Chapter 7: Statements of Case II

Question 1

Statements of case II

Additional claims
1.1 Introduction to additional claims

Answer 1

Sometimes, after a claim has already started, it transpires that there are additional causes of
action, claims or parties that exist. The viability (ie case analysis, costs risk benefit analysis and
priority to the client) of any such new potential matter should be considered in detail as soon as it
arises, and advice given to the client about how they may choose to proceed. There may also be
tactical reasons to proceed (or not proceed) in certain circumstances, which you will also need to
consider with your client.

Question 2

1.1 Introduction to additional claims

Answer 2

If the new cause of action, claim or party is directly concerned with or closely connected to the existing claim, the rules may direct or allow it to become part of the original claim as this will save time and costs. This approach also avoids the court hearing multiple cases on the same or very similar facts and evidence which could lead to inconsistent judgments.

Question 3

1.1 Introduction to additional claims

Answer 3

It is important to remember that the rules on limitation apply to all new claims, whether or not they are brought as a separate action or added to an existing claim that has already started. This will also need to be factored into any advice that you give your client, as the approach of the court will be different in this situation.

Question 4

Additional claim:

Answer 4

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

Question 5

Counterclaim:

Answer 5

A claim brought by a defendant in response to the claimant’s claim, which is included in the same proceedings as the claimant’s claim. A counterclaim is one type of
additional claim.

Question 6

A counterclaim by a defendant against the claimant.

Answer 6

20.2(1)(a) and 20.4

Question 7

A counterclaim by a defendant against the claimant and some other person.

Answer 7

20.2(1)(a) and 20.5

Question 8

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

Answer 8

20.2(1)(b) and 20.6

Question 9

An additional claim by a defendant against any person (already a party to the proceedings) claiming some remedy other than a contribution or an indemnity.

Answer 9

20.2(1)(b) and 20.7

Question 10

An additional claim by a defendant against any person (not already a party to the proceedings) claiming a contribution or an indemnity or some other remedy.

Answer 10

20.2(1)(b) and 20.7

Question 11

An additional claim being made by a party which has itself been joined to the main proceedings pursuant to CPR 20.

Answer 11

20.2(1)(c) and 20.7

Question 12

Claim by the original claimant

Answer 12

A claim by the original claimant cannot fall into any of the categories summarised in the table, even if the claimant is adding a further claim to its existing claim. Therefore, a claim by the original claimant is not an additional claim.

Question 13

Definition of contribution and indemnity

Answer 13

Contribution: ‘A right of someone to recover from a third person all or part of the amount which he himself is liable to pay.’
Indemnity: ‘A right of someone to recover from a third person the whole amount which he
himself is liable to pay.

Question 14

1.2 Classic counterclaim

Answer 14

The main statements of case that will exist in every defended claim are:
* The claim form (CPR 16.2 and 16.3)
* The particulars of claim (CPR 16.4)
* The defence (CPR 16.5)
In many cases, you might also encounter a ‘classic’ counterclaim (CPR 20.4) as introduced in an
earlier Chapter. This is, of course, one type of additional claim.

Question 15

A classic counterclaim

Answer 15

A classic counterclaim (CPR 20.4) is a defendant’s counterclaim against the claimant, pursued in
the same proceedings as the main claim. These types of counterclaim are very common. If disputed, the claimant will serve a defence to counterclaim in response, which is very similar to a ‘normal’ defence, and both the main claim and counterclaim will continue to case management (ie the directions stage) together.

Question 16

Example: Classic counterclaim

Answer 16

The claimant agrees to sell new machinery to the defendant for the defendant to use in its factory, in return for a payment of £35,000. The claimant delivers the machinery, but the defendant does not pay the invoice because it alleges the machinery is temperamental, and this
has caused disruption to its business and a loss of profits in the region of £50,000. The claimant
maintains that there is nothing wrong with the machinery.

Question 17

Example: Classic counterclaim

Answer 17

The claimant commences proceedings seeking payment of the £35,000. In response, the defendant files a ‘defence and counterclaim’. The counterclaim is that, in breach of contract, the machinery was of unsatisfactory quality, and these breaches have caused the loss of profit of £50,000.

Question 18

1.4 Counterclaims against a person other than the claimant

Answer 18

Sometimes the defendant will have a counterclaim against both the claimant and another person
at the same time. This type of counterclaim (CPR 20.5) is much more unusual in practice than the
classic counterclaim previously mentioned (CPR 20.4). A counterclaim against a person other than a claimant is a counterclaim by the defendant
against:

Question 19

1.4 Counterclaims against a person other than the claimant

Answer 19

Sometimes the defendant will have a counterclaim against both the claimant and another person
at the same time. This type of counterclaim (CPR 20.5) is much more unusual in practice than the
classic counterclaim previously mentioned (CPR 20.4). A counterclaim against a person other than a claimant is a counterclaim by the defendant
against:

Question 20

Defendant’s own course of action

Answer 20

The defendant’s own cause of action, as particularised in the counterclaim, must be against the
claimant and some other party who is, for example, jointly liable with the claimant to the defendant.
If this other party is not already a party to the ‘main’ court action between the claimant and the
defendant, the other party will need to be joined into the main claim as a third party so that the defendant’s counterclaim can proceed.

