Document title: Defence: misrepresentation.
IN THE HIGH COURT OF Claim No. [NUMBER]
JUSTICE
IN THE BUSINESS AND
PROPERTY COURTS OF
[ENGLAND AND WALES OR
REGION]
COMMERCIAL COURT (KBD)
BETWEEN:
[FULL NAME OF (Claimant)
CLAIMANT]
and
[FULL NAME OF (Defendant)
DEFENDANT]
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DEFENCE
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1
1. Unless otherwise stated, references to paragraph numbers in this Defence are
references to the corresponding paragraphs of the Particulars of Claim.
2. [The Claimant's claim is time-barred as set out in paragraph 19 below. The following
paragraphs of this Defence are pleaded without prejudice to this contention.]
3. Paragraph 1 is admitted.
4. Paragraph 2 is [denied for the following reasons [SET OUT REASONS FOR DENIAL]
OR admitted save that the Defendant [SET OUT ANY CORRECTIONS]]. [IF AN
INDIVIDUAL, STATE] The Defendant's date of birth was [DATE OF BIRTH]. The
Defendant [resides OR carries on business] at [SET OUT ADDRESS OR ANY
CORRECTIONS TO ADDRESS].
5. Further, the Defendant [is and] was at all material times [SET OUT ANY RELEVANT
DETAILS OF AND BACKGROUND TO THE DEFENDANT WHICH WERE NOT IN THE
PARTICULARS OF CLAIM] and is engaged in the [IF RELEVANT, SET OUT THE
NATURE OF THE DEFENDANT'S BUSINESS AND INTRODUCE ANY OTHER
RELEVANT INDIVIDUALS OR ENTITIES INVOLVED WITH THE DEFENDANT WHO
WERE NOT IDENTIFIED IN THE PARTICULARS OF CLAIM].
The representation
6. [As to paragraph 3, it is denied that the Defendant made the alleged or any
representation to the Claimant. [SET OUT ANY ALTERNATIVE FACTS OR
ALLEGATIONS ABOUT THE STATUS OF ANY PRE-CONTRACTUAL STATEMENTS
AND COMMUNICATIONS.]
OR
Except that it is denied that the Defendant made the alleged or any representation in
order to induce the Claimant to enter into any contract, paragraph 3 is admitted. The
representation was not a material representation because [SET OUT ANY
ALTERNATIVE FACTS OR ALLEGATIONS ABOUT THE REPRESENTATION].
OR
It is admitted that [SET OUT ANY ALTERNATIVE FACTS OR ALLEGATIONS ABOUT
THE PRECONTRACTUAL STATEMENTS AND COMMUNICATIONS]. Save as
aforesaid, paragraph 3 is denied.]
The contract
7. [It is admitted that [SET OUT THOSE ALLEGATIONS ABOUT THE CONTRACT THAT
THE DEFENDANT ADMITS]. Otherwise, the Claimant is required to prove the matters
stated in paragraph 4.
OR
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Except that the Claimant is required to prove that the Claimant relied on or was induced
by any representation made by the Defendant, paragraph 4 is [admitted OR denied for
the following reasons] [SET OUT REASONS FOR DENIAL IN SEPARATE NUMBERED
PARAGRAPHS WHERE NECESSARY].]
[Where responding to claim for breach of contract: term of the contract]
8. [Except that the [express OR implied] term [STATE ALTERNATIVE FACTS OR
ALLEGATIONS ABOUT THE TERM], paragraph 5 is admitted.
OR
Paragraph 5 is [admitted OR denied for the following reasons] [STATE REASONS FOR
DENIAL, IN SEPARATE NUMBERED PARAGRAPHS WHERE NECESSARY].]
[Performance of the contract]
9. [Paragraph 6 is [admitted OR denied for the following reasons] [SET OUT REASONS
FOR DENIAL IN SEPARATE NUMBERED PARAGRAPHS WHERE NECESSARY].
OR
The Claimant is required to prove the matters stated in paragraph 6 [RELATING TO
THE CLAIMANT'S PAYMENT UNDER THE CONTRACT].]
The alleged misrepresentation [and breach]
10. [As to paragraph 7, it is denied that the [alleged] representation was false [and that the
Defendant is in breach of the alleged or any term of the contract]. [STATE REASONS
FOR DENIAL, IN SEPARATE NUMBERED PARAGRAPHS WHERE NECESSARY, AND
STATE ANY ADDITIONAL OR ALTERNATIVE MATERIAL FACTS, FOR EXAMPLE:]
[The representation was true in every respect.]
PARTICULARS
[SET OUT FACTS RELIED ON TO SHOW THE TRUTH OF THE REPRESENTATION.]
OR
[Further or alternatively,] if (which is denied) the representation was false, the Defendant
had reasonable grounds to believe and did believe up to the time that the contract was
made that the representation was true.
