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Civil Litigation > SGS 5 Multiple causes of action > Flashcards

SGS 5 Multiple causes of action Flashcards

1
Q

How many claims can be started with one claim form?

A

Right to use one claim form to start two or more claims 7.3 A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.

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2
Q

which claims can be started with one claim form?

A

Right to use one claim form to start two or more claims 7.3 A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.

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3
Q

How many parties can be joined to a claim?

A

Parties – general 19.1 Any number of claimants or defendants may be joined as parties to a claim.

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4
Q

Which rule applies where a party is to be added or substituted?

A

Change of parties – general 19.2 (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period(GL)).

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5
Q

What is the exception to rule 19.2?

A

Change of parties – general 19.2 (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period(GL)).

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6
Q

On what condition may party be added to proceedings as a new party?

A
  • Change of parties – general 19.2
    • (1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period(GL)).
    • (2) The court may order a person to be added as a new party if –
      • (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
      • (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
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7
Q

When may the court order a person to cease to be a party to proceedings?

A

Change of parties – general 19.2 (3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.

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8
Q

On what condition may a new party be substituted for an existing one?

A

Change of parties – general 19.2 (4) The court may order a new party to be substituted for an existing one if –

(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.

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9
Q

What are the three changes which Rule 19.2 governs?

A

(1) Add a new party (2) Order a party cease to be a party (3) Order a new party be substituted for a new one

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10
Q

What happens where a claimant claims a remedy to which some other person is jointly entitled?

A
  • Provisions applicable where two or more persons are jointly entitled to a remedy 19.3
    • (1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.
    • (2) If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.
    • (3) This rule does not apply in probate proceedings.
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11
Q

What happens where a person does not agree to be a claimant?

A
  • Provisions applicable where two or more persons are jointly entitled to a remedy 19.3
    • (1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.
    • (2) If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.
    • (3) This rule does not apply in probate proceedings.
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12
Q

To which proceedings does rule 19.3 about claimants jointly entitled and claimants who don’t want to be parties to proceedings do not apply?

A

Probate 19.3(3)

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13
Q

When is the court’s permission required to remove, add or substitute a party to proceedings?

A

Procedure for adding and substituting parties 19.4 (1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.

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14
Q

Who may make an application for permission to add or substitute a party under r 19.4?

A
  • Procedure for adding and substituting parties 19.4 (2) An application for permission under paragraph (1) may be made by –
    • (a) an existing party; or
    • (b) a person who wishes to become a party.
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15
Q

How should an application for substitution of a new party where existing party’s interest or liability has passed be made?

A
  • Procedure for adding and substituting parties 19.4
    • (3) An application for an order under rule 19.2(4) (substitution of a new party where existing party’s interest or liability has passed) –
      • (a) may be made without notice; and
      • (b) must be supported by evidence.
    • (4) Nobody may be added or substituted as a claimant unless –
      • (a) he has given his consent in writing; and
      • (b) that consent has been filed with the court.
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16
Q

Can a claimant be added or substituted without consent?

A
  • Procedure for adding and substituting parties 19.4
    • (3) An application for an order under rule 19.2(4) (substitution of a new party where existing party’s interest or liability has passed) –
      • (a) may be made without notice; and
      • (b) must be supported by evidence.
    • (4) Nobody may be added or substituted as a claimant unless –
      • (a) he has given his consent in writing; and
      • (b) that consent has been filed with the court.
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17
Q

On what condition can the HMRC be added as a party to proceedings?

A

r 19.4 (4A) The Commissioners for HM Revenue and Customs may be added as a party to proceedings only if they consent in writing.

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18
Q

On who must an order for removal addition or substitution of a party be served on?

A

r 19.4 (5) An order for the removal, addition or substitution of a party must be served on – (a) all parties to the proceedings; and (b) any other person affected by the order.

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19
Q

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

A
  • r 19.4 (6) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about –
    • (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.
20
Q

Who gets to decide who becomes party to proceedings?

A

PRACTICE DIRECTION 19A – ADDITION AND SUBSTITUTION OF PARTIES General 1.1

Parties may be removed, added or substituted in existing proceedings either on the court’s own initiative or on the application of either an existing party or a person who wishes to become a party.

21
Q

When may an application to add or substitute parties be dealt with without a hearing?

A

The application may be dealt with without a hearing where all the existing parties and the proposed new party are in agreement.

22
Q

What must an application to add or substitute a new party include?

A

The application to add or substitute a new party should be supported by evidence setting out the proposed new party’s interest in or connection with the claim.

23
Q

Which rules must an application to add or substitute new parties be made in compliance with?

A

…with rule 23.3 [Application notice to be filed

Application notice to be filed

23.3

  • (1) The general rule is that an applicant must file an application notice.
  • (2) An applicant may make an application without filing an application notice if –
    • (a) this is permitted by a rule or practice direction; or
    • (b) the court dispenses with the requirement for an application notice.
24
Q

Who draws up and who serves an order to amend in an application for addition and substitution of parties?

A

An order giving permission to amend will, unless the court orders otherwise, be drawn up. It will be served by the court unless the parties wish to serve it or the court orders them to do so.

25
Q

Where applying to add or to substitute a new party to the proceedings as claimant what must the party applying must file?

A
  • Addition or substitution of claimant 2.1 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:
    • (1) the application notice,
    • (2) the proposed amended claim form and particulars of claim, and
    • (3) the signed, written consent of the new claimant to be so added or substituted.
26
Q

Can a court make an order to add or substitute a party if consent has not been filed?

A
  • Yes but.. Addition or substitution of claimant …
    • 2.2 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:
      • (1) the order, and
      • (2) 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.
27
Q

Where the court has made an order adding or substituting a new claimant, what may the court direct regarding copies?

