additional claims and changing parties (week 3)

Question 1

What is an additional claim?

Answer 1

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

Question 2

what is a counterclaim?

Answer 2

It is a claim bought by a defendant in response to the claimants claim, which is included in the same proceedings as the claimants claim. A counter claim is one type of additional claim

Question 3

What are the different types of additional claims? (there are 6)

Answer 3

1. Counterclaim by the defendant against a claimant
2. counterclaim by a defendant against a claimant an some other person
3. an additional claim by defendant against any person who is already party to the proceedings claiming either a contribution or an indemnity
4. An additional claim by defendant against any person who is already party to the proceedings claiming a remedy other than a contribution or an indemnity
5. An additional claim by a defendant against any person who is not already a party to the proceedings claiming either a contribution, an indemnity or some other remedy
6. An additional claim being made by a party which has itself been joined to the main proceedings pursuant to CPR 20

Question 4

can C bring an additional claim?

Answer 4

no, a claim by the original claimant is not an additional claim instead it is adding a further claim to an existing one

Question 5

what is a contribution?

Answer 5

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

Question 6

What is an indemnity?

Answer 6

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

Question 7

what is the difference between contribution and indemnity?

Answer 7

contribution is PART of the amount
indemnity is the WHOLE amount

Question 8

what is a classic counterclaim?

Answer 8

the defendant counterclaim against the claimant

Question 9

is permission needed by the court if a D files a classic counterclaim with the defence?

Answer 9

no

Question 10

is permission needed by the court if D files a counter claim after the defence?

Answer 10

yes

Question 11

is permission needed by the court for counterclaims against a person other than C?

Answer 11

yes

Question 12

what must be included in additional claims for third parties that are not in proceedings? (what must accompany the additional claim)

Answer 12

a response pack
copy of every statement of case and any other doc that the court states
copy of the additional claim form must be sent to every party in the case

Question 13

what is a new party that becomes involved in additional claims called?

Answer 13

third party, fourth party ect

Question 14

what happens if a party doesnt file a defence to account to the additional claim?

Answer 14

D can file for a default judgment

Question 15

if a third party fails to reply to the additional claim what happens?

Answer 15

if they fail to reply within the specified time limits and they will then be bound by the judgement or decision given at trial of the main claim.

Question 16

Who is responsible for costs of the amendment of a statement of case?

Answer 16

the party who applies for the amendment will bear the costs

Question 17

what happens if someone does not consent to be a added to a claim as a claimant?

Answer 17

then they are added as a defendant

Question 18

what is the requirement for adding or substituting parties post limitation?

Answer 18

must be necessary
1) new party is substituted for old party because of a mistake
2) claim cannot properly be carried on
3) the original party has died or had a bankruptcy order

Question 19

if an amendment adds a new duty or obligation - what happens? (is it treated as an additional claim)

Answer 19

no it will raise a new cause of action, so will be a completely new claim

Question 20

if a party fails to respond or objected to provide further information - what happens?

Answer 20

application to the court as an interim application.

Question 21

what does D need to prove in their counterclaim?

Answer 21

duty, breach, causation and loss against the C

Question 22

what defence can arise from the facts in a counterclaim?

Answer 22

set-off

Question 23

what is set-off?

Answer 23

D can set-off against the C’s judgment. D sets-off part of the main substantive claim.

Question 24

when are the 4 times on ‘legal basis’ when D can set-off its judgment in the counterclaim?

Answer 24

1) mutual debts
2) s53(1) sale of goods act 1979
3) defective services
4) equitable set-off

Question 25

what are the two ways that C can respond to a counterclaim?

Answer 25

either admit it or defend it