PARTICULARS
[SET OUT FACTS RELIED ON TO SHOW THE DEFENDANT'S REASONABLE BELIEF
IN THE REPRESENTATION.]
OR
As to paragraph 7, it is admitted that the representation was inaccurate in the following
respects [SET OUT DETAILS OF INACCURACIES]. However, it is denied that the
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representation was materially inaccurate. It has always been the Defendant's reasonable
and honest belief that:
PARTICULARS
[SET OUT FACTS RELIED ON TO SHOW THE DEFENDANT'S REASONABLE BELIEF
IN THE REPRESENTATION.]
OR
The Defendant is unable to admit or deny paragraph 7 and requires the Claimant to
prove it.]
[Alleged deceit]
11. [As to paragraph 8, the Defendant denies that the representation made by it was made
either recklessly with no concern as to its truth or deceitfully.
OR
If (which is denied) the representation was false, the Defendant denies that the said
representation was made fraudulently. The Defendant had reasonable grounds to
believe and did believe up to the time that the contract was made that the representation
was true. [SET OUT FACTS RELIED ON TO SHOW THE DEFENDANT'S
REASONABLE AND HONEST BELIEF IN THE REPRESENTATION, IN SEPARATE
NUMBERED PARAGRAPHS WHERE NECESSARY.]]
[Alleged rescission]
12. [It is admitted that the Claimant purported to rescind the contract by [SET OUT
DETAILS]. Otherwise, the Claimant is required to prove the matters stated in paragraph
9.]
13. [Paragraph 10 is denied for the following reasons [STATE REASONS FOR DENIAL, IN
SEPARATE NUMBERED PARAGRAPHS WHERE NECESSARY].]
14. [SET OUT REASON WHY RESTORATION TO PARTIES' PRE-CONTRACTUAL
POSITIONS NOT POSSIBLE]. [For that reason, the Claimant is not entitled to rescind
the contract.]
Loss and damage
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15. The Claimant is required to prove that it suffered the alleged or any loss and damage.
[Further or alternatively, it is denied that any loss and damage suffered by the Claimant
was caused by [any misrepresentation or breach of contract by] the Defendant as
alleged or at all]. [SET OUT REASONS FOR THE DENIAL OR FULL DETAILS OF ANY
POSITIVE CASE ON CAUSATION, IN SEPARATE NUMBERED PARAGRAPHS
WHERE NECESSARY.]
16. Further or alternatively, the alleged loss [SET OUT ALLEGATION OF LOSS], which the
Claimant is required to prove, was not [directly flowing from the alleged [fraud OR
misrepresentation] OR within the parties' reasonable contemplation at the time the
contract was made] and is too remote for the Claimant to recover damages in respect of
it.
17. Further or alternatively, if, [which is denied OR as to which no admissions are made], the
Claimant did suffer the alleged or any loss, it is contended it was caused [or contributed]
by its own contributory negligence, in that:
PARTICULARS OF NEGLIGENCE
17.1 [SET OUT FULL DETAILS OF THE CLAIMANT'S NEGLIGENCE.]
18. Further or alternatively, if, which is denied, the Claimant did suffer loss as a result of the
matters set out in the Particulars of Claim, it failed to take reasonable steps to mitigate
such loss by:
PARTICULARS
18.1 [SET OUT FULL DETAILS OF ANY POSITIVE CASE ON MITIGATION, INCLUDING
THE STEPS THE CLAIMANT SHOULD HAVE TAKEN BUT DID NOT.]
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19. Further, the Claimant's claim is barred under section 2 [and 5] of the Limitation Act 1980
since the alleged losses incurred by the Claimant occurred, if at all, on or before [DATE]
which is more than six years before the issue of the Claim form.
20. Paragraph 13 is [STATE WHETHER THE DEFENDANT ADMITS OR DENIES (AND
GIVE REASONS) OR REQUIRES THE CLAIMANT TO PROVE THE STATEMENT ON
COMPLIANCE WITH THE PRACTICE DIRECTION ON PRE-ACTION CONDUCT AND
PROTOCOLS, OR ANY RELEVANT PROTOCOL].
21. In the premises it is denied that the Claimant is entitled to the relief sought or any relief.
22. Save as aforesaid each and every allegation in the Particulars of Claim is denied as if it
were separately set out and separately denied.
[SIGNATURE OF INDIVIDUAL WHO DRAFTED DOCUMENT]
STATEMENT OF TRUTH
[I believe OR The Defendant believes] that the facts stated in this Defence are true. [I
understand OR The Defendant understands] that proceedings for contempt of court may
be brought against anyone who makes, or causes to be made, a false statement in a
document verified by a statement of truth without an honest belief in its truth. [I am duly
authorised by the Defendant to sign this statement.]
Signed……………........................... Position or office held.............................................
Full name……….............................. (If signing on behalf of firm, company or corporation)
Date……………………………..
