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Dispute Resolution > Statements of case > Flashcards

Statements of case Flashcards

1
Q

What are statements of case and what does it cover?

A
  • Documents on which C sets out factual basis of claim and relief sought, D sets out own position re alleged facts (points of dispute)
  • Claim form, particulars of claim (POC) if not inc in claim form, defence, part 20 claim and reply to defence
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2
Q

Will evidence and legal arguments be included in statements of case?

A

No

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3
Q

What happens if a statement of case does not comply with CPR requirements?

A
  • Might require a formal amendment (court needs to give permission)
  • Can still involve cost consequences and tactical disadvantages even without formal amendment
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4
Q

What must the title of every statement of case include?

A
  • Court and/or division in which claim is proceeding
  • Number of proceedings
  • Full name of each party and party’s status in proceedings (D/C)
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5
Q

What are the rules applicable to all statements of case?

Re presentation

A
  • Numbered paras
  • Pages numbered consecutively
  • All numbers and dates in figures (£32,000, 29 March 1965)
  • Reference in margin to every document mentioned already filed at court
  • Name of person who drafted document
  • Statement of truth
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6
Q

What is a statement of truth and what is it required for?

A
  • SOT = formal way of person signing confirming they believe document is true
  • Required for statements of case to be used as evidence in proceedings
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7
Q

What happens if a statement of truth is a false statement?

A

Proceedings for contempt of court may be brought against signatory

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8
Q

How is a SOT phrased by an individual and a company?

A
  • Individual: “I believe that…”
  • Company: “The D believes…I am duly authorised by D to sign…”

And in every statement of truth, after the above wording: “….I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

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9
Q

What is the claim form? Who prepares it?

A

The document used to commence proceedings and set out key elements of claim (prepared by C)

Esp identity of parties

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10
Q

What form is the claim form on?

A

Form N1

N1 = number 1 = very first form served in proceedings!

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11
Q

What is the format for the name in a claim form for each type of claimant?
Individual, sole trader, partnership, company, LLP

Must also contain their addresses!

A
  • Individual = Fred Michael Flagstone
  • Sole trader = Fred Michael Flagstone (trading as Fred’s Café)
  • Partnership = Suing as individuals:(1) Fred Michael Flagstone (2) William Aarton Rouble / Suing in name of partnership: Flagstones (a Firm)
  • Company = Rock Limited
  • LLP = Rock LLP
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12
Q

What 2 addresses must/might be included in claim form?

A

Addresses for service + address where it resides/carries on business (if different)

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13
Q

What 2 details of the claim are included in the claim form?

A
  1. Concise statement of nature of claim - brief summary of type of claim
  2. Remedy sought by C - even though court can grant any remedy to which C entitled

Not necessary expressly to include a claim for costs

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14
Q

Where there is a claim for money, what are the 3 different ways the value of claim might be set out?

A
  1. Simply stating amount (where amount is specified)
  2. Less than X, between Y and Z, more than W (used to provisionally allocate)
  3. ‘I cannot expect how much to recover)

2 and 3 where claim is for unspecified amount (e.g. tort)

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15
Q

Must the court give judgement of amount limited by C’s statement of value in claim form?

A

No - can give judgement for whatever amount it finds C entitled to

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16
Q

What must a personal injury C state re amount?

A

Whether they expect to recover more or less than £1,000 for pain, suffering and loss of amenity

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17
Q

Where C chooses the High Court, what special thing must be included in claim form? What will that thing state?

A

A jurisdictional endorsement - will either:

  • State C expects more than £100k (non-PI)
  • State C expects £50k or more (PI)
  • State other enactment provides claim may be commenced in HC
  • State that claim is to be in specialist HC and state which list
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18
Q

In working out the value of claim for statement of value in claim form, what is not taken account of?

A
  • Interests
  • Costs
  • Counterclaims
  • Set-off
  • Contributory negligence
  • State benefits
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19
Q

In what situation should the POC be attached to the claim form?

A

Where they are relatively concise e.g. a simple debt claim

Will be a separate document in anything other than very simple cases

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20
Q

What are the two options if POC are in the form of a separate document to claim form?

A
  1. Attach to claim form (CF will say ‘particulars of claim attached’)
  2. Send separately to claim form up to 14 days after service of claim form (CF will say ‘particulars of claim to follow)
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21
Q

What does a particulars of claim set out?

