Contact: Stephen Hughes, Special Counsel and Lara Radik, Senior Associate; Carter Newell (Queensland, Australia)
Every litigator or in-house claims manager has felt the temptation to ‘just file a holding defence’. The reasons may be varied, and often sensible – perhaps the claim is not worth a great deal, it appears to have no prospects of success, there are high hopes of settlement in the immediate short term, or a strike out or other interlocutory application is to be filed which may put an end to the whole proceeding without the need to invest further costs in the defence.
However, a series of cases in the Queensland Courts over the past year have highlighted with increasing precision the financial and strategic risks for any defendant who rashly adopts such a course. Whether attempting to conserve costs, or merely failing at the earliest opportunity to critically review the available evidence, a holding defence can lead to wasted costs or worse, unintended admissions of key facts in the proceedings.
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