Unit 11 - Amendments, Additional Parties and Additional Claims

Question 1

Can a party amend their statement of case at any time?

Answer 1

No - only any time before it has been served on any other party. CPR 17.1(1)

Question 2

If a statement of case has been served, when can a party amend it?

Answer 2

With written consent of all parties; or

With permission of the court.

CPR 17.1(2)

Question 3

Can a court disallow an amendment where the court’s permission was not required for it?

Answer 3

Yes.

CPR 17.2(1)

Question 4

What is the test to be applied in an opposed application to amend?

Answer 4

Whether the proposed new claim has a real prospect of success.

Question 5

Do parties requesting a late amendment face a heavier burden?

Answer 5

Yes.

Must show why he did not apply earlier + strength of case + why it is just.

Question 6

Should parties inform each other of plans to seek amendments?

Answer 6

Yes.

Question 7

What are the principal matters to consider for late amendments?

Answer 7

Timing
Lateness
Reason for not happening earlier
Respective prejudice to parties
Clarity of amendment sought

Question 8

Under CPR 17.4, when will the court allow an amendment to a statement of case under which the limitation period has expired?

Answer 8

Only if the new claim arises out of (substantially) the same facts as a claim in respect of which P has already claimed a remedy.

OR

Amendments to correct mistakes as to a party’s name, where the mistake was genuine and not causing reasonable doubt as to the identity of the party in question:

OR

Amendments to alter the capacity of a party if the new capacity is one which P had when proceedings started, or has since acquired.

Question 9

Once permission to amend is given, how long does A have to file the amended SoC?

Answer 9

within 14 days of the order, or such other period as the court may direct.

Question 10

Must an amended SoC be re-verified by a statement of truth?

Answer 10

Only if the substance of the case is changed.

Question 11

With the exception of CPR 19.5 (post-limitation period), when may a court order a person to be added as a new party?

Answer 11

1. desirable to add them so the court can resolve all disputes;
2. an issue involves the new party and an existing party, and it is connected to the matters in dispute + desirable to add them to resolve.

Question 12

When can the court order someone to cease being a party?

Answer 12

If it is not desirable for that person to be a party CPR 19.2(3)

Question 13

A court may order a new party to be substituted for an existing one if:

Answer 13

The existing party’s interest or liability has passed on to them; and

Desirable to subtitute them so that the court can resolve matters.

Question 14

Is the court’s permission to remove, add or substitute a party needed if the claim form has not been served?

Answer 14

No.

CPR 19.4(1)

Question 15

Who can apply to have a a party removed, added or substituted?

Answer 15

An existing party or a person wishing to become a party.

CPR 19.4(2)

Question 16

Nobody may be added or substituted as a claimant unless

Answer 16

Consent in writing;

Consent filed by court.

Question 17

An application for an order to substitute a party due to passing interest/liability requires notice and evidence. TRUE or FALSE.

Answer 17

Notice is not required, but it must be supported by evidence.

Question 18

A new defendant does not become a party to the proceedings until…

Answer 18

…the amended claim form has been served on him.

Question 19

CPR 20 concerns…

Answer 19

Counterclaims.

Question 20

Does default judgment apply to counterclaims.

Answer 20

Yes, but not to other additional claims.

Question 21

If D files their CC with their defence, do they need the court’s permision to do so?

Answer 21

No. If they file it separately, they do.

Question 22

What must a defendant do if they want to CC against a person other than the claimant?

Answer 22

Apply to court for an order that that party is added as an additional party.

Question 23

When can a defendant file and serve a notice for contribution/indemnity claim without the court’s permission?

Answer 23

If served with defence; or

It is against a party added to the claim later, and within 28 days of filing defence.

Question 24

What matters must a court consider when considering whether an additional claim should be permitted, dismissed or made separately?

Answer 24

The connection between the claims;

Is the remedy sought substantially the same as what is being claimed from the applicant?

Does P want the court to decide questions connected with the subject-matter of the proceedings?

Question 25

An application for permission to make an additional claim must be supported by evidence stating:

Answer 25

Stage of proceedings reached;

Nature of additional claim;

Questions to be decided;

Summary of facts upon which additional claim is based;

Name and address of any proposed additional party.

Question 26

CPR 17 concerns

Answer 26

Amendments

Question 27

CPR 19 concerns

Answer 27

Adding and substituting parties

Question 28

CPR 20 concerns

Answer 28

Additional claims

Question 29

Do additional claims have to arise from the same incident as the original claim?

Answer 29

No.

Question 30

True or False. CPR 20.6 claims can only be brought against parties not currently involved in the proceedings.

Answer 30

False - 20.6 claims can only be brought against existing parties.

Question 31

What distinguishes a N211 form from a normal claim form?

Answer 31

It provides space for the additional party’s details.

Question 32

Traditional counterclaims are brought under..

Answer 32

CPR 20.4

Question 33

CPR 20.5 counterclaims can be brought against…

Answer 33

…a person other than a claimant.

Question 34

Give two examples of abstract scenarios where CPR 20.5 can be used:

Answer 34

1. Where D needs to bring another party into proceedings because they are jointly liable with C under D”s counterclaim.
2. Where D1 brings a claim against D2 who is already in the proceedings because D1 claims they are jointly liable with C under D1’s counterclaim.

Question 35

Do CPR 20.5 claims stand on their own?

Answer 35

No - they occur alongside a standard 20.4 CC against the Claimant. The 20.5 claim must be the same as the 20.4 one against C.