A

C’s case in full detail (main statement of case and referred to by court and all parties)

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22
Q

What is included in the general contents of a POC?

A
  • A concise statement of facts on which C relies; essential elements of C’s cause(s) of action
  • All material facts and allegations which (if proved by evidence) would entitle C to remedy it seeks as matter of law i.e. duty owed, breach, caused loss

Sets out facts which ‘tell the story’

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23
Q

Where is the law and evidence included in the POC?

A

Is not! Evidence provided at later stage (disclosure) and law is argued by advocate in submissions

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24
Q

What should POC include in PI claims?

Specific contents

A
  • C’s date of birth
  • Details of C injuries
  • Schedule of past and future expenses losses
  • Report of medical practicioner relied on
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25
Q

What should POC include in claims re possession, occupation, use or enjoyment of land?

Specific contents

A

Identify land and make clear whether it includes residential premises

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26
Q

What should POC include in claims based on written, oral, conduct agreements?

Specific contents

A
  • Written = agreement attached
  • Oral = words spoken (by whom, when where)
  • Conduct = conduct relied on and by whom, when and where acts were done
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27
Q

What is the idea of C’s right to claim interest on principal amount and what is the legal basis for doing so?

A
  • Idea is to compensate for delay in receiving money due to them
  • Legal basis either 1) set out in contract or 2) statutory right to interest
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28
Q

What are the 2 ways of setting out the paragraph(s) claiming interest in POC? When is it each used

A
  1. Calculating exact amount of interest claimed; used when making specified claim
  2. Claiming (pleading) interest generally; used when making unspecified claim and court has decision re amount of damages (loss of goodwill/reputation; loss of future earnings/profits; any damages where remoteness is issue)
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29
Q

What should be set out in a claim for interest when exact amount is calculated?

I.e. specified claims

A
  • Applicable % rate
  • Dates from/to which interest being claimed
  • Total amount claimed up to issue of claim form; and
  • Daily rate of interest thereafter
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30
Q

What are the 2 choices re interest if a claim is partly specified and partly unspecified?

A
  1. Treat 2 claims separately - work out interest for specified claim and making general claim for unspecified claim
  2. Two claims together - come to total which is an unspecified claim (so treat whole claim as unspecified claim)
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31
Q

For claims for statutory interest, how is award of interest decided? For what period will this be?

A

Court has discretion re whether to award interest and how much from date of cause of action until judgement

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32
Q

For PI claims and debt claims, when must interest be awarded?

A
  • PI claims = where damages over £200 awarded (unless special reasons for not)
  • Debt claims = if D pays whole debt during proceedings
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33
Q

What is the structure of a POC?

A
  1. Intoduction of each party
  2. Set out relevant duty (e.g. by contract)
  3. Specify breach (e.g. in breach of contract, D did not pay)
  4. Plead causation (e.g. as a result of breach, C suffered loss)
  5. Set out loss (e.g. C suffers sum of £X)
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34
Q

What is the ‘prayer’ and where is it on POC?

A
  • Prayer = summary of relief = summary of remedies sought by C
  • POC closes with the prayer

Court and D have quick means to see what C actually wants

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35
Q

What is the purpose of the defence?

Document

A

React to every point/allegation in POC and state full details of D’s own case

Each allegation in POC dealt with individually

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36
Q

What is the structure of defence and what must every defence include?

A
  • Structure naturally follows how C has pleaded claim and additional defence points being incorporated
  • Must include: D’s address for service and where D resides/carries on business if claim form does not contain information
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37
Q

What are the 3 options a D has in relation to each allegation made by C?

A
  1. Admit allegation
  2. Deny allegation
  3. Require proof of allegation
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38
Q

When should a D admit something and what happens if they do not? What are the consequences of D admitting for C?

A
  • Should admit anything non-disputed/non-controversial - if they do not can be cost consequences for not admitting when should have
  • For C - they will not have to bring any further evidence to support

E.g. In a dispute about a contractual debt, it may be that the defendant agrees that it entered into the contract and that it owed the duties under the contract which the claimant alleges it owed, despite the defendant not agreeing that it owes any money under the contract.
The D should admit the existence of the contract and its terms as pleaded by the claimant.

