This article is an abbreviated version of a chapter in Civil Litigation D.I.Y., a litigation book on how to value, assemble and settle lawsuits.
The book does a deep dive into the 6 steps outlined below, discussing each of the steps in some detail. The book and this article are legal information, not legal advice.
I’ve read a lot of defences that run the full spectrum from excellent to terrible. The pleadings are the first thing a Judge looks at for a trial. They are therefore important. Excellent pleadings tell an easy to follow story covering the 5 Ws: who, what, where, when and why and address the issues discussed below.
Step 1: Can you Avoid Court?
First and foremost: why are you drafting a statement of defence? Going to Court should be a last resort once you’ve truly exhausted all other avenues, such as negotiation and mediation.
Step 2: Thinking Ahead
Who is suing who and why? Do you have insurance? Why are you being sued? What is the legal basis for the claim? What is the claim actually worth if it succeeds? What is the limitation period? Are there any counterclaims, crossclaims or third party claims?
Step 3: Form
The statement of defence must use the right format and look right.
You can download a professionally formatted notice of intent to defend (buys you 10 additional days), statement of defence and/or statement of defence and counterclaim, including a backsheet from our Court form library by clicking here.
This link will also take you to our statement of defence denial precedent that will help you organise your defence properly.
Step 4: Content
To assist in drafting the statement of defence, we’ve created a precedent statement of defence denying all claims, which can be downloaded here.
Defendants may also want to counterlaim against the plaintiff(s) and potentially others. We have precedents for both types of statement of defence and counterclaim here.
A defence will identify the Court information and party names. The early paragraphs will indicate what is admitted, denied and unknown. A defendant can describe the parties if they are not accurately described in the claim. A concise overview is helpful. A defence should tell a story and respond to the issues of liability and damages. Statutory defences such as limitation periods should be plead.
Step 5: Jury?
It is during the pleadings stage that parties consider whether or not to have a Jury. A Jury notice is filed if they want one and the case is suitable for a Jury.
Like anything you write, it is important to review and edit. It’s also a good idea to have someone else read the draft defence to see if it makes sense to them. It never hurts to hire a lawyer on a consulting basis to review and comment on the draft. This can be valuable advice to make sure the statement of defence raises all potential defences.
Conclusion
For a more detailed discussion of how to write a statement of defence, please take a look at the chapter in Civil Litigation D.I.Y called “How to Draft a Statement of Defence”.
We are regularly consulted on draft statements of defence. Please feel free to set up a trial consultation to discuss further.
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