12 Multiple causes of action, amendment, counterclaims and other additional claims Flashcards
What situations is a defendant entitled to QOCS?
In all PI claims when he acts in a claimant capacity. I.e. in a counterclaim or an additional claim
When will a defendant not be entitled to QOCS (in addition to the standard)?
When he is making a claim for contribution or indemnity only
When a defendant files a Defence and a Counterclaim, how must the Claimant respond?
The claimant MAY choose to Reply to Defence. However, she MUST serve a Defence to the Counterclaim
What are the consequences of a Claimant not serving a Defence to a Counterclaim?
The defendant would have the right to apply for default judgment
When must a Claimant serve a Defence to a Counterclaim?
Within 14 days of the service of the Counterclaim
When must a defendant obtain permission of the court to file a counterclaim?
When he has served his defence and did not contain the counterclaim before or with it, then he must apply to the court from permission under CPR 20
How does a party make an application to make an additional claim to the court? (Whether CC against C, contribution / indemnity or additional claim against third party)
- Application notice
• copy of proposed additional claim - Evidence
• the stage which proceedings have reached
• the nature of the additional claim and the question or issue additional claim deals with
• a summary on the facts of which it is based
• name and address of any additional party
What will the courts consider when decided to whether or not to give permission for additional claim?
Set out under CPR 20.9(2)
a) the CONNECTION between this claim and that main
b) whether seeking substantially the SAME REMEDY
c) whether the question or issue is connected with the subject matter of proceedings
i) not only between exciting parties but also NON PARTIES
ii) against EXISTING PARTY but in a different capacity
What is the difference between contribution and indemnity?
Contribution is a fault based and relates to a right to recover
Indemnity is more about liability under contract (insurance), statute or virtue of agent / principle relationship
What are the rules regarding the claims for contribution or indemnity to a party who is to be added to the proceedings later?
The “additional claim” but must be made within 28 days of the “new” party filing their defence
How does a person make an additional claim for contribution or indemnity?
• files a notice containing the nature and grounds for the claim
• service that notice on the party
When does a defendant require permission of the court before bringing a claim for indemnity or contribution?
If they have not filed such a claim with or before their Defence
What will the court consider when deciding to allow a Defendant to bring a claim for indemnity or contribution?
The same as any other additional claim, as set out under 20.9(2):
a) the connection between this claim and the main claim
b) whether seeking substantially the same remedy
c) whether the question or issue is connected with the subject matter of proceedings:
i) not only between existing parties but also non existing
ii) against an existing party but in a different capacity
What are the advantages of a defendant bringing a claim against a third party in the original claim?
• saves expense
• safeguards against courts having different findings on the same facts
• third party is bound by D and C judgment and will be resolved (roughly) same time
• if C v D settles, D v TP continues
Does the defendant need permission of the court to bring an additional claim?
If the Defendant files the CF and POC before or same time as his Defence then no
But if he has done so, then the permission of the court is required
What are the next steps after court grants permission and grants permission for additional claim? (Any type)
The defendant must serve the CF and POC (same time) within 14 days of being issued then within 14 days the THIRD PARTY can either:
• admit
• file defence
• file an AOS
Court will consider CMH and give notice of such
At a CMH the court may: (5)
- Treat it as a summary judgment hearing
- Order the additional claim be dismissed
- Give directions on original and additional claim regarding how issues or questions should be dealt with
- Give directions about extent to which the additional defendant will take in the trial (if any)
- Directions at to the extent the additional defendant will be bound by the original claim judgment
Third party is referred to as THIRD PARTY in the documentation. What is the fourth party referred to as?
Their name
When we are onto 5th party…
The claim should likely be made in its own right as it is now so far removed form the original claim
When is the permission of the court NOT required in amending a statement of case?
If it is yet to be served
Can the court disallow and amendment that did not require their permission?
Yes per 17.2(1). If they have issued a claim form and the claimant wants to amend before serving may disapply (see Mahamad notes)
What if a party is served an amended statement of case and the opposing party did not receive permission?
Receiving party can apply for non-compliance strike out to the court within 14 days
What is the typical rule for costs regarding amendment?
The amending party should pay the others costs UNLESS the other party have acted unreasonably in refusing to give consent for amendment and therefore increased costs
Procedure for 4 types of orders may be given as set out under CPR 19.4 (within the LP) i.e adding, substituting, removing parties within the limitation period
- Substitution of new party where existing party’s INTEREST OR LIABILITY HAS TRANSFERRED
a) may be made without notice
b) must be supported by evidence - C only added or substituted if
a) he has given his CONSENT IN WRITING
b) that consent has been FILED with the court - ORDER MUST BE SERVED ON ALL PARTIES EFFECTED BY IT
Will a hearing typically be held when the court are deciding to add a party?
