WS3 - Additional Claims & Changing Parties Flashcards
Counterclaims and other relevant SoC: - Introduction: How else may D respond in addition to AoS/Defence?
They may:
* Wish to make a counterclaim
* If they did, claimant would usually serve a defence to a counterlciam
* C may serve additional statement of case known as a reply, in the same way as we considered for defence.
Counterclaims and other relevant SoC - a) CC by D against C: What is the relevant section of CPR?
- Type of additional claim which is dealt with by CPR 20.
- There are various additional claims, but CPR 20.4 deals with counterclaim by D against C.
Counterclaims and other relevant SoC - a) CC by D against C: What is a counterclaim?
- Seperate claim to main claim which is normally made at same time as serving defence.
- To make coutnerclaim after defence filed, permission of court needed - CPR 20.4(2).
Counterclaims and other relevant SoC - a) CC by D against C: How is a counterclaim pursued?
- D’s counterclaim against C pursued in same rpoceedings in main claim and thus dealt with under same claim number, etc.
- D could instead commence on entirely sepparate claim, but usually more convenient for D to combine with main claim.
Counterclaims and other relevant SoC - a) CC by D against C: What can the court do?
If they think it should not be heard with main claim, they can:
* Strike out
* Order that it be heard seperately.
Counterclaims and other relevant SoC - a) CC by D against C: What should a CC look like?
If made at same time as the defence:
* Should form a single document with defence 15 PD 3
* Normally follows on directly from the defence (within the same document) and is clearly labelled as a counterclaim. (“Defence and Cunterclaim”
* CC is essentially PoC and must comply with rules and therfore cover four elements of claim (duty, breach, causation and loss and also CPR 16.4 and 16 PD.
Counterclaims and other relevant SoC - a) CC by D against C: What must also be paid on CC?
Court fee.
Counterclaims and other relevant SoC - b) Set Off: What can a CC give rise to in main claim?
- Facts giving rise to CC may amount to defence in main claim such as defence of set off.
- This can be a partial or complete defence depending on the value.
Counterclaims and other relevant SoC - b) Set Off - i) Consequences of set off: What are consequences of set off depending on outcome of main claim/counterclaim?
In relation to example above:
* If C and D is successful, set off applies to extinguish £10,000 of claimant’s judgement against D and therfore only entitled to £10k
* If C unsuccessful but D successful, no judgement in favour of C for set off to attach and judgement will simply be entered for D against C in sum of £10k
* If C successful and D unsuccessful, then set off is not triggered and judgement simply entered against D for full amount claimed.
Counterclaims and other relevant SoC - b) Set Off - ii) Legal basis for set off: When can D use set off?
There are only certain circumstances and most important are:
Counterclaims and other relevant SoC - b) Set Off - ii) Form of set off: Where should set off defence be set out?
The defence of set off should be set out in Defence part of the defence and counterclaim as opposed to counterclaim aprt - CPR 16.6
Counterclaims and other relevant SoC - c) Defence to CC: What must C do?
- Respond to any CC against them
- Similarly, can either be admitted or defended by a C.
Counterclaims and other relevant SoC - c) Defence to CC: What is time for serving defence to CC?
- No requirement for C to acknowledge service using AoS - CPR 20.4(3)
- C defence must be filed and served in accordance with usual rules for defence - CPR 15 therefore within 14 days after service of CC.
Counterclaims and other relevant SoC - c) Defence to CC: What if C fails to serve defence to CC?
Defendant can enter judgement in default - CPR 12.3(2)(b)
Counterclaims and other relevant SoC - c) Defence to CC: What is the form of a defence to CC?
Very similar to normal defence and must therfore comply with usual rules for defences - CPR 16.5 and 16 PD.
Counterclaims and other relevant SoC - d) Reply: What should be known regarding the reply?
- This is an optional final statement of case.
- Usually prepared at time as Claimant considered response to CC, the reply and defence to CC normally form one document with defence to CC following on from reply - 15 PD 3.2
- Reply should be last statement of case in claim and permission of court needed to file any statement of case after - CPR 15.9.
