
11.3 The Defence
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When drafting a defence, the solicitor should ensure that it addresses each of the issues raised in the Particulars of Claim.
Usually, therefore, a defence will be structured so that it responds to each paragraph of the statement of case.
For each allegation, the defence will either admit, deny, make no admission or assert that the blame lies with another party.
Admissions should be made in relation to things that can be admitted – e.g. that there was an accident/contract etc.
There may be costs penalties for defendants who fail to make the reasonable admissions.
If an allegation made in the statement of claim is denied, the Defendant is obliged to give reasons for the denial and put his side of the story in the defence. Thus the Defendant cannot simply deny a matter but must state how or why, in his view, the incident occurred – e.g. in response to the Particulars of Claim above, the defence may include a statement along the lines of – the Defendant denies acting negligently as alleged. The accident was caused or contributed to by the Claimant.
It is perfectly reasonable for a defendant to fail to admit or deny something of which he has no knowledge.
In the Particulars of Claim example (Example of a Particulars of Claim in Negligence/Occupiers Liability), it is unlikely that the Defendant will have sufficient knowledge of the Claimant’s injuries or prognosis to be able to comment.
The defendant would usually seek expert opinion on the matter and the burden of proof would remain with the Claimant who would be required to prove both causation and the level of injury alleged.
In drafting, the Defendant would simply state something like – the Defendant makes mo admissions as to the Claimant’s injuries detailed in the report of Mrs Molly Taylor F.R.C.S, dated…
Blaming Another Party
In giving an explanation of how the events underlying the claim occurred, the Defendant may allege that in fact the blame for the incident lies with another party, including the Claimant.
In that case, the defence would then include details of allegations against the Claimant.
If the blame rests with a third party, they should be informed of this and an additional claim under CPR Part 20 will have to be made.
When drafting a defence, it is usual to include a ‘traverse’ which is a clause that makes a general denial. A traverse is intended as a ‘safety net’ to cover any issue that is not dealt with in the main body of the defence. It is not good practice, however, to rely on his clause and the defence should still be drafted with care to ensure that it deals with all allegations contained in the Particulars of Claim. A standard traverse will state ‘in the circumstances, it is denied that the Claimant is entitled to the losses claimed or any losses for the reasons alleged or at all.
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