8. Statements of Case Flashcards
How should addresses be listed on the claim form?
The parties’ addresses are the addresses for service, but the claimant must also indicate an address where it resides or carries on business, if different
What two other things should be in the Particulars in a tort case?
- Details of injury, with medical records
- Schedule of past and future loss
What must a claimant do to claim interest on damages?
- State the basis for the claim, i.e., contract, statute
- State the % interest rate if the claim is for a specified sum
How many days does a claimant have to file their amended statements of case?
14 days from date permission was granted
What are the CPR requirements where aggravated/exemplary damages are claimed?
Aggravated damages, exemplary damages and/or provisional damages alongside grounds for claiming them (CPR 16.4).
If a defendant wishes to defend a claim, on whom must they serve the defence?
Every other party to the claim
What are the three ways in which a defendant can respond to each of the paragraphs in the particulars?
- Admit
- Deny
- Non-admission by requesting further information
What occurs when defendant admits a paragraph, and what is the consequence of failing to respond?
The paragraph is no longer in dispute and the claimant does not have to prove it.
Failure to respond means a paragraph is deemed admitted
What must a defendant do if they deny a paragraph?
State reasons for doing so, and set out an alternate version of events
When may a defendant neither admit nor deny a paragraph?
When the facts alleged in the paragraph are outside the defendant’s knowledge
What happens when the defendant admits damages but denies liability?
They are admitting a damages sum, but it will only be payable if the court finds the claim is proved
What is set off, and what type of claims is it most common in?
Where a claimant sues defendant, but defendant is owed money by the claimant, they may apply to have the amount of damages they will have to pay set off by the amount owed to them.
Most common in debt claims.
What is a reply, is it mandatory, and when will it typically be used?
A reply is an optional response sent by claimant to defendant, usually only if something has been raised in the defence which requires a response
Can the reply be used to rectify mistakes or omissions from the Particulars of Claim?
No. It can only be used to deal with points raised in the defence which were not covered by the Particulars
What are the four types of claim available to a defendant under Part 20?
- Counterclaim (20.4)
- Claim against another person (20.5)
- Claim seeking contribution or indemnity (20.6)
- Other additional claims (20.7)
When will the defendant not require court permission to file a counterclaim, and when will they need court permission?
Does not need court permission if counterclaim is filed with defence.
Does need court permission if filed at any other time.
What are three features of a counterclaim against a party other than the claimant (20.5)?
- New party will be called a third party
- Application can be made without notice, unless directed otherwise
- Particulars of the new claim must be contained in or served with the claim (no option for them to follow as with an initial claim)
When will the defendant require court permission to bring a CPR 20.6 claim?
Does not need court permission if claim is filed and served with defence OR claim is against third party who was not added to the claim until later in the action, and that party is served within 28 days of filing their defence.
Does need court permission if filed at any other time, subject to that one late third party exception.
Past the limitation period, when would the addition or substitution of a party be necessary, and this permissible?
(a) Mistakenly named party on claim form
(b) 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 become bankrupt so liability has passed to the new party.
Within what timescale of service must a defence to a counterclaim be served, and what is the consequence of failing to do so?
Within 14 days of service of the counterclaim. Failing that, the original defendant can obtain judgment on the counterclaim
Where additional claims are brought by the defendant, what must the additional party do where (1) they are already a party to the case, and (2) they are not already a party to the case?
- File a defence, if already a party
- File an acknowledgement and/or defence, if not already a party
What steps must a party take when making Part 18 request ?
- Make voluntary request
- Apply to court if no response is obtained or party objects.
What are Part 18 requested used for?
Made to request information to clarify oppoent’s position in relation to the claim.
* request must be reasonably necessary and proportionate.
* Confined to relevant matter.
* May serve to assist in narrowing issues in dispute.
In the context of a request for information, when will the court have a hearing to consider the matter, and when will they consider the matter without a hearing?
No hearing: Party has not responded at all
Hearing: all other situations
What are three grounds for objecting to a request for information?
- Irrelevant
- Unable to provide information/clarification
- Insufficient time to reply
- Disproportionately expensive to reply
- Privilege
What is a required for a request for information to be relevant?
It must relate to matters which are disputed by the parties
What is required to amend a Statement of Case before it has been served, and after it has been served?
Before: can be amended at any time without permission
After: written consent of all parties or court permission required
If an application is made to add a party to the case before the limitation period has expired, what are the two considerations the court will give, either of which is enough?
- It is desirable to add the new party so that the court can resolve all matters in dispute or
- Issue involving the new party and an existing party which is connected to the matters in dispute, and it is desirable to add to resolve this
What is required to add or substitute a party after the limitation period has expired?
- Relevant limitation period must have been live when proceedings were started, and
- The addition or substitution is necessary because:
* original defendant was named by mistake (Sardinia Sulcis; or
* claim cannot be maintained without joining the substitute party; or
* O.G party has died or subject tobankruptcy order, so liability passes to new party. - Overriding objective - burden is on the claimant to show that discretion should exercised in its favour.
Where addition is not necessary, the court has no discretion, and must refuse the change.
For personal injury claims, what must the defendant include in their defence?
Must state whether the Defendant agrees with the medical report served with the Particulars of Claim.
For late amendments, what principles will the court consider when deciding whether to grant permission?
Swain Mason
- court should be less ready to allow amendment if it does not result from late disclosure/evidence.
- heavy onus is on applicant to justify its own position
- applicant must be ready to go - satisfy element of proper pleading
- Party may be penalised by way of costs
What is the key test whether determining whether to allow an amendment to statements of case that changes the substance of the claim?
1) overidding objective - balancing interests of parties.
AND
2) show some prospect of success - based on new version of facts
What are three exceptions to the general rule that amendments to add additional causes of action will not be allowed post-limitation?
1) Personal injury claims - where satisfied it would be equitable.
2) New cause of action is an original set-off claim or counterclaim.
3) Claim arises out of same facts or substantially same as those in issue.
What is the test when determining whether a part was named by mistake where a party seeks to add/substitute a party?
Amendment may be allowed if the identity of the intended party is clear from a description (in a statement of case).
- Mistake as to the name rather than identify, and ‘but’ for mistake, the new party would have been named.
Sardinis Solcis
Can a party amend or withdraw an admission?
Only where the court thinks it would be just to allow it, or other party agrees.
Where a claimant wishes to add a cause of action after serving proceedings, how must they proceed?
Addition can be with the defendant’s consent or with the court’s permission (CPR 17.1(2)).
Where a contract fails to specify a rate of interest payable on breach, does the claimant have any entitlement to statutory interest, and if so when does it start running?
YES - relates to late payment of commercial debts
- Interest is due starting on day after the debt falls due (ie. agreed payment day)
What are provisional damages?
A means by which a person may be compensated at a future date if they go on to develop a serious disease/deteriorate.