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39
Q

Can D make a bare denial of an allegation? What is the consequence of a denial for C?

A
  • No - if it denies it must give reasons - if it wishes to put forward a different versio nof events it must state this version in defence
  • For C - denial means they must provde allegation
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40
Q

When should D require proof of allegation?

A

Where they cannot admit nor deny because alleged fact is something D does not know

Must ask what direct knowledge of facts D could have had

E.g. In a breach of contract claim, the claimant might allege it has suffered certain losses as a result of the breach.
The defendant might:
* deny breach as it knows it did not breach the contract, and
* require the claimant to prove the amount of the alleged loss and damage, as the defendant will have no knowledge about such matters itself.

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41
Q

What is the consequence if D omits/fails to deal with an allegation?

A

D is deemed to admit it unless it has set out own case re allegation

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42
Q

How are the consequences different for failing to deal with an allegation for a money claim?

A

The amount claimed is not admitted unless D specifically admits it

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43
Q

Will a limitation included in the defence be a bar to the claim being brought?

A

No - will only be a defence to the claim

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44
Q

If D disputes the statement of value, what must it include?

A

Why it disputes it and its own estimate

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45
Q

What is the standard structure of a defence?

A
  1. D can agree to adopt definitions of defined terms in POC
  2. Can admit the introduction of each party
  3. Allegations of POC will be admitted, denied or put to proof
  4. General denial (denies entitlement of C to all/part of sum being claimed)
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46
Q

What is the purpose of a reply from the C and must it be served?

A
  • Purpose is to answer ‘new points’ raised in defence
  • Is an optional statement of case from C
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47
Q

With what should the reply be filed?

A

With the directions questionnaire

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48
Q

What is the last statement of case and what if the party wants to file a statement of case after this?

A
  • Reply is the last statement of case
  • Permission of court needed to file any statement of case after reply
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49
Q

What type of request should be used when a party seeks more information from another party? Does it have to be based on matters contained in SOC?

A

Part 18 Request (for further information) - does not have to be based on matters in SOC

50
Q

What is the process for seeking information from another party with a Part 18 request?

A

Serving written request on other party - confined to reasonably necessary/proportionate matters - stating date for a response (reasonable time to respond - 14 days)

51
Q

In terms of requests for further information (Part 18 request), what should be requests be confined to?

Part 18 request

A

Matters which are reasonably proportionate and necessary to enable party seeking it to prepare its own case/understand case it has to meet

Examples of why a party wishes to request further information include:

  • To obtain admissions (although this is rare)
  • To obtain information which may reveal weaknesses in the other party’s case
  • To obtain information about facts which the other party needs to prove to make good their case
  • To acquire advance details of what a witness may say before exchange of witness statements.
  • To obtain clarification of the other party’s case (a common and useful function as it limits the other party’s ability to depart from it later)
  • To narrow the issues between the parties to save time and costs
    *
52
Q

What should the request for further information not request?

A

Evidence that C does not need at this stage

53
Q

Does a response to a request for further information count as a statement of case?

A

Yes, counts as part of their defence going forwards - so must be verified by statement of truth

54
Q

What is the process for the other party:

  1. Responding to a request for further information
  2. Objecting to a request for further information
A
  1. Responding - written, signed - sent to other party and filed at court
  2. Objecting - within timeframe set out in request and reasons given
55
Q

When should a party apply to court for a request of further information? What form should this be?

A

Only once party has not responded/has objected to providing response to Part 18 request - made via interim application

56
Q

What restriction can the court put on the use of further information? Can it only be used where information given pursuant to order?

A
  • That it not be used for any purpose other than current proceedings
  • Can be restricted whether information given voluntarily or pursuant to order
57
Q

When can an application (for request for further information) be made without notice to the opponent and dealt with without a hearing?

A

Once party has not responded after 14 days have passed

58
Q

What is a counterclaim, when is it made, and what are the statements of case that are involved in it?

A
  • A separate claim to main claim made at same time as D files its defence
  • SOC: the counterclaim, a defence to it (from C), and a reply in response to defence

Like any other claim a counterclaim must be based on case analysis confirming that a viable cause of action exists: D must establish duty, breach, causation, loss

59
Q

If counterclaim is made after the defence is filed, what is needed?

