STUDYCLOCK EXAM REVIEW
CIVIL SKILLS
UNIT 9 – GUIDE TO DEFENCE AND
COUNTERCLAIMS
What is a counterclaim?
A counterclaim is a claim brought by a defendant against a claimant or some other
party and included in the same proceedings as the claimant’s claim. It is important to
note that it is not only claimants who may be subject to counterclaims - the defendant
may issue a counterclaim against another defendant or against some other person
who is not yet a party to the proceedings. There may therefore be more than one
claim being made within the same action and in relation to each a defence to
counterclaim should be filed.
CPR Part 20 makes it clear that a defendant who has any claim against the claimant
(whether or not related to the claimant’s claim) may, instead of bringing a separate
action, make a counterclaim and thus (subject to the court’s power to sever them)
have the two matters dealt with at the same time.
Although the two claims are dealt with together, the counterclaim can remain a self-
standing claim and can proceed even if the claimant’s claim ceases to exist.
The layout of the defence and counterclaim
The single document entitled “Defence and Counterclaim” is just what its title
suggests: a defence and a (counter) claim, set out in a single document (see CPR 20
PD 6.1). The title is as with other statements of case (see CPR 20 PD 7.3), BUT:
This study source was downloaded by 100000843285337 from CourseHero.com on 05-25-2023 03:16:13 GMT -05:00
2122_skill_civ_unit09_ce01_guide_to_defence_and_counterclaims 1
© The University of Law Limited
https://www.coursehero.com/file/151870898/Guide-to-defence-and-counterclaimsdocx/
, The words “DEFENCE AND COUNTERCLAIM” should appear between the
tramlines. Where there is more than one defendant you must add “…OF THE
FIRST/SECOND/… DEFENDANT” (SEE CPR 20 PD 7.10).
You must also delineate the two sections of the statement of case with centred
headings “DEFENCE” at the start of the defence section and “COUNTERCLAIM”
at the start of the counterclaim.
The paragraph numbering runs sequentially from the start of the Defence section
through to the end of the Counterclaim.
The wording of the prayer will be “AND the Defendant counterclaims” (rather than
“.... the claimant or defendant claims”).
In drafting terms, the Defence and Counterclaim is therefore essentially the same as
a separate defence and particulars of claim. Accordingly, the assessment criteria for
drafting a defence and counterclaim is largely a combination of the claims and
defences assessment criteria.
Set-off
A defendant to a claim for money often wishes to say that he does not have to pay
the claimant, because the claimant owes money to him.
In a case of that kind the defendant may, of course, commence his own, separate,
action against the claimant for the money which he says is owed to him. However,
the commencement of an entirely separate action of that kind would be unnecessarily
expensive and cumbersome. The courts therefore permit a defendant in that position
to bring his action against the claimant by way of a counterclaim, in the same action
in which he is being sued by the claimant.
The position where a claim is brought by way of a counterclaim is exactly the same
as the position where two separate actions have been brought. The court will try the
claim and the counterclaim, and will give judgment on each claim separately. The
This study source was downloaded by 100000843285337 from CourseHero.com on 05-25-2023 03:16:13 GMT -05:00
5585679ce0f290163ada636e1c6af5629c649788.docx 2
© The University of Law Limited
https://www.coursehero.com/file/151870898/Guide-to-defence-and-counterclaimsdocx/
CIVIL SKILLS
UNIT 9 – GUIDE TO DEFENCE AND
COUNTERCLAIMS
What is a counterclaim?
A counterclaim is a claim brought by a defendant against a claimant or some other
party and included in the same proceedings as the claimant’s claim. It is important to
note that it is not only claimants who may be subject to counterclaims - the defendant
may issue a counterclaim against another defendant or against some other person
who is not yet a party to the proceedings. There may therefore be more than one
claim being made within the same action and in relation to each a defence to
counterclaim should be filed.
CPR Part 20 makes it clear that a defendant who has any claim against the claimant
(whether or not related to the claimant’s claim) may, instead of bringing a separate
action, make a counterclaim and thus (subject to the court’s power to sever them)
have the two matters dealt with at the same time.
Although the two claims are dealt with together, the counterclaim can remain a self-
standing claim and can proceed even if the claimant’s claim ceases to exist.
The layout of the defence and counterclaim
The single document entitled “Defence and Counterclaim” is just what its title
suggests: a defence and a (counter) claim, set out in a single document (see CPR 20
PD 6.1). The title is as with other statements of case (see CPR 20 PD 7.3), BUT:
This study source was downloaded by 100000843285337 from CourseHero.com on 05-25-2023 03:16:13 GMT -05:00
2122_skill_civ_unit09_ce01_guide_to_defence_and_counterclaims 1
© The University of Law Limited
https://www.coursehero.com/file/151870898/Guide-to-defence-and-counterclaimsdocx/
, The words “DEFENCE AND COUNTERCLAIM” should appear between the
tramlines. Where there is more than one defendant you must add “…OF THE
FIRST/SECOND/… DEFENDANT” (SEE CPR 20 PD 7.10).
You must also delineate the two sections of the statement of case with centred
headings “DEFENCE” at the start of the defence section and “COUNTERCLAIM”
at the start of the counterclaim.
The paragraph numbering runs sequentially from the start of the Defence section
through to the end of the Counterclaim.
The wording of the prayer will be “AND the Defendant counterclaims” (rather than
“.... the claimant or defendant claims”).
In drafting terms, the Defence and Counterclaim is therefore essentially the same as
a separate defence and particulars of claim. Accordingly, the assessment criteria for
drafting a defence and counterclaim is largely a combination of the claims and
defences assessment criteria.
Set-off
A defendant to a claim for money often wishes to say that he does not have to pay
the claimant, because the claimant owes money to him.
In a case of that kind the defendant may, of course, commence his own, separate,
action against the claimant for the money which he says is owed to him. However,
the commencement of an entirely separate action of that kind would be unnecessarily
expensive and cumbersome. The courts therefore permit a defendant in that position
to bring his action against the claimant by way of a counterclaim, in the same action
in which he is being sued by the claimant.
The position where a claim is brought by way of a counterclaim is exactly the same
as the position where two separate actions have been brought. The court will try the
claim and the counterclaim, and will give judgment on each claim separately. The
This study source was downloaded by 100000843285337 from CourseHero.com on 05-25-2023 03:16:13 GMT -05:00
5585679ce0f290163ada636e1c6af5629c649788.docx 2
© The University of Law Limited
https://www.coursehero.com/file/151870898/Guide-to-defence-and-counterclaimsdocx/
