9. Multiple Causes of Action, Counterclaims and Other Additional Claims Flashcards
How many claimants or defendants may be joined to a claim?
Any number
What is the general rule on adding parties to the litigation
The court may order it if:
1. it is desirable so that the court can resolve all matters in dispute; or
2. there is an issue involving the new party and an existing party which is connected to the matters in dispute, and it is desirable to add the new party so that the court can resolve that issue
What is the general rule on removing parties to the litigation?
If it is not desirable for that person to be a party to the proceedings
What is the general rule on substituting parties in the litigation?
If:
(a) the existing party’s interest or liability has passed to the new party
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings
What should happen where two or more persons are jointly entitled to a remedy?
They must be parties unless the court orders otherwise. If they do not agree to be a claimant, they must be made a defendant unless the court orders otherwise.
This rule does not apply for probate.
Is the court’s permission always required to remove, add, or substitute parties?
No, as it is not needed if the claim form has not been served.
Who by and how is an application for permission to add and substitute parties made?
Can be made by an existing party or a person who wishes to become one.
It must be supported by evidence and made under part 23.
What are the prerequisites before someone is substituted or added as a claimant?
Their consent must be obtained in writing, and that consent alongside the amended claim form and POC have been filed
If the order to substitute or add has been made before consent is given, it will not take effect until the signed, written consent of the new claimant is filed.
Where may HM Revenue and Customs be added as a party?
Where the proceedings will have tax consequences and HMRC have given consent in writing.
Should an order to substitute, remove, or add parties be given to anyone in particular?
It must be served on all parties and any persons affected by the order
What happens at the same time as an order to substitute, remove, or add parties?
Service of the order and consequential directions may be given.
When does a new defendant legally become part of the proceedings?
When the amended claim form is served on them
What are the cost implications of adding a person to the litigation?
The party applying to add them shall be responsible for the costs of and arising from the amendment unless the court decides otherwise.
Is there any power to add/remove/substitute a party without an application?
Yes, the court can do it on its own initiative.
What restrictions apply on adding or substituting parties after the end of a limitation period?
They may only add if the limitation period was current when the litigation was started and it is necessary to make the change.
This is a discretion which should be exercised in accordance with the overriding objective.1
When is the addition or substitution of a new party necessary?
- The new party is to be substituted for a party who was named in mistake (in terms of the name, not identity)
- The claim cannot be properly carried on against the original party unless the new party is added or substituted as claimant or defendant; or
- The original party has died or had a bankruptcy order made against them and their interest or liability has passed to the new party
What are the special provisions on adding or substituting parties after the end of a limitation period where the case is for personal injuries?
Where the court directs that:
Section 11 or section 12 of the Limitation Act shall not apply; or
The issue of whether those sections apply shall be determined at trial
For the purposes of Rule 19.6 (adding or substituting parties after the end of a limitation period) what is a “mistake”?
The relevant test is:
“is it possible to identify the intended defendant by reference to a description more or less specific to the particular case”? if it is, is it a mistake of the type covered by the provision?
One as to their name, not their identity.
Must have been made by the person responsible for the issue of the claim form
Must be demonstrated that, had the mistake not been made, the new party would have been named in the pleading.
I.e. has to be causally relevant (but for the mistake).
Doubts as to the identity of the person originally named are relevant to the exercise of the discretion.
For the purposes of Rule 19.6 (adding or substituting parties after the end of a limitation period), what guidance is there as to what a change without which the claim cannot properly carried on entails?
i.e. if the defendant had a defence to the companies claim but not to the liquidator’s
the company in substitution for its administrator where the administrator did not have standing but the company did
the spouse of the original respondent was joined where she was a necessary party in order to argue whether or not she was jointly liable with the first respondent and so the appellant could enforce any finding that she was so liable.
How should a Defendant make a counterclaim against the claimant?
A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim
It may do so without permission if filed with the defence or
With permission at any other time
How should a Defendant make a counterclaim against a person other than the claimant?
It must apply to the court for an order that the person be added as an additional party
It may be made without notice.
Subject to Rule 20.7, reproduced here (only where the claim is not ONLY against a person who is already a party):
It can be made:
1. Without the court’s permission if issued before or at the same time as they file their defence
2. Or at any other time with the court’s permission
Particulars of an additional claim must be contained in or served with the additional claim
May be made without notice, unless the court otherwise orders
The claim is made when the form is issued.
What is the procedure for making a counterclaim which is not ONLY against a person who is already a party?
It can be made:
3. Without the court’s permission if issued before or at the same time as they file their defence
4. Or at any other time with the court’s permission
Particulars of an additional claim must be contained in or served with the additional claim
May be made without notice, unless the court otherwise orders
The claim is made when the form is issued.
How should service of the additional claim form be effected?
If against an additional party only, be served on every other party when a copy of the defence is served
In the case of any other additional claim, be served to the person against whom the claim is made within 14 days after issue.
DOES NOT APPLY TO ADDITIONAL CLAIMS FOR INDEMNITY OR CONTRIBUTION
What matters are relevant to the question of whether an additional claim should be separate from the claim?
When considering whether to permit an additional claim to be made, dismiss an additional claim, or require an additional claim to be dealt with separately, the court may consider:
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 them; and
3. Whether the additional claimant wants the court to decide any question connected with the subject matter of the proceedings;
a. Not only between existing parties but also between existing parties and a person not already a party; or
b. Against an existing party not only in a capacity in which they are already a party but also in some further capacity.