Question 36

What is the advantage of bringing a 20.7 claim against an additional party instead of a 20.5 claim?

Answer 36

This avoids the need for an application to court if issued before or alongside filing the defence.

Question 37

How is a 20.5 claim against D2 different from a 20.6 claim?

Answer 37

20.6 is for contribution/indemnity, not counterclaim.

Question 38

How is a 20.5 claim against D2 different from a 20.4 claim?

Answer 38

D2 is not a Claimant in respect of D1.

Question 39

Under Civil Liability Contribution Act 1978, a 20.6 claim is only successful where D1 and D2 are liable..

Answer 39

…in respect of the same damage. Which means committing the same wrongdoing.

Question 40

How is 20.6 different from 20.7?

Answer 40

20.6 applies where the contribution/indemnity is sought from an existing party and 20.7 applies where D wants to add a new party in order to claim contribution/indemnity from that party.

Question 41

When is 20.7 used?

Answer 41

Where D claims for their own losses, or for indemnity/contribution, against an additional party who has not yet joined the proceedings.

Question 42

What is the substantial difference between 20.5 and 20.7?

Answer 42

20. 5 is always a CC brought jointly against C and AP.

20. 7 covers claims brought against AP only.

Question 43

True or false. A CC brought against C and an existing party (D2) can be brought under 20.5 or 20.7

Answer 43

False. It can only be brought under 20.5.

20. 7 can only be used against a party not part of proceedings.
21. 5 can be used against D2 or AP, alongside a CC against C.

Question 44

True or false. 20.7 claims require a CC against C to occur alongside.

Answer 44

False.

Question 45

True or false. Permission of the court is needed to amend a PoC to add a new cause of action if the amendment is made before proceedings are issued.

Answer 45

False. 17.1(1)

A party can amend his statement of case at any time before it has been served on any other party.

Question 46

True or false. If the limitation period has expired a party cannot amend its particulars of claim to include a new cause of action unless the party can show that the amendment is necessary to correct a mistake.

Answer 46

Wrong - there has been a confusion of 17.4(2) and (3).

• 17.4(2): “The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.
• 17.4(3): “The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.”

A mix up of the two grounds of amendment post-limitation.

Question 47

True or false. ] Permission of the court is not needed to amend particulars of claim after the particulars of claim have been served if all parties consent in writing to the amendment.

Answer 47

True. 17.1(2)(a)

• If his statement of case has been served, a party may amend it only (a) with written consent of all parties OR (b) with the permission of the court.

Question 48

True or false. If permission of the court was not needed to amend the particulars of claim the court has no power to subsequently disallow the amendment.

Answer 48

False. 17.2(1)

• The court can disallow amendments where permission of the court was not required.

Question 49

Can a person who wishes to become a party to proceedings apply to be added?

Answer 49

Yes - 19.4(2)(b)

Question 50

What is the test for adding a party to proceedings?

Answer 50

The test is at 19.2(2):

It is desirable so that the court can resolve all of the matters in dispute in the proceedings; or
There is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue.

Question 51

How long does a party have to serve a claim form after issue?

Answer 51

4 months - CPR 7.5

Question 52

The addition or substitution of a party is necessary only if the court is satisfied that: 19.5(3)

Answer 52

(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party

(b)     the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as a claimant or defendant.

Question 53

Is permission needed to add AP as a party for a 20.5 claim?

Answer 53

Yes - 20.5(1)

Question 54

Is permission needed to add AP as a party for a 20.7 claim?

Answer 54

No - 20.7(3)(a)

Question 55

Can counterclaims against C be made without court permission?

Answer 55

If brought before or alongside filing the defence - 20.4(2)(a).

Question 56

When making a decision to permit an amendment, what matters should the court have regard to and where can these be found in the White Book?

Answer 56

The application / case should be dealt with ‘Justly’ and the matters highlighted in CPR 1.1(2) are considered by the court when making their decision.

Question 57

‘The test applied in an opposed application to amend is not the same as the test for Summary Judgment.’ Is this statement TRUE or FALSE?

Answer 57

False - it is.

Question 58

Will an amendment be allowed to put forward a case that has no basis in established law?

Answer 58

No.

Question 59

You have been newly instructed in a case that is set down for trial next week. The original Counsel instructed had to drop out due to a family emergency. Upon reading the papers and researching the relevant law, you take the view that a key legal argument has not been put forward within your Defence. Three days before the trial you seek permission to amend a statement of case. The amendment may have cost consequences and (depending on how your opponent deals with the new argument put forward) it may lead to the trial date being pushed back.

In light of the above, will the court allow the amendment?

Answer 59

Very unlikely. The late nature of the application, the lack of good reasons for the amendment (the information re the legal argument was based on information available at the start of proceedings), the potential costs and timetable consequences mean that such an application would not succeed.

Question 60

Where there is a dispute as to whether an amendment to bring in a new claim is statute barred; what will the Claimant have to prove to the court?

Answer 60

(i) that the Defendant’s limitation defence is not reasonably arguable or
(ii) that, in any case, the proposed amendment falls within the provisions of CPR 17.4 or 19.5

Question 61

‘Right description, wrong name’. What case does this quote derive from when it comes to a mistake under CPR 19.5(3)(a)?

Answer 61

The Sardinia Sulcis

Question 62

Under CPR 19.5(3)(b); if a claimant does not have standing to bring a claim, is it possible to substitute the claimant for a party that did have standing to act as the claimant?

Answer 62

Yes - Irwin v Lynch [2010]