Question 21

Claimant not involved in the claim

Answer 21

Remember that if the claimant was not involved in the claim which the defendant is bringing, this would essentially be a claim by the defendant against some other party who is not involved in the
current proceedings (ie the main claim between the claimant and the defendant). In those circumstances, it would not be a ‘counterclaim’ (because it would not be a claim by the defendant
against the claimant) and it would have nothing to do with the main cause of action (since the
claimant would not be involved).

Question 22

1.4.1 Summary of counterclaims against a person other than a claimant

Answer 22

For this type of counterclaim the defendant’s counterclaim must be against the claimant and the
third party together. As mentioned above, there must be some connection between the claimant
and third party in respect of the counterclaim. (If there was not, the defendant would simply issue
an entirely separate action against the third party.). As with other counterclaims, it is still the case
that the defendant’s counterclaim might arise from a completely different set of facts from the
main/substantive claim.

Question 23

Example: Counterclaims against a person other than a claimant

Answer 23

The defendant, a homeowner, engages a builder, the claimant, and an architect to carry out work
to her home. The defendant is unsatisfied with the work and does not pay the builder claimant. The claimant brings a claim against the defendant for the payment of its invoice.

Question 24

Example: Counterclaims against a person other than a claimant

Answer 24

The homeowner defendant might bring a claim in the same proceedings against builder claimant and architect. It may be that both the claimant and architect were involved in the problem
leading to the work being unsatisfactory so there is a connection between these two parties and this counterclaim. This would be a counterclaim against the claimant and ‘some other party’ in relation to the unsatisfactory works. This is a counterclaim again a person other than a claimant (CPR 20.5).

Question 25

1.5 Claims for a contribution or indemnity from an existing party

Answer 25

The remaining types of additional claim mainly relate to the defendant claiming a contribution or indemnity from someone else to cover any liability it might be ordered in the main claim that they,
the defendant, owe to the claimant.
The words ‘contribution’ and ‘indemnity’ have differing meanings in different legal contexts and
there is detailed case law in this regard (the specifics of which are beyond the scope of this
module). For our purposes, the definitions mentioned earlier in this chapter will apply. For the
purposes of the CPR an indemnity is equivalent to a 100% contribution.

Question 26

Right to contribution and right to indemnity

Answer 26

A right to a contribution might arise in tort, contract or under the Civil Liability (Contribution) Act
1978 – for instance, in a road-traffic accident case, that Act might give a driver being sued by an
injured pedestrian the right to seek a contribution from another driver who also contributed to the
accident.

A right to an indemnity will often arise from a contract (with one party contracting to indemnify
another) or some other statutory provision: for example, a defendant being sued for professional
negligence might have a contractual right to claim an indemnity from his insurers

Question 27

Crucial hallmark of both claims

Answer 27

A crucial hallmark of both claims for contribution and indemnity is that the party pursuing the
claim for contribution / indemnity is seeking to recover something which it is itself obliged to pay
to someone else.

A defendant who has acknowledged service of a claim or who has served a defence may make an additional claim for contribution or indemnity against an existing party (most likely a codefendant) (CPR 20.6) by filing a contribution notice with the court and serving that notice on the
other party. There would need to be a legal basis on which the defendant could base this claim, so case analysis will again be essential, as when considering any other claim.

Question 28

1.5.1 Summary of claims for a contribution or indemnity from an existing party

Answer 28

For this type of additional claim to arise, there must be other existing parties already involved in
the action ie it must be more than a simple ‘one claimant against one defendant’ claim by this
time.

Question 29

Example: Claims for a contribution or indemnity from an existing party

Answer 29

For example, the claimant’s original claim might have been made against more than one
defendant from the outset.
If Defendant 1 here is vulnerable to a judgment against it, whereby it owes the Claimant damages
which Defendant 1 considers are Defendant 2’s responsibility, Defendant 1 will protect its position
by bringing its own claim against Defendant 2 for a contribution or indemnity in respect of those
damages. Thus if the judge decides that Defendant 1 should pay eg 100% of the Claimant’s claim, Defendant 1 has some redress against Defendant 2.

Question 30

1.6 Other additional claims

Answer 30

In addition to the above, there are three other types of additional claim (CPR 20.7):
* An additional claim by a defendant against any person (already a party to the proceedings) claiming some remedy other than a contribution or an indemnity. So, this would include a claim for some remedy other than a contribution or an indemnity from a co-defendant.

Question 31

1.6 Other additional claims

Answer 31

• An additional claim by a defendant against any person (not already a party to the proceedings) claiming a contribution or an indemnity or any other remedy. So, this would include a claim for contribution or indemnity from someone who is not an existing party.
• An additional claim being made by a party which has itself been joined to the main proceedings pursuant to CPR 20.

Question 32

Pointing the finger

Answer 32

These types of additional claims often involve the defendant pointing the finger of blame at a
third party whom, for some reason, the claimant cannot or does not wish to sue directly, exposing
the defendant to full blame.

Question 33

More common CPR claims

Answer 33

As mentioned above, one of the more common CPR 20.7 claims is a claim for a contribution or
indemnity from someone not already an existing party, ie a third party. The same principles will
apply as apply to a defendant claiming a contribution or indemnity from an existing party
(pursuant to CPR 20.6). So again, there would need to be a legal basis on which the defendant
could base this claim against the third party and case analysis will be essential as when
considering any other claim.