No not in instances were all parties have consented in writing
When the court has granted permission for a new claimant to be added to proceedings, when does this become effective?
When the document the claimant was required to sign is filed with court
What is the likelihood of the court granting permission for a new party to be added?
Likely if it is DESIRABLE TO RESOLVE the case and if there is an issue connecting the existing party to the new party
When the court grants an order for a new claimant or defendant to be added, it may direct:
• copy of the order be served on all parties
• copies of amended SOC and documents referred to in any SOC be served on new parties
• party who made app to file CF and POC within 14 days
When the court have granted permission for an additional defendant to be added, when will this be effective?
Once he has been served the CF and POC (within 14 days)
What is procedure for a party who wishes to be substituted for another
Make the application and provide evidence where the case is up to. The court are likely to allow if liability has been transferred (death or bankruptcy)
Amendments are recoded via the below key
- Red
- Greeen
- Violet
- Yellow
What other amendments can a party seek?
• abandoned remedy
• add in an issue
• change cause of action
• respond to a S of C when response was omitted in error
App need written consent or court order
When looking at a statement of case, how can you tell an amendment required the courts permission or not
It will state name of the district judge within the document =
Amended [Particulars of Claim or as may be] by Order of [District Judge … or as may be]
Without permission =
Amended [Particulars of Claim or as may be]
Court can order removal of party…
Of its own initiative
What are three possibilities for after limitation period amendments?
- New cause of action if prompt and good prospects of success
- Correcting mistake in name (as long as not while new identity/ genuine mistakes)
- Adding or substituting party
When will permission for post-limitation period amendments be granted?
Main claim must have been filed within LP:
1. Necessary for determination of original action
2. Needed for claim to be properly carried out
3. Need to add party due to death or bankruptcy
What is the “test” for if a late (after service) amendment (within the limitation period) will be allowed by the court?
Two limb (CPR 17.3.5)
1. Will this amendment further the OO, i.e. dealing with matter justly and at a proportionate cost, if so,
2. Would refusal or acceptance strike an imbalance of justice?
What type of amendment does NOT need permission of the court and what are the courts powers in relation to this?
An amendment made to a statement of case that is yet to be served. Under 17.2, the court may disallow the amendment if:
a) permission would be refused if it was required or
b) the amendment is scurrilous, vexatious or shown to be dishonest
What are the steps a party may take if the opposing party has, without permission of the court, amended a document that required such permission?
Apply under 3.4 - power to strike out a statement of case
Late amendments may be refused if they are (2)
- Abuse of process (i.e. should have been raised at trial but only raised re quantum)
- Minor or peripheral
Test for whether or not court will allow an amendment made after the limitation period CPR 17.4 (3 circumstances) Court still has discretion if below is satisfied
- Amendment, whose effect will be to add or substitute a new claim BUT ONLY IF IT ARISES OUT OF THE SAME OR SUBSTANTIALLY THE SAME FACTS that C has already claimed a remedy for in the proceedings
- CORRECT MISTAKE AS TO NAME only if such mistake was GENUINE and would not cause REASONABLE DOUBT AS TO IDENTITY of the party in question
- ALTER THE CAPACITY in which a party claims IF THE NEW CAPACITY is one which he had when proceedings were issued or has since acquired
How will the court decide whether to add a party (within the limitation period)? CPR 19.2
May allow a new party to be added if
a) it is DESIRABLE to add the new party so that the court can RESOLVE ALL THE MATTERS IN DISPUTE IN THE PROCEEDINGS; OR
b) there is an ISSUE INVOLVING EXISTING AND NEW PARTY that is CONNECTED TO MATTER in DISPUTE and it is DESIRABLE to add new party so can resolve that issue
Court can remove party (w/in LP) if
Not desirable for person to be party to proceedings
Test to substitute party with LP 19.2
a) liability has passed
b) desirable so court can resolve dispute
Test the court will only allow the adding or substitution of a party, outside of the limitation period, if the claim was made before the relevant LP AND IT IS NECESSARY. What is meant by NECESSARY?
a) existing party was named in the claim form as a MISTAKE instead of new party
b) the claim CANNOT BE PROPERLY CARRIED on unless
c) original party has DIED or had BANKRUPTCY order and interest and liability passed to a new party
CPR 20.6 =
Contribution or indemnity
