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 will the court do after giving a defendant permission to make a counterclaim against a person other than the claimant?
Where it makes such an order it will give directions for management of the case.
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.
What is the effect of service of an additional claim on a person’s position as a party?
They become a party if they are not a party already.
What should when an application is made to make an additional claim where the court’s permission to make an additional claim is required?
The application notice should be filed together with a copy of the proposed additional claim
How should applications for permission to issue an additional claim be made?
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; and
5. Any explanation for any relevant delay
Where possible, the applicant should provide a timetable of the proceedings to date
What will happen where the defendant to an additional claim files a defence in a claim other than a counterclaim?
A case management hearing will be arrange at the same time as a case management hearing for the original claim and any additional claims
The court will give notice of the hearting to each party likely to be affected by it
What will the court do at a case management conference for an additional claim?
It may:
1. Treat the hearing as a summary judgment hearing
2. Order the additional claim be dismissed
3. Give directions about the way the claim, question, or issue should be dealt with
4. Give directions as to the party the additional defendant will take a trial
5. Give directions about the extent to which the additional defendant is to be bound by any judgment or decision in the claim
In what form should a counterclaim be in?
It should form one document where served with the defence
Where a claimant serves a reply and a defence to it, it should form one document with the defence to counterclaim following on in the reply.
What should the titles of proceedings be where there are additional claims?
Where there are additional claims which add parties, the title should comprise a list of all the parties describing each by giving them a single identification. This identification should be used throughout if possible
Claimants and defendants in the original claim should always be referred to as such in the title.
Additional parties should be referred to in the title in accordance with the order in which they joined the proceedings (i.e. third party, fourth party) whatever their actual procedural status
If an additional claim is brought against more than one party jointly, they should be referred to as “First named Third Party” and “Second Named Third Party”
In Group Lit, an order should give directions as to the naming
In proceedings with numerous parties, the court may give directions as to the preparation and updates to a list of parties giving their roles in the claim and each additional claim
If a party ceases to be a party, all other parties should retain the same name
In proceedings where there are fourth or subsequent parties, additional parties should be referred to in the text of statements of case or other documents by name, suitably abbreviated if appropriate. If parties have similar names, suitable distinguishing abbreviations should be used
What is the procedure for making an additional claim for contribution or indemnity from another party?
A defendant who has filed an acknowledgement of service or defence against a person who is already a party by filing and serving on that party a notice containing a statement of the nature and grounds of the additional claim
a defendant may file and serve a notice:
1. without the court’s permission, if filed and served with the defence or within 27 days after filing the defence OR
2. at any other time with the court’s permission
What is the procedure for making a counterclaim which against a person who is not 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 summary of the provisions for making additional claims?
- CPR 20.4 is a counterclaim against the claimant;
- CPR 20.5 is a counterclaim against:
a. either the claimant and a party in the proceedings/a party to be added OR
b. just against the party in the proceedings or a party to be added;
- CPR 20.6 is for indemnity and contribution against an existing party; and
- CPR 20.7 is for any additional counterclaim, including:
a. a counterclaim/contribution claim against the claimant and an additional party but
b. NOT for counterclaims/contribution claims consisting only of a claim against an existing party
What does s35 Limitation Act 1980 allow?
To an original set off/counterclaim to be made after expiry of limitation, with original being a new claim made by a party who has not made a claim previously.
