4 - Counterclaims and Additional Claims (ULaw Notes) Flashcards
When are counterclaims and additional claims used?
In many cases, the only statements of case will be the particulars of claim and the defence. However, a defendant may wish to make their own claim against a claimant, or to bring another party into the proceedings.
Counterclaims and additional claims are governed by CPR Part 20.
What is a counterclaim?
A counterclaim arises where the defendant is alleging they have their own cause of action against the claimant. Effectively, they could have taken action against the claimant firsst and issue proceedings.
It will be relevant if the defendant has actually suffered loss that is attributable to the claimant. If the defendant simply has a good reason for not paying the monies owned, but has not incurred any loss, they should only file a defence.
What should the structure of a defence and counterclaim look like?
It is essentially a defence and a (new) claim, set out in a single document.
The title to the action remains the same but the heading will now be ‘DEFENCE AND COUNTERCLAIM.’ The document is then sub-divided into two sections, with the defence outlined at the begininng and the counterclaim following immediately thereafter.
The best approach to drafting a counterclaim is to treat it as a standalone claim. However, rather than repeat aspects that have already been included in the statements of case, such as details of the contract and the incorporation of the implied terms, the counterclaim will refer back to the defence.
The first paragraph will simply
state that the relevant paragraphs are repeated. The effect of this is that, for example, the existence and terms of the contract are accepted and the defendant’s allegation of breach is
also confirmed. The rest of the counterclaim will then set out the allegations of loss resulting
from the claimants’ breach
Provide an overview of what a counterclaim is.
- A counterclaim is treated as if it were a claim and should be filed with the defence.
- It will form one document, with the counterclaim following on from the defence.
- Permission is not required from the court unless the defence has already been filed.
What are additional claims?
Part 20 also applies to additional claims made by a defendant for a contribution or indemnity or some other remedy against any person whether or not they are already a party.
These are referred to as additional claims.
A common scenario is where the defendant wishes to pass the blame, either in whole or in part, onto a third party. The defendant may be seeking a full indemnity from the third party, or
a contribution towards any damages they have to pay the claimant
Where might an additional claim for indemnity arise?
A claim for an indemnity may arise where there is a contractual relationship between the defendant and the third party, in which the third party is obliged by the terms of a contract to indemnify the defendant if they are found liable for the claim. Indemnities may also arise by way of statute or by implication of law.
When might an additional claim for a contribution arise?
A claim for a contribution can be made where there are joint wrong- doers and the defendant argues that the third party is partly responsible for the harm the claimant has suffered.
For example - Toya claims damages from Lisa as a result of a road traffic collision. Lisa alleges that another driver, Jaspar, was partly to blame for the accident. She will claim a contribution from Jaspar towards any damages that she is ordered to pay to the claimant.
When might an additional claim against a non-party arise?
The defendant may make an additional claim against someone not currently party to the proceedings without the court’s permission provided this is done either before or at the same
time as they file the defence.
If the claim is brought after the defence has been filed, the court’s permission is required.
Example - Farzani is suing Leycester Motors Ltd (LML) because the new car that she purchased
from the company has patches of rust underneath the vehicle. LML bring in Fenland Storage Limited as an additional party as they have evidence that the company stored the car
outside before delivering it, instead of in a warehouse as they were contracted to do.
Provide an overview of the claims that may be brought under CPR 20.
Claims under Part 20 include:
- The defendant’s counterclaim against the claimant: if filed with the defence, the court’s permission is not required;
- The defendant’s additional claim for a contribution or indemnity from another party:
Party to proceedings - If the person is already a party to the proceedings, the court’s permission is not required to add them provided the notice is filed and served with the defence.
Otherwise, the court’s permission is required.
Non-party to proceedings: If the person is not currently party to the proceedings, the defendant must issue a Part 20 Claim Form and serve it on the third party, together with particulars of the additional claim and the statements of case which have been served in the main claim. Provided the additional claim is issued before or at the same time as the defence is filed, the court’s permission is not required. Otherwise, the court’s permission will be necessary.
Is the claimant required to reply to the defence when it is raised as a counterclaim?
A claimant may wish to file a reply to the defence but is under no obligation to do so.
Replies tend to be used if the claimant wants to respond to matters that have been raised in the defence but which are not covered in the particulars of claim
What are the timelines required if the claimant wishes to dispute the defendant’s counterclaim?
If the claimant decides to dispute the counterclaim, they must file a defence to the counterclaim within 14 days (unless an extension of up to 28 days has been agreed with the defendant).
If they fail to do so, the defendant may enter judgment in default on the
counterclaim
What are the rules for amending the statement of case before the expiry of the limitation period?
After filing but before service - Amendments may be made at any time.
After filing and service - Only with: (a) The written consent of all of the parties; or (b) with the permission of the court.
When applying for permission, the applicant should file a copy of the statement of case with the proposed amendments, together with an applicable notice.
What will the courts consider when deciding whether to allow amendments to the statements of case within the limitation period but after filing and service?
When applying for permission, the applicant should file a copy of the statement of case with the proposed amendments, together with an applicable notice. The court will then decide whether or not to exercise its discretion to grant the application, taking into account the overriding objective to deal with the case justly, and at a proportionate cost.
In particular, the court will need to strike a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if it is permitted.
What are the rules for amending the statement of case after the expiry of the limitation period?
Where the limitation period has ended, the court may allow an amendment only in the following three circumstances:
a) To add or substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim;
b) To correct a (genuine) mistake as to the name of a party;
c) To alter the capacity in which a party claims.
When will requests for further information be required by parties to a claim?
There will be occasions where the statement of case is somewhat confusing or fails to set out
the case precisely enough. At this point, CPR Part 18 comes into play. The rule provides that, at any time, either the court or the parties may request further information and, if successful, a
party will be ordered to:
(a) Clarify any matter that is in dispute; or
(b) Give additional information in relation to any such matter
