Notice of Intention to Defend
The defendant in every civil action shall be allowed ten (10) days after service of summons on him/her within which to deliver a notice of intention to defend, either personally or through his attorney: Provided that the days between 16 December and 15 January, both inclusive, shall not be counted in the time allowed within which to deliver a notice of intention to defend.
In an action against any Minister, Deputy Minister, Administrator, officer or servant of the State, in his official capacity, the State or the administration of a province, the time allowed for delivery of notice of intention to defend shall not be less than 20 days after service of summons, unless the court has specially authorised a shorter period.
A notice of intention to defend is ‘delivered’ by serving a copy on the plaintiff or his attorney and filing the original with the registrar / clerk of the court.
When the defendant delivers a notice of intention to defend the notice must state the defendant’s full residential address as well as a physical address within 15 kilometres from the registrar or clerk of the court for the purpose of service of all documents on the defendant. This address will usually be that of the attorney appointed by the defendant to represent him/her in the matter.
By delivering a notice of intention to defend the defendant does not waive any right to object to the jurisdiction of the court or any irregularity or impropriety in the proceedings.
Notwithstanding the above provisions, a notice of intention to defend may be delivered even after expiration of the periods, before default judgment has been granted: Provided that the plaintiff shall be entitled to costs if the notice of intention to defend was delivered after the plaintiff had lodged the application for judgment by default.
A notice of intention to defend is a proceeding which can be set aside if it is irregular. The rules of the respective Courts make specific provision for irregular proceedings and non-compliance with the rules. The irregularity must hold substantial prejudice and the court will not lend assistance if it is of a trivial nature.
The rules do not specify how and when the notice may be irregular or defective, but it will be irregular if –
– it has not been properly delivered; and/or
– it has not been properly signed; and/or
– it does not set out an address for service; and/or
– it gives an address for service further than the permissible distance of 15 kilometres from the office of the registrar of clerk of the court.
PS: Late delivery of notice of intention to defend is not an irregularity.
When the notice of intention to defend is irregular an application must be made to have it set aside as an irregular step or proceeding. This is done on notice to all parties specifying the particulars of the irregularity or impropriety alleged.
Failure to give notice of intention to defend is an indication of the defendant’s lack of desire to defend the proceedings and in certain cases gives the plaintiff the right to apply for default judgment. The matter of default judgment is dealt with later.
For more go to Notes on action (trial) proceedings
