Additional Claims and Changing Parties Flashcards
What is the defence of set-off?
The facts in the counterclaim may also amount to a defence in the main claim.
Essentially, if the defendant wins their counterclaim the amount won is “set off” against the claimant’s judgement against the defendant.
In addition to, or following, the initial response required by the defendant what are some other possible statements of case that might be served?
A counterclaim
Usually followed by the claimant serving a defence to counterclaim
The claimant might serve an additional statement of case in response to the defence called a `reply’.
Classic counterclaims i.e. counterclaims by a defendant against a claimant are dealt with under which CPR?
CPR 20
These counterclaims are known as “Part 20 claims”
What is a classic counterclaim?
It is separate to the main claim and is normally made at the same time the defendant files its defence.
If a classic counterclaim is made after a defence has been filed must court permission be obtained?
Yes
How is a defendants counterclaim pursued?
It is pursued in the same proceedings and dealt with under the same claim number.
However, it doesn’t need to have anything to do with the claimant’s substantive case, however, both parties must be in the same capacity as the main claim.
If the court does not think the counterclaim should be heard with the main claim, what will it do?
The counterclaim can be struck out or heard separately.
What form should a counterclaim take?
If it is made at the same time as the defence it should form a single document with the defence (document is entitled `Defence and Counterclaim’)
It must comply with the rules on particulars of claim.
Court fee will be payable.
Where should the defence of set-off be set out?
In the defence part of the Defence and Counterclaim.
In what circumstances can set-off apply?
s53(1) SGA 1979
Defective services
Equitable set-off
What is equitable set-off?
Developed by the courts when it considers that there is such a close connection between the two transactions that it would be manifestly unjust to allow enforcement o one claim without taking into account the counter-claim
What is a defence to counterclaim?
The claimant can either admit or defend.
There is no requirement to acknowledge the counterclaim.
When must a defence to counterclaim be served?
within 14 days after service of the counterclaim.
What happens if the party fails to serve a defence to the counterclaim?
The defendant might enter a judgment in default.
Must a reply be served?
A reply is an optional statement of case served by claimant if they wish to allege facts in answer to the defence
