Statements of Case II Flashcards
What is an additional claim?
Any claim other than the claim by the claimant against the defendant.
What is a 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. One type of additional claim.
What are the main statements of case that will exist in every defended claim?
The claim form, the particulars of claim, and the defence.
What happens whether is a counterclaim against a person other than the claimant?
The defendants cause of action must be against the claimant handsome other party who is e.g. jointly liable with the claimant to the defendant.
If the third 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.
There must be some connection between the claimant and third party in respect of the counterclaim. May arise from a completely separate set of facts from the main claim.
How does a defendant who has served acknowledgement/defence make an additional claim for contribution or indemnity from third party?
Filing contribution notice with the court and serving that on the other party.
Is the courts permission required for a classic counterclaim (CPR 20.4)?
Not if filed at the same time as/with defence. Yes if filed at any other time.
Is courts permission required for a counterclaim against a person other than the claimant (CPR 20.5)?
Yes, always required.
Is the court’s permission required for claims for a contribution or indemnity from an existing party (CPR 20.6)?
Not needed if filed and served at the same time/with the defence (or if the additional claim is made against someone added to the main claim at a later date, within 28 days after that party files its defence).
Required if filed at any other time.
Is permission needed for other additional claims? CPR 20.7
If the additional claim is issued before or at the time the defence is filed, no permission needed.
Needed if filed at any other time.
What is the structure and form of classic counterclaims?
Usually takes the form of a particulars of counterclaim. The defence and counterclaim will usually form one single document, with the counterclaim following on from the defence.
What is the structure and form of a counterclaim against a person other than a claimant? CPR 20.6
Claim for contribution or an indemnity from another party is made by serving the appropriate notice. No set form.
How are other additional claims started?
By issuing an N211 claim form which is similar to the normal claim form, other than that it is buff coloured and contains more room for the details of all the parties to be interest.
If made without the court’s permission, should be served on the person within 14 days of it being issued.
Courts permission required = court will give directions as to when the notice should be served.
If an additional claim is served to someone who is not already a party to the proceedings, it must be accompanied by:
A response pack, and a copy of every statement of case and any other documents that the court directs.
A copy of the additional claim form must also be served on every existing party.
What happens if the person receiving an additional claim does not respond?
If a party foes not file a defence to a counterclaim, a defendant can apply for default judgement as usual..
Existing party doesn’t reply to notice of contribution or indemnity = not possible to apply for default judgement.
Additional claim form (N211) is served on a person not already a party, it should be accompanied by an acknowledgement of service and response pack.
How can you make a general amendment to a statement of case?
Must be verified by a statement of truth, unless court orders otherwise. There are different rules for general amendments and amendments that substitute, remove, or add a party.
How do you amend a statement of case before it is served?
Parties can amend a statement of case including adding/removing/substituting a party any time before it is served.
Largely limited to amendments to claim form in period between issue and service, and amendments to other statements of case prior to service.
Court retains the power to disallow amendments.
How do you amend a statement of case by consent?
Statement of case can be amended at any time with the written consent of all the other parties.
General rule = party making amendment will bear the costs of and arising from the amendment.
When amended without courts consent, should be endorsed by the words amended …. under CPR Rule 17.1/2 dates ….
Court can disallow amendments.
How do you amend with the court’s permission?
When the written consent of all the parties has not been given, party will need to apply to court for permission to make an amendment.
File an application notice with the court, together with a copy of the proposed amended statement of case. Can be dealt with at a hearing or without a hearing on written submissions if all parties consent.
Amended statement of case should usually be filed by the applicant within 14 days of the date of the order granting amendment (unless court orders otherwise).
Copy of amended statement of case and the order should be served on every party to the proceedings.
Might need to re-verify with a statement of truth.
When will the court give permission to amend a statement of case?
No specific guidance - but parties are expected to be cooperative in litigation - should tell their opponents about the proposed amendment once necessity to amend has become apparent.
Decision will involve courts seeking to find a balance.
An application to amend a statement of defence will be refused if it is clear that the proposed amendment has no prospects of success.
What is the main test to be satisfied when seeking to amend a statement of case by adding, removing, or substituting a party? CPR 19
Except in cases where limitation period has expired - is it ‘desirable’?
What are the rules for amendment after the limitation period has expired?
Limitation Act 1980 has the usual rule that amendments will not be allowed.
Exceptions to this rule include when an original set off or counterclaim is raised by an amendment, and also where otherwise provided in LA 1980.
Governed by…
-Amendments generally CPR 17.4
-Amendments relating to PI = s33 LA
-Amendments adding or substituting = CPR 19.6
Can people be added without their consent?
