Additional claims and amendments (W9)

Question 1

CPR 20.2 - Scope and application of Part 20 rules

Answer 1

Applies to:

(a) a counterclaim by a defendant against the claimant or against the claimant and some other person;
(b) an additional claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy;
(c) where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person (whether or not already a party).

• “additional claim” means any claim other than the claim by the claimant against the defendant

Question 2

CPR 20.3 - Application of Part 20 rules to additional claims

Answer 2

(1) An additional claim is to be treated as if it were a claim for the purposes of Part 20, except for:

(2) The following rules do not apply to additional claims:
(a) rule 7.5 and 7.6 (time within which a claim form may be served)
(b) rule 16.3(5) (statement of value where claim to be issued in the High Court); and
(c) Part 26 (case management - preliminary stage)

(3) Part 12 (default judgment) applies to a counterclaim but not to other additional claims.

(4) Part 14 (admissions) applies to a counterclaim, but only–
(a) rules 14.1(1) and 14.1(2) which provide that a party may admit the truth of another party’s case in writing
(b) rule 14.3 (admission by notice in writing - application for judgment)
apply to other additional claims.

Question 3

CPR 20.4 - Defendant’s counterclaim against the claimant

Answer 3

(1) A defendant may make a counterclaim against a defendant by filing particulars of the counterclaim.

(2) A defendant may make a counterclaim against a defendant–
(a) without the court’s permission if he files it with his defence; or
(b) at any other time with the court’s permission.

(3) Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.

Question 4

CPR 20.5 - Counterclaim against a person other than the claimant

Answer 4

(1) A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.
(2) An application for such an order may be made without notice unless the court directs otherwise.
(3) Where the court makes such an order, it will give directions as to the management of the case.

Question 5

CPR 20.6 - Defendant’s additional claim for contribution or indemnity from another party

Answer 5

(1) A defendant who has filed an acknowledgment of service may make an additional claim for contribution or indemnity against a person who is already party to the proceedings by–
(a) filing a notice containing a statement of the nature and grounds of his additional claim; and
(b) serving the notice on that party.

(2) A defendant may file and serve a notice under this rule–
(a) without the court’s permission, if he files and serves it–
(i) with his defence; or
(ii) if his additional claim is for contribution or indemnity is against a party added to the claim later, within 28 days after that party files his defence; or
(b) at any other time with the court’s permission.

Question 6

CPR 20.7 - Procedure for making any other additional claim

Answer 6

(1) This rule applies to any additional claim except–
(a) a counterclaim only against an existing party; and
(b) a claim for contribution or indemnity made in accordance with CPR 20.6.

(2) An additional claim is made when the court issues the appropriate claim form.

(3) A defendant may make an additional claim–
(a) without the court’s permission if the additional claim is issued before or at the same time as he files his defence;
(b) at any other time with the court’s permission.

(4) Particulars of an additional claim must be contained in or served with the additional claim.
(5) An application for permission to make an additional claim may be made without notice, unless the court directs otherwise.

Question 7

CPR 20.8 - Service of claim form

Answer 7

(1) Where an additional claim may be made without the court’s permission, any claim form must–
(a) in the case of a counterclaim against an additional party only, be served on every other party when a copy of the defence is served;
(b) in the case of any other additional claim, be served on the person against whom it is made within 14 days after the date on which the additional claim is issued by the court.

(2) This does not apply to a claim for contribution or indemnity made in accordance with CPR 20.6.
(3) Where the court gives permission to make an additional claim, it will at the same time give directions as to its service.

Question 8

CPR 20.9 - Matters relevant to question of whether an additional claim should be separate from the claim

Answer 8

(1) This applies where the court is considering whether to–
(a) permit an additional claim to be made; or
(b) dismiss an additional claim; or
(c) require an additional claim to be dealt with separately from the claim by C against D.