Additional Claims - Introduction: What are the relevant parts of CPR?
CPR 20
Additional Claims - Introduction: What are the different types of additional claims?
We will then consider each type of additional claim below.
Additional Claims - Introduction: What is the position forclaimants and additional claims?
Claim by original claimant cannot fall into any of categories in the table, even if they add further claim to existing claim.
Additional Claims - a) Classic Counterclaims: See information above for classic counterclaims by Def against C under CPR 20.4.
Additional Claims - b) CC against person other than claimant: What will the Defendant sometimes have?
CC against both the claimant and another person at the same time - CPR 20.5 (Rare in practice)
Additional Claims - b) CC against person other than claimant: Who must D’s cause of actio be against?
- Must be against the Claimant and some other party who is, for example, jointly liable with C to the Defendant.
Note - If C not involved with claim D is bringing, this would be a claim by D against some other party not involved int he current proceedings (main claim of C and D) which would not be a CC as not D against C and nothing to do with main cause of action as C not involved.
Additional Claims - b) CC against person other than claimant: What if they are not part to main court action between C and D?
They will need to be joined into main claim as a third party so D’s CC can proceed.
Additional Claims - b) CC against person other than claimant: Summary of counterclaim against person other than C
- D CC must be against claimant and PT together
- Must be some connection between claimant and TP in respect of CC (If not, D simply pursues entirely seperate action on TP)
- However, as with other CC’s, it can arise from completely different set of facts from main claim.
See P97 for example of this claim.
Additional Claims - c) Claims for contribution or indemnity from an existing party: What do these claims involve?
D claiming contribution or indemnity from someone else to cover any liability it might be ordered in the main claim, that they owe to claimant.
Additional Claims - c) Claims for contribution or indemnity from an existing party: What is the definition of contrubtion and indemnity?
- Contribution means “a right of smeone to recover from third person all or part of the amount which they are liable to pay.
- Indemnity means “a right of someone to recover from a third person the whole amount which himself is liable to pay and for purpose of CPR, indemnity is equibalent to 100% contribution.
Additional Claims - c) Claims for contribution or indemnity from an existing party: When may right to these claims arise?
- Contribution - Tort, contract or under Civil Liaility (contribution) Act such as an RTA case, that act might give drive sued by injured pedestrian right to seek contribution if other driver contributed.
- Indemnity - Often arise from contract (with one party contracting to idnemnify another) or some other statutory provision such as a defendant being sued for professional negligence might have contractual right to claim indemnity form insurers.
Additional Claims - c) Claims for contribution or indemnity from an existing party: What is hallmark of these claims?
Party pursuing claim is seeking to recover something which itself is obliged to pay from someone else.
Additional Claims - c) Claims for contribution or indemnity from an existing party: How can D make claim?
A D who has acknowledged service or served defence may make additional claim for citrbution or indemnity against an existing partyy - CPR 20.6 by filing contrubtion notice with the court and serving this on the other party - So no set form
Additional Claims - c) Claims for contribution or indemnity from an existing party: Summary of these claims
Additional Claims - d) Other Additional Claims: What are the other additional claims?
CPR 20.7:
* Additional claim by D against any person (already party to proceedings claiming some remedy other than contribution or an indemnity) such as against Co-defendant
* Additional claim against any person (not already party) claiming contribution or an indemnity.
* Additional claim being made by party which itself has been joined to main proceedings pursant to CPR 20.
Additional Claims - d) Other Additional Claims: Where are the issues in these claims found?
Purely between D and TP and do not involve claimant at all, but many of the issues depend on what happen in main claim between C and D such as:
* D’s loss in additional claim arises solely out of anything the defendant is order to pay to claim in main claim
* There will be frequently related matters of evidence and fact, which once decided in main claim will resolve point in additional.
See example on P99
Additional Claims - Procedure - a) Permission: When is permission needed for an additional claim?
Additional Claims - Procedure - a) Permission: How is permission applied for?
- The normal interim application procedure.
- Application notice accompannies by draftorder and evidence in support which will include stage of main claim, details of additional claim, summary of relevant facts, explanation of any delay and name and address of any proposed party - 20 PD 2.
