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.

A REPLY

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

CPR 15.8.

“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)”

CPR .16.7

Reply to defence

16.7
(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 [2021] 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.

THE JUDGMENT ON THIS ISSUE

“I reject Mr Selby’s submission that such view would deprive the Reply of all purpose. A Reply can be particularly useful in order to refute a ground of defence. For example, a Reply can properly plead:
20.1 a later date of knowledge pursuant to ss.14 or 14A of the Limitation Act 1980, or that the court should disapply the primary limitation period pursuant to ss.32A or 33 of the Act, in answer to a plea in the Defence that the claim is statute barred;
20.2 that an exemption or limitation clause was not incorporated into the parties’ contract or that it was of no effect in excluding or limiting liability because the clause did not satisfy the condition of reasonableness within the meaning of the Unfair Contract Terms Act 1977; or
20.3 that the defendant is estopped by some earlier judgment or representation from relying upon a particular defence.
In each example, the claimant would be pleading new facts in order to refute a defence, but it would not be pleading a new claim. Equally, while there is no obligation to respond upon the facts, a Reply can usefully admit a fact alleged in the Defence (thereby avoiding the cost and trouble of needing to prove the fact and allowing the court and parties to focus on the real issues) while explaining why such admitted fact does not provide a defence to the claim. Or a Reply can deny an allegation of fact and usefully explain why such allegation must be wrong.”