A
  • 2.3 Where the court has made an order adding or substituting a new claimant, the court may direct:
    • (1) a copy of the order to be served on every party to the proceedings and any other person affected by the order,
    • (2) copies of the statements of case and of documents referred to in any statement of case to be served on the new party,
    • (3) the party who made the application to file within 14 days an amended claim form and particulars of claim.
28
Q

Do the CPR apply to a new defendant who has been added or substituted?

A

Addition or substitution of defendant 3.1

The Civil Procedure Rules apply to a new defendant who has been added or substituted as they apply to any other defendant (see in particular the provisions of Parts 9, 10, 11 and 15).

29
Q

Where making an order adding or substituting a defendant whether on its own initiative or on an application, what may the court direct?

A
  • Addition or substitution of defendant … 3.2 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:
    • (1) 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,
    • (2) a copy of the order to be served on all parties to the proceedings and any other person affected by it,
    • (3) 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.
    • (4) unless the court orders otherwise, the amended claim form and particulars of claim to be served on any other defendants.
30
Q

When does a new defendant become a party to proceedings?

A

Addition or substitution of defendant … 3.3

A new defendant does not become a party to the proceedings until the amended claim form has been served on him2. Kettleman v Hansel Properties Ltd (1987) AC 189, HL

31
Q

Where a court makes an order removing a party from proceedings, what must the claimant do?

A

Removal of party 4 Where the court makes an order for the removal of a party from the proceedings:

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

32
Q

What application should be made where the interest or liability of an existing party has passed to some other person? What should it be accompanied by?

A

Transfer of interest or liability

  • 5.1 Where the interest or liability of an existing party has passed to some other person, application should be made to the court to add or substitute that person.
  • 5.2 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.
  • (For information about making amendments generally, see Practice Direction 17.)
33
Q

What is the point of rule 19.2?

A

The rule is designed to prevent claims being defeated on technical grounds relating to the parties which have what should’ve been joined. This is in accordance with the statutory objectives of the SCA 1981, s. 49(2) of ensuring all matters in dispute between the parties are completely and finally determined and for avoiding all multiplicity of proceedings As with other amendments permission is usually granted on terms that the amending party must pay the costs of and arising from the amendment.

34
Q

what is the purpose of part 20?

A

Purpose of this Part 20.1 The purpose of this Part is to enable counterclaims and other additional claims to be managed in the most convenient and effective manner.

35
Q

What claims does Part 20 apply to?

A
  • Scope and interpretation 20.2 (1) This Part applies to –
    • (a) a counterclaim by a defendant against the claimant or against the claimant and some other person;
    • (b) an additional claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and
    • (c) where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person (whether or not already a party).
36
Q

What does “additional claim mean for the purpose of part 20?

A

r 20.2 (2) In these Rules – (a) ‘additional claim’ means any claim other than the claim by the claimant against the defendant; and

37
Q

What does “claimant” or “defendant” mean in Part 20?

A

r20(2)(b) (2) In these Rules –

(a) ‘additional claim’ means any claim other than the claim by the claimant against the defendant; and
(b) unless the context requires otherwise, references to a claimant or defendant include a party bringing or defending an additional claim.

38
Q

Is an additional claim treated as if were a claim for the purpose of the CPR?

A
  • Application of these Rules to additional claims 20.3
    • (1) An additional claim shall be treated as if it were a claim for the purposes of these Rules, except as provided by this Part.
    • (2) The following rules do not apply to additional claims –
      • (a) rules 7.5 and 7.6 (time within which a claim form may be served);
      • (b) rule 16.3(5) (statement of value where claim to be issued in the High Court); and
      • (c) Part 26 (case management – preliminary stage).
39
Q

Does Part 12 apply to additional claims?

A

Application of these Rules to additional claims 20.3 (3) Part 12 (default judgment) applies to a counterclaim but not to other additional claims.

40
Q

What are the rules about PArt 14 applying to counterclaims?

A
  • (4) Part 14 (admissions) applies to a counterclaim, but only –
    • (a) rules 14.1(1) and 14.1(2) (which provide that a party may admit the truth of another party’s case in writing); and
    • (b) rule 14.3 (admission by notice in writing – application for judgment), apply to other additional claims.
    • (Rule 12.3(2) sets out how to obtain judgment in default of defence for a counterclaim against the claimant, and rule 20.11 makes special provision for default judgment for some additional claims).
41
Q

How does a defendant make a counterclaim against a claimant?

A

Defendant’s counterclaim against the claimant 20.4 (1) A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

42
Q

Does a defendant need permission to make a counterclaim against a claimant?

A
  • r 20.4 (2) A defendant may make a counterclaim against a claimant –
    • (a) without the court’s permission if he files it with his defence; or
    • (b) at any other time with the court’s permission.
    • (Part 15 makes provision for a defence to a claim and applies to a defence to a counterclaim by virtue of rule 20.3).
43
Q

Does Part 10 apply to a claimant who wishes to defend a counterclaim?

A

(3) Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.

44
Q

What does a defendant who wishes to counterclaim against a person other than the claimant do?

A
  • Counterclaim against a person other than the claimant 20.5
    • (1) A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.
    • (2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.
    • (3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.
45
Q

Does a defendant who wishes to counterclaim against a person other than the claimant have to give notice?

A
  • Counterclaim against a person other than the claimant 20.5
    • (1) A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.
    • (2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.
    • (3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.
46
Q

What must a court do when a defendant who wishes to counterclaim against a person other than the claimant have to give notice?

A
  • Counterclaim against a person other than the claimant 20.5
    • (1) A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.
    • (2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.
    • (3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.
47
Q
A

Civil Litigation (12 decks)

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