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Civil Litigation > Additional Claims And Changing Parties > Flashcards

Additional Claims And Changing Parties Flashcards

1
Q

What is a counterclaim under 20.4?

A

A normal counterclaim against the claimant that does not allow for an acknowledgment of service. Judgments of default are allowed. Fee.

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2
Q

What is a counterclaim under 20.5?

A

A counterclaim against the claimant and some other person, which always needs permission, regardless of whether filed with the defense. Judgments in default are allowed. Fee.

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3
Q

What is a counterclaim under 20.6?

A

An additional claim by the defendant against any person already party to the proceedings claiming a contribution or an indemnity. This is free.

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4
Q

What is a counterclaim under 20.7?

A

An additional claim by the defendant against any person not already a party to the claim for a contribution or indemnity or some other remedy. No judgments in default allowed; you are deemed to admit. As loss contingent on losing the main claim. Still a fee to issue. Acknowledgment of service allowed as not already party to the claim so no knowledge of what’s going on.

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5
Q

When is permission of the court needed for a counterclaim?

A

If a counterclaim is made after the defense has been filed, permission of the court is needed.

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6
Q

What must the defendant establish to bring a counterclaim?

A

Duty, breach, causation, and loss against the claimant.

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7
Q

What essentially is a counterclaim?

A

A particulars of claim from the defense.

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8
Q

What is a set off?

A

A partial or complete defense to the main claim, extinguishing any claim up to the same amount against the defendant.

E.g., if D makes a counterclaim for £10,000 and is successful, and C’s claim is also successful for a value of £30,000, D would need to pay £20,000 to C.

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9
Q

Where is the defense of set off usually found?

A

In the last paragraph of the defenses, before the start of the counterclaim.

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10
Q

What are the two options available to the claimant for a counterclaim?

A

Admit or defend.

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11
Q

When must the claimant’s defense to a counterclaim be served?

A

Within 14 days after service of the counterclaim.

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12
Q

What happens if the claimant fails to serve a defense within the requisite time limit?

A

A judgment in default may be entered by the defendant.

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13
Q

What is a reply?

A

An optional statement of case served by the claimant if they wish to allege facts in answer to the defense not included in the claim.

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14
Q

When should a reply be filed?

A

Replies are not filed in every case, but if there is one, it should be filed with the directions questionnaire.

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15
Q

What is the deadline for a reply?

A

Parties are given at least 14 days’ notice of the deadline for doing this.

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16
Q

Does a reply need to be verified by a statement of truth?

A

Yes.

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17
Q

What should be the last statement of case?

A

The reply. Permission of the court is needed to file any statement of case after the reply.

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18
Q

What is the general rule of thumb in relation to CPR 20 and 19?

A

Part 20 is used when a defendant is adding a party to an existing claim. Part 19 is used when a claimant is adding a party to an existing claim.

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19
Q

What is the definition of an additional claim?

A

Any claim other than the claim by the claimant against the defendant.

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20
Q

What CPR would be used if a defendant wants to claim something other than a contribution or indemnity from a person already party to the proceedings?

A

20.7.

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21
Q

What is a contribution?

A

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

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22
Q

What is an indemnity?

A

A right of someone to recover from a third person the whole amount which he himself is liable to pay.
For the purposes of the CPR an indemnity is equivalent to a 100% contribution

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23
Q

When is the court’s permission always required?

A

For counterclaims against a person other than the claimant.

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24
Q

When would the court’s permission be required for a classic counterclaim?

A

If not filed at the same time/with the defense.

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25
Q

When would the court’s permission be needed for claims for a contribution or indemnity from an existing party?

A

If not filed at the same time/with the defense.

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26
Q

Would the court’s permission be required for a claim against someone not already party to the proceedings for a contribution or indemnity?

A

Yes, if not filed with the defense.

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27
Q

How is permission of the court applied for?

A

Using the normal interim procedure.

28
Q

What should additional parties be referred to as?

A

‘Third party’, ‘fourth party’, etc., in the order in which they are joined to proceedings.

29
Q

If an existing party does not reply to a notice of contribution or indemnity, is it possible to apply for a default judgment?

A

No.

30
Q

Where an additional claim is served on a party not already a party and the party fails to respond, what will it generally be deemed?

A

They will be deemed to admit the claim and will be bound by the judgment or decision given at the trial of the main claim.

31
Q

Do amendments to statements of case need to be verified by statements of truth?

A

Yes.