Additional Claims - Procedure - b) Structure - i) Classic Counterclaims: How will these take form?
- They wull usually take form of particulars of counter claim - CPR 20.4(1)
- Defence and counterclaim should normally form one single document, with counterclaim following on from defence - 20 PD 6.1 and therfore will be served together in accordance with time limits for defence.
Additional Claims - Procedure - b) Structure - ii) Counterclaims against a person other than C: How will these take form?
- Claim for contribution or indemnity from another person (already a party) is made by serving appropiate notice.
- No set form for making CPr 20.6 claim or equivalent to N1, example on court service website.
Additional Claims - Procedure - b) Structure - ii) Counterclaims against a person other than C: When should the notice be served?
- If court permission not required. then notice filed and served with defence.
- If court permission required, court will give diections as to when notice should be served.
Additional Claims - Procedure - b) Structure - iii) Other additional claims: How will these take form?
- They are started by issuing an N211 claim form which is similar to the nromal claim for other than contains more room for details of all parties.
Additional Claims - Procedure - b) Structure - iii) Other additional claims: When should hey be served?
- If additional claim made without coruts permission, should be served on person against who it is made 14 days of it being issued - CPR 20.8
- If court permission required, court will give directions as to when.
Additional Claims - Procedure - b) Structure - iv) All additional claims: What is the position when additional claim served on a someone not a party?
They become party proceedings if not already - CPR 20.10 and if served on someone not a party, it must be accompanied by - CPR 20.12(1):
* A response pack and
* A copy of every statement of case and any other documents that the court directs.
Copy of claim form must also be served on every existing party - CPR 20.12(2)
Additional Claims - Procedure - c) Case Management: What must court consider on theese claims?
- If the remedies should be sought by way of an additional claim or if they should be sought by a seperate action altohether.
- E.G Unless there is susbtantilal connection between original proceedings and additional claim, court usually direct to be dealt seperate - CPR 20.9
Additional Claims - Procedure - c) Case Management: When will court arrange hearing for case management?
- Where D to additional claim files defence, other than to a CC, the court will arrange hearing to consider case maanagmeent of additional claim - 20 PD 5.1
Additional Claims - Procedure - d) Title of Proceedings for additioanl claims: How should original parties be referred?
Claimants and defendants in original claim should always be referred to as such in the title to proceedings, even if they subsequently acquire additional procedural status - 20 Pd 7.3.
Additional Claims - Procedure - d) Title of Proceedings for additional claims: How should additional parties be referred?
In accordance with the order which they jointed, such as “third party or fourth party” and so on - 20 PD 7.4
Additional Claims - Procedure - d) Default judgement and additional claims: What must be done for additional claim to be treated as claim?
Party served with an additional claim must file a defence in accorddance with usual rules.
Additional Claims - Procedure - d) Default judgement and additional claims: What happens if person receiving additional claim fails to respond?
- If party does not file defence to CC, defendant can apply for default judgement - CPR 12.3.
- Note - If existing party does not reply to notice of contribution or indemnity, not possible to apply for default judgement.
- For other claims, if N211 served on person not a party, should be accomanied by AoS and response pack and if the party fails to respond within specified time limit, then generally deemed to admit the claim and bound by the judgement or decision given at trial of main claim - CPR 20.11(2) = **but not possible to apply for default judgement in such claims, other than exception circumstances. **
Amending statements of Case - a) General Amendments: How are the rules grouped?
- General amendments - CPR 17
- Amendments which remove, add or subsitute a party - CPR 19
Amending statements of Case - a) General Amendments: What must amendments be verified with?
- Statement of truth - CPR 22 unless court orders otherwise.
Amending statements of Case - a) General Amendments - i) Amendment without permission or consent: When can amendments be made without consent?
A party can amend statement of cases, including removing, adding or substituting a party at any time before it is served - CPR 17.1(1)
Amending statements of Case - a) General Amendments - i) Amendment without permission or consent: WWhat will these amendments be limited to?
