Once the claim has been admitted, it is served on the defendant, together with copies of all the accompanying documents, so that the defendant can answer the claim within a period of twenty days.
Within this period, the defendant must enter an appearance, defended by a lawyer and represented by solicitor, and file a defence to the claim. If the defendant fails to enter an appearance within the stipulated period, he will be declared in default of appearance, and the claimant can then proceed to obtain judgment in default of appearance without the defendant’s further participation, and without providing more notifications other that the declaration of default and the judgment thus obtained. Non-appearance is not understood as an admission by the defendant of the facts alleged by the claimant, who remains under a duty to prove them; it does not amount to a recognition of the claimant’s case.
Thereafter, the case will proceed only with the active party namely the claimant, but at any time during the course of the said proceedings the defendant may join the case, but may not repeat or reopen issues which have already been heard by the court.
If the defendant appears and presents his defence, this will include all allegations of fact and law that serve to support the defence, following the same formal requirements that are required of the claimant.
The allegations raised by the defendant are called “exceptions” and can be “procedural” or “material”, depending on whether they relate to matters that constitute the case or the material background respectively. The only issue alleged that must be resolved prior to the defence is the issue of the lack of jurisdiction or authority of the court; if the defendant claims that the complaint was brought before a judge who lacks jurisdiction, then this allegation must be made by way of a challenge to the jurisdiction, and must be presented within the first ten days of the twenty day period within which a defence has to be filed, and effectively suspends the proceedings until the court rules on the matter, after hearing having heard the parties in person.
Other matters of a procedural nature can be raised by the defendant in his defence, by way of procedural exception, which may concern the want of a procedural requirement that must necessarily be satisfied (such as whether the parties have capacity or are adequately represented, or as to whether the procedure has been correctly brought) or as to the existence of any procedural obstacle that prevents continuance with the proceedings (for example, if the process is about an issue already decided or which is being heard in another case). These alleged procedural exceptions, raised in the defence should be resolved in the process known as the “pretrial hearing” to which we refer below; if the alleged procedural defect relating to the claim is not resolved then the case cannot proceed further and will be dismissed.
What are known as substantive exceptions either allege substantive facts of a civil or commercial nature, which if proven, would either invalidate the legal effect that the claimant alleges in his application (as occurs when a void contract provides the basis of the claim, for example) or that effectively extinguish legal effects (as for example if it is alleged and proved that there was payment or remission from a debt) or exclude them (for instance if the matter is statute barred or if there is an agreement not to proceed).
These exceptions are not resolved until the end, in the judgment, after the evidence is heard in the course of the hearing.
The filing of a defence must be accompanied by all relevant documents, opinions and reports that support the defendant, and which cannot be submitted later than the defence, unless it would have been impossible to provide the said evidence initially, or where the documentation did not exist or was unknown to the defendant within the time period allowed for filing the defence.
In answering the claim, the defendant is not restricted to defending the specific allegations against him, but is also entitled to counter claim against the claimant. Thus in filing the defence the defendant is entitled to counter claim against the claimant, as long as these are connected with the lawsuit and are formulated in the counterclaim, and refer to matters that are within the jurisdiction of the court seised of the matter and can be heard by way of ordinary procedure (because it is a matter or an amount determined by this procedure; but a counterclaim can also allege that the claim is appropriate for an oral hearing based on the amount involved.).
When making a counterclaim, it shall be treated as a claim for all purposes (counterclaim). This must be served on the claimant who has commenced the proceedings who is entitled to respond within a period of twenty days.