Syllabus Area 9 - Multiple Causes of Action, Counterclaims and Additional Claims Flashcards
How many claimants or defendants may be joined as parties to a claim?
Any number of C’s or D’s may be joined.
What actions can be done in terms of changing parties?
Can substitute, add, cease if it is DESIRABLE to do so.
Who can add/substitute parrties?
Through courts own initiative, the parties themselves apply or person wishing to become to a party.
Who is entitled to a remedy?
Any party to the proceedings unless court says otherwise.
What happens if C does not agree to being a C?
They must be made a defendant.
What situations does a remedy not apply to?
Probate.
What is the general procedure/formalities to adding or substituing parties?
Application notice, proposed amended CF/POC, written consent of party and must be served on all parties affected by change.
When do you generally need courts permission to add or substitute parties?
Unless claim form NOT served, need courts permission
Who bears the costs of an amendment to substituing/adding parties?
The party applying for amendment is responsible for costs.
What must you have from parties to be able to add or substitute?
Must have their consent in writing to add/substitute and must be served on all parties affected within 14 days.
What are the provisions for adding or substituing parties after the end of the limitation period?
Court MAY allow add or substitute a party after the end of limitation period as long as the relevant limitation period was current during when proceedings were started and it is necessary to do so - it is discretionary
How do you remove a party to proceedings?
File amended CF/POC and serve copy on all parties affected.
What test is applied for adding or substituing parties after relevant limitation period ended?
The necessary test - is it necessary to do so because of a) mistake in claim form, b) claim cannot be carried out unless new party appointment c) original party has died/bankruptcy order.
What are the SPECIAL provisions for adding or substituing parties after end of relevant limitation period?
New party can be appointed under S11 or S12 (fatal accidents or personal injury long stop).
What happens in terms of directions of adding or substituting a party?
Court will give directions as to filing and serving CF/POC, serving relevant documents and how to manage proceedings
How does s35 Limitation Act 1980 affect when a limitation period expires for adding or substituting parties?
S35 allows for the court may allowing for adding or substituting of parties IF it is necessary to do so and if the relevant limitation period was current when proceedings were started.
How can we allow for a claim to be continued if adding or substituting is necessary?
Parties can be added as a company or in another legal capacity.
What does counterclaims/additional claims cover?
Bringing a counterclaim (classic counterclaim between D and C), an additional claim where D claims for contribution or indemnity or some other remedy for existing party to proceedings and where an additional claim has been made against a person who is not already a party
What does not apply for additional claims?
Time limits for serving a claim form, statement of value, case management/preliminary stage.
What is a classic counterclaim?
Whereby the Defendant makes a counterclaim against the Claimant.
Does a classic counterclaim need permission?
If served WITH the defence, no permission is needed from the court. If served at ANY other time, permission needed.
What is the formalities for issuing a classic counterclaim?
Particulars of counterclaim served on C usually with defence.
What is a counterclaim against a person OTHER than the claimant?
Whereby D is counterclaiming against someone other than the claimant.
What is the procedure for a counterclaim against a person other than the claimant?
MUST apply to court to add the party to the proceedings OR add as a third party and MUST have some connection between C and current proceedings.
Does a counterclaim against a person other than a claimant need permission?
Permission ALWAYS required - court will give case management directions
What is a defendant’s additional claim for contribution or indemnity?
This is where the defendant makes an additional claim against someone else for potential contribution (however many percent) or indemnity (full liability) for what the claimant is claiming against the defendant.
Where does a right to contribution arise from?
Civil Liability Contribution Act 1978 - usually tort.
Where usually is contribution and indemnity claims brought?
Contribution = tort, PI, indemnity = contract e.g insurer
What is needed for a contribution or indemnity claim?
There must be other existing parties already involved in the action e.g it has to be more than one D
What are the formalities for an additional claim against an existing party for contribution or indemnity?
Additional claim form + notice containing nature and grounds of additional claim + serving on all parties
Is permission needed for an additional claim against the existing party for contribution or indemnity?
If filed or served at same time as defence, no permission. At any other time - courts permission.
Is court permission needed for any other additional claim (third party)?
If filed or served at same time as defence, no permission. At any other time - courts permission.
What formalities are there for other additional claims(third party)?
N211 claim form served within 14 days of issue, court will give directions as to when notice to be given.
What are other additional claims that can arise?
An additional claim by the C to a third party (no mention of D) - (third party)
What do all additional claims need if they are NOT party to proceedings?
Response pack, copy of every SOC and court documents and copy of additional claim form to be served on every existing party.
How are the names of parties presented if there are additional parties?
“Third party” and “fourth party”.
What are additional claims subject to?
Usual rules of if C does not file a counterclaim, D can apply for default judgment.
What happens when a party FAILS to reply to N211 form to the other party to proceedings who is not already a party?
Claim will be taken to be admitted
