7 Multiple Causes of Action, Counterclaims and Other Additional Claims

Question 1

Who can be joined as parties to a claim?

Answer 1

Any number of claimant or defendants may be joined as parties to a claim.

Question 2

Change of parties – Addition and Substitution of parties

The court may order a party to be added if:

Answer 2

1. Desirable so the court can resolve all matters in dispute; or
2. There is an issue involving the new party and an existing party connected to the matter in the dispute, and desirable to add the new party to resolve that issue.

Court may order any person to cease being a party if not desirable.

Question 3

The Court may order a new party to be substituted for an existing one if:

Answer 3

1. Existing party’s interest or liability has passed to new party; and
2. Desirable to substitute the new party to resolve the dispute in proceedings.

Question 4

Procedure for adding and substituting proceedings

Answer 4

Court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.

Question 5

Procedure for adding and substituting proceedings

With or without notice;

Evidence or no notice?

Answer 5

An application to substitute a new party where existing party’s interest or liability has passed –

1. May be made without notice; and
2. Must be supported by evidence.

Question 6

Nobody may be added or substituted a claimant unless –

Answer 6

1. Given written consent; and
2. That consent is filed with the court.

An order must be served on all parties to proceedings and any person affected.

Question 7

When court makes an order, it may give consequential directions about –

Answer 7

1. Filing and serving the claim form on any new defendant;
2. Serving relevant documents on the new party; and
3. The management of the proceedings

Question 8

Provision where two or more persons are jointly entitled to a remedy

Position:

Answer 8

Where claimant claims a remedy with another jointly entitled, all persons must be parties unless the court orders otherwise.

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

Question 9

Adding or substituting parties after the end of limitation period.

The court may add or substitute a party only if:

Answer 9

1. The limitation period was current when proceedings were started; and
2. Addition or substitution is necessary.

Question 10

Adding or substituting parties after the end of limitation period.

The addition or substation is only necessary if the court is satisfied that:

Answer 10

1. The new party is to be substituted for a party who was named in the claim form in mistake for the new party;
2. Claim cannot properly be carried on by or against original party unless new part is added or substituted;
3. Original party has died or had bankruptcy order against him and interest or liability has passed to another.

Question 11

5 for the addition and substitution of parties

Party applying must file:

Answer 11

1. Application notice;
2. Proposed amended claim form with PoC; and
3. Signed, written consent of the new claimant

Question 12

for the addition and substitution of parties

Where the court makes an order, but the signed, written consent of new claimant has not been filed:

1. The order; and
2. Addition or substitution of new party as claimant

WHAT HAPPENS?

Answer 12

Shall not take effect until this is filed.

Question 13

for the addition and substitution of parties

Where court made order, he may direct:

Answer 13

1. Copy to be served on everyone and new party;
2. Party who made application, to file within 14 days an amended claim form and PoC.

A new defendant does not become a party to proceedings until the amended claim form has been served on him.

Question 14

for the addition and substitution of parties

Removal of party

Where there is an order for removal:

POSITION:

Answer 14

• Claimant must file amended claim form and PoC; and
• Copy of order served on everyone

Question 15

for the addition and substitution of parties

Transfer of interest or liability

Where there is an application to substitute, it must be supported by:

Answer 15

• Evidence showing stage of proceedings have reached; and
• What change has occurred to cause transfer.

Question 16

Adding or substituting parties after expiry of limitation period applies when

Answer 16

“any new claim is made in the course of any action”.

Question 17

What does:

“any new claim is made in the course of any action”

mean?

Answer 17

This means any claim involving the addition or substation of a new cause of action

R19.5 carries the limitation act into it.

Question 18

Thus, the court can add or substitute a party after expiry of limitation on 2 conditions:

Answer 18

1. Proceedings commenced before limitation expired; and
2. Addition is “necessary”.
   
   1. Original party named in mistake for the new party;
   2. Change without which the claim cannot properly be carried by or against original party; or
   3. Change following death or bankruptcy of original party.

This is discretionary – the court can refuse an application even if both conditions are satisfied.

Question 19

What happens where:

Original party named in mistake for new party?

Answer 19

Mistake = name of new party, NOT identity.

Unlike r17.4, there is no requirement that it be such as to cause any reasonable doubt as to the identity of the party in question.

Question 20

The test for mistake

Answer 20

• It is possible to identify the intended defendant “by reference to a description more or less specific to the particular cause” – if so, it is a mistake covered.
• If a claimant gives a correct description but wring name, there is unlikely any doubts as to identity.

Question 21

Relationship between r19.5 and r17.4 mistakes

Answer 21

R17.4 applies where intended party was named but there was a genuine mistake and no one was misled.

