Statements of case Flashcards
Additional claims?
Classic counter claim - A classic counterclaim (CPR 20.4) is a defendant’s counterclaim against the claimant, pursued in
the same proceedings as the main claim. These types of counterclaim are very common. If
disputed, the claimant will serve a defence to counterclaim in response, which is very similar to a
‘normal’ defence, and both the main claim and counterclaim will continue to case management
(ie the directions stage) together.
Counterclaims against another person other than - If this other party is not already a party to the ‘main’ court action between the claimant and the
defendant, the other party will need to be joined into the main claim as a third party so that the
defendant’s counterclaim can proceed.
Claims for a contribution or indemnity from an existing party?
Contribution – a right of someone to recover from a third person all or part of the amount which he himself is liable to pay
Indemnity – a right of someone to recover from a third person the whole amount which he is liable to pay
- An indemnity is equivalent to a 100% contribution.
- A right to a contribution may arise in tort, contract or under civil liability act.
- A right to an indemnity will often arise from a contract or soe other statutory provisions.
- A crucial element of both is that party is pursuing a claim for contribution to recover something which it is itself obliged to pay.
- A defendant who has acknowledged service of claim or who has served a defence may make an additional claim for contribution or indemnity against an existing party by filing a contribution notice with the court and serving that notice on the other party.
- There would need to be a legal basis – so case analysis would be necessary.
Other additional claims?
- An additional claim by a defendant against any person claiming some remedy other than a contribution or indemnity –
- An additional claim by a defendant against any person claiming a contribution or an indemnity for any other remedy, including a claim for contribution or indemnity from someone who is not an existing party.
In these additional claims – purely between defendant and third party.
Permission for additional claims?
Structure and form of additional claims
Classic counterclaims
- Takes form of a particulars of counter claim
- Defence and counter claim should normally form one document
- Should be filed together -no permission from court
IF SERVED AFTER THEN NEED PERMISSION
Counter claim against a person other than a claimant
- For indemnity or contribution – notice is filed and served with defence
- COUNTERCLAIMS AGAINST A PERSON OTHER THAN THE DEFENDANT courts permission is ALWAYS required the court will give directions as to when the notice should be served.
Other additional claims
- Started by issuing a N211 claim form
- If such an additional claim is made without courts permission. Claim form should be served on person against whom it is made within 14 days of it being issued.
- If courts permission is required, court will give direction.
Additional claims - if at same time NO permission otherwise yes.
Legal basis for set off?
Defective services: where a claim is made for price of services, defendant can set off for poor services
Equitable set-off – when close connection between two transactions that it would be manifestly unjust to allow enforcement of once claim without taking into account the cross-claim
Case management with an additional claim?
- Court will consider whether remedy should be sought by way of an additional claim or as a separate action altogether.
- Unless there is a substantial connection usually, they’re separated.
- When defendant of additional claim files a defence, other than to a counter claim, court will arrange a hearing to consider case management of additional claim.
Default judgement and additional claims?
If a party does not file a defence to a counterclaim then a defendant can apply for default
judgment as usual (CPR 12.3(2)(b)).
* If an existing party does not reply to a notice of contribution or indemnity, it is not possible to
apply for a default judgment.
* Where an additional claim form (N211) is served on a person not already a party, it should be
accompanied by an acknowledgment of service and a response pack. If a party fails to reply
to a Form N211 in the appropriate way/within the specified time limits then it will generally be
deemed to admit the claim and will be bound by the judgment
Amending statements of case?
- Amendments to statements of case must be verified by a statement of truth unless court orders otherwise.
- Applies to GENERAL AMMENDEMENTS AND AMMENDMENTS WHICH REMOVE, ADD OR SUBSTITUTE A PARTY
- A party applying for an amendment will usually be responsible for costs arising from it
Amendment without permission or consent?
- A party may amend a statement of case at any time before it is served
- Such amendments will largely be limited to amendments to the claim form in the period between issue and service and amendments to other statements of case prior to service.
Amendment by consent?
- Any statement of case can be amended at any time with written consent of all other parties
Amendment with courts permission?
- When a statement of case has been served and written consent of all parties has not been given a party will need to apply to court for permission to make an amendment
- Should file an application notice with court, together with a copy of proposed amended statement of case.
- If permission to amend is given court will usually give directions as to any consequential amendments and the service of any amended statements of case.
- In any event the amended statement of case should usually be filed by applicant within 14 days of date of order granting amendment unless court orders otherwise.
Adding or removing a party?
court (CPR 19.4(4)). If someone refuses to be added as a claimant, they can instead be added as
a defendant (CPR 19.3(2)). Finally, the court’s permission is always required to add, remove or
substitute a party, unless the claim form has not yet been served.
Amendments after the limitation period has expired?
- Starting point – is if beyond limitation act – usually rules of it not being allowed apply.
- Exceptions to this general rule
- Amendments in relation to personal injury claims
- Amendments generally
- Amendments which add or substitute a party
Adding a cause of action post limitation
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.
* The new cause of action is an original set-off or counterclaim (s.35(3) Limitation Act 1980).
* The new cause of action arises out of the same facts or substantially the same facts as are
already in issue in the original claim (s.35(5)(a) Limitation Act 1980.
Requirements for adding/substituting parties post limitation?
he limitation period was current when the proceedings were actually started; and
* the addition or substitution is ‘necessary’ (CPR 19.5(2).
The addition or substitution is deemed to be ‘necessary’ only if the court is satisfied that (CPR
19.5(3)):
(a) the new party is to be substituted for one that was named in the claim form in mistake for the
new party; or
(b) the claim cannot properly be carried on/by/against the original party unless the new party is
added or substituted; or
(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
In summary, amendments post limitation in relation to the name of the party might be allowed
but those relating to someone with an entirely new identity will not be allowed.
- Has intended defendant been identified in statements of case by refers to a description more or less specific to the particular case
- If yes, it is a more a fundamental type of mistake – and the mistake may be permitted
Request for further info?
Reasons why a party may wish to request further information include
- To obtain admissions
- To obtain info that would reveal weakness
- Obtain facts which other party needs to prove to make good their case
- Acquire advance details of what a witness may say before exchange of witness statements
A party is expected to seek information form other party on a voluntary basis first and should only make an application to court if request cannot be resolved
- Party seeking it serves a written request on it stating a date for response
- Request should be concise and confident o matters which are reasonably necessary and proportionate
Reasoning to a request for further information
- Response must be written, dated and signed by the party
- If they object – must inform reasons for objection
IF NOT THEN APPLY TO COURT
- Appropriate where a party has not responded or has with objection
- Application should be made as an interim application. If other party has not responded after 14 days have passed application can be made without notice to the opponent.doesn’t require a hearing.