(2) The matters to which the court may have regard include–
(a) the connection between the additional claim and the claim made by C against D;
(b) whether the additional C is seeking substantially the same remedy which some other party is claiming from him; and
(c) whether the additional C 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 who is not already a party;
(ii) against an existing party not only in a capacity in which he is already a party but also in some further capacity.

Question 9

20PD.1 - Cases where court’s permission to make an additional claim is required

Answer 9

• see CPR 20.4, 20.5 and 20.7 which set out when court’s permission is required.
• where an application is made for permission to make an additional claim, the application notice should be filed together with a copy of the proposed additional claim.

Question 10

20PD.2 - Applications for permission to issue an additional claim

Answer 10

• 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 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.
• Where delay has been a factor contributing to the need to apply for permission to make an additional claim, an explanation of the delay should be given.
• Where possible, the applicant should provide a timetable of the proceedings to date.

Question 11

20PD.3 - General

Answer 11

CPR apply generally to additional claims as if they were claims. Parties should be aware that provisions relating to failure to respond to a claim will apply.

Question 12

20PD.4 - Statement of truth

Answer 12

Contents of an additional claim should be verified by a statement of truth.

Question 13

20PD.5 - Case management where there is a defence to an additional claim

Answer 13

• Where D to an additional claim files a defence, other than to a counterclaim, the court will arrange a hearing to consider case management of the additional claim. This will normally be at the same time as a case management hearing for the original claim and any other additional claims.
• The court will give notice of the hearing to each party likely to be affected by any order made at the hearing.
• At the hearing the court may:
  (1) treat the hearing as a summary judgment hearing;
  (2) order that the additional claim be dismissed;
  (3) give directions about the way any claim, question or issue set out in or arising from the additional claim should be dealt with;
  (4) give directions as to the part, if any, the additional defendant will take at the trial of the claim;
  (5) give directions about the extent to which the additional defendant is to be bound by an judgment or decision to be made in the claim.
• The court may give any of these orders either before or after any judgment in the claim has been entered by C against D.

Question 14

20PD.6 - Form of counterclaim

Answer 14

• Where a D to a claim serves a counterclaim, the defence and counterclaim should normally form one document with the counterclaim following on from the defence.
• Where C serves a reply and defence to a counterclaim, the reply and the defence to counterclaim should normally form one document with the defence to counterclaim following on from the reply.

Question 15

20PD.7 - Titles of proceedings where there are additional claims

Answer 15

• Where there are additional claims which add parties, the title to the proceedings should comprise a list of all parties describing each by giving them a single identification.
• Claimants and defendants in the original claim should always be referred to as such in the title of proceedings, even if they subsequently acquire an additional procedural status.
• Additional parties should be referred to in the title to the proceedings in accordance with the order in which they joined the proceedings.
• In group litigation, the court should give directions about the designation of parties.
• If an additional party ceases to be a party to proceedings, remaining parties should retain their existing nominal status.
• In proceedings where there are Fourth or subsequent parties, additional parties should be referred in the texts of statements of case by name, abbreviated if appropriate. If parties have similar names, suitable distinguishing abbreviations should be used.

Question 16

CPR 17.1 - Amendments to statements of case

Answer 16

(1) A party may amend his statement of case at any time before it has been served on any other party.

(2) If his statement of case has been served, a party may amend it only–
(a) with the written consent of all the other parties; or
(b) with the permission of the court.

(3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with CPR 19.4.

Amendments must be verified by a statement of truth.

Question 17

CPR 17.2 - Power of court to disallow amendments made without permission

Answer 17

(1) If a party has amended statement of case where permission of the court was not required, the court may disallow the amendment.
(2) A party may apply to the court for an order within 14 days of service of a copy of the amended statement of case.

Question 18

CPR 17.3 - Amendments to statements of case with the permission of the court

Answer 18

(1) Where the court may give permission for a party to amend his statement of case, it may give directions as to–
(a) amendments to be made to any other statements of case; and
(b) service of any amended statement of case.

