Disputes (Additional Claims)

Question 1

What is a Counterclaim?

Answer 1

In addition to the initial responses, other possible statements of case can be served:

• Defendant making a counterclaim,
• Claimant serving a defence to the counterclaim
• Claimant serving a ‘reply’ in response to the defence

Question 2

What is a counterclaim by a defendant against a claimant?

Classic Counterclaim

Answer 2

• Additional claim under CPR 20
• Typically filed alongside Ds defence.
• If filed after their defence, court permission is required

Question 3

Is a counterclaim connected to the main claim?

Answer 3

It is separate from the main claim but handled under the same case number.

Both parties must be suing/being sued in the same capacities as in the main claim.

The court may strike out a counterclaim if it should not be heard with the main claim.

Question 4

What is the form of a counterclaim?

Answer 4

If filed with the defence, it should…
* Be a single document titled ‘Defence and Counterclaim’
* Follow rules for particulars of claim, including duty, breach, causation, and loss.

Question 5

What is ‘Set Off’?

Answer 5

When facts for a counterclaim also serve as a defence in the main claim, offsetting any claim against the defendant either partially or in full.

It has the effect of ‘extinguishing’ any claim up to the same amount against the defendant.

For example, if C gets judgement for £20,000. But D gets judgement for £10,000 in the counterclaim, then C recovers £10,000 (i.e D only pays £10,000)

Question 6

When can a defendant ‘set off’ its judgment against the claimant?

Answer 6

Set-off can only be used under certain conditions:

• Under s.53 SGA 1979: Where the seller sues for the price of goods sold and delivered, the buyer can set off the claim for breach of implied terms as to quality and fitness for purpose.
• Defective Service: Where a claim is made for the price of services, the defendant can set off a claim for damages for poor services.
• Equitable Set Off: When the court considers that there is 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.

Question 7

What is a claimant’s reply in response to a counterclaim?

Answer 7

The claimant can respond to a counterclaim by admitting or defending it.

Question 8

What is the time limit for serving a defence to a counterclaim?

Answer 8

No requirement for C to acknowledge service of the counterclaim.

Claimant’s defence to a counterclaim must be filed and served within 14 days of service of the counterclaim

Failing to do so may result in default judgment for the defendant.”

Question 9

What is a classic counterclaim?

Answer 9

It’s a defendant’s counterclaim against a claimant, filed with the main claim proceedings.

Question 10

What happens with a counterclaim against a person other than the claimant?

D may have a counterclaim against C and another person at the same time

Answer 10

• D’s own cause of action must be against the claimant and some other party, who is for example jointly liable with C.
• If this other party is not already a party to the main court action, the other party will need to be joined into the main claim
• D’s counterclaim must be against C and the third party together. There must be some connection. If no connection, D would have to issue totally separate

Court permission always required

Question 11

What is the purpose of claiming a contribution or indemnity?

Answer 11

D may claim a contribution or indemnity from another party to cover their potential liability to the claimant.

Contribution = A right of someone to recover from a 3rd Party all or part of the amount which he himself is liable to pay to C

Indemnity = A right of someone to recover from a 3rd Party the whole amount which he himself is liable to pay.

For example, in a road traffic accident case, an Act may give a driver being sued the right to seek contribution from another who contributed to the accident. A D being sued for professional negligence may have a claim to an indemnity from his insurer.

Question 12

How can a defendant claim a contribution or indemnity from an existing party?

Answer 12

Filing a contribution noticewith the court and serving it on the other party.

• No court permission required if filed and served at the same time as/with the defence.
• If the additional claim is made against a party added to the main claim at a later date, a contribution notice must be served within 28 days after that party files its defence.
• If filed at any other time, court permission required.

For example, C’s original claim might have been made against more than one defendant. D1 may protect their position by bringing its own claim against D2 for a contribution of indemnity.

Question 13

How can a defendant claim a contribution or indemnity from a third party who is not already an existing party?

Answer 13

The issue is purely between D and 3rd Party - it does not involve the claimant.

However, many of the issue depend on what happens in the main claim with C

• Issue N211 claim form.
• It should be served on the person within 14 days of it being issued.
• If the additional claim is issued before or at the same time as the defence, no court permission needed.
• Permission needed if filed any other time.

Question 14

When is permission needed for a classic counterclaim?

Answer 14

No permission if filed at the same time as/with the defence.

Court permission needed if filed any other time.

Question 15

When is permission needed for counterclaims against a person other than the claimant?

Answer 15

Court permission always required

Question 16

When is permission needed for claims for a contribution or indemnity from an existing party?

Answer 16

No permission if filed and served at the same time as/with the defence, or if the additional claim is made against a party added to the main claim at a later date, within 28 days after that party files its defence.

If filed at any other time, permission required.

Question 17

When is permission needed for claims for a contribution or indemnity from an third party?

Answer 17

If the additional claim is issued before or at the same time as the defence, no permission.

However, permission needed if filed any other time.

Question 18

What form does a counterclaim or additional claim take?

