W3

Question 1

What are counterclaims and when are they served?

Answer 1

Counterclaims are claims made by a defendant against a claimant in the same proceedings as the main claim. They are served at the same time as the defendant files their defence.

Question 2

What are the necessary elements of a counterclaim?

Answer 2

A counterclaim needs to establish duty, breach, causation, and loss against the claimant. It must comply with the rules on particulars of claim and with CPR 16.4. It should also be clearly labeled as a counterclaim and form a single document with the defence.

Question 3

What is the legal effect of set off in a counterclaim?

Answer 3

Set off has the effect of ‘extinguishing’ any claim up to the same amount against the defendant. It allows the defendant to reduce or even eliminate the claimant’s judgment against them.

Question 4

When can a counterclaim be made after the defence has been filed?

Answer 4

If a counterclaim is made after the defence has been filed, permission of the court is needed (CPR 20.4(2)).

Question 5

What is the purpose of a reply in response to a counterclaim?

Answer 5

A reply is an optional statement of case served by the claimant to allege facts in answer to the defence that were not included in the initial claim. It is usually filed with the directions questionnaire.

Question 6

What happens if a claimant fails to serve a defence to a counterclaim within the required time limit?

Answer 6

If a claimant fails to serve a defence to a counterclaim within the required time limit, a judgment in default might be entered by the defendant (CPR 12.3(2)(b)).

Question 7

What are the circumstances where a defendant can set off its judgment in a counterclaim against the claimant’s judgment?

Answer 7

The defendant can set off its judgment in the counterclaim against the claimant’s judgment if there are mutual debts, if the Sale of Goods Act 1979 applies, or if there is an equitable set-off. The set-off must comply with the relevant rules and court guides.

Question 8

What is the last statement of case in a claim and when is it filed?

Answer 8

The last statement of case in a claim is the reply. It should be filed with the directions questionnaire and must be verified by a statement of truth. No further statements of case can be filed after the reply without permission of the court.

Question 9

What should be considered when new causes of action, claims, or parties arise during a claim?

Answer 9

The viability of any new potential matter should be considered in detail, including case analysis, costs risk benefit analysis, and priority to the client. Advice should be given to the client on how they may choose to proceed. Tactical reasons for proceeding or not proceeding should also be considered.

Question 10

What are the advantages of adding a new cause of action, claim, or party to the original claim?

Answer 10

If the new cause of action, claim, or party is directly concerned with or closely connected to the existing claim, it may become part of the original claim. This saves time and costs and avoids inconsistent judgments from multiple cases on the same or similar facts and evidence.

Question 11

How do the rules on limitation apply to new claims?

Answer 11

The rules on limitation apply to all new claims, whether they are brought as a separate action or added to an existing claim that has already started. This should be factored into any advice given to the client.

Question 12

What are counterclaims and when are they served?

Answer 12

Counterclaims are claims made by a defendant against a claimant in the same proceedings as the main claim. They are served at the same time as the defendant files their defence.

Question 13

What is the legal basis for a counterclaim?

Answer 13

A counterclaim needs to establish duty, breach, causation, and loss against the claimant. It may or may not be related to the claimant’s substantive cause of action against the defendant.

Question 14

What is the effect of set off in a counterclaim?

Answer 14

Set off allows the defendant to ‘extinguish’ the claimant’s claim up to the amount of the defendant’s claim against the claimant. It applies when the facts giving rise to the counterclaim can also be used as a defence of set off in the main claim.

Question 15

How should a counterclaim be presented?

Answer 15

A counterclaim should be presented as a single document with the defence, clearly labeled as a counterclaim. It must comply with the rules on particulars of claim and contain the necessary elements of a claim: duty, breach, causation, and loss.

Question 16

What is the purpose of a reply in response to a counterclaim?

Answer 16

A reply is an optional statement of case served by the claimant to allege any facts in answer to the defence that were not included in the claimant’s earlier claim. It is usually filed with the directions questionnaire.

Question 17

When should a defence to a counterclaim be served?

Answer 17

A defence to a counterclaim must be served within 14 days after service of the counterclaim. Failure to serve a defence within the time limit may result in a judgment in default entered by the defendant.

Question 18

What are the consequences of a successful set off in a counterclaim?

Answer 18

If the claimant is successful and the defendant is successful in their respective claims, the set off applies to extinguish part of the claimant’s judgment against the defendant. The claimant will only be entitled to the remaining amount. However, if the claimant is unsuccessful and the defendant is successful, there is no judgment in favor of the claimant for the set off to attach to.