Question 34

1.7 Summary of other additional claims

Answer 34

The issues in this type of additional claim are purely between the defendant and the third party
(ie do not involve the claimant at all), but many of these issues will depend upon what happens in
the main claim between the claimant and the defendant.

Question 35

Examples include:

Answer 35

• The defendant’s loss in the additional claim arises solely out of anything the defendant is ordered to pay to the claimant in the main claim.
• There will frequently be related matters of evidence and fact which, once decided in the main claim, resolve the point in the additional claim as well.

Question 36

Example: Other additional claims

Answer 36

C enters into a contract with D to invest £500,000 in D’s business. C was induced to enter into the
contract with D by relying on:
(a) Representations made by D about the financial status of its business (which turned out to be
untrue); and
(b) Comments made in a pre-contract meeting by an accountant, E, known to C and who also
advises D on its finances.

Question 37

Example: Other additional claims

Answer 37

C advances the £500,000 to D which is then dissipated and lost. C sues D for the recovery of the
£500,000 in a misrepresentation claim, based on D’s actions inducing C to enter into the
contract. D alleges that when making its representations, it relied on the advice and comments of
E, its financial adviser, and alleges that E owed D a duty of care in these circumstances.

Question 38

Example: Other additional claims

Answer 38

D can protect its position in the event that it is ordered to pay the £500,000 back to C in C’s
misrepresentation claim by bringing an additional claim against E for a contribution or indemnity
recouping anything D is ordered to pay. This additional claim will be based on the duty of care E
owed to D, which was breached, causing the loss (the damages D had to pay to C).

Question 39

1.8 Procedure

1.8.1 Permission or no permission from the court?

Answer 39

It is necessary to ascertain if the court’s permission is required for your client to pursue a counterclaim or an additional claim.

Question 40

Permission or no permission?

Answer 40

Permission is applied for using the ‘normal’ interim application procedure. The Application Notice
will be accompanied by a draft order and evidence in support which will include details of the
stage the main claim has reached, details of the additional claim, a summary of the relevant facts, explanation of any delay and the name and address of any proposed party (20 PD 2).

Question 41

1.8.2 Structure and form of additional claims: Classic counterclaims

Answer 41

A counterclaim by a defendant against the claimant (and not against anyone else) will usually
take the form of a ‘particulars of counterclaim’(CPR 20.4(1)). The defence and the counterclaim
should normally form one single document, with the counterclaim following on from the defence
(20 PD 6.1). As the defence and counterclaim form one document, they are filed and served together (in accordance with the time limits specified in relation to defences)

Question 42

Counterclaim against a person other than a claimant

Answer 42

A claim for a contribution or an indemnity from another party (ie someone who is already a party
to the main / substantive proceedings) is made by serving the appropriate notice. There is no set form for making a CPR 20.6 claim (ie no equivalent to the N1 claim form), but an example format
is provided on the Court Service website (see PF22). If done in circumstances when the court’s permission is not required, the notice is filed and served
with the defence. If the court’s permission is required, the court will give directions as to when the notice should be
served.

Question 43

Other additional claims

Answer 43

Other claims are started by issuing an N211 claim form which is similar to the ‘normal’ claim form
(ie the N1), other than it is buff coloured and contains more room for the details of all the parties
to be inserted. If such an additional claim is made without the court’s permission, the claim form should be served on the person against whom it is made within 14 days of it being issued (CPR 20.8). If the court’s permission is required, the court will give directions as to when the notice should be served.

Question 44

All additional claims

Answer 44

A party upon whom an additional claim is served becomes a party to the proceedings if he was
not already a party (CPR 20.10). If an additional claim is served on someone who is not already a
party to the proceedings, it must be accompanied by (CPR 20.12(1)):
* a response pack; and
* a copy of every statement of case and any other documents that the court directs.
A copy of the additional claim form must also be served on every existing party (CPR 20.12(2))

Question 45

1.8.3 Case management

Answer 45

As mentioned previously, claims can be added and heard in this way to, for example, save time
and costs and to avoid duplication of evidence and inconsistent judgments. The court will consider whether or not remedies should be sought by way of an additional claim or as a separate action altogether. For example, unless there is a substantial connection between the original proceedings and the proposed additional claim, the court will usually direct them to be dealt with separately (CPR 20.9).

Question 46

1.8.3 Case management

Answer 46

Where the defendant 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 (20 PD 5.1 and
CPR 20.13).

Notice of the hearing will be given to any party likely to be affected by any order made at it – in most cases this will be all of the parties. The court may treat the hearing as a summary judgment hearing, dismiss the additional claim or give directions on the way any claim or issue should be dealt with, including how the additional defendant will be dealt with at trial

Question 47

1.8.4 Title of proceedings where there are additional claims

Answer 47

Matters can become confusing when there are a number of different parties involved in a set of
proceedings in a variety of capacities. Claimants and defendants in the original claim should always be referred to as such in the title to the proceedings, even if they subsequently acquire an additional procedural status (20 PD 7.3).

