Defence – Some personal reflections

PI_John_Morris_Collins By John Collins

There is a striking difference between CPR part 16.4, which deals with the Particulars of Claim and 16.5, which deals with the defence.  Whereas there is a clear instruction that the Particulars of Claim has to include only a concise statement of the facts on which the Claimant replies, there is no corresponding provision so far as the Defence is concerned.

This has been taken as an implied permission to Defendants to produce defences which are out of all proportion both to the issues and as to the sums involved.  In perfectly simple road accident cases, defences have been forthcoming of monstrous length, sometimes over 20 pages.

In my opinion, what is required in a defence is a clear and concise statement in summary form of the issues which the Defendant wishes to raise by way of defence to the claim.  16.5 makes it clear that first of all the Defendant has to state which of the allegations in the Particulars of Claim he denies and which he admits and which he cannot either admit or deny but requires the Claimant to prove.  Further, where he denies an allegation, he has to state his reasons for doing so and if he intends to put forward a different version of the events from that given by the Claimant, he has to state his own version.  That means, for instance, that if the Claimant has alleged that the collision occurred as a rear-end shunt, the Defendant cannot simply deny that that is correct, but must, if it be his case, allege that the Claimant reversed into the Defendant’s stationary vehicle. He need say no more than that.

Of course, if the Defendant is making a positive allegation, such as that the claim is fraudulent, the Defendant should say so and then set out in sub-paragraphs particulars of the fraud alleged.  Similarly, if it is the Defendant’s case that the collision was a trivial bump at low velocity, the Defendant has to set out clearly that that is his or her case (and of course comply in other respects with the procedure laid down in Casey v Cartwright [2007] RTR 18.

It cannot be correct for a Defendant to fill over a page with a list of the documents which the Claimant has disclosed to the Defendant or another page with a list of documents that the Defendant requires the Claimant to disclose. I would accept that there are occasions when, in order to present a defence properly, the Defendant will have to go into a fair amount of detail, for instance in raising a defence of estoppel, when it is incumbent upon the Defendant to set out clearly, albeit concisely, the matters upon which the Defendant relies in establishing such a defence. But in general, a defence should not be significantly longer than the Particulars of Claim. Its purpose is to acquaint the Claimant and indeed the court with the general outline of the case for the Defendant, not the detailed arguments that the Defendant might wish to present at a trial.

Now I am aware that there is a view that the Defendant might as well produce what is in effect a ‘skeleton argument’, though the corpulent product bears no resemblance to a true skeleton argument, on the basis that it enables all of the Defendant’s arguments to be put forward and avoids the need for a separate skeleton argument. In my view that is a mistaken approach.   Quite apart from the fact that the vast majority of claims are settled before they actually come to trial and therefore a skeleton argument is not necessary, it is inevitable that in the course of preparing a case to go to trial, the issues which are ultimately those which are to be contested at a trial change. Many points which appeared at first sight to be important or relevant cease to be so.  It is therefore a waste of time and money to produce sesquipedalian defences when simple straightforward defences will do.

Of course, from the Claimant’s point of view, such a defence provides a considerable opportunity to enable the Claimant to tidy up and improve his or her case, since the Claimant is informed of every point which may be made on the other side and can take steps to counter it.  Furthermore, it can have the disadvantage to the Defendant, if the Defendant is unsuccessful, that what would otherwise be unjustifiable expense on the part of the Claimant in the conduct of the Claimant’s case can be difficult to challenge, because the expenditure on the part of the Defendant has been similarly distended.

Whilst, therefore, it is necessary to put forward all viable defences, the moral must surely be to try to keep it short and direct.

I hope shortly to deal with the Reply.

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2 comments

  1. […] John Collins of Zenith Chambers on Defence – some personal reflections. […]

  2. […] Collins gave us his advice on defences in Defence – Some Personal Reflections (May […]

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