You must get consent before adding someone as a claimant, consent filed at court.
Courts permission is always required to remove add or substitute a party unless the claim form has not yet been served.
A new cause of action can be added to an existing statement of case after the end of the limitation period only in the following circumstances…
When court directs that the limitation period will not apply in a PI action - if equitable.
New cause of action is an original set-off or counterclaim - s35(3) LA.
New cause of action arises out of the same facts/substantially the same facts as already in issue in the original claim s 35(50(a) LA. Onus is on applicant to show it falls within this criteria.
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 was necessary.
The addition or substitution is only deemed to be necessary if the court is satisfied that:
- The new party is to be substituted for one that was named in the claim form in mistake. (courts will distinguish between mistakes in name and identity - ask HAS THE INTENDED DEFENDANT BEEN IDENTIFIED IN THE SOC BY REFERENCE TO A DESCRIPTION MORE OR LESS SPECIFIC TO THE PARTICULAR CASE? If yes, it is a more fundamental type of mistake and the amendment may be permitted by the court).
- The claim cannot be properly carried on by or against the OG party unless new party is added/substituted.
- OG party has died or had bankruptcy and their interest or liability passes to new party.
How to make a request for further information?
Seek on a voluntary basis first.
If can’t be resolved, apply to the court.
Serve a written request on the other party stating a date for a response.
Request should be concise and confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare its own case.
How to respond to a request for further information?
Response to be written, dated, signed by party or its legal representatives and include statement of truth.
Sent to other party and filed at court.
Object = inform the party who made the request giving reasons for the injection and object within the timeframe set out in the request.
What if the other party doesn’t respond to your request for further information?
Court can order them to clarify.
Application should be made as an interim application. IF the other party has not responded after 14 days have passed, application can be made without notice to the opponent and the court can deal with the application without a hearing.
A construction company intends to sue one of its sub-contractors, an electrician, for breach of contract. The claim form has been issued, but it has not yet been served. Before service of the claim form, the construction company decides to add a new defendant, a plumber, to the claim as an additional party. Which of the following best describes the position of the construction company?
A The construction company will require the written consent of both the electrician and the plumber to add the additional party.
B The construction company will not require the court’s permission to add the additional party.
C The construction company should apply to the court for permission to add the additional party.
D The construction company should seek the written consent of the electrician to add the additional party.
E The construction company should seek the written consent of the plumber to be added as an additional party.
B - claim form has been issued but not served, so courts permission is not necessary.
In a case involving four defendants, one of the defendants amends its defence to allege that the claimant was contributorily negligent. The court grants permission for this amendment. Which party will usually pay the costs of and arising from the amendment?
A All the defendants
B All the parties to the action
C The defendant applying for the amendment
D The unsuccessful party at the end of the trial in accordance with the general rule on costs (CPR 44.2).
E The claimant
C - party applying for an amendment will usually be responsible for the costs of and arising from the amendment. Not an obligatory rule.
Your client has received a request for further information by letter in respect of a defence it filed to a claim against it for misrepresentation. The defence as currently drafted fails to fully detail the oral representations made by your client before the contract was entered into. Your client agrees to provide the information requested. Which of the following most accurately describes the form your client’s response to the request for further information should take?
The client’s response should be in writing, signed, dated and be verified by a statement of truth.
The client’s response should be in the form of a letter in reply which will be signed and dated as normal.
The client’s response should be in writing, signed and dated but need not be verified by a statement of truth.
The client’s response should take the form of an amended defence.
The client should provide the information in whichever form is most proportionate including verbally, for example, in a telephone call.
A - Whatever form the request has taken, the response must be in writing, dated and signed by either the party or their legal representative and also verified by a statement of truth. It could be by letter or by way of a formal reply.
During her employment as a delivery driver, your client, Sue, was involved in a road traffic accident with another car. Your client has sued the driver of the other car, Amir, for personal injuries. Amir, in turn, has issued a counterclaim against your client claiming damages for personal injuries that Amir also sustained in the road traffic accident. Amir wishes to use the same arguments in the counterclaim against your client’s employer. The employer is vicariously liable for your client’s actions. Can Amir add your client’s employer as a party to the proceedings?
Yes, as a counterclaim against the claimant (CPR 20.4)
Yes, as the defendant’s additional claim for contribution or indemnity from another party (CPR 20.6)
Yes, as an ‘other’ additional claim (CPR 20.7)
No, as there is no Part 20 claim that provides for this situation.
Yes, as a counterclaim against a person other than the claimant (CPR 20.5)
E