Question 48

1.8.4 Title of proceedings where there are additional claims

Answer 48

Additional parties should be referred to in the title to the proceedings in accordance with the
order in which they are joined to the proceedings, for example ‘Third Party’ or ‘Fourth Party’ and
so on, whatever their actual procedural status (20 PD 7.4).

Question 49

Example: Title of proceedings where there are additional claims

Answer 49

The defendant makes a counterclaim against the claimant and an additional new party. The
claimant will be referred to as the claimant in the counterclaim (despite being in the position of
defendant to the counterclaim) and the ‘new’ party will be referred to as the ‘Third Party’ (20 PD 7.4(c)).

Question 50

1.8.5 Default judgment and additional claims

Answer 50

As a preliminary point, note that an additional claim is, subject to a small number of exceptions,
to be treated as a claim (CPR 20.3). This means, for example, that a party served with an additional claim must file a defence in accordance with the usual rules (CPR 15.2). What happens if the person on the receiving end of an additional claim does not respond?

Question 51

1.8.5 Default judgment and additional claims

Answer 51

• If a party does not file a defence to a counterclaim then a defendant can apply for default
  judgment as usual (CPR 12.3(2)(b)).
• If an existing party does not reply to a notice of contribution or indemnity, it is not possible to
  apply for a default judgment

Question 52

1.8.5 Default judgment and additional claims

Answer 52

• Where an additional claim form (N211) is served on a person not already a party, it should be
  accompanied by an acknowledgment of service and a response pack. If a party fails to reply to a Form N211 in the appropriate way/within the specified time limits then it will generally be deemed to admit the claim and will be bound by the judgment or decision given at trial of the main claim (to the extent that it is relevant to any matter arising in the additional claim) (CPR 20.11(2)). It is not possible to apply for default judgment in such claims, other than in exceptional circumstances (CPR 20.11(2)(b) and 20.11(3)).

Question 53

1.9 Summary

Answer 53

• CPR 20 contains detailed provisions in relation to the different types of counterclaim and
  additional claims that can be made after a claim (the ‘main claim’) has started.
• These claims often include a party (other than the claimant) claiming a contribution or
  indemnity from another existing party in the main claim or from a new party.
• New parties that become involved in additional claims in this way will be referred to as ‘Third Party’, ‘Fourth Party’ and so on.

Question 54

1.9 Summary

Answer 54

• The indemnity or contribution is to cover amounts that the party claiming it is ultimately
  ordered to pay to the claimant in the main claim.
• An indemnity equates to a 100% contribution.
• In some circumstances permission will be needed from the court to make an additional claim.
  All the relevant documents will be served on all parties.

Question 55

1.9 Summary

Answer 55

• Parties who are on the receiving end of an additional claim must respond to it or they risk default judgment in some types of claim or being deemed to have admitted the claim and being bound by the judgment in the main claim so far as it is relevant to the additional claim.

Question 56

Amending statements of case

2.1 General Amendments

Answer 56

A party might need to amend a statement of case as a knock-on consequence of having added a
party or claim, or this might have become necessary due to a change in their knowledge of a case (eg upon disclosure or the exchange of witness statements) or because of a simple drafting error.

Question 57

2.1 General Amendments

Answer 57

Amendments to statements of case must be verified by a Statement of Truth (CPR 22) unless the court orders otherwise. The rules in this area are grouped as follows and apply together when the
situation requires:
* General amendments (CPR 17)
* Amendments which remove, add or substitute a party (CPR 19)
The rules are particularly strict after the limitation period has expired

Question 58

2.1 General Amendments

Answer 58

The court will ensure that other parties are safeguarded in costs. A party applying for an amendment will usually be responsible for the costs of and arising from the amendment. Also, upon giving an order to substitute or add a party the court generally makes an order for costs against the party seeking the change

Question 59

2.1.1 Amendment without permission or consent

Answer 59

A party may amend a statement of case, including removing, adding or substituting a party, at any time before it is served (CPR 17.1(1)). Such amendments will largely be limited to amendments to the claim form in the period between issue and service and amendments to other statements of case (such as particulars of claim) prior to service. Amendments before service can be as extensive as the re-writing of the entire text of the statement of case, even as far as changing the parties and the causes of action

Question 60

2.1.1 Amendment without permission or consent

Answer 60

Any amendment to the particulars of claim that alters the parties involved may require consent or
permission if the claim form has been served, as such changes may require consequential amendment to the – already served - claim form. Bear in mind, however, that the court retains the power to disallow such amendments (CPR 17.2).

Question 61

2.1.2 Amendment by consent

Answer 61

Any statement of case can be amended at any time with the written consent of all the other
parties (CPR 17.1(2)(a)). The general rule is that the party making the amendment will bear the costs of and arising from
the amendment (PD 17). When an amended statement of case is filed without the need for the
permission of the court, it should be endorsed with the words:
‘Amended [particulars of claim/defence (or as may be)] under CPR [rule 17.1(1) or 17.1 (2)(a)] dated …’
Remember, however, that the court can still disallow such amendments (CPR 17.2).

Question 62

2.1.3 Amendment with the court’s permission

Answer 62

When a statement of case has been served and the written consent of all the parties has not been given, a party will need to apply to the court for permission to make an amendment (CPR
17.1(2)(b)). The party seeking the amendment should file an application notice with the court, together with a copy of the proposed amended statement of case (17 PD 1.2). The application can be dealt with at a hearing or, where all parties consent, without a hearing on written submissions.