A

Permission of court

60
Q

Will a counterclaim commence an entirely separate claim?

A

It could do, but more convenient to combine and will usually be pursued in same proceedings and dealt with under same claim number

61
Q

Must the counterclaim be related to C’s substantive cause of action against D?

A

Does not have to be but parties must be suing in same capacity

If court does not think counterclaim should be heard with main - can order it be struck out or heard separately

62
Q

What is the form of a counterclaim?

A

Should form a single document with defence i.e. will follow on directly and be clearly labelled as counterclaim

Document is then entitled ‘Defence and Counterclaim’.

Is essentially a POC by another name - must therefore comply with the rules on POC (contain the four necessary elements of a claim)

63
Q

Is a court fee payable on filing a counterclaim?

A

YEs

64
Q

What is the defence of set off? What is its effect?

A
  • A defence that may be a partial/complete defence to main claim
  • Effect = extinguishes any claim up to same amount against D

C brings £20,000 claim, D makes £10,000 counterclaim and they both win = D pays £10,000 to C and other £10,000 extinguished

65
Q

What happens where:
1. C’s main claim is unsuccessful and D’s counterclaim is successful
2. C’s main claim is susccessful and D’s counterclaim is unsuccessful

Recall if both successful - set off occurs

A
  1. No judgement in favour of C, judgement simply entered for D against C
  2. Set off not triggered and judgement simply entered against D for full amount claimed
66
Q

What are the 3 most important legal bases of mutual debts for counterclaims?

NB applies to debt not damages

A
  • SoGA = seller sues for price of goods sold, buyer set off for breach of implied terms
  • Defective services = claim made for price of services, D set off for damages for poor services
  • Equitable set-off = court considers such close connection between two transactions that it would be manifestly unjust to allow enforcement of one claim without considering cross-claim
67
Q

When must the C serve a defence (to counterclaim) and what are the consequences of failing to serve in time?

A
  • Within 14 days after service of counterclaim (usual rules for defences)
  • Failure = judgement in default might be entered against D

A defence to a counterclaim is very similar to a ‘normal’ defence. Its contents must therefore comply with the usual rules in relation to defences (CPR 16.5 and 16 PD).

68
Q

What is the requirement for C to acknowledge service of counterlcaim?

A

There is not a requirement

69
Q

What will defence to counterclaim usually be served with?

A

The reply

I.e. ‘Reply and Defence to Counterclaim’

70
Q

When can a new cause of action, claim or party become part of the original claim?

A

Where it is directly concerned with or closely connected to the existing claim

CPR 17 Amending statements of case
CPR 19 Addition and substitution of parties
CPR 20 Counterclaims and other additional claims

71
Q

What is the difference between an additional claim and a counterclaim?

A
  • Additional claim = any claim other than claim brought by C against D
  • Counterclaim (type of additional claim) = claim brought by D in response to C’s claim (and included in same proceedings as D’s claim)
72
Q

What are the types of additional claim?

A
  • Counterclaim by D against C
  • Counterclaim by D against C and other person
  • Additional claim by D against person already party to proceedings (contribution, indemnity, or something else)

Above 3 all have own rules, everything below will be other additional claims…

  • Additional claim by D against person not already party to proceedings claiming contribution, indemnity or some other remedy
  • Additional claim being made by party which has itself been joined to main proceedings
73
Q

What will not count as an additional claim?

A

A claim by the original C (even if they are adding a further claim to existing claim)

74
Q

What is the difference between a contribution and indemnity? When will each arise?

A
  • Contribution = right of someone to recover from a TP all/part of amount which he himself liable to pay; may arise in tort, contract or under Civil Liability Contribution
  • Indemnity = right of someone to recover from TP whole amount which he himself liable to pay; will often arise from a contract
75
Q

What is the cruciall hallmarks of claim for contribution/indemnity?

Important NB

A

The party pursuing the claim for contribution / indemnity is seeking to recover something which it is itself obliged to pay to someone else

I.e. can still be found liable in original claim, but will have recourse against other party via contribution/indemnity

76
Q

Is an additional claim treated as a(n original) claim?

A

Yes - so if a party is served with an additional claim they must file a defence in accordance with usual rules

77
Q

For counterclaims against a person other than C, what must there be between C and TP? Will the court’s permission be required?

