Multiple Causes of Action, Counterclaims and Other Additional Claims

Question 1

the court may order a person to be added as a new party if:

Answer 1

• it is desirable to add that new party so that the court can resolve all the matters; or
• there is an issue involving a new party and an existing party which is connected to the matters in the dispute in the proceedings, and it is desirable to add the new party

Question 2

if it is not desirable for a party to be a party of the proceedings, the court may….

Answer 2

…order that the individual ceases to be a party

Question 3

the court may substitute a party in proceedings, if —

Answer 3

(a) the existing party’s interest or liability has passed to the new party; and
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.

Question 4

where C claims a remedy which some other person is entitled to, all persons jointly entitled to the remedy must…

Answer 4

…be parties in the case unless the court orders otherwise

Question 5

if any person does not agree to be a claimant…

Answer 5

…they must be made a defendant unless the court orders otherwise.

Question 6

what must be sought to add, substitute or remove a party to proceedings after the claim form has been issued?

Answer 6

permission from the court

Question 7

an application to remove, substitute or add a party may be made by —

Answer 7

• existing party; or
• a person who wishes to become a party

Question 8

an application to substitute a party for a new one —

Answer 8

• MAY be made without notice; and
• MUST be supported by evidence

Question 9

nobody may be added or substituted as a clamant unless —

Answer 9

• they have given written consent
• that consent is filed with the court

Question 10

an order for the removal, addition or substitution of a party must be served on —

Answer 10

• all parties; and
• any other person affected by the order

Question 11

When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about—

Answer 11

(a) filing and serving the claim form on any new defendant;
(b) serving relevant documents on the new party; and
(c) the management of the proceedings.

Question 12

the court MAY substitute a party, after the end of the limitation period, if —

Answer 12

(a) the relevant limitation period was current when the proceedings were started; and
(b) the addition or substitution is necessary.

Question 13

The addition or substitution of a party is necessary only if the court is satisfied that—

Answer 13

• the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
• the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
• the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.

Question 14

can parties be added, removed or substituted on the courts own initiative?

Answer 14

Yes. 19A PD para 1.1

Question 15

for an application to add, remove or substitute a party, is a hearing needed?

Answer 15

so long as all the current and prospective parties agree, a hearing is not necessary and the application can be dealt without one

Question 16

The application to add or substitute a new party should be supported by evidence setting out…

Answer 16

…the proposed new party’s interest in or connection with the claim.

Question 17

unless otherwise indicated in the CPR, an application to add, remove or substitute a party must file….

Answer 17

an application noticed and serve it on all the parties.

Question 18

Where an application is made to the court to add or to substitute a new party to the proceedings as claimant, the party applying must file —

Answer 18

• the application notice;
• the proposed amended claim form and particulars of claim; and
• the signed, written consent of the new claimant to be so added or substituted.

Question 19

Where the court makes an order adding or substituting a party as claimant but the signed, written consent of the new claimant has not been filed…

Answer 19

…the order and the addition or substitution of the new party as claimant will not take effect until the signed, written consent of the new claimant is filed.

Question 20

Where the court has made an order adding or substituting a new CLAIMANT, the court may direct —

Answer 20

• a copy of the order to be served on every party to the proceedings and any other person affected by the order,
• copies of the statements of case and of documents referred to in any statement of case to be served on the new party,
• the party who made the application to file within 14 days an amended claim form and particulars of claim.

Question 21

Where the court has made an order adding or substituting a DEFENDANT whether on its own initiative or on an application, the court may direct:

Answer 21

• the claimant to file with the court within 14 days (or as ordered) an amended claim form and particulars of claim for the court file,
• a copy of the order to be served on all parties to the proceedings and any other person affected by it,
• the amended claim form and particulars of claim, forms for admitting, defending and acknowledging the claim and copies of the statements of case and any other documents referred to in any statement of case to be served on the new defendant,
• unless the court orders otherwise, the amended claim form and particulars of claim to be served on any other defendants.