Question 63

2.1.3 Amendment with the court’s permission

Answer 63

If permission to amend is given, the court will usually give directions as to any consequential amendments and the service of any amended statements of case (CPR 17.3(1)). 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 amendment unless the court orders otherwise. A copy of the amended statement of case and the order should also be served on every party to the proceedings.

Question 64

2.1.3 Amendment with the court’s permission

Answer 64

Where an amended statement of case is filed with the permission of the court, it should be endorsed as follows:
‘Amended [particulars of claim/defence (or as may be)] by order of [Mr Justice…] dated …’ (17 PD 2.1(1)) If the substance of the statement of case is changed by reason of the amendment, the statement of case should be re-verified by a statement of truth

Question 65

When will the court give permission to amend?

Answer 65

Except in cases where the limitation period has expired (CPR 17.4), which are discussed later, there is no specific guidance on the principles upon which the court is to exercise its discretion to allow
amendments to statements of case. Parties are expected to be cooperative in litigation so, once
the necessity to amend has become apparent, a party should tell their opponents about the
proposed amendment so as to enable them to consider whether to oppose or consent to it.

Question 66

When will the court give permission to amend?

Answer 66

In practice, this is an area in which the facts of your case will need to be carefully compared with the authorities that exist in order to understand how a court is likely to approach the application to amend. You will try to find authorities that are nearest or most analogous with your own case and use those to persuade the court that permission should be given.

Question 67

Will permission to amend be granted?

Answer 67

It is recognised that the general principle is that the court is required to give effect to the
overriding objective of dealing with cases justly and at proportionate cost (CPR 1.1). The decision
will always involve the court seeking to find 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. There are a number of cases dealing with this area. Some general principles that have emerged from some of these cases are mentioned below.

Question 68

Will permission to amend be granted?

Answer 68

An application for permission to amend a defence will be refused if it is clear that the proposed
amendment has no prospect of success. The court may reject 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 also not be permitted to raise by amendment an allegation which is unsupported by any evidence and is therefore pure speculation or invention. The required statement of truth verifying such an amendment could not
properly be given.

Question 69

2.1.4 Late amendments

Answer 69

In accordance with the court seeking to further the overriding objective, a late amendment (ie an
amendment sought close to the trial date) can potentially cause unfairness in that it might put the
parties on an unequal footing or add an excessive burden to the respondent’s task of preparing
for trial. The court will therefore be very mindful of this fact when considering permission in these
circumstances.

Question 70

2.1.4 Late amendments

Answer 70

A late amendment might even put the trial date at risk and cause a postponement of the trial,
which is always something that the court will wish to avoid. An applicant seeking permission in these circumstances will need to work very hard to convince the court that permission should be given, providing a good explanation as to why they did not apply earlier and must show the strength of the new case and why justice to them, their opponent and other court users requires them to be able to amend.

Question 71

Example: Late amendments - case law

Answer 71

Swain-Mason and ors v Mills & Reeve [2011] EWCA Civ 14
In this case the Trial Judge had allowed the claimants in a professional negligence action to reamend their particulars of claim on the first day of trial. The Court of Appeal said that the judge
had misdirected himself and set out the following principles:
(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.

Question 72

Example: Late amendments - case law

Answer 72

(b) A heavy onus lies on the party seeking a late amendment to justify it, not only as regards its own position, but also in relation to other parties to the litigation and other cases before the court, and to give evidence as to why the application is made at such a late stage.
(c) The party seeking the late amendment must satisfy the full requirements of preparing a
proper pleading. In other words, the party cannot say that deficiencies can be rectified by
way of further information or evidence in due course.

Question 73

Example: Late amendments

Answer 73

Claimant C is suing Defendant D for breach of contract.
* C now wishes to amend its particulars of claim to claim breach of duty of care (negligence) as
well as breach of contract against D.
* The alleged damages will be doubled in size and there are only 2 months to go before trial.

Question 74

Example: Late amendments

Answer 74

The court may not allow this amendment as it may jeopardise the trial date and might put a
considerable burden on D to amend its own statements of case and to produce further disclosure
and evidence (witnesses and experts).

A refusal of permission may especially be the case if the amendment does not result from late disclosure or new evidence or C cannot adequately justify making the amendment at such a late
stage (see Swain-Mason case).

Question 75

Example: Late amendments

Answer 75

However, the court does have discretion and the amendment may be allowed but it would be with
a heavy costs penalty on C.

Question 76

2.2 Amendments which add, remove or substitute parties (CPR 19)

Answer 76

As mentioned above, adding, removing and substituting parties is dealt with in CPR 19. ‘Any number of claimants or defendants may be joined to a claim’ (CPR 19.1).

Except in cases where the limitation period has expired (CPR 19.5) which are discussed below, the main test to be satisfied when seeking to add, remove or substitute a party is that the amendment is ‘desirable’ (CPR 19.2). In considering this test the court will have in mind 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.

Question 77

2.2 Amendments which add, remove or substitute parties (CPR 19)

Answer 77

Adding parties to a claim increases the complexity and case management decisions required,
which will add to the cost and the time the particular matter might take so the court will have this
in mind when exercising their discretion here.