Question 19

What are the circumstances where a defendant can set off its judgment in a counterclaim against the claimant’s judgment?

Answer 19

A defendant can set off its judgment in a counterclaim against the claimant’s judgment if there are mutual debts between the claimant and defendant, if the Sale of Goods Act 1979 applies, or if there is a claim for damages for poor services. Equitable set-off may also be considered if there is a close connection between the two transactions.

Question 20

What is the form of a defence to a counterclaim?

Answer 20

A defence to a counterclaim is similar to a ‘normal’ defence and must comply with the rules on defences. It should be set out in the defence part of the Defence and Counterclaim document and must be served within 14 days after service of the counterclaim.

Question 21

What is the purpose of a reply in relation to a counterclaim?

Answer 21

A reply is an optional statement of case served by the claimant to respond to any counterclaim made against them. It is usually prepared at the same time as the claimant is considering their response to the counterclaim and is filed with the defence to counterclaim.

Question 22

What is the last statement of case in a claim?

Answer 22

The reply is the last statement of case in a claim. After the reply, permission of the court is needed to file any further statement of case.

Question 23

What are the key concepts covered in relation to multiple causes of action, counterclaims, and additional claims?

Answer 23

The key concepts covered include amending statements of case, addition and substitution of parties, and counterclaims and other additional claims. These concepts can be technical and operate closely together.

Question 24

When might a claimant need to serve a reply?

Answer 24

A reply is not filed in every case, but if there is one, it should be filed with the directions questionnaire. The time limit for serving a reply may vary in specialist proceedings.

Question 25

What are the rules regarding amendments to statements of case?

Answer 25

Amendments relate to any type of amendments to statements of case, not just those related to new causes of action, counterclaims, and additional claims. Amendments may be necessary due to changes in parties, knowledge of the case, or drafting errors.

Question 26

What is the definition of a counterclaim?

Answer 26

A counterclaim is a claim brought by a defendant in response to the claimant’s claim, and it is included in the same proceedings as the claimant’s claim.

Question 27

What is the purpose of a classic counterclaim?

Answer 27

A classic counterclaim is a defendant’s counterclaim against the claimant, pursued in the same proceedings as the main claim. It is a common type of counterclaim.

Question 28

What is the significance of filing a contribution notice in CPR 20?

Answer 28

A defendant who has acknowledged service of a claim or served a defence may make an additional claim for contribution or indemnity against an existing party by filing a contribution notice with the court and serving it on the other party. This allows the defendant to seek recovery for something they are obliged to pay to someone else.

Question 29

What are the requirements for making a claim for contribution or indemnity from an existing party?

Answer 29

To make a claim for contribution or indemnity from an existing party, the defendant must have acknowledged service of the claim or served a defence. They can then file a contribution notice with the court and serve it on the other party. There must be a legal basis for the claim, and case analysis is essential.

Question 30

What types of additional claims can be made against a person other than the claimant?

Answer 30

Additional claims against a person other than the claimant include claims for contribution or indemnity, claims for other remedies, and claims against a person who is not already a party to the proceedings. These claims must have a legal basis and follow the rules outlined in CPR 20.

Question 31

What is the purpose of a third-party claim in CPR 20?

Answer 31

A third-party claim is a type of additional claim made by a party that has been joined to the main proceedings pursuant to CPR 20. It allows the defendant to point the blame at a third party who the claimant cannot or does not wish to sue directly.

Question 32

What is the definition of an indemnity in the context of CPR 20?

Answer 32

In the context of CPR 20, an indemnity is a right of someone to recover from a third person the whole amount which they themselves are liable to pay. It is a form of contribution that equates to a 100% recovery.

Question 33

What is the difference between a classic counterclaim and other types of additional claims?

Answer 33

A classic counterclaim is a defendant’s counterclaim against the claimant, pursued in the same proceedings as the main claim. Other types of additional claims include claims for contribution or indemnity, claims for other remedies, and claims against third parties. Classic counterclaims are more common, while other types of additional claims are less frequent.

Question 34

What is the purpose of filing a defence to a counterclaim?

Answer 34

If a counterclaim is disputed, the claimant must serve a defence to the counterclaim in response. The defence to counterclaim is similar to a normal defence, and both the main claim and counterclaim will continue to case management together.