I.e. D has counterclaim against both C and another person together

A
  • Must be some connection between C and TP (otherwise D would issue entirely separate action against TP)
  • Court’s permission required

The D, a homeowner, engages a builder, the C, and an architect to carry out work to her home. D is unsatisfied with the work and does not pay the builder C.

  • C brings a claim against the D for the payment of its invoice.
  • D (homeowner) might bring claim in same proceedings against C (claimant) and third party (architect) - may be that both C and architect involved in problem leading to unsatisfactory work; connection between two parties
78
Q

For claims for a contribution/indemnity from an existing party, what must the circumstances of the case be, what is needed, and what must the person seeking it do?

I.e. usually against co-D

A
  • Must be other existing parties already involved (i.e. more than a simple ‘one C against one D’ claim; must have been made against more than one D at outset)
  • A legal basis on which D can base claim is needed (e.g. DOC, contractual)
  • D must file a contribution notice with court and serve that notice on other party
79
Q

For claims for a contribution/indemnity from an party not already a party to proceedings, what is needed by D and is the C involved?

A
  • D needs a legal basis on which they can base claim against TP
  • Do not involve C; purely between D and TP (but many issues will depend upon what happens in main claim between C and D)

C enters into a contract with D to invest £500,000 in D’s business. C was induced to enter into the contract with D by relying on:

  • Representations made by D about the financial status of its business (which turned out to be untrue); and
  • Comments made in a pre-contract meeting by an accountant, E, known to C and who also advises D on its finances.

C advances the £500,000 to D which is then dissipated and lost.

  • C sues D for the recovery of the £500,000 in a misrepresentation claim, based on D’s actions inducing C to enter into the contract.
  • D alleges that when making its representations, it relied on the advice and comments of E, its financial adviser, and alleges that E owed D a duty of care in these circumstances.
  • D can protect its position in the event that it is ordered to pay the £500,000 back to C in C’s misrepresentation claim by bringing an additional claim against E for a contribution or indemnity recouping anything D is ordered to pay.

This additional claim will be based on the duty of care E owed to D, which was breached, causing the loss (the damages D had to pay to C).

80
Q

Why would a claim for a contribution or indemnity from a third party not already party to proceedings be used as opposed to a counterclaim against a person other than C?

A

Where there is no connection between C and TP

For counterclaim - must be some connection between C and TP e.g. same building project

81
Q

For both types of counterclaims, is permission required?

A
  • Classic (D>C) = no, if filed at same time as defence
  • Counterclaim against person other than C = yes always required
82
Q

For claims for a contribution/indemnity from existing party, when will permission not be required?

A

If

  • Served at same time as/with defence; or
  • If claim against a party added to claim later (by C), within 28 days after that party files its defence

Recall - done through contribution notice!

83
Q

When will permission not be needed for an additional claim by a D against any person not party to proceedings claiming a contribution or indemnity or some other remedy?

Or any other additional claim not already mentioned so bar counterlcaims and additional claim against person already party to proceedings)

A

If additional claim issued before/same time as defence is filed

Permission otherwise needed

84
Q

What form is required for all additional claims?

A

N211 claim form - similar to normal N1 form but more room for details of all parties to be included

85
Q

If an additional claim is served on someone not already a party to proceedings, what must it be accompanied by?

A
  • A response pack; and
  • A copy of every statement of case and any other documents the court directs

A copy of the additional claim form must also be served on every existing party

86
Q

How is permission applied for for an additional claim?

A

Using normal interim application procedure

87
Q

Summary of additional claims and permissions

A

To remember:

  • Standard counterclaim won’t need permission but counterclaims against person other than C will - require some connection
  • Claims for contribution/indemnity from existing party done through contribution notice and do not need permission if filed and served at same time as defence/within 28 days after party files defence if that party is added to claim later
  • Both claims for contribution/indemnity require some legal basis (whether already party or not)
  • Anything else will include all other types of additional claims including claim for contribution/indemnity from party not party to proceedings - for which permission not required if issued before/same time as defence is filed
88
Q

What will a party upon whom an additional claim is served become?

A

A party to the original proceedings if he was not already a party

89
Q

When will court arrange a hearing to consider case management of additional claim?

