The County Court Rules 1981

ORDER 9ADMISSION, DEFENCE, COUNTERCLAIM AND ANSWER

Application of Order

1.  Except as otherwise provided, the provisions of this Order relating to actions shall apply to both default and fixed date actions.

Admission, defence or counterclaim to be delivered

2.—(1) A defendant in any action who—

(a)admits his liability for the whole or part of the plaintiff's claim;

(b)desires time for payment of any sum admitted by him;

(c)disputes his liability for the whole or part of the plaintiff's claim, or

(d)desires to set up a counterclaim,

shall, within 14 days after the service of the summons on him, deliver at the court office–

(i)the form appended to the summons completed according to the circumstances of the case, or

(ii)an admission, request for time for payment, defence or counter-claim otherwise than on that form, together with a copy for the plaintiff.

(2) On receipt of the document the proper officer shall send a copy thereof to the plaintiff together, in a case to which rule 3(1) relates, with a notice of the requirements of that rule.

(3) The court may at any time allow a defendant to amend or withdraw an admission made by him under this rule on such terms as may be just.

Admission of part or request for time in default action

3.—(1) If within the period of 14 days mentioned in rule 2 the defendant in a default action delivers at the court office—

(a)an admission of part of the plaintiff's claim, or

(b)an admission of the whole or part of the plaintiff's claim accompanied by a request for time for payment,

the plaintiff shall, within 14 days after receipt by him of the proper officer's notice under rule 2(3), notify the proper officer whether he accepts the amount admitted (if it is not the whole of the plaintiff's claim) and any proposal as to the time of payment.

(2) If the plaintiff notifies the proper officer of his acceptance of the amount admitted (if it is not the whole of the plaintiff's claim) and any proposal as to the time of payment, the registrar shall as soon as practicable enter judgment accordingly.

(3) If the defendant admits the whole of the plaintiff's claim or such part thereof as the plaintiff accepts and the plaintiff notifies the proper officer that he does not accept the defendant's proposal as to time of payment, the proper officer shall fix a day (in these rules called a day fixed for the disposal of the action) on which the time of payment will be determined and judgment entered by the court, and shall give to the plaintiff and the defendant not less than 8 days' notice of the day so fixed.

(4) If the defendant admits part of the plaintiff's claim and the plaintiff notifies the proper officer that he does not accept the amount admitted, the proper officer shall fix a day for a pre-trial review or, if he thinks fit, a day for the hearing of the action and give to the plaintiff and the defendant not less than 8 days' notice of the day so fixed.

(5) The disposal of an action under paragraph (3) may be conducted by the registrar sitting either in court or in chambers.

(6) Where the action is for unliquidated damages and the defendant delivers an admission of liability for the claim but disputes the amount of the plaintiff's damages, then—

(a)if the defendant offers to pay in satisfaction of the claim a specific sum which the plaintiff accepts, the provisions of this rule shall apply as if the defendant had admitted part of the plaintiff's claim; and

(b)in any other case, the plaintiff may apply to the court for such judgment as he may be entitled to upon the admission, and the court may give such judgment, including an interlocutory judgment for damages to be assessed and costs, or make such order on the application as it thinks just.

Admission in fixed date action

4.—(1) If within the period of 14 days mentioned in rule 2 the defendant in a fixed date action other than an action for the recovery of land delivers at the court office an admission of the whole or part of the plaintiff's claim, the plaintiff may apply to the court for such judgment as he may be entitled to upon the admission, without waiting for the return day or for the determination of any other question between the parties, and the court may give such judgment or make such order on the application as it thinks just.

(2) An application under paragraph (1) shall, if made before the return day, be made on notice to the defendant.

Defence or counterclaim in default action

5.  If within the period of 14 days mentioned in rule 2 the defendant in a default action delivers at the court office either a defence not accompanied by an admission of any part of the plaintiff's claim or a counterclaim, the proper officer shall fix a day for a pre-trial review or, if he thinks fit, a day for the hearing of the action, and shall give to all parties not less than 14 days' notice of the day so fixed.

