A notice of intention to defend announces that you will fight. The defence is where you say how. Order 8 Rule 9 makes clear that the two are different documents with different deadlines.
Order 8 Rule 4
A defendant shall file and serve on the plaintiff his defence in Form 16 —
(a) where the statement of claim is endorsed on the writ — before the expiry of 14 days after the date of expiry of the time limited for him to give notice of intention to defend; or
(b) where the statement of claim is not endorsed on the writ — before the expiry of 14 days from the date of service of the statement of claim; or
(c) for a defendant to a cross-claim not required to give notice of intention to defend it — before the expiry of 21 days after the date of service of the cross-claim.
Rule 4(2) — where the plaintiff serves a motion for summary judgment under Order 12 Rule 38 before the defence is filed, sub-rule (1) does not apply; if the motion does not dispose of everything, the Court fixes a fresh time.
Rule 13(4)(b) — where the defendant serves a Form 19 notice requiring a money claim to be properly pleaded, the time for the defence does not expire before 14 days after service of the amended statement of claim.
And under Order 7 Rule 7(5), once a jurisdiction motion is served, the plaintiff may take no step without leave.
Rule 21 — answer everything
(1) An allegation of fact made by a party shall stand admitted by any opposite party required to plead to that pleading unless it is traversed by that party, or a joinder of issue under Rule 22 operates as a denial of it.
(2) A traverse may be either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation.
(3) Where a pleading alleges the suffering of damage, or an amount of damages, a pleading to it shall be taken to traverse the allegation unless it is specifically admitted.
Denial — you positively assert the allegation is untrue. Use it for facts within your knowledge.
Non-admission — you do not know, and require the plaintiff to prove it. Use it for facts outside your knowledge.
Denying a fact you know to be true is improper. Non-admitting a fact plainly within your knowledge invites criticism and can affect costs.
Note the reversal in sub-rule (3): damage and quantum are traversed automatically unless specifically admitted. That is the one place silence helps a defendant. Everywhere else, see deemed admissions.
Rules 14 to 16
In a defence or subsequent pleading the party shall plead specifically any matter — for example, performance, release, any statute of limitation, fraud, or any fact showing illegality — which (a) makes the opposite party’s case not maintainable; or (b) may take the opposite party by surprise; or (c) raises matters of fact not arising out of the preceding pleadings.
| Matter | Rule |
|---|---|
| Statute of limitation — Frauds and Limitations Act 1988 | r 14 |
| Performance; release; fraud; illegality | r 14 |
| Absence of a section 5 notice against the State | r 14 — a condition precedent making the claim not maintainable |
| Contributory negligence | r 15 — expressly |
| Every ground of defence in a claim for possession of land | r 16 — and stating possession alone is not sufficient |
| Customary law relied on | r 20A — silence is deemed to plead that none applies |
| Set-off | r 26 |
| Tender — and the money must be brought into Court | r 25 |
Rules 25 and 26
Where a claim by a defendant to a sum of money, whether of an ascertained amount or not, is relied on as a defence to the whole or part of the plaintiff’s claim, it may be included in the defence and set off against the plaintiff’s claim, whether or not the defendant also cross-claims for that sum.
A defence of tender before the commencement of the proceedings requires the defendant to bring into Court the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until the amount has been brought into Court. See payment into Court under Order 8 Division 6.
Rule 24 — verified defences
Where the statement of claim makes a claim for a liquidated demand, but no other claim, and bears a note requiring the defendant to verify his defence, the defendant shall, within the time limited for filing his defence, file an affidavit verifying his defence, swearing that the defence is true in substance and in fact.
The defendant; or for a Minister or officer of the Government sued in his official capacity, some officer of the Government having knowledge of the facts; or for a corporation or body of persons, some member or officer having knowledge of the facts; or for a disabled person, his guardian at law.
Rule 24(4) lets the Court give leave to file a different affidavit, or none, and sub-rule (5) allows that application without filing or serving a notice of motion. The affidavit must be served on the day of filing, and under sub-rule (7) it may be subscribed to the defence.
Rule 28 — a party shall not plead the general issue. A defence that denies everything and explains nothing is exposed to being struck out under Rule 27 and offers no protection against summary judgment. Answer the statement of claim paragraph by paragraph, and plead your positive case.
If you cannot meet the deadline, ask for more time before it passes — not after default judgment is entered.
Sources
- National Court Rules 1983 — O 7 rr 7, 9; O 8 rr 4, 5, 13–16, 20A, 21, 24–28, Div 6; O 12 rr 38, 40; Forms 16, 19
- Frauds and Limitations Act 1988; Claims By and Against the State Act 1996 s 5
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.