Court proceedings are initiated by a statement of claim or summons. These originating documents are filed by the plaintiff against the defendant, and outline the allegations and relief sought. As a defendant, you will have to file a defence in response to the claim made by the plaintiff. You can also file a cross-claim. In this article, we will explain what this is and how it works.
Cross-claims
A defendant in proceedings can make a cross-claim against the plaintiff or a third party.
Generally, as a defendant, you make a cross-claim against the plaintiff because you have suffered a loss due to the plaintiffs actions. For example, you hired an electrician to fix an electrical problem in your home. You didn’t pay the electrician’s fees for the job. The electrician files a claim against you for this, to seek a remedy from the court to compensate this loss. However, the electrician totally botched the job and you had to hire another electrician to fix the damage. In this situation, it would be appropriate to file a cross-claim against the plaintiff to recover the costs of the second electrician.
Similarly, you make a cross-claim against a third party because you believe they are also responsible or liable to the claim made against you. In other words, you believe the third party is either fully or partially responsible for the plaintiffs loss. In this regards, the claim must be related to the proceedings on foot. For example, Beth has a car accident with Cam and Denise. Beth (the plaintiff) brings proceedings against Cam (the defendant), claiming that Cam is responsible for causing the accident. Cam believes he is not at fault, but rather Denise is. It would thus be appropriate for Cam to file a cross-claim against Denise. Cam would need to indicate that Denise caused that accident and should pay for the damage caused and loss suffered.
How and when to serve a cross-claim?
Part 9 of the Uniform Civil Procedure Rules 2005 outlines the process involved in making a cross-claim. Namely, the defendant must file a defence in response to the plaintiffs claim within 28 days of being served with the statement of claim. If the defendant wants to pursue a cross-claim, a statement of cross-claim also needs to be filed within that time. Further, like a statement of claim, a statement of cross-claim must detail the pleadings to the proceeding. This means you will need to set out the material facts supporting your claim and the remedy sought.
If you do not file the statement of cross-claim within 28 days, you will have to seek the Courts permission (seek leave) for an extension.
When it comes to serving the plaintiff with your cross-claim, personal service is not needed. However, if you are serving a new third party you must follow the rules set out under section 9.7.
The plaintiffs perspective
If you are served with a cross-claim, and you are now the cross-defendant, you will need to file your defence in response within 28 days. If you fail to do so, a default judgment can be awarded against you. This means, the defendant who filed the cross-claim would receive a default judgement in their favour because you failed to respond with a defence.
Being served with a cross-claim is no joke. They can get complicated. So, you should seek the advice of a litigation lawyer.
Final thoughts
As a defendant, you can bring a cross-claim against the plaintiff or a new third party. As a plaintiff, if the defendant brings a cross-claim against you, you should respond by filing a defence. It can get tricky to keep up with what’s happening when cross-claims are served, especially when a new party is added to proceedings. Therefore, no matter who you are in the proceedings, you should seek legal advice when this occurs.