Question 22

A new defendant does not become a party to the proceedings until…

Answer 22

…the amended claim form has been served on him.

Question 23

Where the court makes an order for the removal of a party from the proceedings:

Answer 23

• the claimant must file with the court an amended claim form and particulars of claim; and
• a copy of the order must be served on every party to the proceedings and on any other person affected by the order.

Question 24

Where the interest or liability of an existing party has passed to some other person, application should…

Answer 24

…be made to the court to add or substitute that person.
The application must be supported by evidence showing the stage the proceedings have reached and what change has occurred to cause the transfer of interest or liability.

Question 25

does the court have discretion as to the addition, removal or substitution of parties in proceedings?

Answer 25

Yes. CPR 19.5.1 commentary

Question 26

substitution of party to remedy a mistake commentary.

Answer 26

the mistake has to be casually relevant: but for the mistake, the new party would have been named.
the mistake must not be such as to cause any reasonable doubt as to the identity of the party involved
the Sardinia Sulcis case helps with the meaning of mistaken identity.

Question 27

Sardinia Sulcis test for mistake

Answer 27

1. r.19.5(3)(a) allows more than the mere correction of the name of a party as it is,
2. in one sense, a claimant always intends to sue the person who is liable for the wrong that they have suffered; but the test cannot be that they have made a mistake which may be corrected where they sue another person, otherwise leave to substitute would always be granted;
3. so there must be a test that includes, but is broader than, mere correction of name but narrower than substitution of the person intended to be sued for the person actually sued;

4. the test is: is it possible to identify the intended defendant “by reference to a description more or less specific to the particular case”?; if it is, it is a mistake of the type covered by r.19.5(3)(a);

5. thus, if the claimant gets the right description but the wrong name for their intended defendant, there is unlikely to be any doubt as to the identity of the person intended to be sued; but if they get the wrong description, it will be otherwise;
6. this test might allow the substitution of a new defendant, unconnected with the original defendant and unaware of the claim until after the expiry of a relevant limitation period; but any potential injustice can be avoided by the exercise of the court’s discretion (see para.19.5.1).

Question 28

change without which the claim cannot be carried on CPR 19.5(3)(b). Parkinson Engineering Services Plc v Swan [2009] EWCA Civ 1366; [2010] P.N.L.R. 17

Answer 28

the liquidator of a company was added as claimant, in substitution for the company itself, in circumstances where the defendant had a complete defence to the company’s claim which could, however, be overcome if the same claim were carried on by the liquidator.

Question 29

change without which the claim cannot be carried on CPR 19.5(3)(b). Irwin v Lynch [2010] EWCA Civ 1153; [2011] 1 W.L.R. 1364

Answer 29

a company was added as claimant in substitution for its administrator in circumstances where the administrator did not have standing to bring the relevant claim but the company did. In both cases the joinder of a new claimant cured the defect by reason of which the claim against the defendants could not properly be carried on.

Question 30

change without which the claim cannot be carried on CPR 19.5(3)(b). Roberts v Gill & Co [2010] UKSC 22; [2011] 1 A.C. 240, SC; [2010] 4 All E.R. 367, SC

Answer 30

an individual had commenced proceedings, within the limitation period, in a personal capacity against solicitors for breach of duty of care owed to him as beneficiary of his deceased mother’s estate. Subsequently, he applied for permission to continue those proceedings in a representative capacity under a derivative claim on behalf of the estate. The Supreme Court refused the permission sought on the ground that beneficiaries are entitled to sue on behalf of an estate only in special circumstances and no such circumstances had been shown.
If the claim had initially begun as derivative action by the claimant albeit improperly constituted because of the absence of the personal representative; in that case an application to add the personal representative as a party could succeed even after the relevant limitation period had expired.

