Additional Claims and Changing Parties

Question 1

What is the classic counterclaim under CPR 20.4?

Answer 1

A claim by the D against the C. A counterclaim is a separate claim to the main claim and is normally made at the same time the D files its defence.

Question 2

If a counterclaim is made after the defence, is the Court’s permission required?

Answer 2

Yes!

Question 3

What is the defence of set off?

Answer 3

The defence of set-off is a legal right that allows a party to reduce their liability to another party by using money owed to them to offset the amount they owe. It can be used as a defence to a claim in whole or in part.

Question 4

What is the time for serving a defence to a counterclaim?

Answer 4

A defence to a counterclaim must be served within 14 days after service of the counterclaim.

Question 5

If a C wishing to defend a counterclaim fails to serve a defence, what are the consequences?

Answer 5

Default judgment might be entered by the D.

Question 6

What is the definition of an additional claim?

Answer 6

Any claim other than the claim by the C against the D.

Question 7

What is a counterclaim against a person other than the C and what is required to bring one?

Answer 7

This type of counterclaim is unusual in practice and is outlined in CPR 20.5.

The D’s own cause of action must be against the C and some other party who is, for example, jointly liable with the C to the D.

There must be some connection between the C and the third party.

Question 8

What is a contribution?

Answer 8

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

Question 9

What is an indemnity?

Answer 9

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

Question 10

How does a D make a claim for a contribution/indemnity from an existing party to proceedings?

Answer 10

By filing a contribution notice with the Court and serving that notice on the other party.

Question 11

Is permission from the Court needed to file a classic counterclaim under CPR 20.4?

Answer 11

No, if filed at the same time as/with the defence.

Permission is required any other time.

Question 12

Is permission from the Court needed to file a counterclaim against a person other than the C under CPR 20.5?

Answer 12

Yes, permission is always required.

Question 13

Is permission from the Court needed to file a claim for a contribution/indemnity from an existing party under CPR 20.6?

Answer 13

No, if filed at the same time as/with the defence.

Permission is required any other time.

Question 14

Is permission from the Court needed to file an an additional claim against a third party under CPR 20.7?

Answer 14

No, if the additional claim is issued before or at the same time the defence is filed.

Permission is required any other time.

Question 15

Is it possible to apply for default judgment against an existing party that does not reply to a contribution notice?

Answer 15

No, it is not possible.

Question 16

What happens if a third party fails to reply to a Form N211?

Answer 16

Then it will generally be deemed to admit the claim and will be bound by the judgment or decision given at the trial of the main claim (CPR 20.11(2)) in so far as it is relevant to the issues in the additional claim.

Question 17

What do amendments to statements of case need to be verified by?

Answer 17

A statement of truth unless the Court orders otherwise.

Question 18

Who will usually be responsible for the costs of and arising from the amendment to a statement of case?

Answer 18

The party applying for the amendment.

Question 19

When can a party amend a statement of case without permission/consent?

Answer 19

At any time before it is served.

Question 20

Can any statement of case be amended with written consent of all other parties?

Answer 20

Yes!

Question 21

If a statement of case has been served and the written consent of all parties has not been given to amend, what should the party seeking to make the amendment do?

Answer 21

The party will need to apply to the Court for permission to make an amendment , together with a copy of the proposed amended statement of case.

In any event, the amended statement of case should usually be filed by the applicant within 14 days of the date of the order granting the amendment.

Question 22

When should an amended statement of case be filed once the application to amend is granted?

Answer 22

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

Question 23

What is the Courts approach to late amendments?

Answer 23

The Court wishes to avoid these and are hesitant to grant permission. A heavy onus lies on the party seeking a late amendment to justify it.

Question 24

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

Answer 24

Whether the amendment is desirable.

Question 25

Is the Court’s permission required to add, remove or substitute a party?

Answer 25

Yes, unless the claim form has not yet been served.

Question 26

An amendment to add a new cause of action/party to proceedings is deemed to commence when?

Answer 26

It is deemed to be a separate action which is commenced on the same date as the original action.

Question 27

When does the addition of a new party take effect?

Answer 27

The addition of a new party now takes effect on the date the amended claim form is served upon him, unless the Court orders otherwise.

Question 28

What is the usual rule regarding post-limitation amendments?

Answer 28

The usually rule is that such amendments will not be allowed (s35 Limitation Act 1980).

Question 29

What are the exceptions to the general rule that post-limitation amendments will not be allowed?

Answer 29

-When the Court directs that the limitation period will not apply in a personal injury action

-The new cause of action is an original set off or counterclaim

-The new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim

Question 30

When may parties be added or substituted after the end of the relevant limitation period?

Answer 30

-the limitation period was current when the proceedings were actually started; and

-the addition or substitution is ‘necessary’.

Question 31

When is an addition or substitution post-limitation deemed to be necessary?

Answer 31

Only if the court is satisfied that (CPR 19.6(3)):

-the new party is to be substituted for one that was named in the claim form in mistake; or

-the claim cannot properly be carried on against the original party unless the new party is added/substituted; or

-the original party has died or had a bankruptcy order made against him and his interest/liability has passed to the new party

Question 32

Will amendments post-limitation in relation to the name of the party be allowed?

Answer 32

Yes, these might be allowed if the mistake is genuine such as causes no reasonable doubt as to the identity of the party in question or they are adequately described.

Question 33

Will amendments post-limitation relating to someone with an entirely new identity be allowed?

Answer 33

No, these will not be allowed.

Question 34

What is a request for further information and what should they be confined to?

Answer 34

A party can obtain further information from the other party to clarify or give additional information in relation to any matter which is in dispute in the proceedings under CPR 18.

Requests should be confined to matters which are reasonably necessary and proportionate to enable the party seeking clarification or information to prepare its own case or to understand the case it has to meet.

Question 35

How should a party make a request for further information?

Answer 35

A party should seek information on a voluntary basis first and only make an application to the Court if the request cannot be resolved.

The party seeking information serves a written request stating a date for a response, which must be a reasonable amount of time to respond.

Question 36

What should the response to a request for further information contain?

Answer 36

The response must be written, dated and signed by the party or its legal representative and include a statement of truth.

Question 37

How should a party object to a request for further information?

Answer 37

If a party objects to providing a request, it must inform the party who made the request giving reasons for the objection and object within the timeframe set out in the request.