REPLIES TO DEFENCES: WHY AND WHEN…
A post yesterday made me think that this is an opportune time to re-visit the function of the Reply in litigation. I am here concerned only with a Reply to a Defence which is, essentially voluntary, not a Defence to counterclaim which is definitely mandatory.
If the Defence does not contain a counterclaim a Reply is not mandatory. The Rules make it clear that a failure to fail a Reply does not mean that the claimant is deemed to admit anything in the Defence, the defendant must still prove all those matters set out in the Defence.
THE RULES RELATING TO A REPLY
“Reply to defence
15.8 If a claimant files a reply to the defence, the claimant must
(a) file the reply with a directions questionnaire; and
(b) serve the reply on the other parties at the same time as it is filed.
(Rule 26.3(1) and (6) requires the parties to file directions questionnaires and specifies the period for doing so).
(Part 22 requires a reply to be verified by a statement of truth)”
Reply to defence
(1) A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.
(2) A claimant who –
(a) files a reply to a defence; but
(b) fails to deal with a matter raised in the defence, shall be taken to require that matter to be proved.
(Part 22 requires a reply to be verified by a statement of truth)
WHEN TO FILE A REPLY
Some useful guidance came in the decision yesterday in Martlet Homes Ltd v Mulalley & Co. Ltd  EWHC 296 (TCC) where Mr Justice Pepperall rejected an argument that the fact that a claimant could not put forward a new case in the Reply deprived it all of all purpose.