Judgment in default or on admission in default action

6.—(1) Subject to paragraphs (2) and (3) and rule 7, if the defendant in a default action—

(a)does not within 14 days after service of the summons on him, pay into court the total amount of the claim and costs on the summons or deliver at the court office an admission, defence or counterclaim, or

(b)delivers at the court office an admission of the whole of the plaintiff's claim unaccompanied by a counterclaim or a request for time for payment,

the plaintiff may, upon filing a request in that behalf and, unless otherwise directed, producing the plaint note, have judgment entered against the defendant for the amount of the claim and costs, and the order shall be for payment forthwith or at such time or times as the plaintiff may specify.

(2) If the plaintiff's claim is for unliquidated damages, any judgment entered under paragraph (1)(a) shall be an interlocutory judgment for damages to be assessed and costs.

(3) Where the defendant is a State as defined in section 14 of the State Immunity Act 1978—

(a)the plaintiff may not enter judgment under paragraph (1)(a) without the leave of the judge and R.S.C. Order 13, rule 7A, shall apply to an application for such leave as it applies to an application for leave to enter judgment against a State in the High Court;

(b)the plaintiff may not enforce a judgment entered pursuant to such leave until two months after a copy of it has been served on the State.

Default judgment for mortgage money

7.—(1) No judgment shall be entered under rule 6(1)(a) for money secured by a mortgage except with the leave of the court.

(2) An application for the grant of leave under this rule shall be made on notice to the defendant.

(3) The application may be heard and determined by the registrar.

(4) In this rule “mortgage” includes a legal and an equitable mortgage and a legal and an equitable charge.

Interest after action brought

8.—(1) The sum for which judgment is entered under rule 6(1) may include interest to the date of entering judgment, if such interest is payable by virtue of a statute or contract and is stated in the plaintiff's particulars of claim to be so payable.

(2) A claim shall not be prevented from being treated for the purposes of rule 6(2) as a liquidated demand by reason only that part of it is for interest so payable at an unspecified rate but any such interest shall be computed at the rate which would be allowed in the High Court in like circumstances.

Failure to deliver admission etc. in time

9.—(1) Notwithstanding that the period of 14 days mentioned in rule 2 has expired, a defendant may deliver an admission, defence or counterclaim at any time before the entry of judgment under rule 6 or, in a fixed date action, before the return day, and if time permits the same procedure shall be followed as if the admission, defence or counterclaim had been delivered within the said period of 14 days.

(2) Notwithstanding that he has failed to deliver a defence, the defendant in a fixed date action may appear on the return day and dispute the plaintiff's claim.

(3) In any case to which paragraph (1) or (2) applies, the court may order the defendant to pay any costs properly incurred in consequence of his delay or failure.

Striking out default action after twelve months

10.  Where 12 months have expired from the date of service of a default summons and—

(i)no admission, defence or counterclaim has been delivered and judgment has not been entered against the defendant, or

(ii)an admission has been delivered but no judgment has been entered under rule 6(1) or, as the circumstances may require, no notice of acceptance or non-acceptance has been received by the proper officer,

the action shall be struck out and no enlargement of the period of 12 months shall be granted under Order 13, rule 4.

Particulars of defence

11.—(1) If the defendant in a fixed date action fails to deliver a defence within the period of 14 days mentioned in rule 2, the court may at any time before the trial order him to do so.

(2) The court may order the defendant in a default or fixed date action to give the plaintiff further particulars of any defence delivered by the defendant and the order may be made on such terms as the court thinks just.

(3) An order under paragraph (1) or paragraph (2) may be made by the court on application or of its own motion, but where the applicant for an order under paragraph (2) did not make a written request for the particulars he desires, the court may refuse to make an order unless of opinion that there were sufficient reasons for not making such a request.

(4) Where further particulars are given pursuant to an order or request—

(a)the order or request shall be incorporated with the particulars, each item of the particulars following immediately after the corresponding item of the order or request, and

(b)the particulars shall be filed and a copy shall forthwith be served on the plaintiff.

Defence of tender

12.  Where a defence of tender before action is pleaded, the defendant shall pay into court the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until the payment into court has been made.

