Andrew from Newlands wants to how to defend a case in
the Small Claims Court.
“I have been summoned to appear in the Small Claims
Court and would like to defend. Can you please advise on
the procedures to follow?”
The first thing that you
should do is to read everything such as the Summons and
the Complaint very carefully.
- Look at what the plaintiff (the person who filed
the suit against you) said in the Complaint?
- Is everything accurate? If not, write down what
you think is correct and what you think is incorrect.
- Write down your side of the story, point by
- Write down what proof you have for your side
of the story, point by point.
- Are there differences between the plaintiff’s story
of what happened and yours? Are the differences important?
- Figure out how to answer each statement that the
plaintiff made. Generally, you will answer the statements
with a yes or no.
- Think about whether it would be fair if you paid
the plaintiff something. If you think that it would
be fair to pay something, is it as much as the other
- What are the deadlines? When must you respond? Put
it on the calendar.
- You must file a “Notice of Intent to Defend”
– which appears on the bottom of the Summons – within
14 days of being served the Summons and Complaint.
Preparing to defend
If you receive a letter of demand,
or a summons, and you have a defense, the best thing to
do is to set your defense out in a letter or in a “plea”
– a document in which you set out in logical sequence, why
you deny that the plaintiff’s claim has merit, or why you
say that the claim is overstated.
The SCC Act does
not require a plea to be filed in response to a claim, but
it is a very useful tool for a Commissioner in preparing
to hear a case.
If you have a defense, and you have
committed it to writing in the form of a letter or a plea,
you should make sure that the Clerk has put it in the court
file in advance of the hearing.
In preparing the
Commissioner will read both sides of the story and will
have identified the issues in dispute in advance of the
hearing. That will make the inquiry more focused, and probably
quicker. You also have less likelihood of some aspect of
your plea being overlooked.
Presenting your Defence
At the commencement of proceedings, the Commissioner will
call the name of case and if it is your case you will come
to the front of the court for your case to be heard.
Hopefully, the Commissioner will have introduced him-
or herself before proceedings commence. Generally, a Commissioner
will be a relatively experienced attorney, or advocate,
in active practice. Commissioners are not paid for what
they do and render a service to the State for the advancement
of justice. They should be treated with respect and addressed
The inquiry will commence with
the evidence of the plaintiff and the plaintiff’s witnesses,
thereafter the defendant and witnesses; it often happens
that the plaintiff or a witness is recalled to clarify something
that arises in the defendant’s evidence.
and witness will be sworn in before giving evidence. You
have the option of making an oath to God, or a secular affirmation.
When hearing cases, a Commissioner only sees a group
of unknown people in the public gallery at the back of the
court. It is usually not apparent to the Commissioner who
are litigants, supporters, family, or witnesses.
As a defendant, at the beginning of your evidence, you should
tell the Commissioner that you have witnesses present and,
in a few sentences, summarize what their evidence will be.
When one party or its witnesses are giving evidence,
the other party may not interject or interrupt. You will
get your opportunity to state your case; for the orderliness
of proceedings, and out of respect for the legal process,
you must wait your turn.
You will quickly know whether
the Commissioner is adequately prepared for the case. If
it appears he is not, when giving evidence, be patient and
take the Commissioner in a logical sequence through the
relevant events, referring, where necessary, to the documentary
or other evidence that supports your case.
the court is one of inquiry, you do not have the power to
cross-examine the other party or her witnesses. If you want
to ask a question of the party or witness, request the Commissioner
to be allowed to do so, or suggest the line of inquiry to