DR 6&7 - Statement of Case - Additional Claims Flashcards
What is an additional claim
Any claim other than the claim made by the claimant against the defendant
Who can make an additional claim
The defendant
who should an additional claim be made if the defendant wants a party connected to the CLAIMANT to be joined in their counter claim?
C and the 3rd party
(If there’s no connection between C1 and third party, then this would just be a new claim against the 3rd party)
who should an additional claim be made if the defendant wants to claim an indemnity against another DEFENDANT?
The 3rd party
(used where D1 and D2 could both be liable)
What is an indemnity?
An additional claim by D for the whole of the sum due to someone else (i.e. C)
What is a contribution?
An additional claim by D for a part of the sum due to someone else (i.e. C)
Will a classic counterclaim by D need permission from the court if filed at the same time as the defence?
No
Will a classic counterclaim by D need permission from the court if filed after the defence?
Yes
Will a counter claim by D against C AND a person other than C need permission from the court if filed at the same time as the defence?
Always
(permission for this counterclaim is required both before and after defence is filed)
Will a claim by D for indemnity/contribution against a 3rd party already party to proceedings need permission from the court if filed at the same time as the defence?
No
Will a claim by D for indemnity/contribution against a 3rd party newly joined to proceedings by someone other that D need permission from the court if filed within 28 days of D2’s defence?
No
Will a claim by D for indemnity/contribution against a 3rd party already party to proceedings need permission from the court if filed at any other time as the defence?
Yes
Whether existing party but D did not originally include them in their defence
OR
Newly added party where D did not claim within 28 days of D2 filing their defence
Will claims by D against a person not party to proceedings need permission from the court if filed at the same time as D serves the defence?
No
(these are normally claims against someone that C could have chosen to join the dispute as D2 but has chosen not to. D1 will want a claim against them to recover funds if D2 also had a part to play in the loss).
Will claims by D against a person not party to proceedings need permission from the court if filed at any other time as D serves the defence?
Yes
(these are normally claims against someone that C could have chosen to join the dispute as D2 but has chosen not to. D1 will want a claim against them to recover funds if D2 also had a part to play in the loss).
How is permission to the court for additional claims made?
Normal interim procedure
When should an additional counterclaim be served?
- If no permission is needed: 14 days of it being issued
- If permission is required: the court will direct when
Who should an additional counter claim be served on?
- D2
- All other parties
How is a classic counterclaim served
With the defence set out after the defence as one document
What happens C does not respond to a Counterclaim within 14 days?
D1 can apply for a default Judgement
What happens if an existing D2 to an additional claim for a contribution/indemnity does not respond within 14 days?
D1 cannot apply for a default judgement
What happens if a new D2 to an additional claim for a contribution/indemnity does not respond within 14 days?
- It will generally be bound by the decision at the main trial (i.e. D1 will be able to recover from D2 if D1 is liable).
- Cannot normaly request default judgement
What must amendments to statements of case be verified by?
Statements of truth
When can amendments be made to statements of case without courts permission or consent?
Before the statement of case is served
What is an amendment by consent?
- Any statement of case can be amended at any time with consent of all other parties
- Court may still disallow any such amendments
When does a party need court’s permission to amend a statement of case?
Statement of case has been served & written consent of all parties hasn’t been given
How does a party get court’s permission to amend a statement of case?
Must file application notice with the court together with a copy of the proposed amended statement of case
What should be done if permission is given for an amendment to a statement of case?
- The amended statement of case should be filed within 14 days of such order granting amendment
- Copy sent to every party to proceedings
- Must have an endorsement on it and
- Must be re-verified by statement of truth if substance has changed
What is a late amendment?
One sought close to the trial date & court more likely not to allow it
Can a claimant be added without their consent?
No
who can make an application to add, remove or substitute a party?
- existing party
- person who wishes to become a party
- the court
What needs to be filed at court to add, remove, substitute a party?
- the application notice
- an amended copy of the claim form & particulars of claim
- written consent of new claimant (if applicable)
What are the criteria for adding, removing, substituting a party during the limitation period?
- it is DESIREABLE to add the new party
What are the criteria for adding, removing, substituting a party outside the limitation period?
- new party is to be substituted for a party named in mistake for the new party
OR - claim cannot be carried on against the original party unless new party is added
OR - original party is dead or bankrupt and their interest has passed to a new party
What happens if permission is granted to add, remove, substitute a party?
A copy of the order must be served on all parties
