12 Multiple causes of action, amendment, counterclaims and other additional claims

Question 1

What situations is a defendant entitled to QOCS?

Answer 1

In all PI claims when he acts in a claimant capacity. I.e. in a counterclaim or an additional claim

Question 2

When will a defendant not be entitled to QOCS (in addition to the standard)?

Answer 2

When he is making a claim for contribution or indemnity only

Question 3

When a defendant files a Defence and a Counterclaim, how must the Claimant respond?

Answer 3

The claimant MAY choose to Reply to Defence. However, she MUST serve a Defence to the Counterclaim

Question 4

What are the consequences of a Claimant not serving a Defence to a Counterclaim?

Answer 4

The defendant would have the right to apply for default judgment

Question 5

When must a Claimant serve a Defence to a Counterclaim?

Answer 5

Within 14 days of the service of the Counterclaim

Question 6

When must a defendant obtain permission of the court to file a counterclaim?

Answer 6

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

Question 7

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)

Answer 7

1. Application notice
   • copy of proposed additional claim
2. 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

Question 8

What will the courts consider when decided to whether or not to give permission for additional claim?

Answer 8

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

Question 9

What is the difference between contribution and indemnity?

Answer 9

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

Question 10

What are the rules regarding the claims for contribution or indemnity to a party who is to be added to the proceedings later?

Answer 10

The “additional claim” but must be made within 28 days of the “new” party filing their defence

Question 11

How does a person make an additional claim for contribution or indemnity?

Answer 11

• files a notice containing the nature and grounds for the claim
• service that notice on the party

Question 12

When does a defendant require permission of the court before bringing a claim for indemnity or contribution?

Answer 12

If they have not filed such a claim with or before their Defence

Question 13

What will the court consider when deciding to allow a Defendant to bring a claim for indemnity or contribution?

Answer 13

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

Question 14

What are the advantages of a defendant bringing a claim against a third party in the original claim?

Answer 14

• 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

Question 15

Does the defendant need permission of the court to bring an additional claim?

Answer 15

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

Question 16

What are the next steps after court grants permission and grants permission for additional claim? (Any type)

Answer 16

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

Question 17

At a CMH the court may: (5)

Answer 17

1. Treat it as a summary judgment hearing
2. Order the additional claim be dismissed
3. Give directions on original and additional claim regarding how issues or questions should be dealt with
4. Give directions about extent to which the additional defendant will take in the trial (if any)
5. Directions at to the extent the additional defendant will be bound by the original claim judgment

Question 18

Third party is referred to as THIRD PARTY in the documentation. What is the fourth party referred to as?

Answer 18

Their name

Question 19

When we are onto 5th party…

Answer 19

The claim should likely be made in its own right as it is now so far removed form the original claim

Question 20

When is the permission of the court NOT required in amending a statement of case?

Answer 20

If it is yet to be served

Question 21

Can the court disallow and amendment that did not require their permission?

Answer 21

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)

Question 22

What if a party is served an amended statement of case and the opposing party did not receive permission?

Answer 22

Receiving party can apply for non-compliance strike out to the court within 14 days

Question 23

What is the typical rule for costs regarding amendment?

Answer 23

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

Question 24

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

Answer 24

1. 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
2. C only added or substituted if
   a) he has given his CONSENT IN WRITING
   b) that consent has been FILED with the court
3. ORDER MUST BE SERVED ON ALL PARTIES EFFECTED BY IT

Question 25

Will a hearing typically be held when the court are deciding to add a party?

Answer 25

No not in instances were all parties have consented in writing

Question 26

When the court has granted permission for a new claimant to be added to proceedings, when does this become effective?

Answer 26

When the document the claimant was required to sign is filed with court

Question 27

What is the likelihood of the court granting permission for a new party to be added?

Answer 27

Likely if it is DESIRABLE TO RESOLVE the case and if there is an issue connecting the existing party to the new party

Question 28

When the court grants an order for a new claimant or defendant to be added, it may direct:

Answer 28

• 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

Question 29

When the court have granted permission for an additional defendant to be added, when will this be effective?

Answer 29

Once he has been served the CF and POC (within 14 days)

Question 30

What is procedure for a party who wishes to be substituted for another

Answer 30

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)

Question 31

Amendments are recoded via the below key

Answer 31

1. Red
2. Greeen
3. Violet
4. Yellow

Question 32

What other amendments can a party seek?

Answer 32

• 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

Question 33

When looking at a statement of case, how can you tell an amendment required the courts permission or not

Answer 33

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]

Question 34

Court can order removal of party…

Answer 34

Of its own initiative

Question 35

What are three possibilities for after limitation period amendments?

Answer 35

1. New cause of action if prompt and good prospects of success
2. Correcting mistake in name (as long as not while new identity/ genuine mistakes)
3. Adding or substituting party

Question 36

When will permission for post-limitation period amendments be granted?

Answer 36

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

Question 37

What is the “test” for if a late (after service) amendment (within the limitation period) will be allowed by the court?

Answer 37

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?

Question 38

What type of amendment does NOT need permission of the court and what are the courts powers in relation to this?

Answer 38

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

Question 39

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?

Answer 39

Apply under 3.4 - power to strike out a statement of case

Question 40

Late amendments may be refused if they are (2)

Answer 40

1. Abuse of process (i.e. should have been raised at trial but only raised re quantum)
2. Minor or peripheral

Question 41

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

Answer 41

1. 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
2. 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
3. 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

Question 42

How will the court decide whether to add a party (within the limitation period)? CPR 19.2

Answer 42

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

Question 43

Court can remove party (w/in LP) if

Answer 43

Not desirable for person to be party to proceedings

Question 44

Test to substitute party with LP 19.2

Answer 44

a) liability has passed
b) desirable so court can resolve dispute

Question 45

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?

Answer 45

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

Question 46

CPR 20.6 =

Answer 46

Contribution or indemnity