Statements of Case II

Question 1

Considerations for additional claim

Answer 1

• Viability - Tactics - Whether should be part of original claim, to be additional - Rules on limitation

Question 2

What is an additional claim?

Answer 2

Any claim other than the claim by the claimant against the defendant.

Question 3

Types of additional claim

Answer 3

Never by original claimant A counterclaim by a defendant against the claimant. A counterclaim by a defendant against the claimant and some other person. An additional claim by a defendant against any person (already a party to the proceedings) claiming a contribution or an indemnity An additional claim by a defendant against any person (already a party to the proceedings) claiming some remedy other than a contribution or an indemnity. An additional claim by a defendant against any person (not already a party to the proceedings) claiming a contribution or an indemnity or some other remedy. An additional claim being made by a party which has itself been joined to the main proceedings pursuant to CPR 20.

Question 4

What is a contribution or indemnity?

Answer 4

Contribution = recover from 3rd person all or part of of the amount which he himself is liable to pay Indemnity = recover from a third person the whole amount which he himself is liable to pay

Question 5

Counterclaims against person other than claimant

Answer 5

This is a counterclaim against both claimant and some other person If not already party, will need to be joined into the main claim as a third party. Claimant should be involved, with connection with third party in respect of the CC, otherwise wouldn’t be an counterclaim.

Question 6

Claims for a contribution or indemnity from an existing party

Answer 6

A defendance who has served a defence may make an additional claim for contribution or indemnity against an existing party (likely a codefendant) by filing a contribution notice with the court and serving that notice on the other party. Must be legal basis, so case analysis is necessary. A right to a contribution might arise in tort, contract or under the Civil Liability (Contribution) Act 1978 A right to an indemnity will often arise from a contract or some other statutory provision e.g. indemnity from insurers

Question 7

Other additional claims

Answer 7

Purely between defendant and third party

Question 8

Procedure for additional claims - table

Question 9

Classic counterclaim - permission needed?

Answer 9

Not if filed at the same time as with the defence

Question 10

Counterclaims against a person other than claimant - permission needed?

Answer 10

Always

Question 11

Claims for contribution/ indemnity from an existing party - permission needed?

Answer 11

Not needed if filed and served at the same time as/with the defence OR if the additional claim is made against a party added to the main/substantive claim at a later date – within 28 days after that party files its defence

Question 12

Other additional claims - permission needed?

Answer 12

Not if the additional claim is issued before or at the same time as the defence is filed.

Question 13

How is permission asked for for additional claims?

Answer 13

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.

Question 14

Structure and form of additional claims (not counterclaims)

Answer 14

N211 claim form If made without court’s permission, the claim form should be served on the person against whom it is made within 14 days of it being issued. Otherwise, court will give directions on when it should be served.

Question 15

All additional claims on someone not already a party

Answer 15

They must accompany the additional claim with: - a response pack - a copy of every statement of case and anything else the court directs Should serve a copy of the additional claim form on every existing party

Question 16

Response to an additional claim

Answer 16

It is treated as a claim. So, the party served must file a defence in accordance with the usual rules. If a party does not respond to a counterclaim, then the defendant can apply for default judgment. But if a party doesn’t reply to a notice of contribution or indemnity, it is not possible to apply for a default judgment. If a party does not respond to an additional claim form and is not already party, then they will be deemed to admit the claima dn will be bound by judgment given. Not possible for default judgment.

Question 17

Main facts for amendments of statements of case

Answer 17

• Must be verified by a Statement of Truth - Rules are particularly strict after limitation period has expired Two types: - General amendments - Amendments which remove add or substitute a party

Question 18

Amendments without permission

Answer 18

Are possible at any time before served. Although if for particulars of claim, if affects claim form too, then might need permission. Court retains power to disallow such amendmnets.

Question 19

Amendment by consent - general amendments

Answer 19

Any statement of case may be amended at any time with the written consent of all the other parties. The party making the amendment will generally bear the costs arising.

Question 20

Amendment with court’s permission - general amendments

Answer 20

If written consent of all parties has not been given, party will need to apply to court for permission to make an amendmnet. Should: - File application notice with the court - With copy of proposed amendmnet statement of case Can be dealt with at a hearing or by written submissions(if all parties consent)

Question 21

If court gives permission for general amendments

Answer 21

Will give directions to any consequential amendments and service of amendment statements of case Amended statement of case should be filed within 14 days of the date of the order granting amendmnet Should be served on every party to proceedings, with Statement of Truth

Question 22

Will permission be granted to a general amendment?

Answer 22

No rules. Can argue in line with previous authorities. Will look at overriding objective. And evidence to support whatever is being amended. Late amendment makes it less likely to be permitted. Especially if risks trial date. Might give costs penalty.

Question 23

Amendments which add, remove, or substitute parties

Answer 23

Main test is whether the amendment is “desirable”, considering overriding objective

Question 24

Consent from party for amendment to parties

Answer 24

If added as claimant, their consent is required. They could otherwise be added as defendant. Defendants do not need to consent.

Question 25

Amendments after limitation period has expired

Answer 25

Starting point is that amendments of new cause of action or new party will not be allowed.

Question 26

General amendments after limitaiton period expires

Answer 26

Not allowed. Except: A new cause of action can only be added when: - court directs won’t apply in PI action - new cause of action is an original set off or counterclaim - new cause of action arises out fo same or substantially same facts as original claim

Question 27

Amendments to add parties after limitation period expires

Answer 27

Not allowed. Except when it is “necessary” This is when: - there was a mistake as to name of party - claim cannot be properly carried on unless new one is added - original party has died or had bankruptcy order against him and his interest/ liability has passed to new party

Question 28

Mistake to name of party amendment

Answer 28

Court has power to allow amendment when: - amendment just to party’s name because mistake - more fundamental changing of identity ONLY if the intended defendant been identified in the statements of case ‘by reference to a description more or less specific to the particular case’ e.g. if wrongly identified the driver, then could change to correct driver

Question 29

Format of amended statement of case

Answer 29

• Does not need to show original text - Amendments shown with colour or numerical code Red -> Green -> Violet - Should have statement of truth and appropriate endorsement - Will need to amend other documents in line

Question 30

Why might a party request further information?

Answer 30

• 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

Question 31

What is a request for further information?

Answer 31

Request regarding any matter which is in dispute in the proceedings. Requests should be confined to matters which are reasonably necessary and proportionate to enable the party seeking clarification or information to prepare its own case or to understand the case it has to meet.

Question 32

Making a request for further information

Answer 32

1. Voluntary basis. Should only make an application to the court if the request cannot be resolved 2. Serves a written request stating a reasonable date for response. Should be concise and confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare

Question 33

Response to a request for further information

Answer 33

The response must be: - written - dated - signed by the party or its legal representative - include a statement of truth It should be sent to other party and filed at court. If objecting, shoudl inform and do so within timeframe. Explain why.

Question 34

Request to court for further information

Answer 34

The court can order a party to clarify any matter which is in dispute in the proceedings or give additional information in relation to any such matter whether or not the matter is contained or referred to in a statement of case Application to court is appropruate if party has not responded. Make as an interim application. Can be made without notice if other party hasn’t responded within 14 days. Needs to respond to court. In time and with statement of truth.