Answer 18

“Classic counterclaims take the form of ‘particulars of counterclaim’ following the defence. Additional claims against third parties use the N211 claim form.”

Question 19

What if a party doesn’t file a defence to a counterclaim?

Answer 19

If a party doesn’t defend a counterclaim, the defendant may apply for default judgment per CPR 12.3(2)(b).”

Question 20

What if an exisiting party fails to reply to a notice of contribution or indemnity?

Answer 20

It is not possible to apply for default judgement.

Question 21

What if someone fails to reply to an additional N211 claim form?

Claims involving third parties not involved in proceddings!

Answer 21

They will be deemed to admit the claim and be bound by the judgement or decision at trial of the main claim.

Question 22

When can statements of case be amended without consent?

Answer 22

**Anytime before they’re served.

Question 23

When can statements of case be amended by consent?

Answer 23

Any statement of case may be amended by written consent of all parties, though the court can still disallow it.

Question 24

When can statements of case be amended with court permission?

Answer 24

Once served, amendments require court permission.

Applications must include a proposed amendment copy.

If permission is given, the amended statement of case should usually be filed within 14 days of the date of the order granting amendment and served on all parties

Question 25

When will a court allow a general amendment to a statement of case once it has been served?

Note, this does not entail changing parties

Answer 25

• Will be refused if it is clear that the proposed amendment has no prospect of success or is not supported by contemporaneous documentation.
• The decision will always involve the court seeking to find a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted.

Question 26

When is court permission needed to change parties when the limitation period hasn’t expired?

Answer 26

If the statement of case is served, court permission is needed to add, remove, or substitute parties.

The main test to be satisfied when seeking to add, remove or substitute a party is that the amendment is ‘desirable’ (CPR 19.2)

Question 27

When can amendments be made to to add a new cause of action or party to existing proceedings after the limitation period?

Answer 27

Starting point is s 35 LA that such amendments will not be allowed.

There are exceptions to this general rule:
…
1. A new cause of action can be added when the new cause of action arises out of the same facts or substantially the same facts as are already in issue
…
2. The court may allow the amendment to substitute or add a new claim if it arises out of the same facts (or substantially the same facts) as a claim in respect of which the party seeking permission to amend has already claimed a remedy
….
3. Parties may be added or substituted if (a) the limitation period was current when the proceedings were actually started; (b) the addition or substitution is ‘necessary’

Question 28

What are exceptions to adding a new cause of action after the limitation period?

Answer 28

• There is a court direction to disapply limitation (personal injury); or
• The new cause of action is a set-off or counterclaim; or
• The new cause of action arises from the same or substantially the same facts.”

Question 29

When may a court substitute or add a new claim after the end of the limitation period?

Answer 29

1. The new claim arises out of the same facts (or substantially the same facts) as a claim in respect of which the party seeking permission to amend has already claimed a remedy (CPR 17.4(2).
2. The onus is on the applicant to show that the proposed amendment falls within this criteria.

Question 30

When may parties be added or substituted after the end of the relevant limitation period if?

Answer 30

• The limitation period was current when the proceedings were actually started; and
• The addition or substitution is ‘necessary’ (CPR 19.6(2) if the court is satisfied that:

(a) The original party (substituted out) was there mistakenly
…
(b) the claim cannot properly be carried on/by/against the original party unless the new party is added or substituted;
….
(c) The original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party

For (a) note the rules on when an incorrect name is a mistake with power to amend. Even if it is the wrong person, ask whether the ‘correct person’ was adequately described by description (e.g. role in the incident such as driver)

Question 31

C injured by negligent driver of VW Polo (reg: Y476LNY) driven by Darren Boardman.

The limitation period has now passed.

Can the court amend t the driver to ‘Daryl Boardman’ ?

Answer 31

Yes - Genuine mistake such as causes no reasonable doubt as to the identity of the party in question

It is a name change. Amendment will be granted.

Question 32

C injured by negligent driver of VW Polo (reg: Y476LNY) driven by Darren Boardman.

Would the court be able to allow an amendment to state that the driver (and defendant) is actually Sarah Boardman?

Answer 32

Yes since the claim is clearly against the driver.

Darren was named in the claim form in mistake for the new party but Sarah was adequately described by description of a driver of a specific car at a specific time.

Question 33

Darren is the driver. Sarah is the registered Keeper.

C brings a claim against Sarah Boardman, setting out a claim against her as the registered keeper of the vehicle.

Would the court amend post-limitation?

Answer 33

An amendment to make Darren the defendant would fail because the driver is not identified as the intended defendant by a description in the statements of case.

Question 34

What is the purpose of requesting further information?

Answer 34

Further information requests can clarify or gather more facts relevant to a dispute, admissions, or weaknesses in the other party’s case.

Question 35

How to make a request for further information?

Answer 35

Initially requested voluntarily, followed by a formal court application if unaddressed.

Applications must follow interim application rules

Question 36

What are the rules for responding to a further information request?

Answer 36

The response must be written, dated, signed, and include a statement of truth.

If a party objects to providing a request, it must inform the party who made the request giving reasons.