Enforcement action: country court proceedings: the defendant’s response to the claim: examining and replying to the defence
Reply to the defence
There is only limited scope for a defendant to dispute claims for tax and so on, especially where the claim is based on the defendant’s own return or self assessment. Technically, the vast majority of defences are unlikely to cause problems.
Nevertheless defendants often use the defence as an opportunity to air long-standing grievances or dissatisfaction and it is by no means a foregone conclusion that the court will enter judgment in HMRC’s favour.
You must answer all the points raised in the defence in a formal reply to the defence, which should be sent to the defendant and copied to the court at least 7 clear days before the hearing date. It should be clear and lucid and, where necessary, advise the defendant how his or her dissatisfaction can be remedied, for example by submitting returns. It must not be capable of being construed as an attempt to prejudice or predetermine the outcome of a defence hearing, though there is nothing wrong in making it clear that you will be seeking judgment at the hearing.
In order to comply with CPR15.8, a reply to the defence must include a Statement of Truth (see DMBM665070).
Without a Statement of Truth the reply may be thrown out by the court and is not admissible as evidence.
Where the defence has been filed by someone acting on behalf of the defendant, typically a solicitor, you should send the reply to the person acting and send a copy to the defendant, with a further copy to the court.
A comprehensive reply to the defence will resolve the difficulties that the defendant may otherwise seek to raise at the hearing. In this way, the eventual hearing will be all the more straightforward and the court is more likely to enter judgment speedily in your favour.
You will find it helpful to set out in your reply any references to legislation, when you have time to consider the matter fully, rather than when you are in the courtroom.
If there is not enough time to send a formal reply to the defence before the hearing, you should attend the hearing and be prepared to answer all the points raised in the defence verbally. However you may still find it helpful to prepare a formal reply to assist in presenting your case at the hearing.
Your reply to the defence, which should include certificates of debt for the claim, should provide sufficient evidence in most cases to convince the court to enter judgment for your claim. But in some cases you may need to seek advice from another office first.
Advice from the EIS Bradford CCP Technical Team (Debt Management Bradford)
You should phone the EIS Bradford CCP Technical Team (Debt Management Bradford) immediately for advice where:
the defendant claims:
- they were not a partner, a partnership did not exist, or that they were not a partner for the entire period covered by the claim (PAYE and legacy debts)
- they were not the employer or contractor (PAYE/IT-SC debts)
your claim is for:
- PAYE/IT-SC based on information obtained under Regulations 77/12 or 97/41 and you are unable to agree any reduced figures put forward by the defendant
- Class 1 NICs from an ‘employee only’ NIC scheme
- a penalty
- a contract settlement or interest thereon
- inheritance tax or interest thereon
you have any other defence or claim that you cannot answer from available information.