By contrast, a mistake in r19.5 is a more fundamental mistake which can only be cured by substitution.

Question 22

Can a party add additional parties?

Answer 22

Additional claims do not have the same time requirement as when claim forms may be served.

Default judgment applies to a counterclaim but not to other additional claims.

A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

A defendant may make a counterclaim without the court’s permission if he files it with his defence, or at any other time with court’s permission.

An acknowledgment of service does not apply to a claimant who wishes to defend a counterclaim.

Question 23

ADDITIONAL PARTIES

Counterclaim against a person other than the claimant

A defendant who wishes to counterclaim against a person other than the claimant must

Answer 23

apply to the court for an order that that person be added as an additional party. This party is referred to as “Third Party”. This can be made without notice. A draft proposed SoC MUST be filed with application notice.

Where the court makes such an order, it will give directions as to the management of the case.

Question 24

Case management powers

Except where these rules provide otherwise, the court may …

Answer 24

(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
(g) consolidate proceedings;
(h) try two or more claims on the same occasion;
(i) direct a separate trial of any issue …

Question 25

Relief that can be claimed in third party proceedings

Answer 25

• Contribution
• Indemnity
• Other remedies related to the original proceedings
• Asking court to answer a question related to the original proceedings

Question 26

CONTRIBUTION + INDEMNITY

Defendant’s additional claim for contribution or indemnity from another party

A D who has filed an acknowledgement of service or defence may make an additional claim for contribution or indemnity against a person not a party by:

Answer 26

1. Filing a notice containing a statement of the nature and grounds of his additional claim; and
2. Serving the notice on that party.

Question 27

CONTRIBUTION + INDEMNITY

Defendant’s additional claim for contribution or indemnity from another party

A defendant may file and serve a notice without the court’s permission if he files and serves it with:

Answer 27

1. His defence; or
2. If his additional claim for contribution or indemnity is against a party added to the claim later, within 28 days after the party files his defence; or
3. With court’s permission.

Question 28

Can get contribution if

Question 29

A TP’s notice issued is

Answer 29

a “Defendant’s Additional Claim Against a Third party”. The additional claim form is required. It includes particulars of the third party claim.

Question 30

Service of claim form

Where additional claim is made without court’s permission, the claim form must –

Answer 30

1. In case of counterclaim against additional party only, be served on every other party when a copy of defence is served.
2. In case of any other additional claim, be served on the person against whom it is made within 14 days on which the additional claim is issued by the court.

Where court gives permission to make an additional claim it will give direction as to service.

Third party becomes party to proceedings once served with additional claim form.

Question 31

Permission to issue an Additional Claim/Third Party Claim

POSITION

Answer 31

Permission is not required to file an additional claim/third party claim provided it is issued before or at the same time as filing of the Defence

Question 32

Permission to issue an Additional Claim/Third Party Claim

Permission is not required

Answer 32

to file an additional claim/third party claim provided it is issued before or at the same time as filing of the Defence

Question 33

Permission to issue an Additional Claim/Third Party Claim

Permission is not required to file an additional claim/third party claim provided it is issued before or at the same time as filing of the Defence. An additional claim/third party claim may only be issued

after that time with the court’s permission:

Answer 33

• application notice
• a copy of the proposed third party claim
• witness statement stating:
• the stage the main proceedings have reached
• the nature of the additional claim
• a summary of the facts on which the additional claim is based
• the explanation for any delay
• a timetable of the proceedings to date

Particulars of additional claim must be contained in or served with the additional claim.

Question 34

Permission to issue an Additional Claim/Third Party Claim

An application for permission to make an additional claim may be made

Answer 34

without notice.

Question 35

Permission to issue an Additional Claim/Third Party Claim

Norm made without notice. Factors governing discretion:

Answer 35

• the connection between the additional claim and the original claim
• whether D is seeking substantially the same remedy as C is claiming
• whether D is asking the court to decide any question connected with the subject matter of the existing proceedings

Even if claim falls within Part 20 grounds, court has discretion whether to allow additional claim to continue.

Question 36

Matters relevant to question of whether an additional claim should be separate from the claim

When deciding whether to permit/dismiss/deal with claim separately, the court has regard to:

Answer 36

1. Connection between additional claim and claim being made;
2. Whether additional claimant is seeking substantially the same remedy which some other party is claiming from him; and
3. Whether the additional; claimant wants the court to decide any question connected with the subject matter –
   
   1. Not only between existing parties but also existing parties and person not a party; or
   2. Against an existing party not only in a capacity in which he is already a party but in some further capacity.

Question 37

Effect of service of an additional claim

Answer 37

A person who is served with an additional claim becomes a party to proceedings.

