Services / Civil and commercial litigation
Sued: fifteen days to file a defence
What most disadvantages a defendant is rarely a bad set of facts but a bare denial, because the statute requires the reason for the denial to be given. A point not taken at the outset usually cannot be taken later.
Fifteen days from service
The first paragraph of section 177 of the Civil Procedure Code provides that once the summons and plaint have been served on the defendant, the defendant is to file a written defence with the court within fifteen days. The period is shorter than people expect and runs from proper service, not from the day the defendant decides whether to fight.
A bare denial is not enough
The second paragraph requires the defendant to state clearly in the defence whether the plaintiff's allegations are admitted or denied, in whole or in part, together with the grounds. Those last words are the heart of the section. A defence saying only that everything is untrue is in difficulty from the moment it is filed, and quietly loses the points that should have been arguments.
A counterclaim can come in the defence
The third paragraph provides that the defendant may bring a counterclaim in the defence, but where it concerns a matter unconnected with the original claim the court will direct that it be brought as a separate action. This is worth a great deal in practice: a defendant with a claim of its own can have it dealt with in the same case rather than starting another and paying a second set of court fees.
How closely connected it must be
The line lies in the words a matter unconnected with the original claim, which the court decides. Framing a counterclaim so that it arises from the same substratum of facts is therefore work to be done at the drafting stage rather than a box to be filled, because if the court orders it separated, the counterweight intended for the same case disappears and a fresh process has to begin.
What to do on the day the summons arrives
First, note the date of service and count the fifteen days at once. Second, read the plaint allegation by allegation and separate what can be admitted, what is denied, and on what ground. Third, gather the documents that support those grounds, because fifteen days goes on document-hunting faster than expected, and an extension is a matter for the court's discretion rather than a right.
PREPARE
What to bring
- The summons and plaint, with the date of service
- The documents attached to the plaint
- The contract or documents the dispute arises from
- Evidence of payments made or obligations performed
- Details of any claim of your own that might be counterclaimed
QUESTIONS
Questions this raises
Only a few days are left. Can I get an extension?
An extension requires an application to the court and lies in its discretion; it is not obtained by notifying anyone. The application should therefore go in before the period expires, with a reason that can be explained, and the defence should be prepared in the meantime rather than waiting on the ruling.
The plaintiff owes me too. Can that be dealt with here?
The third paragraph of section 177 allows a counterclaim in the defence, but where it concerns a matter unconnected with the original claim the court will direct a separate action. The question is therefore whether the debt arises from the same matter the plaintiff sues on, and the answer shapes how the whole defence is framed.
LAW
The legislation
- Civil Procedure Code, section 177
ENQUIRIES
