Counterclaims / Amending SoC Flashcards
What is counterclaim by D against C and is permission required
Usually follows on from defence. Can also give rise to set off.
Permission - not required if filed with defence
- permission required if filed separately
What is counterclaim by defendant against claimant and another?
Permission?
Must be some connection between claimant and third party
Permission - always required to add a third party
What is claim for contribution / indemnity from existing party?
Permission?
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
What is claim for contribution/indemnity from a third party?
Permission?
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
If an additional claim is served on a 3p it must be accompanied by..,
Response pack
Copy of every statement of case
Response to counterclaim from claimant, existing party or 3p??
Must file response within 14 days of service or counterclaim
- if not, D can apply for default judgment
Response to claim for contribution or indemnity from 3p?
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
Can counterclaim also amount to a defence?
Yes - defence of set off in main claim.
Effect of set off
Extinguishes any claim up to same amount against defendant
Legal basis for set off
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
Equitable set off
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
When might party need to amend statement of case
If adding a party to a claim or if there is a change in their knowledge of the case
Who is responsible for costs of amending statement of case
Party making amendment
Does amendment to statement of case need to be verified by statement of truth?
Yes
Can party amend statement of case without permission
Yes - may amend any time before it is served
Eg amendment to claim form after issue but before service
How can amendment to statement of case be made
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
Can amendment of statement of case be made with consent of all parties
Yes
Amending statement of case with court’s permission
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
Can late amendments be made to statement of case
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
Can someone be added as claimant without their consent
No
Amendments to statement of case after expiration of limitation period
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
When will court allow addition of causes of action post limitation
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
Adding parties post limitation
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