Question 31

change without which the claim cannot be carried on CPR 19.5(3)(b). The Insight Group Ltd v Kingston Smith [2012] EWHC 3644 (QB); [2013] 3 All E.R. 518 (Leggatt J)

Answer 31

a professional negligence claim was brought against an LLP in respect of advice given by the partnership which preceded it. The court refused the claimant’s application under r.19.5(3)(b) for an order adding the former partners as defendants in substitution for the LLP: the making of such an order would not cure the defect by reason of which the claim against the LLP could not properly be carried on. However, the former partners were substituted as defendants under r.19.5(3)(a) (as to which, see further, para.19.5.3). In this case the court reviewed the authorities and concluded that an application under r.19.5(3)(b) would only be successful where the original claim would be unsustainable without substitution and that, following substitution, the same claim would have to be carried on by or against the new party.

Question 32

CPR 20.4. A defendant may make a counterclaim against the claimant by filing particulars of the counterclaim and may do this —

Answer 32

• without the court’s permission if they file it with the defence; or
• at any other time with the court’s permission

Question 33

does an AOS apply to a claimant who wants to defend a counterclaim?

Answer 33

No.

Question 34

CPR 20.5. A defendant who wishes to counterclaim against a person other than the claimant —

Answer 34

• must apply to the court for an order that that person be added as an additional party.
• An application may be made without notice unless the court directs otherwise.
• where the court will give directions as to the management of the case.

Question 35

CPR 20.6. A defendant who has filed an acknowledgment of service or a defence may make an additional claim for contribution or indemnity against a person who is already a party to the proceedings by—

Answer 35

• filing a notice containing a statement of the nature and grounds of his additional claim; and
• serving the notice on that party.

Question 36

A defendant may file and serve a notice under CPR 20.6 —

Answer 36

(a) without the court’s permission, if he files and serves it—
(i) with his defence; or
(ii) if his additional claim for contribution or indemnity is against a party added to the claim later, within 28 days after that party files his defence; or
(b) at any other time with the court’s permission.

Question 37

CPR 20.7 procedure for making any other additional claim. this applies to any additional claim except —

Answer 37

• a counterclaim only against existing party; and
• a claim for indemnity or contribution under CPR 20.6

Question 38

when is an additional claim officially made?

Answer 38

when the court issues the appropriate claim form. CPR 20.7(2)

Question 39

CPR 20.7. when the defendant may make an additional claim —

Answer 39

• without the courts permission if the claim form has been issued before the filing of the defence.
• any other time the permission of the court is required

Question 40

an application for permission to make an additional claim may be made without notice…

Answer 40

…unless the court orders otherwise

Question 41

particulars of an additional claim must be contained in or served…

Answer 41

…with the additional claim

Question 42

Where an additional claim may be made without the court’s permission, any claim form must—

Answer 42

• in the case of a counterclaim against an additional party only, be served on every other party when a copy of the defence is served;
• in the case of any other additional claim, be served on the person against whom it is made within 14 days after the date on which the additional claim is issued by the court.

it does not apply to claims of contribution or indemnity under CPR 20.6.
where the court gives permission to make an additional claim it will at the same time give directions as to its service.

Question 43

CPR 20.9. for matters relevant to the question of whether an additional claim should be separate from the original applies where the court is considering whether to—

Answer 43

(a) permit an additional claim to be made;
(b) dismiss an additional claim; or
(c) require an additional claim to be dealt with separately from the claim by the claimant against the defendant.

Question 44

CPR 20.9. for the question as to whether an additional claim should be separate from the original, the matters to which the court may have regard include—

Answer 44

(a) the connection between the additional claim and the claim made by the claimant against the defendant;
(b) whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him; and
(c) whether the additional claimant wants the court to decide any question connected with the subject-matter of the proceedings—
(i) not only between existing parties but also between existing parties and a person not already a party; or
(ii) against an existing party not only in a capacity in which he is already a party but also in some further capacity.

Question 45

when does a party also becomes a party in the further capacity specified in the additional claim?

Answer 45

When an additional claim is served on an existing party for the purpose of requiring the court to decide a question against that party in a further capacity.

Question 46

when does an additional party become a party in the proceedings?