Question 35

What are the requirements for making an additional claim against a person who is not already a party to the proceedings?

Answer 35

To make an additional claim against a person who is not already a party to the proceedings, there must be a legal basis for the claim. The defendant must file the claim in accordance with the usual rules and serve a defence. Failure to respond may result in being deemed to admit the claim.

Question 36

What is the definition of a counterclaim against a person other than the claimant?

Answer 36

A counterclaim against a person other than the claimant is a counterclaim by the defendant against the claimant and some other person. The counterclaim must be based on a legal cause of action against both parties.

Question 37

What is the purpose of joining a third party to the main proceedings?

Answer 37

Joining a third party to the main proceedings allows the defendant to make a counterclaim against the claimant and the third party together. There must be a connection between the claimant and the third party in relation to the counterclaim. This type of counterclaim is less common than classic counterclaims.

Question 38

What are additional claims in a legal context?

Answer 38

Additional claims in a legal context refer to claims that are separate from the main claim between the claimant and the defendant. These claims involve issues between the defendant and a third party and may depend on the outcome of the main claim.

Question 39

How can a defendant protect their position in an additional claim?

Answer 39

If a defendant is ordered to pay the claimant in the main claim, they can bring an additional claim against a third party for a contribution or indemnity to recoup what they are ordered to pay. This additional claim is based on the duty of care the third party owed to the defendant, which was breached and caused the loss.

Question 40

When is permission required to pursue a counterclaim or an additional claim?

Answer 40

Permission is required to pursue a counterclaim or an additional claim if it is filed at any other time than when the defence is filed, or if it is a counterclaim against a person other than the claimant, or if it is a claim for a contribution or indemnity from an existing party.

Question 41

What is the process for applying for permission to bring an additional claim?

Answer 41

To apply for permission to bring an additional claim, the party must submit an Application Notice accompanied by a draft order and evidence in support. The evidence should include details of the main claim, a summary of relevant facts, an explanation of any delay, and the name and address of the proposed party. The application follows the normal interim application procedure.

Question 42

What are the different structures and forms of additional claims?

Answer 42

Classic counterclaims take the form of ‘particulars of counterclaim’ and are filed and served together with the defence. Counterclaims against a person other than the claimant are made by serving the appropriate notice. Other additional claims are started by issuing an N211 claim form, which is similar to the normal claim form (N1).

Question 43

When is permission required to make an additional claim?

Answer 43

No Permission? If the additional claim is issued before or at the same time as the defence is filed. Permission? If filed at any other time.

Question 44

What happens if a party does not respond to an additional claim?

Answer 44

If a party does not file a defence to an additional claim, a defendant can apply for default judgment as usual. However, if an existing party does not reply to a notice of contribution or indemnity, it is not possible to apply for default judgment.

Question 45

What are the rules for amending statements of case and changing parties?

Answer 45

Amendments to statements of case can be made before they are served without permission or consent. Amendments with the court’s permission require an application notice and a copy of the proposed amended statement of case. The court will decide whether to allow amendments, especially after the limitation period has expired. Amendments generally require a statement of truth unless the court orders otherwise.

Question 46

When can a statement of case be amended without permission or consent?

Answer 46

A statement of case can be amended at any time before it is served without permission or consent. However, if the amendment alters the parties involved, consent or permission may be required if the claim form has been served.

Question 47

What is the process for amending a statement of case with the court’s permission?

Answer 47

To amend a statement of case with the court’s permission, the party seeking the amendment must file an application notice accompanied by a copy of the proposed amended statement of case. The court may arrange a hearing or decide the application on written submissions. If permission is granted, the amended statement of case should be filed and served within 14 days of the order.

Question 48

When will the court give permission to amend a statement of case?

Answer 48

The court will give permission to amend a statement of case unless the limitation period has expired. However, the court will exercise caution when allowing post-limitation amendments to ensure there is no prejudice to a defendant deprived of their defence of limitation.

Question 49

What happens if a person does not respond to a Form N211 in the appropriate way or within the specified time limits?

Answer 49

If a person fails to reply to a Form N211 in the appropriate way or within the specified time limits, they will generally be deemed to admit the claim and will be bound by the judgment or decision given at the trial of the main claim, to the extent that it is relevant to any matter arising in the additional claim.

Question 50

What are the considerations for case management when there are additional claims?

