Counterclaims / Amending SoC

Question 1

What is counterclaim by D against C and is permission required

Answer 1

Usually follows on from defence. Can also give rise to set off.

Permission - not required if filed with defence
- permission required if filed separately

Question 2

What is counterclaim by defendant against claimant and another?

Permission?

Answer 2

Must be some connection between claimant and third party

Permission - always required to add a third party

Question 3

What is claim for contribution / indemnity from existing party?

Permission?

Answer 3

Must be some legal basis
Useful in cases of co-defendants

Permission - not required if filed with defence
- required if filed at any other time

Question 4

What is claim for contribution/indemnity from a third party?

Permission?

Answer 4

Must be some legal basis

Permission - not required if filed with defence
- required if filed at any other time

Claim form must be served on 3P within 14 days of being issued

Question 5

If an additional claim is served on a 3p it must be accompanied by..,

Answer 5

Response pack
Copy of every statement of case

Question 6

Response to counterclaim from claimant, existing party or 3p??

Answer 6

Must file response within 14 days of service or counterclaim
- if not, D can apply for default judgment

Question 7

Response to claim for contribution or indemnity from 3p?

Answer 7

If fail to respond within time limit, they will be deemed to admit claim and will be bound by judgment/decision given at trial of main claim

Question 8

Can counterclaim also amount to a defence?

Answer 8

Yes - defence of set off in main claim.

Question 9

Effect of set off

Answer 9

Extinguishes any claim up to same amount against defendant

Question 10

Legal basis for set off

Answer 10

Only available in certain circs
- sale of goods act 1979 - where seller sues for price of goods sold/delivered and buyer can set off claim for breach of implied terms (quality)
- defective services

Question 11

Equitable set off

Answer 11

Where court considers that there is such a close connection between two transactions that it would be manifestly unjust to allow enforcement of only one

Question 12

When might party need to amend statement of case

Answer 12

If adding a party to a claim or if there is a change in their knowledge of the case

Question 13

Who is responsible for costs of amending statement of case

Answer 13

Party making amendment

Question 14

Does amendment to statement of case need to be verified by statement of truth?

Answer 14

Yes

Question 15

Can party amend statement of case without permission

Answer 15

Yes - may amend any time before it is served

Eg amendment to claim form after issue but before service

Question 16

How can amendment to statement of case be made

Answer 16

Without permission/consent - before it is served

By consent - written consent of all parties

Court’s permission - party seeking amendment file application notice with court

Question 17

Can amendment of statement of case be made with consent of all parties

Answer 17

Yes

Question 18

Amending statement of case with court’s permission

Answer 18

Party seeking amendment should file application notice with court, with proposed amended statement of case

• application can be dealt with at hearing or if all parties consent to then by written submissions
• if permission granted court will give directions on consequential amendments

Question 19

Can late amendments be made to statement of case

Answer 19

If it might put trial date at risk then may be refused

Must convince court why permission should he given - eg why it was not made earlier

Question 20

Can someone be added as claimant without their consent

Answer 20

No

Question 21

Amendments to statement of case after expiration of limitation period

Answer 21

Amendments to add new party or cause of action to existing proceedings takes effect on date amended claim form is served

• will not be allowed after limitation period expired

Eg need to serve amended claim form before expiration

Question 22

When will court allow addition of causes of action post limitation

Answer 22

Where court directs limitation period will not apply in personal injury cases - if just and equotable to dovso

New cause of action is set off or counterclaim

New cause of action arises out of same facts as are already in issue - eg adding new obligation/duty on defendant

Question 23

Adding parties post limitation

Answer 23

Only allowed if
- relevant limitation period was current when proceedings started
- addition is necessary - eg new party is substituted for one that was named in claim form by mistake
- claim cannot properly be carried on against original party unless new party added/substituted
- original party has died/bankrupt and liability or interest has passed to new party