D wanting to join claims/ parties

Question 1

What is a counterclaim?

Answer 1

Counterclaim – defendant to claim as if they were the plaintiff – Order 10
o The claim can be unrelated to P’s claim.

Question 2

Can a D claim against P?

Answer 2

• Can make a counter claim against plf (r10.02) – plead the defendant’s defence and counterclaim in one document called the defence and counterclaim.

Question 3

When is a counterclaim allowed ?

Answer 3

• a counterclaim is allowed when (r10.02):
  1. D who has a claim against P, files a counterclaim against P.
  2. Is applicable where there is a joinder of claims.

Question 4

Can D claim against plf AND another person?

Answer 4

• Can join another person who is not a party to the proceeding but who, if the defendant issued separate proceedings, could be properly joined as a party with the plaintiff (r10.03)
• Defence & counterclaim will contain a second title of the proceeding showing who is the plf to the counterclaim, and who the defendants are.
• If person not already a party, copy of the defence and counterclaim need to be personally served within 30 days after the expiration of the time fixed for serving a defence.
• Person, once served, will become a party and will be a defendant in the ordinary by the defendant making the counter claim (r10.04).
• Trial of the counterclaim shall be tried at the trial of the claim of the plaintiff – unless the court orders otherwise – rr 10.05 and 10.06
• If P wins and D wins in counterclaim, the amounts will be offset against each other (r10.09).

Question 5

When is a counterclaim inconvenient?

Answer 5

• If a counterclaim would embarrass or delay trial of the claim of the plf, or cause prejudice to any party – court may order separate trials/exclude counterclaim/exclude any parties.

Question 6

Format of forms if D to counterclaim was not already a party to the proceeding

Answer 6

• The counterclaim must be in form 10A;
• Notice must be in form 10B;
• They will become a party and will be in the same position as if they had been sued in the ordinary way
• Orders 8, 11, 14 and 21 will apply as if the counterclaim was a statement of claim, P by counterclaim is P, D by counterclaim is D