Question 78

2.2.1 Additional claims and adding parties

Answer 78

When additional claims arise, the status in the main claim of the parties to the additional claim
should be considered, as the allegations and basis of the additional claim might impact the issues in the main claim. This can have the effect of leaving a party exposed

Question 79

Example: Additional claims and adding parties (CPR 19)

Answer 79

• Claimant C sues defendant D for misrepresentation and the loss of a £500,000 investment C
  made in D’s business.
• D brings an additional claim for a contribution / indemnity against E, its financial advisers,
  who were also involved in making the representations inducing the £500,000 investment by C.
  (In this claim, E is the Third Party (CPR 20.7)).

Question 80

Example: Additional claims and adding parties (CPR 19)

Answer 80

• At the trial, C fails in its claim against D, with the judgment laying the blame against E.
• As C had not joined E into the main action as a defendant to C’s claim, the judge could not
  make a judgment in that main claim against E in favour of C.
• In this situation, even though E is to blame, C recovers nothing.

Question 81

Example: Additional claims and adding parties (CPR 19)

Answer 81

Accordingly, there may be circumstances where it would be convenient for a claimant or
defendant to apply for an order that the defendant to an additional claim is added as a defendant in the main claim (CPR 19.2(2)(b)).

Question 82

2.2.2 Permission and / or consent needed

Answer 82

No one can be added as a claimant without his or her consent, with the consent being filed at court (CPR 19.4(4)). If someone refuses to be added as a claimant, they can instead be added as a defendant (CPR 19.3(2)). Finally, the court’s permission is always required to add, remove or substitute a party, unless the claim form has not yet been served (CPR 19.4(1))

Question 83

2.2.2 Permission and / or consent needed

Answer 83

The rule is designed to avoid the possibility of claims being defeated on the basis that one or
another party should or should not have been joined. The decision to amend is, as with the
amendments already referred to, made in accordance with the overriding objective. Permission is
usually given to amend on the basis that the amending party must pay the costs of the
amendment (plus those arising from it).

Question 84

2.2.3 Amendments after the limitation period has expired

Answer 84

There are special rules in relation to amendments in cases where the limitation period has expired.
An amendment to add a new cause of action or party to existing proceedings is deemed to be a
separate action which is commenced on the same date as the original action.

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 (CPR 19.4(9)). By contrast, when one is considering new claims, the Limitation Act determines when a new claim is deemed to be commenced.

Question 85

2.2.3 Amendments after the limitation period has expired

Answer 85

There are a number of relevant provisions to consider. The starting point is the Limitation Act 1980
and the usual rule is that such amendments will not be allowed (s.35(3) Limitation Act 1980).
There are, however, exceptions to this general rule. These include when an original set off or
counterclaim is raised by an amendment and where otherwise provided in the Limitation Act and
by the rules of the court. The relevant situations to consider are:
* Amendments in relation to personal injury claims (s.33 Limitation Act 1980)
* Amendments generally (CPR 17.4)
* Amendments which add or substitute a party (CPR 19.5)

Question 86

Adding causes of action post limitation

Answer 86

A new cause of action can be added to an existing statement of case after the end of the limitation period only in the following circumstances:
* When the court directs that the limitation period will not apply in a personal injury action (s.33 Limitation Act 1980). This provision gives the court a general discretion to disapply that time limit if satisfied that it is equitable to do so.

Question 87

Adding causes of action post limitation

Answer 87

For example, the cause or significance of personal injuries or disease caused by someone’s
negligence might not be apparent within the standard 3 year limitation period for personal injury claims and this could be a reason for the court to exercise its discretion under this provision in order to do justice. If an action on some other basis was already underway, it
could be amended under this provision to add this new claim after the limitation period had
expired.

Question 88

Adding causes of action post limitation

Answer 88

• The new cause of action is an original set-off or counterclaim (s.35(3) Limitation Act 1980).
• 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 (s.35(5)(a) Limitation Act 1980. The court may allow the amendment when the effect will be to substitute or add a new claim after the end of the limitation period, 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 seeking permission to amend has already claimed a remedy (CPR 17.4(2). The onus is on the applicant to show that the
  proposed amendment falls within this criteria.

Question 89

Assessment focus point

Answer 89

An amendment adding a new duty or obligation on the part of a defendant (or possibly even a
claimant) will usually raise a new cause of action so this will be a new claim. An amendment adding additional facts or particulars which clarify a duty or obligation which
has already been alleged, will not normally be interpreted as raising a new cause of action.

Question 90

Adding causes of action post limitation

Answer 90

The court will therefore examine the alleged duty, breach, causation and loss very carefully in order to decide which of the above two categories the proposed amendment comes into. If there is
a new distinct allegation, it will be a new cause of action and will need to be justified within the criteria mentioned above as this amendment will add a new claim after the limitation period has
expired. If the only change is the addition of a further instance of the alleged breach or a new remedy,
there will be no additional cause of action

Question 91

Adding parties post limitation

Answer 91

There can also be amendments which change the parties to an action. There is an interplay between the general provisions for amendments and those which specifically deal with adding or substituting parties substantively. This is because any change in the parties will also necessitate an amendment to the statements of case. There are three main situations that can arise:

Question 92

Adding parties post limitation

Answer 92

• Relates to correcting a mistake as to the name of a party (CPR 17.4(3))
• Relates to changing the capacity of a party (CPR 17.4(4))
• Relates to changing the identity of a defendant (CPR 19.5)

Question 93

Adding parties post limitation

Answer 93

There are a limited number of situations where new parties can be added or substituted despite
the limitation period’s expiration (CPR 19.5) – these are addressed in detail just below. If the case
does not fall into one of these categories the proposed amendment will not be allowed.
The onus is on the applicant to show that the proposed amendment falls within the applicable criteria.