When served to an existing party, that party also becomes a party in the further capacity specified in the additional claim.

Fourth party claims – Referred to as “Fourth Party”

Question 38

What is an additional claim?

Answer 38

An additional claim is any claim other than by claimant and defendant.

Question 39

Court’s permission required to make an additional claim

Where application is made for permission, the application notice should be:

Answer 39

be filed together with a copy of the proposed additional claim.

Question 40

Court’s permission required to make an additional claim

It must be supported by evidence stating:

Answer 40

1. Stage of proceedings
2. Nature of additional claim
3. Summary of facts; and
4. Name and address of proposed additional party

Where possible, the applicant should provide a timetable of proceedings to date.

The contents of an additional claim are verified by a SoT.

Question 41

Case management where there is a defence to an additional claim

Where the defendant to an additional claim files a defence, other than to a counterclaim, the court will

Answer 41

arrange a hearing to consider case management of the additional claim.

Question 42

Case management where there is a defence to an additional claim

Where the defendant to an additional claim files a defence, other than to a counterclaim, the court will arrange a hearing to consider case management of the additional claim.

At the hearing, the court may:

Answer 42

• Treat it as summary judgment hearing;
• Order additional claim be dismissed
• Give directions

Question 43

Titles of proceedings where there are additional claims

Additional parties should be referred to as

Answer 43

“third party” or “fourth party”.

If an additional claim is brought against more than one party jointly, they should be referred to in the title, such as “First Named Third Party” and “Second Named Third Party”.

Question 44

An additional claim “is made” when the court

Answer 44

issues the appropriate third party claim form.

Question 45

LIMITATION

New claims in pending actions

General rule:

Answer 45

Where limitation has expired, no new claim, other than original set-off counterclaim is to be made.

Question 46

New claims in pending actions

Where limitation has expired:

Where the case involves a new cause of action, if

Answer 46

if the new cause of action arising out of the same facts or substantially the same facts it may be allowed.

Question 47

New claims in pending actions

Where limitation has expired:

Where the case involves a new party IF:

Answer 47

if the addition or substitution of the new party is necessary for the determination of the original action.

Question 48

It will not be regarded as necessary unless either:

Answer 48

1. The new party is substituted for a party whose name was given in mistake; or
2. Any claim already made cannot be maintained unless the new party is joined or substituted.

Question 49

Nobody may be added or substituted as a claimant unless-

Answer 49

1. He has given his consent in writing; and
2. That consent has been filed with the court.

An essential claimant who refuses to consent has to be added as a defendant.

Question 50

Nature of a Third Party Claim

While grafted into the original claim, a third party claim is also in some respects treated as a separate claim.

PRINCIPLES:

Answer 50

• limitation periods are different
• case management needs to be synchronised if possible
• a Part 20 claim can survive (if there is anything left to deal with) if the main claim is struck out
• trials of the main proceedings and third party claims normally take place together

Question 51

To add additional party, how many Claimant may use a CF to start a claim?

Answer 51

C may use a single CF to start all claims.

Question 52

To add an additional party, when must an additional CF be served?

And served:

Answer 52

An Additional Claim Form must be served within 14 days after it is issued.

It must be served together with:

• the usual response pack forms
• all the existing statements of case

It must also be served on all the other existing parties

Question 53

What is:

Contribution Notice?

Answer 53

These are used for bringing claims for contribution, indemnity and related relief by one existing defendant against another existing defendant. These are NOT CFs, so permission CANNOT be sought to serve outside jurisdiction.

Question 54

Permission to issue additional claim form against non-party NOT required if

Answer 54

issued before or at same time as defence.

Question 55

What is required for an additional claim/TP claim?

Answer 55

A Defence is required to an Additional Claim/Third Party claim. The normal rules on default judgment do not apply.

Question 56

What happens if a TP fails to acknowledge service or save a Defence to the TP claim?

Answer 56

The normal rules on default judgment do not apply.

• they are deemed to admit the additional claim
• they are bound by any judgment or decision in the main proceedings which is relevant

Question 57

What is :

Equitable set off= ?

Answer 57

where the cross-claim is so closely connected with the claim that it would be manifestly unjust to allow the claimant to enforce payment on the claim without taking into account the cross-claim. Two factors:

1. Close connection
2. Manifestly unjust to enforce the claim without taking into account the cross-claim

Question 58

For children

Where the settlement is agreed before proceedings are commenced, the rules are

Answer 58

Permissive

Question 59

For children

What happens with permission to add New party?

A settlement reached after proceedings have been commenced:

Answer 59

must be approved by the court if it is to be valid.

Approval is sought by issuing an ordinary application notice.

Approval is sought by issuing a Part 8 claim form.