Counterclaims and other statements of case Flashcards
Counterclaims by defendant against a claimant
CPR 20:
- this is a ‘classic’ counterclaim’
- normally made at the same time as the defendant files its defence
Note: if the counterclaim is made after the defence has been filed, permission of the court is needed.
What is a counterclaim?
- counterclaim is a claim against the claimant pursued in the same proceedings as the main claim by the claimant against the defendant
- defendant could of course commence an entirely separate claim but it is usually more convenient for the defendant to combine its counterclaim with the main claim
Very common.
Elements of a counterclaim
- needs, like any claim, to be based on case analysis which confirms that a viable cause of action exists.
- defendant will need to be able to establish duty, breach, causation and loss against the claimant
- A counterclaim may or may not have anything to do with the claimant’s substantive cause of action (but parties must be suing/being sued in the same capacity)
- If the court does not think the counterclaim should be heard with the main claim, it can order that the counterclaim be struck out or heard separately
Form of counterclaim
- If filed at the same time as the defence, it should be included in the same document entitled ‘Defence and Counterclaim’
- Essentially a particulars of claim by another name
- Therefore follows the same rules as a PoC
+ duty
+ breach
+ causation
+ loss - Court fee will be payable on filing the counterclaim
What is a set-off?
- Where the counterclaim also acts as defence to the main claim
- May be partial or a complete defence to the main claim
- Has the effect of extinguishing any claim up to the same amount against the defendant
Legal basis for set-off
- Where the seller sues for the price of goods sold and delivered, the buyer can set off a claim for breach of implied terms as to quality and fitness for purpose
- Where a claim is made for the price of services, the defendant can set off a claim for damages for poor service
- Equitable set off: where there is a such a close connection between the two transactions that it would be manifestly unjust to allow enforcement of one claim without taking into account the cross-claim
Form of set-off
Defence of set-off should be set out in the defence part of the Defence and Counterclaim.
“Further or in the alternative, if the Defendant is held liable to the Claimant, the Defendant will seek to set off against the Claimant’s claim as much of the sum awarded by way of counterclaim in these proceedings as to reduce it or extinguish it altogether.
Defence to counterclaim
- claimant needs to respond to any counterclaim against them. Can either be admitted or defended
Time for serving: no requirement to serve acknowledgement, but the defence must be served within 14 days after service of the counterclaim
Form: must comply with usual rules of defences
CPR for amending statements of case
CPR 17: amending statements of case
CPR 19: Addition and substitution of parties
CPR 20: Counterclaims and other additional claims
Contribution
A right of someone to recover from a third person all or part of the amount which he himself is liable to pay
- often arises from tort
but can also be contract
Indemnity
A right of someone to recover from a third party the whole of the amount which he himself is liable to pay
- often arises from contract or statute
Counterclaims against someone other than the claimant
Counterclaim by defendant against:
- the claimant
- some other person
- Sometimes defendant will have a counterclaim against both the claimant and another person at the same time.
- If not already party to proceedings the other person will need to be joined into the main proceedings as a third party so the defendant’s counterclaim can proceed
Counterclaims against a person other than a claimant
- Counterclaim must be against claimant and third party together
- Must be a connection between the claimant and the third party in respect of the defendant
E.g.
defendant does not pay builder because unsatisfied with work
- builder sues for payment
- defendant may bring counterclaim against both builder and architect
- architect is a person other than the claimant
Claims for a contribution or indemnity from an existing party
Hallmark of both contribution and indemnity: party claiming then is seeking to recover something which it is itself obliged to pay someone else
- 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 exiting party by filling in a contribution notice
- must be legal basis (so analysis will be required)
Claims for contribution/indemnity from a third party
- not already an existing party
- need legal basis to bring the claim
- purely between defendant and third party but the issues will depend on the outcome of the main claim
Permission for counterclaims/additional claims
Classic counterclaim:
- No permission if filed at the same time as the defence
- permission is needed at any other time
Counterclaim against a person other than the claimant:
- Permission is ALWAYS required
Claims for contribution or indemnity from existing party:
- No permission is needed if filed and served at the same time as the defence (or within 28 days of additional party’s defence if added at a later date)
- Permission needed at any other time
Other additional claims:
- No permission needed if the additional claim is issued before or at the same time as the defence is filed
- Permission is needed at any other time
Structure and form: classic counterclaims
A counterclaim by a defendant against the claimant will usually take the form of a ‘particulars of counterclaim’. Defence and counterclaim normally form one single document with the counterclaim following on from the defence.
As the defence and counterclaim form one document they are filed and served together.
Structure and form: contribution/indemnity
If claim is made against another party (already party to main proceedings), the claim is made by serving an appropriate notice - no set form
If court’s permission is not required, 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.
Structure and form: other additional claims
- Issuing N211 claim form
- if made without court’s permission, claim form should be served on the person against whom it is made within 14 days of it being issued
- If court’s permission is required - court will give directions as to when the notice should be served
Structure and form: all additional claims
A party who is not already party to the proceedings becomes party to the proceedings if he was not already a party.
If an additional claim is served on someone who is not already a party to the proceedings it must be accompanied by:
- as response pack
- a copy of every statement of case and any other document that the court directs
A copy of the additional claim form must also be served on every existing party
Additional claims: Case management
Court will consider if additional claim is appropriate or if should be a separate action all together
- May arrange a hearing
Title of proceedings where there are additional claims
Matters can become confusing where there are a number of different parties involved in a set of proceedings
Claimant and defendant to original claim retain these titles
Additional parties are called: third party, fourth party and so on
Amendments before serving
A party may amend a statement of case at any time before it served
Amending statement of case after it has been served
Can make amendments if all the parties agree and give written consent
(CPR 17.1(2)(a))
Note: court has the power to disallow these amendments
Or permission of the court:
- file application notice with the court together with the proposed amendment
Application can be dealt with at a hearing or if all parties consent on written submissions