Answer 46

when the claim is served on them

Question 47

what is the nickname for additional claims, counterclaims and claims of indemnity or contribution?

Answer 47

Part 20 Claims

Question 48

Where an application is made for permission to make an additional claim the application notice…

Answer 48

…should be filed together with a copy of the proposed additional claim.

Question 49

An application for permission to make an additional claim must be supported by evidence stating—

Answer 49

(1)the stage which the proceedings have reached;
(2)the nature of the additional claim to be made or details of the question or issue which needs to be decided;
(3)a summary of the facts on which the additional claim is based; and
(4)the name and address of any proposed additional party.

Question 50

for a part 20 application, the applicant should, if possible, provide…

Answer 50

…a timetable of the proceedings up to date.

Question 51

Where delay has been a factor contributing to the need to apply for permission to make an additional claim…

Answer 51

…an explanation of the delay should be given in evidence.

Question 52

contents of a part 20 applications should be verified with…

Answer 52

…a statement of truth

Question 53

Where the defendant to an additional claim files a defence, other than to a counterclaim, the court will arrange…

Answer 53

…a hearing to consider case management of the additional claim. This will normally be at the same time as a case management hearing for the original claim and any other additional claims.
The court will give notice of the hearing to each party likely to be affected by any order made at the hearing.

Question 54

at the case management hearing for a defence to an additional claim, the court may —

Answer 54

• treat the hearing as a summary judgment hearing’
• order that the additional claim be dismissed;
• give directions about the way any claim, question or issue set out in or arising from the additional claim should be dealt with;
• give directions as to the part, if any, the additional defendant will take at the trial of the claim; or
• give directions about the extent to which the additional defendant is to be bound by any judgment or decision to be made in the claim.

The court may make any of the orders either before or after any judgment in the claim has been entered by the claimant against the defendant.

Question 55

how should additional parties be referred to in the title of proceedings?

Answer 55

Additional parties should be referred to in the title to the proceedings in accordance with the order in which they are joined to the proceedings, for example “Third Party” or “Fourth Party”, whatever their actual procedural status.

Examples—
(a)If the defendant makes an additional claim against a single additional party, the additional party should be referred to in the title as “Third Party”.
(b)If the defendant makes separate additional claims against two additional parties, the additional parties should be referred to in the title as “Third Party” and “Fourth Party”.
(c)If the defendant makes a counterclaim against the claimant and an additional party, the claimant should remain as “Claimant” and the additional party should be referred to in the title as “Third Party”.
(d)If the Third Party in example (b) makes an additional claim against a further additional party, that additional party should be referred to in the title as “Fifth Party”.

Question 56

If an additional claim is brought against more than one party jointly, how should they be referred to in the title?

Answer 56

they should be referred to in the title to the proceedings as, for example, “First Named Third Party” and “Second Named Third Party”.

Question 57

for title in proceedings for additional claims, what should all parties co-operate to ensure?

Answer 57

that two parties each making additional claims do not attribute the same nominal status to more than one party.

Question 58

In proceedings with numerous parties, the court will if necessary give directions —

Answer 58

as to the preparation and updating of a list of parties giving their roles in the claim and each additional claim.

Question 59

If an additional party ceases to be a party to the proceedings, for example because the claim against that party is discontinued or dismissed —

Answer 59

all other additional parties should retain their existing nominal status.

Question 60

In proceedings where there are additional parties, how should the statements of case be described?

Answer 60

In proceedings where there are additional parties, the description of all statements of case or other similar documents should clearly identify the nature of the document with reference to each relevant party.

Examples—
(e)In example (a), the defendant’s additional claim should be headed “Defendant’s Additional Claim against Third Party” and the Third Party’s defence to it should be headed “Third Party’s Defence to Defendant’s Additional Claim”.
(f)In example (c), the defendant’s counterclaim should be headed “Defendant’s Counterclaim against Claimant and Third Party” and the Third Party’s defence to it should be headed “Third Party’s defence to Defendant’s Counterclaim”.