A

Where D to an additional claim files a defence (other than to counterclaim)

90
Q

How should the names of Cs, Ds and additional parties be referred to in the title of proceedings?

A
  • Cs and Ds in original claim = referred to as such
  • Additional parties = referred to in accordance with order in which they joined e.g. third party, fourth party

Example: The defendant makes a counterclaim against the claimant and an additional new party. The claimant will be referred to as the claimant in the counterclaim (despite being in the position of defendant to the counterclaim) and the ‘new’ party will be referred to as the ‘Third Party’ (20 PD 7.4(c)).

91
Q

What is the effect of an additional claim (bar some exceptions) being treated as a claim?

A

A party served with an additional claim must file a defence in accordance with usual rules

92
Q

What happens if a party does not file a defence to a counterclaim?

A

D can apply for default judgement (As usual)

93
Q

If an existing party does not reply to a notice of contribution/indemnity, can D apply for judgement in default?

A

No - instead they are deemed to admit claim and will be bound by the judgement/decision given at trial of main claim

94
Q

When an additional claim form (N211) served on a person who is not a party, what should it be accompanied with?

A

An acknowledgement of service and a response back

95
Q

Can you apply for default judgement in the case of additional claims for parties who are not already a party?

A

No

96
Q

What 2 types of amendments should be distinguished between?

A
  1. General amendments (CPR 17)
  2. Amendments which remove, add or substitute a party (CPR 19)

Following considers CPR 17 until it doesn’t

97
Q

CPR 17

What must an amendment be verified by?

Amendments may be for various reasons e.g. adding party to claim, change in knowledge of case, or simple drafting error

A

A statement of truth (unless court orders otherwise)

98
Q

CPR 17

When will general amendments not need permission/consent?

A

If statements of case are amended at any time before it is served

Largely limited to those in period between issue and service and amendments to other statements of case (e.g. POC) prior to service

99
Q

If the claim form has not been served, what amendments to the POC may nevertheless require permission?

A

Any amendment that alters parties involved

Court retains power to disallow

100
Q

CPR 17

How can a statement of case be amended (by general amendment) after serving and who will bear the costs of this?

A
  • With written consent of all other existing parties or with permission from the court (who can still disallow)
  • Party making amendment bears costs
101
Q

CPR 17

What is the procedure for amending with the court’s permission? Once permission given, what should happen?

I.e. written consent of all parties has not been given

A
  1. File application notice with court with copy of proposed amended statement of case
  2. If permission given - amended statements of case should be filed by applicant within 14 days of order granting amendment and copy of amended SOC be served on every party
102
Q

CPR 17

Must an amendment application be dealt with by a hearing?

A

Can be through written submissions where all parties consent

103
Q

CPR 17

When court considering whether to grant permission for an amendment, what will it generally have regard to and when will it require prospect of success?

A
  • Generally - regard to overriding objective
  • Application to amend defence will be refused if clear proposed amendment has no prospect of success (e.g. implausible version of facts)
104
Q

CPR 17

How do the court give effect to OO when considering whether to grant permission to an amendment?

A

Balance between injustice to a) applicant if amendment refused and b) opposing party if permitted

105
Q

CPR 17

What are the 3 principles for late (close to trial) amendments?

Swain-Mason

May cause unfairness and put parties on unequal footing

A
  1. If late amendment does not result from late disclosure/new evidence - less likely to accept
  2. Heavy onus on party seeking amendment to justify own position and other parties in litigation
  3. Parties must satisfy full requirements of preparing a proper pleading (AKA cannot say deficiencies can be rectified by way of further info/evidence)
106
Q

CPR 19

What is the main test that should be satisfied when seeking to add, remove or substitute a party? (CPR 19)

A

Amendment is desirable

107
Q

CPR 19

What does it mean for an amendment to be desirable?

2 things

A
  1. Desirable to add a new party to resolve all matters in dispute
  2. Issue involving new party and existing party connected to matters in proceedings and is desirable to add new party so court can resolve issue
108
Q

CPR 19

Where might it be convenient for a C or D to apply for an order that D to an additional claim is added as a D to main claim?