Answer 50

When there are additional claims, the court will consider whether remedies should be sought through an additional claim or a separate action. The court may direct the claims to be dealt with separately if there is no substantial connection between the original proceedings and the proposed additional claim. Case management hearings may be arranged to discuss the additional claim and any consequential amendments.

Question 51

How are additional parties referred to in the title of proceedings?

Answer 51

In the title of proceedings, claimants and defendants in the original claim should always be referred to as such. Additional parties should be referred to in the title according to the order in which they are joined to the proceedings, such as ‘Third Party’ or ‘Fourth Party’, regardless of their procedural status.

Question 52

What is the purpose of amending statements of case in litigation?

Answer 52

The purpose of amending statements of case in litigation is to allow parties to modify or update their claims or defenses based on new information or developments in the case.

Question 53

What factors should be considered when seeking permission to amend a statement of case?

Answer 53

When seeking permission to amend a statement of case, factors such as the prospects of success, the balance between injustice to the applicant and injustice to the opposing party, and the impact on other litigants and the court’s resources should be considered.

Question 54

What are some general principles for granting permission to amend a defense?

Answer 54

Permission to amend a defense may be refused if the proposed amendment has no prospect of success or if it raises a version of the facts that is implausible, self-contradictory, or unsupported by contemporaneous documentation. Additionally, an amendment unsupported by evidence or based on pure speculation may be rejected.

Question 55

What considerations are involved in allowing late amendments in litigation?

Answer 55

Allowing late amendments in litigation can potentially cause unfairness, unequal footing, or trial postponement. The court will carefully consider the reasons for the late application, the strength of the new case, and the impact on justice for all parties involved.

Question 56

What are the requirements for adding or substituting parties in litigation after the limitation period has expired?

Answer 56

Parties may only be added or substituted after the limitation period has expired if the limitation period was current when the proceedings were started and the addition or substitution is deemed necessary. The court will assess the necessity based on factors such as mistaken identity, the inability to carry on the claim without the new party, or the transfer of interest or liability.

Question 57

What are the consequences of adding or substituting parties in litigation after the limitation period has expired?

Answer 57

Adding or substituting parties after the limitation period has expired requires the court’s permission. The court will consider the necessity of the amendment and may impose a heavy costs penalty on the party seeking the amendment. The onus is on the applicant to justify the amendment and meet the requirements of preparing a proper pleading.

Question 58

What are the considerations when adding, removing, or substituting parties in litigation?

Answer 58

When adding, removing, or substituting parties in litigation, the court will consider the policy objective of enabling affected parties to be heard, the complexity and case management decisions required, and the impact on cost and time. The court will exercise discretion based on the overriding objective and the specific circumstances of the case.

Question 59

What are the requirements for adding, removing, or substituting parties in litigation?

Answer 59

Parties may be added, removed, or substituted in litigation if it is desirable and satisfies the court that the amendment is necessary. The court will consider the policy objective of enabling affected parties to be heard and the overriding objective of dealing with cases justly and at proportionate cost.

Question 60

What are the consequences of late amendments in litigation?

Answer 60

Late amendments in litigation can potentially cause unfairness, unequal footing, or trial postponement. The court will be mindful of these factors when considering permission for late amendments. The applicant must provide a good explanation for the delay and demonstrate the strength of the new case and why justice requires the amendment.

Question 61

What are the principles for allowing very late amendments in litigation?

Answer 61

The court should be less ready to allow very late amendments unless they result from late disclosure or new evidence. The party seeking a late amendment has a heavy onus to justify it and must satisfy the requirements of preparing a proper pleading. Deficiencies cannot be rectified by further information or evidence in due course.

Question 62

What are the considerations for amending statements of case close to the trial date?

Answer 62

Amending statements of case close to the trial date can potentially cause unfairness and put an excessive burden on the opposing party’s preparation. The court will be mindful of these factors when considering permission for late amendments and may even consider the risk of trial postponement.

Question 63

What are the principles for allowing amendments in professional negligence actions?

Answer 63

In professional negligence actions, the court should be less ready to allow very late amendments unless they result from late disclosure or new evidence. The party seeking a late amendment has a heavy onus to justify it and must satisfy the requirements of preparing a proper pleading. The court will carefully consider the impact on other parties and cases before making a decision.

Question 64

What are the requirements for adding, removing, or substituting parties in litigation after the limitation period has expired?

