9. Multiple Causes of Action, Counterclaims and Other Additional Claims

Question 1

In what circumstances can parties be added in existing proceedings before the limitation period has expired?

Answer 1

• Before the CF has been served parties can be added, removed and substituted without the court’s permission.
• After the CF has been served you need the court’s permission.
• The court may order for a new party to be added if-

(a) it is desirable to add the new party so that the court can resolve the matters in dispute; 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 2

Can parties be removed from proceedings?

Answer 2

Yes, the court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings

Question 3

In what circumstances can a party be substituted for an existing party before the limitation period has expired?

Answer 3

Yes, if-

(a) the existing party’s interest or liability has passed to the new party; or
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute

Question 4

Where two or more persons are jointly entitled to a remedy is it possible for just one of them to be a party to the proceedings?

Answer 4

• No, they both have to be parties unless the court orders otherwise
• If either refuses to be a claimant, they must be made a defendant

Question 5

Can you add, remove or substitute parties after service of the CF without the court’s permission?

Answer 5

No

Question 6

Who can apply to add, remove or substitute parties?

Answer 6

Existing parties or any person wishing to become a party

Question 7

Can a person be made a claimant to proceedings without their consent?

Answer 7

• No
• They must give written consent - the written consent + the amended CF and PoCs must be filed with the court before they can be made a claimant

Question 8

What happens if an order is made to add a party as a claimant prior to the filing of their written consent to become a claimant?

Answer 8

The order does not take effect until the signed, written consent is filed.

Question 9

Who must an order for change in the parties be served on?

Answer 9

All the parties to the proceedings + any other person affected by the order

Question 10

Who pays the costs of and arising from the change of parties?

Answer 10

The party that applied for it

Question 11

Can the court make a change to the parties of its own motion?

Answer 11

Yes

Question 12

In what circumstances does the court have a discretion to add or substitute parties after the limitation period has expired?

Answer 12

2 conditions need to be satisfied:

1. the relevant limitation period was current when proceedings were started; and
2. the addition or substitution is necessary

Addition/substitution is only necessary if:

1. the new party is to be substituted for a party who was named in the CF in mistake for the new party;
2. 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
3. the original party has died or had a bankruptcy order made against them and their interest or liability has passed to the new party

Question 13

What case law guidance do we have considering when there will be a qualifying mistake for the purposes of invoking the court’s discretion to permit the addition/substitution of a party after the expiry of the limitation period?

Answer 13

• The mistake must be as to the name of the party, not the identity.
• It is also clear that permission is likely to be refused if there is reasonable doubt as to the identity of the party that should have been named
• the test to be applied: is it possible to identify the intended defendant “by reference to a description more or less specific to the particular case?. I.e. if you get the description right but the name wrong, then the mistake can be corrected.

Question 14

If the time limits for bringing a PI/fatal accidents time limit has expired under ss. 11/12 of the 1980 Act, what special power does the court have regarding the adding/substituting of parties?

Answer 14

• The court can allow parties to be added/substituted if it (conditionally or unconditionally) also grants an application under s. 33 of the Limitation Act to disapply ss. 11/12.
• ‘Conditionally’ here means that the court can say ‘we’ll determine whether we’re going to waive the limitation period at trial’. The court can say this (i.e. not determine the limitation point finally) and still allow a party to be added/substituted.

Question 15

What case law guidance do we have as to when the court will have and exercise its discretion to add/substitute a party because otherwise the claim cannot be carried on (ie add/substitute after expiry of the limitation period)?

Answer 15

The White Book gives lots of examples. The overarching point I’ve gotten from it is that the effect of the change must be to allow the original claim to continue. In practice, this seems to mean that you can only really make a change to the claimant(s) because obviously suing someone else (i.e. substituting or adding a defendant) will generally amount to commencing a new substantive claim.

Question 16

Does D need the court’s permission to counterclaim against C?

Answer 16

Not if D files the counterclaim with the defence. But if D wishes to counterclaim at any other time then they need permission. My comment: obviously this is the case bc by counterclaiming at another time, D would be adding a new claim to the proceedings.

Question 17

Are counterclaims by D against C any different to the main claim?

Answer 17

Not really - the same time limits apply and you can also obtain default judgment for a counterclaim. The only difference is that you can’t acknowledge service of a counterclaim and thereby extend time for service of the defence (or at least that’s my interpretation of r. 20.4).

Question 18

How can D counterclaim against someone who is not yet a party to the proceedings?

Answer 18

By applying to the court to add that other party to the proceedings.

Question 19

How can D bring contribution/indemnity proceedings against a co-D?

Answer 19

• D has to file and serve a notice on that party containing a statement of the nature and grounds of the claim
• D can do this without the court’s permission if D files and serves the notice either (a) with the defence or (b) where the co-D is only added at a later point, within 28 days after the co-D files their defence
• At any other time, D has to seek the court’s permission

Question 20

How can the defendant make any additional claim other than a counterclaim against C or a claim for contribution/indemnity against a co-D?

Answer 20

Whether D needs the court’s permission depends on when D makes this claim:

1. If D makes this claim at the same time as filing their defence to C’s claim -> no permission required
2. Any other time -> permission required

Unlike in the case of C’s main claim, D cannot file and serve a claim form for this claim and then file and serve the particulars later -> the particulars have to be contained in or served with the CF of the additional claim.

Question 21

Which parties do claim forms for additional claims have to be served on?

Answer 21

• If you don’t need the court’s permission: Generally only the party against whom the claim is made, unless the claim is against an additional party (i.e. the making of the claim has the effect of adding a party to the proceedings). In the latter case, the claim form has to be served on every party to the proceedings. N.B. I’m paraphrasing r 20.8 here - this is how I’ve interpreted it
• If you need the court’s permission: the court will give directions regarding the service of the CF

Question 22

Which matters will the court consider when determining whether it should permit an additional claim, dismiss an additional claim or require an additional claim to be dealt with in separate proceedings?

Answer 22

N.B. the court has a general power to order that part of existing proceedings be dealt with separately

1. the connection between the additional claim and the claim made by the claimant against the defendant
2. whether the 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 of the proceedings (i) not only between existing parties but also between existing parties and a person not already a party, or (ii) against an existing party not only in a capacity in which they are already a party but also in some further capacity.

Question 23

What are the procedural requirements for applying to make an additional claim?

Answer 23

• In your application you should also file a copy of the proposed additional claim
• The application must be supported by evidence stating:

1. the stage which the proceedings have reached
2. the nature of the additional claim to be made or details of the question or issue which needs to be decided
3. a summary of the facts on which the additional claim is based
4. the name and address of any proposed additional party.
5. if there has been any delay, an explanation as to why

If possible, you should also provide a timetable of the proceedings to date.

Question 24

How does the making of counterclaims and additional claims affect the title of the proceedings?

Answer 24

• The parties that were there from the beginning keep their original status in the title (i.e. just bc D counterclaims, C does not suddenly - in the title - turn into a D)
• Additional parties that are added should be referred to in the title in accordance with the order in which they are joined (i.e. “Third Party”, “Fourth Party”, etc.). If an additional claim is brought against multiple parties jointly, they should be referred to like this “First Named Third Party” and “Second Named Third Party”.
• If an existing party ceases to be a party, this does not change the name of the other parties in the title