E.g. C sues D for misrepresentation and the loss of a £500,000 investment C made in D’s business and D has brought an additional claim for contribution/indemnity against E (financial adviser who was involved in making the representations inducing the £500,000 investment by C)

A

Where additional claim may impact issues in main claim (and potentially leave party exposed)

C sues D for misrepresentation and the loss of a £500,000 investment C made in D’s business.

  • At the trial, C fails in its claim against D, with the judgement laying the blame against E.
  • As C had not joined E into the main action as a defendant to C’s claim, the judge could not make a judgement in that main claim against E in favour of C.

In this situation, even though E is to blame, C recovers nothing.

109
Q

Can someone be added as a C without their consent?

A

No - consent must be filed at court

110
Q

What happens if someone refuses to added as a C?

A

Can instead be added as a D

111
Q

When will court’s permission be required to add, remove or substitute a party?

A

Always unless claim form has not been served

112
Q

For amendments post-limitation period (to add new cause of action or party), what are amendments to add a new cause of action or party to existing proceedings deemend to be?

A

A separate action which is commenced on same date as original action

?

113
Q

What is the starting point for amendments after the limitation period?

A

Such amendments will not be allowed

Subject to exceptions!

114
Q

If a proposed amendment is considered to be a new cause of action, in what 3 circumstances can it be added to an existing statement of case after the end of the limitation period?

A new ‘cause of action’ more likely to be an amendment that adds a new duty or obligation on part of D (or C), rather than one that adds additional facts which clarify a duty/obligation which has already been alleged

A
  1. Where court directs limitation period will not apply in a personal injury action (where disapplying time limit would be equitable)
  2. The new cause of action is an original set-off/counterclaim
  3. The new cause of action arises out of (substantially) same facts already in issue

For 1 For example, the cause or significance of personal injuries or disease caused by someone’s negligence might not be apparent within the standard 3 year limitation period for personal injury claims and this could be a reason for the court to exercise its discretion under this provision in order to do justice. If an action on some other basis was already underway, it could be amended under this provision to add this new claim after the limitation period had expired.

115
Q

Will there be an additional cause of action if the only change is the addition of a further instance of the alleged breach or a new remedy?

A

No

116
Q

What are the 2 requirements for a party to be added/substituted after end of relevant limitation period?

A
  1. Limitation period was current when proceedings were actually started
  2. The addition or substitution is ‘necessary’
117
Q

In what 3 circumstances will the addition or substitution be deemed ‘necessary?

Re amending parties post-limitation

A
  1. New party is to be substituted for one that was named in mistake for the new party; or
  2. The claim cannot properly be carried on against original party unless new party is added or substituted; or
  3. Original party has died/had a bankruptcy order made against him and interest or liability has passed to new party
118
Q

What are the differences between mistake in name and mistake in identity and what are the court’s powers regarding these amendments post-limitation?

A
  • Mistake in name - there is no reasonable doubt re identity of party (e.g. form served on D despite wrong name) = amendment might be allowed
  • Mistake in identity - result in entirely new person becoming party (e.g. starts proceedings against wrong D) = amendment not allowed
119
Q

What is the test set out in Sardinia Sulcis to decide if amendment or party post-limitation is permitted by court?

Re mistake in name/identity

A

Has the intended defendant been identified in the statements of case ‘by reference to a description more or less specific to the particular case’?

  • Yes = amendment may be permitted
  • No = court cannot permit

E.g. The claimant is injured in a car accident caused by the negligent driver of a VW Polo registration Y476 LNY. The driver was Darren Boardman – he should be the defendant. The registered keeper of the vehicle is Sarah Boardman, Darren’s wife. She was not in any way involved in the accident.

  1. C nams Daryl (not Darren) in SOC = genuine mistake causing no reasonable doubt as to identity of party (court has power)
  2. C names Sarah as driver but has described driver of specific car and specific time = adequately described (court has power)
  3. C names Sarah as registered keeper of vehicle = not adequately described (court has no power)
120
Q

Must the amended statement of case show original text?

A

No, unless court orders othersie

121
Q

Summary on permission to amend

A

Special rules:

  • Re general amendments = new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim
  • Re parties = mistake of name/identity
122
Q

What should an amended SOC contain and what should it be verified by?

A
  • Contain appropriate endorsement
  • Verified by statement of truth

Dispute Resolution (20 decks)

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