Answer 64

Parties may only be added or substituted after the limitation period has expired if the limitation period was current when the proceedings were started and the addition or substitution is deemed necessary. The court will assess the necessity based on factors such as mistaken identity, the inability to carry on the claim without the new party, or the transfer of interest or liability.

Question 65

What is the correct approach for the court when deciding issues related to amendments post limitation in relation to the name of the party?

Answer 65

The correct approach for the court when deciding such issues is to determine if the intended defendant has been identified in the statements of case by reference to a description more or less specific to the particular case. If yes, it is a mistake of the type covered by CPR 19.5(3)(a) and the amendment may be permitted by the court. If not, then the court cannot permit the amendment.

Question 66

Under what circumstances can the court allow the substitution of a new defendant who is unconnected with the original defendant and unaware of the claim until after the expiry of a relevant limitation period?

Answer 66

The court can allow the substitution of a new defendant, unconnected with the original defendant and unaware of the claim until after the expiry of a relevant limitation period if the intended defendant has been identified in the statements of case by reference to a description more or less specific to the particular case. This allows for the amendment under CPR 19.5(3)(a).

Question 67

What is the significance of the court’s discretion in allowing amendments to the names of parties?

Answer 67

The court has the discretion to allow amendments to the names of parties, but it is not obliged to do so if it would be unjust. This discretion helps avoid potential injustice in cases where a mistake has been made in identifying the party after the limitation period has expired.

Question 68

What are the requirements for making a request for further information in legal proceedings?

Answer 68

A party seeking further information should make a written request to the other party, stating a date for a response. The request should be concise and confined to matters that are reasonably necessary and proportionate to enable the requesting party to prepare its own case or understand the opponent’s case.

Question 69

When can the court order a party to clarify any matter in dispute or give additional information in relation to such matter?

Answer 69

The court can order a party to clarify any matter in dispute or give additional information in relation to such matter, whether or not the matter is contained or referred to in a statement of case. This can be done through an application to the court if the other party has not responded or has responded with an objection to provide the information.

Question 70

What restrictions can the court impose on the use of further information provided by a party?

Answer 70

The court can direct that further information given by a party to another party, either voluntarily or pursuant to an order, is not to be used for any purpose other than the current proceedings. This restriction is outlined in CPR 18.2.

Question 71

What is the format of the amended statement of case?

Answer 71

The amended statement of case does not need to show the original text unless the court orders otherwise. Amendments can be shown using coloured amendments or a numerical code. The amended statement of case should contain the appropriate endorsement and be verified by a statement of truth.

Question 72

When can a party remove, add, or substitute a party without permission from the court?

Answer 72

A party can remove, add, or substitute a party without permission from the court if the claim form has not been served. Once the claim form has been served, the court’s permission is required to make such changes.

Question 73

What happens if a party objects to providing further information?

Answer 73

If a party objects to providing further information, they must inform the party who made the request and provide reasons for the objection. The objection must be made within the timeframe set out in the request. If the request can only be complied with at disproportionate expense, the reasons for this must be explained.

Question 74

What is the purpose of making a request for further information in legal proceedings?

Answer 74

A party may make a request for further information to obtain admissions, reveal weaknesses in the other party’s case, obtain information about facts that the other party needs to prove, or acquire advance details of what a witness may say before exchanging witness statements. It can also be used to obtain clarification of the other party’s case and narrow the issues between the parties to save time and costs.

Question 75

What are the requirements for responding to a request for further information?

Answer 75

The response to a request for further information must be written, dated, and signed by the party or its legal representative. It should include a statement of truth. The response must be sent to the other party and filed at court.

Question 76

What is the court’s power in relation to amendments to statements of case?

Answer 76

The court has the power to allow amendments to statements of case if the claim form has not been served. Once the claim form has been served, the party will require the court’s permission to remove, add, or substitute a party.

Question 77

What is the court’s power in relation to amendments to statements of case after the limitation period has expired?

Answer 77

If a genuine mistake is made that causes no reasonable doubt as to the identity of the party in question, the court has the power to allow the amendment under CPR 17.4(3). However, if the intended defendant is not adequately described or the mistake relates to someone with an entirely new identity, the court has no power to allow the amendment.

Question 78

What is the purpose of obtaining further information in legal proceedings?

Answer 78

The purpose of obtaining further information is to clarify or acquire additional information about any matter in dispute in the proceedings. This can help a party prepare its own case, understand the opponent’s case, obtain admissions, reveal weaknesses, or narrow the issues between the parties.