Delivery of defence not a waiver

13.—(1) The delivery by a defendant of a defence shall not be treated as a waiver by him of any irregularity in the summons or the service thereof or in any order giving leave to serve the summons out of England and Wales or extending the validity of the summons for the purpose of service.

(2) No application to set aside any proceedings for such an irregularity shall be granted unless made within a reasonable time, nor if the party applying has taken any step in the proceedings, otherwise than by delivering a defence, after knowledge of the irregularity.

Summary judgment where no real defence

14.—(1) Without prejudice to rule 11 and Order 13, rule 5, where in a default action the plaintiff's claim is for a sum of not less than £500 and the defendant has delivered at the court office a document purporting to be a defence, the plaintiff may apply to the court for judgment against the defendant on the ground that, notwithstanding the delivery of that document, the defendant has no defence to the claim or to a particular part of the claim.

(2) An application under paragraph (1) shall be supported by an affidavit verifying the facts on which the claim or the part of it to which the application relates is based and stating that in the deponent's belief, notwithstanding the document which has been delivered, there is no defence to the claim or that part.

(3) Notice of the application, together with a copy of the affidavit in support and of any exhibits referred to therein, shall be served on the defendant not less than 7 days before the day fixed for the hearing of the application.

(4) Where an application under paragraph (1) is made at a time when a day has been fixed for the pre-trial review of the action, the application shall, unless otherwise directed, be heard on that day, and in any case, if on the hearing of the application the court orders that the defendant do have leave (whether conditional or unconditional) to defend the action with respect to the claim or part of the claim, the court may treat the hearing as a pre-trial review and Order 17 with the necessary modifications shall apply accordingly.

(5) The provisions of the R.S.C. relating to showing cause against an application under Order 14 of those rules and giving the plaintiff judgment or granting the defendant leave to defend on such an application shall apply in relation to an application under this rule as they apply in relation to an application under the said Order 14.

Counterclaim against person other than plaintiff

15.  Where a defendant desires to set up a counterclaim against the plaintiff and some other person who is not a party to the action, he may apply to the court for an order that the other person be added as a defendant to the counterclaim and the court may make an order accordingly and give all such directions as may be necessary to enable the questions at issue between all the parties to be determined at the trial of the action.

Admission in action for recovery of land

16.—(1) A defendant in an action for the recovery of land who admits the plaintiff's right to recover possession of the land may at any time before the return day deliver at the court office an admission to that effect.

(2) The proper officer shall as soon as practicable after the receipt by him of the admission send notice thereof to the plaintiff accompanied by a copy of the admission, and no costs incurred after the receipt of the notice in respect of the proof of any matter which the admission renders it unnecessary to prove shall be allowed against the defendant who has made the admission.

Interpretation

17.  In the foregoing provisions of this Order, unless the context otherwise requires, “defence”, “admission” and “counterclaim” mean respectively any document which shows that the defendant desires—

 (a)to dispute the whole or any part of the plaintiff's claim,

17.

 (b)to admit the whole or any part of the plaintiff's claim or ask for time for payment of the amount admitted and costs, or

17.

 (c)to set up a counterclaim.

Answer to originating application

18.—(1) Where the respondent to an originating application is required by any of these rules to file an answer, the following paragraphs shall apply subject to any special provision made by that rule.

(2) The answer shall state whether or not the respondent intends to resist the application and, if so, on what grounds.

(3) The answer shall be filed within 14 days after the date of service of the application on the respondent and shall be accompanied by as many copies as there are other parties to the proceedings.

(4) On receipt of the answer and copies the proper officer shall send a copy to the applicant and to every other party to the proceedings.

(5) The notice of the return day given to the respondent under Order 3, rule 4(4)(b), shall contain a notice requiring him to file an answer as aforesaid.

Signing of admission etc. and address for service

19.  Every admission, defence or counterclaim delivered pursuant to rule 2 and every answer to which rule 18 relates shall be signed—

(a)by the defendant if he is acting in person;

(b)by the defendant's solicitor in his own name or in the name of his firm, if the defendant is acting by solicitor,

and shall state the defendant's address for service.