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Summary CIV3701 - Civil Procedure Important Notes
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Notes Exam Type:Notice of intention to defend:
• Defendant who neglects to file and deliver notice of intention to defend
timeously.
• Runs the risk of having a default judgement given against him or her.
• Rule 13(5) plaintiff is entitled to cost if the plaintiff have already lodged a request
for a default judgement if the appearance to defend is entered to.
Plea on Merits:
• Only way defendant may raise defence against the plaintiff’s claim.
• Plea must deal with the merits of the plaintiff’s case as it is set out in the
plaintiff’s particulars of the claim or the declaration.
• Defendant must deal with each allegation in the particulars of the claim or
declaration, especially the factual allegations.
• In this plea the plaintiff’s factual allegations are admitted, denied placed in issue
or are confessed and avoided and all the material facts upon the defendant
relies are stated clearly and concisely.
Counter Claim: UR 24(1)
• Known as claim in reconvention
• Plaintiff has opportunity to answer to the counterclaim with a plea on the counter
claim.
Replication:
• Plaintiff’s reply to the defendant’s plea, only necessary when defendant raises
new allegations as to facts of plea.
• Plaintiff will be ipso facto automatically barred from replication if failed to deliver
replication within dies induciae.
Rule 29 Close of Pleadings
Pleadings shall be considered closed-
(a) if either party has joined issue without alleging any new matter, and without adding
any further pleading;
(b) if the last day allowed for filing a replication or subsequent pleading has elapsed
and it has not been filed;
(c) if the parties agree in writing that the pleadings are closed and such agreement is
filed with the registrar; or
(d) if the parties are unable to agree as to the close of pleadings, and the court upon
the application of a party declares them closed.
, Remedial Steps
Inspection (rule 35(14)):
• After appearance to defend has been entered
• Any party to an action may
• For the purpose of pleading
• Require the other party to make available for inspection within 5 days.
Application to strike out:
• A party may make application to strike out that part of opponents pleading
• Which contains offending allegations which are Scandalous, vexatious or
irrelevant.
• If court is satisfied that the applicant will be prejudice in conducting his claim
or defence if the application is not granted, the court will grant a interlocutory
application.
• Application will be set down for trial ito rule 6(5)(f).
Amendment to pleadings (Rule 28):
• Any party may amend his/her own pleadings or documents which have been
filed irt any proceedings.
• Such party must give notice of such intention to amend to all parties
concerned.
• Must set out the details of the amended the relevant notice.
• Amendment procedure is used for variety of purposes, the most common of
these is to correct errors in pleadings, to amplify the cause of action, to
introduce a further or alternative cause of action, or to extend or limit the relief
claimed.
• General rule court will grant all amendments unless mala fide or the opposing
party will suffer prejudice.
The exception:
• In the case of a plea that is vague and embarrassing.
• Where a pleading discloses no cause of action of defence an exception
provides a speedy and inexpensive manner of determining the issues without
having to embark on the lengthy and expensive procedure of a full trial.
• Exception must appear ex facie the pleading that’s excepted.
• Pleading must be taken as a whole.
Special Plea:
• Deals with the merits of the plaintiff’s claim, as set out in her declaration or
particulars of claim.
• Means raising an objection on the basis of certain facts that do not appear in
the plaintiff’s declaration or particulars of claim, has the effect pf postponing or
destroying the action.
• Failure may ask for default judgement.
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