In Virginia, a defendant can file a “plea in bar” if a single issue or state of facts creates a bar to the plaintiff’s recovery. A defendant who raises a plea in bar has the burden of proof to prove that particular issue or state of facts. An evidentiary hearing–with or without a jury–may be permitted to allow the defendant to present that evidence. (See Hawthorne v. VanMarter, 279 Va. 566, 577–78 (2010)). Virginia practice previously allowed defendants to file a “plea of the general issue,” which was a general denial of the plaintiff’s whole declaration or an attack upon some fact the plaintiff would be required to prove in order to prevail on the merits. Such pleas are no longer permitted. (See Va. Sup. Ct. R. 3:8(a)). If a defendant files a pleading labeled as a “plea in bar” but which essentially just challenges the plaintiff to prove his case at trial, the court may find that the issue should be resolved at trial rather than at the outset of the case.
The most common applications of the plea in bar are to raise affirmative defenses like the statute of limitations, statute of frauds, res judicata, collateral estoppel, and accord and satisfaction. Another common application, however, has recently come under attack as potentially invalid as a disguised plea of the general issue. For the past ten years, Virginia courts have seen a lot of pleas in bar being raised by litigants defending against non-compete and non-solicitation clauses. Restrictive covenants like these are enforceable in Virginia only if “narrowly drawn to protect the employer’s legitimate business interest,…not unduly burdensome on the employee’s ability to earn a living, and…not against public policy.” (See Home Paramount Pest Control Companies, Inc. v. Shaffer, 282 Va. 412, 415 (2011)). Defendants used to try to get out of their non-competes by filing demurrers, claiming their noncompetes were unenforceable as a matter of law. Since the Virginia Supreme Court’s decision in Assurance Data, Inc. v. Malyevac, 286 Va. 137 (2013), defendants have been asserting pleas in bar instead. This is because the court held in Assurance Data that a factual inquiry was necessary to determine reasonableness. Defendants can present evidence on a plea in bar; they cannot on a demurrer.