(2) The power of the court to give permission under this rule is subject to–
(a) rule 19.2 (change of parties)
(b) rule 19.5 (special provisions about adding or substituting parties after the end of the relevant limitation period)
(c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period)

Question 19

CPR 17.4 - Amendments to statements of case after the end of a relevant limitation period

Answer 19

(1) This rule applies where–
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under–
(i) the Limitation Act 1980;
(ii) the Foreign Limitation Periods Act 1984; or
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.

(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.
(3) The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.
(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when proceedings started or has since acquired.

Question 20

Practice Direction 17 - costs on amendment

Answer 20

A party applying for an amendment will usually be responsible for the costs of and arising from an amendment.

Question 21

17PD.1 - Applications to amend where the permission of the court is required

Answer 21

• May be dealt with at a hearing or without a hearing.
• The applicant should file with the court;
  (1) the application notice, and
  (2) a copy of the statement of case with proposed amendments.
• Where permission to amend has been given, the applicant should within 14 days of the date of the order, or within such period as the court may direct, file with the court the amended statement of case.
• If the substance of the statement of case is changed, it should be re-verified by a statement of truth.
• A copy of the order and amended statement of case should be served on every party to the proceedings, unless the court orders otherwise.

Question 22

17PD.2 - General

Answer 22

• The amended statement of case and the court copy of it should be endorsed:
  (1) where the court’s permission was required: “Amended [?] by Order of [Master… or District Judge…] [Legal Adviser] dated…”
  (2) where permission was not required: “Amended [?] under CPR [17….] dated…”
• Statement of case in amended form need not show the original text. However, where the court think it desirable that both the original text and amendments be shown, the court may direct that they be shown either by:
  (1) coloured amendments or
  (2) use of numerical code
• Where colour is used, the text to be deleted should be struck through in colour and any text replacing it should be inserted or underlined in the same colour.
• Order of colours for successive amendments: (1) red, (2) green, (3) violet, and (4) yellow.

Question 23

CPR 17.3.5 - General principles for grant of permission to amend

Answer 23

• An obvious starting point is that the court should have regard to the overriding objective.
• a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general if the amendment is permitted.
• the heavier burden is placed by the overriding objective on an applicant seeking permission to make a late amendment.
• in some reported cases permission to amend was refused on the grounds that the text of the amendment was not expressed sufficiently clearly.
• The fact one defendant agrees a proposed amendment is not determinate and does not preclude another defendant from opposing it.

Question 24

CPR 17.3.6 - Need to show some prospects of success

Answer 24

• The test to be applied in an opposed application for amendment is the same test as applied to an application for summary judgment. Question is whether the proposed new claim has a real prospect of success.
• An application for permission to amend will be refused if it is clear that the proposed amendment has no prospect of success.
• So the court may refuse an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation.
• A party will not be permitted to raise by amendment an allegation which is unsupported by any evidence and is therefore pure speculation or invention.
• A claimant should not be granted permission to amend their claim in order to raise a claim which is not maintainable in established law.

Question 25

CPR 17.3.7 - Deferred amendment

Answer 25

Kennedy

• a dispute at trial whether the defendant was entitled to raise a particular argument without an amendment to its defence.
• resolved by parties agreeing, and the court approving, that the trial should first determine all issues as set out in the existing pleadings and the parties’ primary skeleton argument before considering matters relating to the defendant’s new proposed argument.