32
Q

Who will usually be responsible for costs in relation to amendments?

A

The party applying for the amendment.

33
Q

When can a party make an amendment without permission or consent?

A

Anytime before it is served.

34
Q

When can amendments with consent be made?

A

Any statement of case can be amended at any time with the written consent of all the other parties.

35
Q

Can the court disallow amendments with consent?

A

Yes.

36
Q

What is needed for an amendment when a case has been served and there is no written consent of all the parties?

A

Permission of the court.

37
Q

How are permission to the courts for amendments dealt with?

A

With a hearing or, where all parties consent, without a hearing on written submissions.

38
Q

When permission of the court is granted for an amendment, what must the applicant do?

A

The amended statement of case should usually be filed by the applicant within 14 days of the date of the order granting amendment unless the court orders otherwise.

39
Q

When will an application for permission to amend a defense be refused?

A

Where it is clear that the proposed amendment has no real prospect of success.

40
Q

What will happen to a very late amendment request?

A

The court should be less ready than it used to be to allow a very late amendment, where the need for the amendment does not result from some late disclosure or new evidence.

41
Q

What does CPR 19 deal with?

A

Adding, removing, and substituting parties.

42
Q

What is the main test to be satisfied when seeking to add, remove, or substitute a party?

A

Is the amendment desirable?

43
Q

What will the courts have in mind when deciding whether any addition, removal, or substitution of a party is desirable?

A

The policy objective of enabling parties to be heard if their rights may be affected by a decision in the case, and the overriding objective.

44
Q

Can a claimant be added without their permission or consent?

A

No, adding a claimant always needs their consent.

45
Q

Can a defendant be added without their permission or consent?

A

Yes.

46
Q

When will a party be added if the limitation period has expired?

A

The starting point is that such an amendment will not be allowed, unless it is necessary.

47
Q

When will the addition, removal, or substitution be necessary?

A

If the new party is to be substituted for one that was named in the claim form in mistake for the new party, or the claim cannot properly be carried on/by/against the original party unless the new party is added or substituted, or the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.

48
Q

When does the addition of a new party take effect?

A

On the date the amended claim form is served upon him, unless the court orders otherwise.

49
Q

When will the court’s permission to add, remove, or substitute a party be needed?

A

If the claim form has been served.

50
Q

When will the court have the power to allow amendments to parties after the limitation period has expired?

A

In cases of genuine mistake that causes no reasonable doubt as to the identity of the party in question.

51
Q

When does the court have no power to allow amendments to parties after the limitation period has expired?

A

If named in the claim form in mistake for the new party but has not been adequately described.

52
Q

Is there a need for the amended statement of case to show the original text?

A

No.

53
Q

How are amendments to statements of case to be shown?

A

Using colored amendments or by using a numerical code.

54
Q

What CPR deals with requests for further information?

A

CPR 18.

55
Q

What are examples of why a party may wish to request further information?

A

To obtain admissions (although this is rare)

To obtain information which may reveal weaknesses in the other party’s case

To obtain information about facts which the other party needs to prove to make good their case

To acquire advance details of what a witness may say before exchange of witness statements.

To obtain clarification of the other party’s case (a common and useful function as it limits the other party’s ability to depart from it later)

To narrow the issues between the parties to save time and costs

56
Q

Is the party seeking further information expected to seek information from the other party on a voluntary basis first?

A

Yes.

57
Q

What does the party seeking further information need to do?

A

Serve a written request on the other party stating a date for a response.

58
Q

What should a written request for further information include?

A

It should be concise and confined to matters that are reasonably necessary and proportionate.

59
Q

How should a person respond to a request for further information?

A

Respond in writing, dated and signed, and include a statement of truth.

60
Q

Do responses to requests for further information need to be filed at court?

A

Yes.

61
Q

Can a party object to providing a request?

A

Yes, it must inform the party who made the request giving reasons for the objection and object within the timeframe set out in the request
for example, the request is about matters that are irrelevant, disproportionate, not reasonably necessary or privileged.

62
Q

Can a court order a party to clarify any matter in dispute?

A

Yes.

63
Q

When would an application to the court for further information be appropriate?

A

When the other party has not responded or has responded with an objection.

64
Q

Can an application to the court for further information be made without notice?

A

Yes, if the other party has not responded within 14 days.

65
Q

If a court makes an order for further information, what must the party against whom the order is made do?

A

File its response to the other party within the time specified by the court.

Civil Litigation (9 decks)

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