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Chapter

Cover A Practical Approach to Effective Litigation

16. Defending an Action  

This chapter focuses on the role of the defendant. The litigation system in England is adversarial, thus on the face of it the role of the defendant is potentially defensive, confrontational, and non cooperative. While the objective of the defendant will usually be to make the claim go away, the perhaps natural desire to take an approach that involves denial, delay, and obfuscation wherever possible must be resisted, or at least carefully considered. The chapter discusses the main types of defence to an action; dealing with the early stages of an action when a claim form is received; rules for drafting a defence; making a counterclaim; claiming a set-off; a general framework for a defence and counterclaim; and strategies and tactics in defending a case.

Chapter

Cover A Practical Approach to Civil Procedure

14. Statements of Case  

Statements of case are formal documents used in litigation to define what each party says about the case. This chapter discusses forms of statements of case; particulars of claim defence; counterclaims and set-offs; reply and defence to counterclaim; subsequent statements of case; dispensing with statements of case; Scott schedules; interrelation with case management; and use of statements of case at trial.

Chapter

Cover A Practical Approach to Civil Procedure

21. Limitation  

This chapter discusses the rules on limitation. The expiry of a limitation period provides a defendant with a complete defence to a claim. Limitation is a procedural defence. It will not be taken by the court of its own motion, but must be specifically set out in the defence. Limitation runs from accrual, which is when all the necessary elements for the cause of action are in existence. Technically, time runs from the day after the accident or breach, and stops running when the claim is brought. This is when the claimant has done everything they can to issue the claim form. Time does not run if the claimant is under disability, and in cases of fraud, mistake, and concealment. In personal injury and latent damage claims time will not start running until the claimant has the requisite ‘knowledge’, and there is a discretion to disapply limitation in personal injury claims.