Statements of case Flashcards
Form of counterclaim
The counterclaim, if made at the same time as the defence, should form a single document with the defence
The counterclaim is essentially a particulars of claim by another name. It must therefore comply with the rules on particulars of claim
Counterclaim and set off
The facts that give rise to a counterclaim may also amount to a defence in the main claim (ie the defence of set off).
The defence of set off may be a partial or complete defence to the main claim. It has the effect of ‘extinguishing’ any claim up to the same amount against the defendant.
Set off triggered only if C wins the main claim, but D wins the counterclaim
Example: C awarded 20 thousand, D awarded 10 thousand - so D will only have to pay C 10 thousand
Mutual debts: If the claimant and defendant each owe the other money, one debt can be set off against the other debt. Note that this applies to debts, not damages.
Filing a defence to counterclaim - time limit and what if you don’t do it?
14 days after receiving the counterclaim
You can admitted or defended by C
Judgment in default if defence to counterclaim is not served within the time limit
Counterclaim vs additional claim
Additional claim: ‘Any claim other than the claim by the claimant against the defendant’
Counterclaim: ‘A claim brought by a defendant in response to the claimant’s claim, which is included in the same proceedings as the claimant’s claim.’
A counterclaim against a person other than the claimant
A counterclaim against a person other than a claimant is a counterclaim by the defendant against:
The claimant AND Some other person
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.
There must be some connection between the claimant and third party in respect of the counterclaim.
Contribution vs indemnity
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 himself is liable to pay.’
Claims for a contribution or indemnity from an existing party vs 3rd party
For this type of additional claim to arise, there must be other existing parties already involved in the action ie it must be more than a simple ‘one claimant against one defendant’ claim by this time.
3rd party - someone who is not already a party to the proceedings
Other additional claims - what are they + examples
The issues in this type of additional claim are purely between the defendant and the third party (ie do not involve the claimant at all), but many of these issues will depend upon what happens in the main claim between the claimant and the defendant.
Examples
The defendant’s loss in the additional claim arises solely out of anything the defendant is ordered to pay to the claimant in the main claim.
There will frequently be related matters of evidence and fact which, once decided in the main claim, resolve the point in the additional claim as well.
Do u need permission to file counterclaims, contribution or indemnity from an existing or 3rd party, or other additional claims
Classic counterclaim
Filed at the same time/with defence - NO permission
Filed any other time - permission
Counterclaim against a person other than C
Permission always required
Claims for a contribution or indemnity from an existing party
Filed at the same time/with defence - NO permission
Additional claim is made against a party added to the main/substantive claim at a later date - NO permission if filed within 28 days after that party files its defence
Any other time - permission
Other additional claim
Issued before ot at the same time as the defence is filed - NO permission
Any other time - permission
How to apply for a permission to serve counterclaims, contribution or indemnity from an existing or 3rd party, or other additional claims
Permission is applied for using the ‘normal’ interim application procedure. The Application Notice will be accompanied by a draft order and evidence in support which will include details of the stage the main claim has reached, details of the additional claim, a summary of the relevant facts, explanation of any delay and the name and address of any proposed party
If an existing party does not reply to a notice of contribution or indemnity, can you enter a default judgment against them?
NO
Where an additional claim form is served on a person not already a party, what happens if they do not respond? Can you apply for a default judgment?
They are deemed to admit the claim and will be bound by the judgment given at trial of the main claim
NO possibility to apply for a default judgment
How to seek contribution or an indemnity from an existing party if you already filed a defence or acknowledgement of service of the claim form?
File a contribution notice with the court and serve it on the other parties
Do amendments of statements of case need to be verified by a statement of truth?
YES
Who bears the costs of and arising from amending statements of case?
a party applying for an amendment will usually be responsible for the costs of and arising from the amendment
How to amend statement of case?
A party may amend a statement of case at any time before it is served without permission or consent
Any statement of case can be amended at any time with the written consent of all the other parties
Apply for permission from court
The party seeking the amendment should file an application notice with the court, together with a copy of the proposed amended statement of case
. A copy of the amended statement of case and the order should also be served on every party to the proceedings.
Test for whether the court will grant permission to amend statement of case
General principles:
Overriding principle to deal with cases justly and at proportionate cost
Balance between the interests of the parties
Need to show some prospect of success
An application for permission to amend a defence will be refused if it is clear that the proposed amendment has no prospect of success.
The court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation. A party will also not be permitted to raise by amendment an allegation which is unsupported by any evidence
Will a late amendment to a statement of case be allowed?
The court should be less ready than it used to be to allow a very late amendment, where the need for the amendment does not result from some late disclosure or new evidence.
A heavy onus lies on the party seeking a late amendment to justify it, not only as regards its own position, but also in relation to other parties to the litigation and other cases before the court, and to give evidence as to why the application is made at such a late stage.
The party seeking the late amendment must satisfy the full requirements of preparing a proper pleading. In other words, the party cannot say that deficiencies can be rectified by way of further information or evidence in due course.
Can you add a claimant to the proceedings without their consent?
NO
Can you add a defendant to the proceedings without their consent?
YES
Do you need court’s permission to add, remove, or substitute a party to the proceedings?
YES unless the claim form has not been served yet
Adding causes of action post limitation period - when is it allowed?
When the court directs that the limitation period will not apply in a personal injury action
The new cause of action is an original set-off or counterclaim
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
Adding parties post limitation period - when is it allowed?
There are a limited number of situations where new parties can be added or substituted despite the limitation period’s expiration
Relates to correcting a mistake as to the name of a party (CPR 17.4(3))
Relates to changing the capacity of a party (CPR 17.4(4))
Relates to changing the identity of a defendant (CPR 19.6)
Parties may only be added or substituted after the end of the relevant limitation period if:
the limitation period was current when the proceedings were actually started; and
the addition or substitution is ‘necessary’
The addition or substitution is deemed to be ‘necessary’ only if the court is satisfied that (CPR 19.6(3)):
the new party is to be substituted for one that was named in the claim form in mistake for the new party; or
the claim cannot properly be carried on/by/against the original party unless the new party is added or substituted; 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.
Has the intended defendant been identified in the statements of case ‘by reference to a description more or less specific to the particular case’?
If yes, it is a mistake of the type covered by CPR 19.6(3)(a) and the amendment may be permitted by the court. If not, then the court cannot permit the amendment.
When and about what can you request further information from the other party? Do you need to get the court involved?
A request for further information can be made for any matter in dispute in proceedings; it does not have to be in relation to a matter contained in a statement of case. - confine it to matters that are reasonably necessary and proportionate to enable the requesting party to prepare its own case/understand the opponent’s case
A party is expected to seek information from the other party on a voluntary basis first and should only make an application to the court if the request cannot be resolved
How do you respond to a request for further information? Do you need to file it at court?
The response must be written, dated and signed by the party or its legal representative and include a statement of truth
The response must be sent to the other party and filed at court.
What to do if you don’t want to respond to a request for further information?
If a party objects to providing a request, it must inform the party who made the request giving reasons for the objection and object within the timeframe set out in the request
How to request to the court to make the other party give you further information?
The application should be made as an interim application (CPR 23 and18 PD 5). If, the other party has not responded after 14 days have passed, the application can be made without notice to the opponent and the court can deal with the application without a hearing.
If a court makes an order for further information, the party against whom the order made must file its response and serve its response on the other parties within the time specified by the court. The response must be verified by a statement of truth.
