Additional claims

Question 1

What is a counterclaim?

Answer 1

A claim made by D against C, normally made at the same time as the defence

Counterclaims are dealt with under the same claim number as the original claim.

Question 2

What must be established in a counterclaim?

Answer 2

Duty, Breach, Causation, Loss

These elements are necessary to support the counterclaim.

Question 3

Does a counterclaim need to relate to C’s substantive cause of action?

Answer 3

No, it does not have to have anything to do with C’s substantive cause of action.

Question 4

What is a set off?

Answer 4

May be a partial or complete defence to the main claim

A set off can extinguish any claim up to the same amount as the defendant.

Question 5

In what circumstances can a set off be used?

Answer 5

• Where seller sues for price of goods sold and delivered, buyer can set off a claim for breach of quality and fitness for purpose
• Where claim is made for price of services, buyer can set off a claim for damages for poor services
• Equitable set off: when it would be morally unjust to allow enforcement of one claim without considering the cross claim

Question 6

What is the form of a set off

Answer 6

It is included in the defence that the D will seek to set off against C’s claim

Question 7

What is a defence to a counterclaim?

Answer 7

Defence served by the Claimant in relation to the counterclaim - must be served within 14 days after service of the counterclaim (NO acknowledgement possible!)

Question 8

What is not considered an additional claim?

Answer 8

A claim by the claimant is not an additional claim.

Question 9

What are additional claims brought by the defendant known as?

Answer 9

Part 20 claims.

Question 10

What is a counterclaim against a person other than the claimant?

Answer 10

It is a counterclaim against C and the other person.

The other party will be joined onto the main court action as a third party.

Question 11

What is required for a counterclaim against a third party?

Answer 11

It cannot be a separate claim not attached to C – there must be some connection between C and the third party.

Question 12

What is a contribution in legal terms?

Answer 12

A right of someone to recover from a third person all or part of the amount which he himself is liable to pay.

Question 13

In what contexts might a right to contribution arise?

Answer 13

The right might arise in tort, contract, or the Civil Liability (Contribution) Act.

Question 14

What is an indemnity in legal terms?

Answer 14

A right of someone to recover from a third person the whole amount.

Question 15

In what contexts might a right to indemnity arise?

Answer 15

The right will often arise in contract or some statutory provision.

Question 16

What must a defendant do when seeking to recover something they are obliged to pay?

Answer 16

Need to serve a contribution notice to the court and serve this on the other party.

Question 17

Counterclaim against C and another
- what
- procedure
- permission

Answer 17

• D’s counterclaim is against the C and another party who is jointly lialbe with the main C
• no set form (usually part of the statements of case as a defence)
• permission always required

Question 18

claims for contribution or indemnity from an existing party
- what
- form
- permission
- timing

Answer 18

• all parties are already parties to the case, and D claims cont/indem from one of them
• contribution notice must be filed at court and served on the other party, but this doesn’t have a set form
• permission –> no permission required if the notice is filed and served with the defence, or if the notice is against a party that was joined to the claim later and the notice is filed and served within 28 days of them filing their defence. Otherwise permission is required
• same rules as defence if no permission is required. Otherwise, the court will give directions

Question 19

Defendant claims against an existing party for something other than cont/indemnity OR D claims against a party that is not already a party
- procedure
- permission
- timing
- what D must serve on the additional party

Answer 19

• N211 claim form (similar to the N1 but buff and with more space)
• permission not required as long as it is filed before or at the same time as the defence (otherwise will need permission)
• if permission not required, the claim form should be served within 14 days of being issued. If permission is required, the court will give directions
• if the party on whom the additional claim form is served is not already a party to proceedings, the claim form must be accompanied by a response pack and a copy of every statement of case and any other documents the court directs

Question 20

What happens if there is no substantial connection between original proceedings and proposed additional claim?

Answer 20

The court will usually direct them to be dealt with separately.

Question 21

How should parties be referred to in the original claim?

Answer 21

C and D in the original claim should be referred to as such.

Question 22

How should additional parties be referred to?

Answer 22

Additional parties should be referred to as third party, fourth party, and so on.

Question 23

What can a defendant do if a party does not file a defence to a counterclaim?

Answer 23

The defendant can apply for default judgment as usual.

Question 24

What happens if an existing party does not reply to a notice of contribution or indemnity?

Answer 24

It is not possible to apply for a default judgment.

Question 25

What is the effect of serving an additional claim form (Form N211) on a person not already a party?

Answer 25

It will generally be deemed to admit the claim and will be bound by the judgment or decision given at trial of the main claim. ## Footnote Not possible to apply for default judgment.