It is a fundamental principle of English law that a defendant “who wishes to defend all or part of a claim must file a defence” (CPR 15.2). If a defendant fails to file a defence, the claimant may obtain judgment in default (CPR 15.3). Similarly, it is a principle of adjudication enforcement that the defendant does not file a defence as envisaged by CPR 15.2 but, instead, files a witness statement “in opposition to the relief being sought” (paragraph 9.2.6, TCC Guide). Presumably in practice, that witness statement takes the form of a defence and is a defence in all but name.
All of this I’m sure you are very familiar with. I mention it simply to remind ourselves of how Fraser J came to be discussing the defendants’ seven defences in his judgment in Ground Developments Ltd v FCC Construccion SA and others. Continue reading
