Acts and Regulations

Rule-28 - COUNTERCLAIM

Full text
Current to 1 January 2024
PLEADINGS
RULE 28
COUNTERCLAIM
28.01Where available
(1)A defendant may assert, by way of counterclaim, any right or claim which he may have against the plaintiff.
(2)Where a defendant counterclaims against a plaintiff, he may join any other person, whether a party to the action or not, who is a necessary or proper party to the counterclaim.
28.02Statement of Defence and Counterclaim
(1)A defendant shall plead his defence and counterclaim in one document to be called a Statement of Defence and Counterclaim (Form 27C-1).
(2)Where there is a party added by counterclaim, the style of proceeding in the Statement of Defence and Counterclaim (Form 27C-2) and in subsequent documents shall be changed to show the name of the party added by counterclaim.
28.03Time for Filing and Serving Statement of Defence and Counterclaim
(1)Where a counterclaim is against the plaintiff only, the Statement of Defence and Counterclaim shall be filed and served within the time prescribed for filing and serving the Statement of Defence in the main action.
(2)Where a counterclaim is against the plaintiff and a party added by counterclaim, the Statement of Defence and Counterclaim shall be issued within the time prescribed for filing and serving of the Statement of Defence in the main action, and shall be served
(a) on the plaintiff, within the time prescribed for service of the Statement of Defence in the main action, and
(b) on the party added by counterclaim, together with a copy of the Statement of Claim in the main action, within 30 days of issue.
(3)Service of a Statement of Defence and Counterclaim on
(a) the plaintiff, or
(b) a party added by counterclaim who is a defendant in the main action,
may be made in any manner set out in Rule 18 but if that defendant has failed to file and serve a Notice of Intent to Defend or a Statement of Defence in the main action, service on him shall be personal service whether or not he has been noted in default in the main action.
28.04Time for Filing and Serving Defence to Counterclaim
(1)The plaintiff shall file and serve his Defence to Counterclaim (Form 27D) within 10 days after service on him of the Statement of Defence and Counterclaim and, if he is filing and serving a Reply in the main action, his Defence to Counterclaim shall be joined therewith.
(2)A party added by counterclaim shall file and serve his Defence to Counterclaim within 20 days after service of the Statement of Defence and Counterclaim.
28.05Time for Filing and Serving Reply to Defence to Counterclaim
A Reply to Defence to Counterclaim, if any, shall be filed and served within 10 days after service of the Defence to Counterclaim.
28.06Trial of Counterclaim
A counterclaim shall be tried at the trial of the main action, unless ordered otherwise.
28.07Disposition of Counterclaim
(1)Where it appears that a counterclaim may unduly complicate or delay the trial of the main action, or cause undue prejudice to a party, the court may order separate trials or strike out the counterclaim without prejudice to the right of the defendant to assert any such claim in a separate action.
(2)Where a defendant does not dispute the claim of the plaintiff in the main action, but sets up a counterclaim, the court may stay the main action until the counterclaim is disposed of, or grant judgment with or without a stay of execution.
(3)Where the plaintiff does not dispute the counterclaim of a defendant, the court may stay the counterclaim until the claim is disposed of, or grant judgment with or without a stay of execution.
(4)Where both the plaintiff in the main action and the defendant on his counterclaim succeed, either in whole or in part, and there is a balance in favour of one of them, the court may give judgment for the balance.
28.08Application to Counterclaim, Cross-Claim and Third party Claim
This rule applies, with any necessary modification, to the assertion of a counterclaim by a party added by counterclaim, a defendant to a cross-claim or a third party.