3.6 Intro to multiple causes of action, counterclaims & additional claims

Question 1

Where are the most important rules on amending statements of case?

Answer 1

CPR 17

Question 2

Where are the most important rules on addition and substitution of parties?

Answer 2

CPR 19

Question 3

What must a party do to amend its statement of case before it has been served?

Answer 3

CPR 17.1(1)

A party may amend his statement of case at any time before it has been served on any other party.

Question 4

What must a party do to amend its statement of case after it has been served?

Answer 4

CPR 17.1
(2)
If his statement of case has been served, a party may amend it only –
(a)
with the written consent of all the other parties; or
(b)
with the permission of the court.
(3)
If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.

Question 5

What can the court do if it disapproves of an amendment?

Answer 5

CPR 17.2(1)
If a party has amended his statement of case where permission of the court was not required, the court may disallow the amendment.

Question 6

What can a party do if it disapproves of an amendment?

Answer 6

CPR 17.2(2)
A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on him.

Question 7

What must a party do if its amendment to a statement of case changes the substance of that statement of case?

Answer 7

17 PD 1.4
If the substance of the statement of case is changed by reason of the amendment, the statement of case should be re-verified by a statement of truth.

Question 8

Under what circumstances may the court allow an amendment to add or substitute a new claim after the expiry of the limitation period?

Answer 8

CPR 17.4(2)
The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

Question 9

Under what circumstances may the court allow an amendment to correct a mistake as to the name of a party after the expiry of the limitation period?

Answer 9

CPR 17.4(3)
The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

Question 10

Under what circumstances may the court allow an amendment to alter the capacity in which a party claims after the expiry of the limitation period?

Answer 10

CPR 17.4(4)
The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.

Question 11

Under what circumstances may the court allow the addition of a new party after the expiry of the limitation period?

Answer 11

CPR 19.5
(2)
The court may add or substitute a party only if –
(a)
the relevant limitation period was current when the proceedings were started; and
(b)
the addition or substitution is necessary.
(3)
The addition or substitution of a party is necessary only if the court is satisfied that –
(a)
the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
(b)
the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
(c)
the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.

Question 12

What must a party applying to the court for permission to amend its statement of case prove to the court?

Answer 12

That its proposed amended claim as a real prospect of success.

Question 13

What must a party making a late application to amend its statement of case prove to the court?

Answer 13

The party applying to amend must convince the court that allowing the amendment would:
1.
not place the parties on an unequal footing;
2.
not place an excessive burden on the respondent preparing for trial so as to jeopardise the trial date;
3.
be required by justice; and
4.
that there is a good reason for the amendment being late (e.g, late disclosure by the respondent or new evidence).

Question 14

Under what circumstances may the court order a person to be added as a new party?

Answer 14

CPR 19.2(2)
The court may order a person to be added as a new party 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 the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

Question 15

Under what circumstances may the court order a new party to be substituted for an existing one?

Answer 15

CPR 19.2(4)
The court may order a new party to be substituted for an existing one if –
(a)
the existing party’s interest or liability has passed to the new party; and
(b)
it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.

Question 16

Can new claimants be added to the claim without their consent?

Answer 16

CPR 19.4(4)
Nobody may be added or substituted as a claimant unless –
(a)
he has given his consent in writing; and
(b)
that consent has been filed with the court.

Question 17

What can a party do if it wants to add another party as a claimant but that party refuses to be added as a claimant?

Answer 17

CPR 19.3(2)

If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.

Question 18

What is the difference between applying to change a party’s name under CPR 17.4(3) and under 19.5(3)(a)?

Answer 18

CPR 17.4(3) deals with genuine mistakes where there is no reasonable doubt as to the identity of the party.

CPR 19.5(3)(a) deals with fundamental errors where the party must be fully substituted.

Question 19

Under what circumstances may the court accept that it is necessary to substitute a party under CPR 19.5(3)(a) due to a mistake in that party’s name in the claim form?

Answer 19

Sardinia Sulcis [1991] 1 Lloyd’s Rep 201
Has the intended defendant been identified in the statements of case by reference to a description more or less specific to the particular case?