Question 94

Requirements for adding/substituting parties post limitation

Answer 94

Parties may only be added or substituted after the end of the relevant limitation period if:
* the limitation period was current when the proceedings were actually started; and
* the addition or substitution is ‘necessary’ (CPR 19.5(2). The addition or substitution is deemed to be ‘necessary’ only if the court is satisfied that (CPR 19.5(3)):

Question 95

Requirements for adding/substituting parties post limitation

Answer 95

(a) the new party is to be substituted for one that was named in the claim form in mistake for the
new party; or
(b) the claim cannot properly be carried on/by/against the original party unless the new party is
added or substituted; 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.

Question 96

2.2.4 Change in name only, or a different person?

Answer 96

The court will distinguish between mistakes in name only, and those which actually result in an
entirely different person or entity becoming a party ie mistakes as to identity. For example, the intended party might have been named in the claim form but there was a
genuine mistake such as causes no reasonable doubt as to the identity of the party in question.
The claim form will have been served on this defendant despite their name being wrong. An
amendment to this party’s name might be allowed (CPR 17.4(3))

Question 97

2.2.4 Change in name only, or a different person?

Answer 97

Sometimes the mistake is more fundamental, and the situation can only be made right by the new
party being substituted (CPR 19.5(3)(a)). So here, a new person will be joining the action, however
their identity will have been known already. For example, a claimant might know the attributes of the proposed defendant (eg their employer or a seller of an item) but has no personal knowledge of their name. The claimant might have been incorrectly informed of the name, resulting in proceedings against the wrong defendant.

Question 98

2.2.4 Change in name only, or a different person?

Answer 98

Many of the cases in this area involve corporate or quasi corporate entities changing business structure but effectively being the same going concern.
In summary, amendments post limitation in relation to the name of the party might be allowed but those relating to someone with an entirely new identity will not be allowed. The case of The Sardinia Sulcis [1991] 1 Lloyd’s Rep. 201 sets out the correct approach for the court when deciding such issues. The test is as follows

Question 99

2.2.4 Change in name only, or a different person?

Answer 99

Has the intended defendant been identified in the statements of case ‘by reference to a description more or less specific to the particular case’? If yes, it is a more fundamental type of mistake (19.5(3)(a)) and the amendment may be permitted by the court. If not, then the court cannot permit the amendment. This test might allow the substitution of a new defendant, unconnected with the original 1defendant and unaware of the claim until after the expiry of a relevant limitation period. Any
potential injustice in these circumstances can be avoided by the exercise of the court’s discretion
– the court may allow the amendment, but is not obliged to allow it if it would be unjust

Question 100

2.2.4 Change in name only, or a different person?

Answer 100

It is probably easier to understand this test, and the provisions relating to amending the names of
parties, if we consider an example…

Question 101

Example: Change in name only or a different person - where court has power to allow amendment (i)

Answer 101

The claimant is injured in a car accident caused by the negligent driver of a VW Polo registration
Y476 LNY. The driver was Darren Boardman – he should be the defendant. The registered keeper of the vehicle is Sarah Boardman, Darren’s wife. She was not in any way involved in the accident.

Question 102

Example: Change in name only or a different person - where court has power to allow amendment (i)

Answer 102

Rather than naming Darren Boardman in the claim form and particulars of claim the claimant
names Daryl Boardman. The court would have the power to allow amendment (CPR 17.4(3)). A genuine mistake such as this causes no reasonable doubt as to the identity of the party in question (CPR 17.4(3)).

Question 103

Example: Change in name only or a different person - where court has power to allow amendment (ii)

Answer 103

The claimant is injured in a car accident caused by the negligent driver of a VW Polo registration
Y476 LNY. The driver was Darren Boardman – he should be the defendant. The registered keeper of the vehicle is Sarah Boardman, Darren’s wife. She was not in any way involved in the accident.

Question 104

Example: Change in name only or a different person - where court has power to allow amendment (ii)

Answer 104

The statements of claim make clear that C intends to sue the driver, but wrongly identify the
driver as Sarah Boardman. The court has the power to allow the amendment (CPR 19.5(3)(a))
because the intended defendant has been identified ‘by reference to a description more or less
specific to the particular case’ ie by description as the driver of a specific car at a specific time.
The defendant was named in the claim form in mistake for the new party, but is adequately
described (CPR 19.5(3)(a))
The court has the power to allow the amendment

Question 105

Example: Change in name only or a different person - where court has no power to allow amendment

Answer 105

The claimant is injured in a car accident caused by the negligent driver of a VW Polo registration
Y476 LNY. The driver was Darren Boardman – he should be the defendant. The registered keeper of the vehicle is Sarah Boardman, Darren’s wife. She was not in any way involved in the accident.

