Summary
Summary Chapter 16
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Detailed summary of chapter 16 from the fundamental principles of civil procedure textbook
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CHAPTER 16 – PLEA,REPLICATION, COUNTERCLAIM,
COUNTERPLEA, LITIS
CONTESTATIO
The Plea
GENERAL:
What:
= Defendant’s answer to the plaintiff’s claim
Sets out the defence on which the defendant relies
How?
Answer each and every allegation in the particulars
of claim (otherwise admitting that allegation) +
Clearly and concisely state all material facts +
Set out defence
What if plea does not satisfy requirements of content:
Irregular step
Application to strike out
May take exception
Plea = pleading
Should conform with the requirements in HCR 18
and MCR 6
Ie: signed, headings, paragraphs, title, material
facts, no law
Sequence:
Summons + POC
Notice of intention to defend
(Interim procedure or shortcut judgment)
Plea
TIME PERIODS:
Regulated by HCR 22 and MCR 17 (rules are aligned)
Where plaintiff issues a simple summons:
Plea must be delivered within 20 court days after
delivery of plaintiff’s declaration
, Where plaintiff issues a combines summons:
Plea must be delivered within 20 court days after
delivery of defendant’s notice of intention to defend
Exceptions to prescribed dies:
When dealing with interim procedures such as
application to strike out or exceptions
First deal with the interim application – only after it
is done then continue with plea
Eg: when faced with an application for summary
judgment
No plea
First, oppose application for summary judgment
Second, court must make a decision (ie: grants or
refuses application)
If refuses, defendant then has 20 court days from
decision of court to deliver plea
Failure to comply with time periods:
Defendant fails to deliver plea within prescribed dies
Notice of bar
Calls defendant to deliver a plea within 5 court days
– if not = ipso facto barred from doing so
Ie: defendant will not be able to deliver plea after
the 5 day period – thereafter, the plaintiff may apply
for default judgment
2 MAIN KINDS OF PLEAS:
2 Main kinds of pleas:
Plea on the merits
Special plea
PLEA ON MERITS SPECIAL PLEA
Related to substance Not based on merits -
of claim raises a legal objection
Attacks the validity of Knocks the plaintiff’s
the plaintiff’s cause of claim before the merits
action/ facts are considered
Eg: Plaintiff sues Eg: objections based
defendant for damages on jurisdiction,
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