Statements of Case II Flashcards
Considerations for additional claim
- Viability - Tactics - Whether should be part of original claim, to be additional - Rules on limitation
What is an additional claim?
Any claim other than the claim by the claimant against the defendant.
Types of additional claim
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.
What is a contribution or indemnity?
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
Counterclaims against person other than claimant
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.
Claims for a contribution or indemnity from an existing party
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
Other additional claims
Purely between defendant and third party
Procedure for additional claims - table
Classic counterclaim - permission needed?
Not if filed at the same time as with the defence
Counterclaims against a person other than claimant - permission needed?
Always
Claims for contribution/ indemnity from an existing party - permission needed?
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
Other additional claims - permission needed?
Not if the additional claim is issued before or at the same time as the defence is filed.
How is permission asked for for additional claims?
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.
Structure and form of additional claims (not counterclaims)
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.
All additional claims on someone not already a party
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
Response to an additional claim
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.
Main facts for amendments of statements of case
- 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
Amendments without permission
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.
Amendment by consent - general amendments
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.
Amendment with court’s permission - general amendments
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)
If court gives permission for general amendments
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
Will permission be granted to a general amendment?
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.
Amendments which add, remove, or substitute parties
Main test is whether the amendment is “desirable”, considering overriding objective
Consent from party for amendment to parties
If added as claimant, their consent is required. They could otherwise be added as defendant. Defendants do not need to consent.
Amendments after limitation period has expired
Starting point is that amendments of new cause of action or new party will not be allowed.
General amendments after limitaiton period expires
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
Amendments to add parties after limitation period expires
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
Mistake to name of party amendment
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
Format of amended statement of case
- 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
Why might a party request further information?
• 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
What is a request for further information?
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.
Making a request for further information
- 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
Response to a request for further information
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.
Request to court for further information
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.