Question 106

Example: Change in name only or a different person - where court has no power to allow amendment

Answer 106

Due to a serious misunderstanding of the law, C brings a claim against Sarah Boardman, setting
out a claim (which is legally unsupportable) against her as the registered keeper of the vehicle. C
later realises the error and wants to bring a claim against Darren Boardman instead. This
substitution / amendment is not permissible because the driver of the Polo is not identified as the
intended defendant by a description in the statements of case.

Question 107

Example: Change in name only or a different person - where court has no power to allow amendment

Answer 107

The defendant was named in the claim form in mistake for the new party, but is not adequately
described. The court has no power to allow the amendment.

Question 108

2.3 Format of the amended statement of case

Answer 108

The format of the statements of case once it has been agreed or ordered that they may be amended is as follows:
* There is no need for the amended statement of case to show the original text, unless the court
orders otherwise (17 PD 2.2).
* Amendments are to be shown by either: (i) using coloured amendments; or (ii) by using a
numerical code (17 PD 2.2).

Question 109

2.3 Format of the amended statement of case

Answer 109

• If colour coding is used, the order of colour for successive amendments is (1) red (2) green (3)
  violet and (4) yellow.
• The amended statement of case should contain the appropriate endorsement (see 17 PD 2.1)
  and be verified by a statement of truth (CPR 22.1(2)).
  Finally, once an amended statement of case has been served, there will often be knock on
  amendments to the existing statements of case so eg if the particulars of claim are amended, the defendant will likely need to amend their defence as a consequence

Question 110

2.4 Summary

Answer 110

• CPR 17 and 19 deal with amendments to statement of case.
• For some amendments consent of the other parties or permission from the court will be required.
• Amendments that are late ie close to the trial date can cause injustice to the other parties or put the hearing date at risk. The court will therefore be less willing to allow late amendments.
• Amendments sometimes add new causes of action or change the parties and these types of
  amendment are treated as a separate claim which was commenced on the same date as the original claim.

Question 111

2.4 Summary

Answer 111

• As a result, if the limitation period has passed, the court will be careful to ensure there is no
  prejudice to a defendant now deprived of their defence of limitation. Special rules apply and
  the court will exercise particular care.
• There are specific rules that apply to post limitation amendments and the court will decide whether to allow such amendments.

Question 112

3 Request for further information

3.1 Introduction

Answer 112

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. In most instances whether or not a matter is “in dispute” will be apparent only from a reading of the statements of
case and, therefore, the disputed matter will be often be contained or referred to in a statement of case.

Question 113

3.1 Introduction

Answer 113

However, the court’s power is not limited to matters contained or referred to in a statement
of case. 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 114

Examples of why a party wishes to request further information include:

Answer 114

• 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

Question 115

Examples of why a party wishes to request further information include:

Answer 115

• 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

Question 116

3.1 Introduction

Answer 116

In multi-track claims, directions setting out the time period for serving requests for further
information and responses to them will usually be included in the directions at the first case
management conference.

Question 117

3.2 Making a request for further information

Answer 117

A party is expected to seek information from the other party on a voluntary basis first and should
only make an application to the court if the request cannot be resolved (18 PD 1). The party seeking information serves a written request on the other party stating a date for a response (allowing the other party a reasonable amount of time to respond).

Question 118

3.2 Making a request for further information

Answer 118

The request should be concise and confined to matters which are reasonably necessary and
proportionate to enable the requesting party to prepare its own case / understand the opponent’s
case. The CPR contain instructions as to the format and layout of the request.

Question 119

3.3 Responding to a request for further information

Answer 119

The response must be written, dated and signed by the party or its legal representative and
include a statement of truth (18 PD 2). The response must be sent to the other party and filed at court.

Question 120

3.3 Responding to a request for further information

Answer 120

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 (18 PD 4). If the
request can only be complied with at disproportionate expense, the reasons why must be explained, for example, the request is about matters that are irrelevant, disproportionate, not reasonably necessary or privileged

Question 121

3.4 Request to the court for further information

Answer 121

The court can order a party to clarify any matter which is in dispute in the proceedings or give
additional information in relation to any such matter whether or not the matter is contained or referred to in a statement of case (CPR 18.1).
An application to the court would be appropriate where the other party has not responded or has
responded with an objection to provide the information (18 PD 1.1).

Question 122

3.4 Request to the court for further information

Answer 122

The application should be made as an interim application (CPR 23 and18 PD 5). If, the other party
has not responded after 14 days have passed, the application can be made without notice to the
opponent and the court can deal with the application without a hearing.

If a court makes an order for further information, the party against whom the order made must
file its response and serve its response on the other parties within the time specified by the court. The response must be verified by a statement of truth.

Question 123

3.4 Request to the court for further information

Answer 123

The court can direct that further information given by a party to another party either voluntarily
or pursuant to an order is not be to used for any purpose other than the current proceedings (CPR
18.2).

Question 124

3.5 Summary

Answer 124

• Parties are expected to make a voluntary request for further information before involving the
  court.
• A request for further information can be made for any matter in dispute in proceedings; it does
  not have to be in relation to a matter contained in a statement of case.
• The court may make an order for further information.
• The court may restrict the subsequent use of information provided in a response to a request
  for information