Question 26

CPR 17.3.8 - Late amendments

Answer 26

• an amendment is always in principle late if it could have been advanced earlier
• an amendment that should have been raised at trial may be found an abuse of process if sought to be raised only at the assessment of quantum
• an important factor for the court to consider when permission to amend is sought close to the trial date is whether the amendment will put the parties on unequal footing or will place or add an excessive burden on the respondent’s task of preparing for trial so as to jeopardise the trial date or to cause a postponement of trial.
• a very late amendment is one made when the trial date has been fixed and where the grant of permission to amend would cause the trial date to be lost. A heavy burden lies upon the party seeking a very late amendment. He must provide an explanation as to why he did not apply earlier and must show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it.
• CoA indicated it might permit an amendment at trial in respect of a matter which, although not raised in the pleadings, had nevertheless been raised in some of the witness statements and experts’ reports served pre-trial.
• refusal to allow amendments that have been prompted by a reappraisal of the merits of the case by newly instructed counsel
• an appeal against grant of permission was dismissed where the amendment was no more than a formality bringing the claimants’ case in line with what had been argued for at least 6 months. The appellants had not been taken by surprise by the amendment
• defendants were granted permission to amend the details of a defence less than 3 weeks before an expedited Commercial Court trial; the amendments went to questions of construction only and did not risk disrupting the trial.
• The modern approach to litigation is to require parties to be open, above board and cooperative. Thus, once the necessity to amend has become apparent, a party should tell his opponents he intends to seek to do so to enable them to consider whether to oppose or consent to it.
• application for permission to amend was refused because they had delayed revealing to the defendant the details of their amended claim until after they had seen the defence witness statements.
• Lateness of application to amend is an important but not conclusive factor in the court’s consideration, neither is it fatal if there is no good explanation why the application is being made late. The authorities show that the principal matters to be considered are timing and lateness of the amendment, the reason it has not been made earlier, the respective prejudice to the parties and the clarity of the amendment sought.

Question 27

CPR 17.3.9 - Amendment after evidence heard at trial

Answer 27

• Amendment to the claim may not amount to an unfair advantage to the claimant if the defendant has been able to make submissions as to it and it was not shown that the defendant would have called further evidence if it had been able to see the amendment in advance.
• The court does have power to permit an amendment which is sought after judgment has been given but before an order recording that judgment has been drawn up and sealed. However, before permitting such an amendment, the court must first decide whether there are exceptional circumstances or strong reasons for taking the unusual course of reopening the earlier decision.
• ‘it is clearly not satisfactory for the claimant to be allowed to wait to see the outcome of the defendant’s application and then, if the judge decides in the defendant’s favour, to apply for an amendment. There must be some satisfactory reason for failure to apply for the amendment at the proper time. The proper time is either before the defendant’s application is heard or during the hearing of the application.’

Question 28

CPR 17.4.2 - Resolving disputes as to whether a limitation period has expired

Answer 28

• Where it is reasonably arguable that the relevant limitation period has expired before an amendment is made, the onus is on the applicant to show that the amendment falls within the provisions of CPR 17.4 or 19.5.
• Unless the date falls into one of the exceptions, such permission cannot be given after the relevant limitation period has expired. It is immaterial that the limitation period had not expired on the date the application to amend was made.
• Where there is a dispute as to whether or not a new claim sought to be raised by amendment is statute-barred, the claimant must prove (i) that the defendant’s limitation defence is not reasonably arguable, (ii) that, in any case, the amendment falls within CPR 17.4 or 19.5. If they cannot establish either (i) or (ii), permission to amend should be refused leaving the claimant to bring fresh proceedings on the new claim.

Question 29

CPR 19.1 - Parties

Answer 29

Any number of claimants or defendants may be joined as parties to a claim.

Question 30

CPR 19.2 - Changes of parties

Answer 30

(1) Applies where a party is to be added or substituted except where the case falls within CPR 19.5 (special provisions about changing parties after the end of a relevant limitation period)

(2) The court may order a person to be added as a new party if–
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; 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.

(3) 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 proceedings.

(4) The court may order a new party to be substituted for an existing one if–
(a) the existing party’s interest or liability has passed to the new party; and
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.

Question 31

CPR 19.3 - Provisions applicable where two or more persons are jointly entitled to a remedy

Answer 31

(1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.
(2) If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.
(3) This rule does not apply in probate proceedings.

Question 32

CPR 19.4 - Procedure for adding and substituting parties

Answer 32

(1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.

