Counterclaims and other statements of case Flashcards
In addition to, or following, the initial response required by the defendant, what other possible statements of case might be served?
*Counterclaim
*Claimant serving a defence to counterclaim
*Claimant might serve an additional statement of case in response to the defence called a reply.
Describe the key features of a Part 20 claim
- Separate claim to the main claim and is normally made at the same time the defendant files its defence.
- If a counterclaim is made after the defence has been filed, permission of the court is needed.
- A defendants counterclaim is pursued in the same proceedings and dealt with under the same claim number.
- The defendant in their counterclaim will need to establish duty, breach, causation and loss.
Should a counterclaim be related to the claimant’s substantive cause of action?
*A counterclaim doesn’t need to have anything to do with the claimants substantive cause of action, however, parties must be suing in the same capacities as the main claim.
*If the court does not think the counterclaim should be heard with the main claim, the counterclaim can be struck out or heard separately.
When should a counterclaim be made?
It should form a single document with the defence (document is then entitled `Defence and Counterclaim’)
What form should the counterclaim take?
Must comply with the rules on particulars of claim and a court fee will be payable.
What is set off? And where should set off be set out?
The facts in the counterclaim may also amount to a defence in the main claim.
The defence of set-off should be set out in the defence part of the Defence and Counterclaim.
When can the defence of set off be used?
Mutual debts
s.53(1)SGA 1979
Defective services
Equitable set-off
What is equitable set-off?
Developed by the courts when it considers that there is such a close connection between the two transactions that it would be manifestly unjust to allow enforcement on one claim without taking into account the counter-claim
What options does the claimant have when they receive the counterclaim?
They can either admit or defend. There is no requirement to acknowledge the counterclaim.
When must a defence to a counterclaim be served?
Must be served within 14 days after service of the counterclaim.
If they fail to do so, judgment in default might be entered by the defendant
What form does a defence to counterclaim take?
Defence to a counterclaim needs to comply with normal rules relating to defences
What is a reply?
A reply is an optional statement of case served by claimant if they wish to allege facts in answer to the defence
When should a reply be served?
If there is a reply, it should be filed with the directions questionnaire.
As this is usually being prepared at the same time the claimant is considering their response to the counterclaim, the `Reply and Defence to Counterclaim’ normally form one document
Must a reply include a statement of truth?
Yes.
As a reply should be the last statement of case, what is needed to file any statement of case after the reply?
Permission from court.