(2) An application for permission may be made by:
(a) an existing party; or
(b) a person who wishes to become a party.

(3) An application for an order under CPR 19.2(4) (substitution of a new party where existing party’s interest or liability has passed)-
(a) may be made without notice; and
(b) must be supported by evidence.

(4) Nobody may be added or substituted as a claimant unless:
(a) he has given his consent in writing; and
(b) that consent has been filed by the court.

(4A) The Commissioners for HM Revenue and Customs may be added as a party to proceedings only if they consent in writing.

(5) An order for the removal, addition or substitution of a party must be served on:
(a) all parties to the proceedings; and
(b) any other persons affected by the order.

(6) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about–
(a) filing and serving the claim form on any new defendant;
(b) serving relevant documents on the new party; and
(c) the management of proceedings.

Question 33

CPR 19.5 - Special provisions about adding or substituting parties after the end of a relevant limitation period

Answer 33

(1) This applies to a change of parties after the end of a period of limitation under:
(a) the Limitation Act 1980
(b) the Foreign Limitation Periods Act 1984; or
(c) any other enactment which allows such a change, or under which such a change is allowed.

(2) The court may add or substitute a party only if–
(a) the relevant limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.

(3) The addition or substitution of a party is necessary only if the court is satisfied that–
(a) the new party is to be substituted for a party who was named on the claim form in mistake for the new party;
(b) 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
(c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.

(4) In addition, in a claim for personal injuries, the court may add or substitute a party where it directs that–
(a) (i) section 11 (special time limit for claims for personal injuries);
(ii) section 12 (special time limit for claims under fatal accident legislation) of the Limitation Act shall not apply to the claim by or against the new party; or
(b) the issue of whether those sections apply shall be determined at trial.

Question 34

19APD.1 - Changes of parties

Answer 34

• Parties may be removed, added or substituted in existing proceedings either on the party’s own initiative or on the application of either an existing party or a person who wishes to become a party.
• The application may be dealt with without a hearing where all the existing parties and the proposed party are in agreement.
• The application to add or substitute a new party should be supported by evidence setting out the proposed new party’s interest in or connection with the claim.
• The application notice should be filed in accordance with rule 23.3 and, unless the application is made under rule 19.2, be served in accordance with 23.4.
• An order giving permission to amend will, unless the court orders otherwise, be drawn up. It will be served by the court unless the parties wish to serve it or the court orders them to do so.

Question 35

19APD.2 - Addition or substitution of claimant

Answer 35

• Where an application is made to the court to add or to substitute a new party to the proceedings as claimant, the party applying must file:
  (1) the application notice,
  (2) the proposed amended claim form and particulars of claim, and
  (3) the signed, written consent of the new claimant to be so added or substituted.
• Where the court makes an order adding or substituting a party as claimant but the signed, written consent of the new claimant has not been filed:
  (1) the order, and
  (2) the addition or substitution of the new party as claimant
  will not take effect until the signed, written consent has been filed.
• Where the court has made an order adding or substituting a new claimant, the court may direct:
  (1) a copy of the order to be served on every party to the proceedings and any other person affected by the order;
  (2) copies of the statements of case and of documents referred to in any statement of case to be served on the new party;
  (3) the party who made the application to file within 14 days an amended claim form and particulars of claim.

Question 36

19APD.3 - Addition or substitution of defendant

Answer 36

• The CPR apply to a new defendant who has been added or substituted as they apply to any other defendant.
• Where the court has made an order adding or substituting a defendant either on its own initiative or on an application, the court may direct:
  (1) the claimant to file with the court within 14 days (or as ordered) an amended claim form and particulars of claim for the court file;
  (2) a copy of the order to be served on all parties to the proceedings and any other person affected by it;
  (3) the amended claim form and particulars of claim, forms for admitting, defending and acknowledging the claim and copies of the statements of case and any other documents referred to in any statement of case to be served on the new defendant,
  (4) unless the court orders otherwise, the amended claim form and particulars of claim to be served on any other defendants.
• A new defendant does not become a party to the proceedings until the amended claim form has been served on him.

Question 37

19APD.4 - Removal of party

Answer 37

• Where the court makes an order for the removal of a party from the proceedings:
  (1) the claimant must file with the court an amended claim form and particulars of claim, and
  (2) a copy of the order must be served on every party to the proceedings and any other person affected by the order.

Question 38

19APD.5 - Transfer of interest or liability

Answer 38

• Where the interest or liability of an existing party has passed to some other person, application should be made to the court to add or substitute that person.
• The application must be supported by evidence showing the stage the proceedings have reached and what change has occurred to cause the transfer of interest or liability.

Question 39

CPR 19.5.1 - Effect of rule

Answer 39

• s.35(3) of the 1980 Act provides that, except as provided by s.33 of the Act, the courts may allow a new claim to be made in the course of an action after the expiry of the statutory limitation period which would affect a new action to enforce that claim only as provided by rules of the court.
• Rule 19.5 carries this aspect of s.35 into effect as it permits the court to add or substitute a party in pending proceedings after the expiry of a relevant limitation period only if 2 conditions are satisfied:
  (i) the proceedings to which the new person is to be added must have been commenced before the limitation period expired; and
  (ii) the addition of the new party must be ‘necessary,;
• Use of the words ‘the court may…’ indicate that the court has discretion to refuse an application for addition or substitution under this rule even if both those conditions are satisfied. The discretion should be exercised in accordance with the overriding objective.

Question 40

CPR 19.5.2 - Original party named in mistake for the new party (r.19.5(3)(a))

Answer 40

• The court may permit substitution of a new party if it is satisfied that “the new party is to be substituted for a party who was named in the claim form in mistake for the new party”
• the mistake must be as to the name of the new party rather than as to the identity of the new party
• the person who made the mistake must be the person responsible, directly or through an agent, for the issue of the claim form and it must be demonstrated that, had the mistake not been made, the new party would have been named in the pleading.
• The mistake must be causally relevant i.e. but for the mistake, the new party would have been named.
• doubts as to the identity of the party are relevant to the court’s exercise of discretion; a permission to amend is likely to be refused if the court considers that the mistake of name has in fact caused reasonable doubt as to the identity of the new party.

Question 41

CPR 19.5.4 - The Sardinia Sulcis test for mistake

Answer 41

(1) r.19.5(3)(a) allows more than mere correction of the name of the party as it is, after all, a provision that allows the substitution of a new party for the originally named party;
(2) in one sense, a claimant always intends to sue the person who is liable for the wrong that they have suffered; but the test cannot be that they have made a mistake which may be corrected where they sue another person, otherwise leave to substitute would always be granted;
(3) so there must be a test that includes, but is broader than, mere correction of name but narrower than substitution of the person intended to be sued for the person actually sued;
(4) the 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, it is a mistake of the type covered by r.19.5(3)(a)
(5) if the claimant gets the right description but the wrong name for their intended defendant, there is unlikely to be any doubt as to the identity of the person intended to be sued; but if they get the wrong description, it will be otherwise;
(6) this test might allow the substitution of a new defendant, unconnected with the original defendant and unaware of the claim until after the expiry of a relevant limitation period, but any potential injustice can be avoided by the exercise of the court’s discretion.

Question 42

para 8-102 Vol 2 WB - s.35 Limitation Act 1980

Answer 42

(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced–
(a) in the case of a new claim made in or by way of third party party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.

(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either–
(a) the addition or substitution of a new course of action; or
(b) the addition or substitution of a new party;
….

unless s.33 applies or
(5)(b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action.

(6) The addition or substitution of a new party shall not be regarded for the purposes of s.(5)(b) as necessary for the determination of the original action unless either–
(a) the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party’s name; or
(b) any claim already made in the original action cannot be maintained by or a against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.