- Amendments to claim form in period between issue and service
- Amendments to other statements of case such as PoC prior to service
- Amendments before service can be extensive such as rewriting entire text of changing parties and cause of action, but note any amendment to PoC altering parties involved may require consent or permission if claim form served as such changes may require amendment to already served claim form and court could disallow such amendments CPR 17.2.
Amending statements of Case - a) General Amendments - ii) Amendment by consent: What is all other parties consent?
- Any statement of case can be amended at any time with written consent of all other parties - CPR 17.1(2)(a)
- Note - The court can still disallow such amendments - CPR 17.2
Amending statements of Case - a) General Amendments - ii) Amendment by consent: What is the general rule for amendments by consent?
Party making the amendment will bear the costs of and arising from the amendment PD 17
Amending statements of Case - a) General Amendments - iii) Amendment with the courts permission: What is the position is statement of case served and parties not consenting to amendment?
The party will need to apply to the court for permission to amke amendment - CPR 17.1(2)(b)
Amending statements of Case - a) General Amendments - iii) Amendment with the courts permission: What must party seeking amendment file?
- Application notice with the court
- Together with copy of proposed amended statement of case 17 PD 1.2
Amending statements of Case - a) General Amendments - iii) Amendment with the courts permission:What directions will court give if permission to amend given?
- Directions as to any consequential amendments and service of any amended statements of case - CPR 17.3(1)
Amending statements of Case - a) General Amendments - iii) Amendment with the courts permission: What should party consider on amendment?
- Amended statement of case should usually be filed by applicant within 14 days of date of order granting amnedment unless court order otherwise.
- Copy of amended statement of case and order should also be served on every party to proceedings.
- If substance of statement of case changed by reason of amendment, the statement of case should be re-verified by statement of truth.
See 103 for when court will grant in which they will have to consider ov
Amending statements of Case - a) General Amendments - iv) Late Amendments: What is position for amendments late in the case?
- They can cause unfiarness in putting parties on unequal footing or risk delaiying trial date which court wish to avoid.
- Applicant seeking permission will therefore need to work very hard to convice court for permission as to why application not earlier.
Amending statements of Case - b) Which add, remove or substitue parties: What is the relevant section of CPR?
CPR 19 - Claimant will require courts permission to remove, add or subsittute a party if claim forma lready served.
Amending statements of Case - b) Which add, remove or substitue parties: What is the main test to satisfy for thes eamendments?
- The amendment must be desirable and in considering this, court will have in mind the policy objective of enabling parties to be heard if rights affected by decison in a case.
- Adding parties increases complexity and case maangement which can increase costs, so court will keep this in mind.
Amending statements of Case - b) Which add, remove or substitue parties - i) Additional claims and adding parites What should claimants consider when additional claim arises?
Status in the main claim of the parties to the additional claim should be considered, as allegations of the additional claim might impact it and could leave a party exposed.
The example below shows where it would be useful for claimant of defendant to apply for an order the defendant to an additional claim, is added as defendant to main claim - CPR 19.2(2)(b)
Important from WS - If defendant brings additional claim against TP not a party, then claimant will want to also bring them as a party to main claim as per example below.
Amending statements of Case - b) Which add, remove or substitue parties - ii) Permission and/or consent needed: What is the position for a party?
- No one can be added as claimant without their consent, with consent being filed at court - CPR 19.4(4).
- If someone refuses to be added as claimant, can instead be added as defedantn ( CPR 19.3(2).
Amending statements of Case - b) Which add, remove or substitue parties - ii) Permission and/or consent needed: Is court permission required?
Courts permission is always required to add, rmeove or substitute a party unless the claimf orm has not yet been served. - CPR 19.4(1) and permission usually given to amend on basis amending party pays costs of it.
Amending statements of Case - b) Which add, remove or substitue parties - iii) Amendments after limitaiton period: What is position for amendments once limitation expired?
- The starting point is the limitation act 1980 in which the usual rule is that such amendments will not be allowed. = S35(3) Limitation Act 1980.
- However, there are exceptions to this general rule noted below.
Amending statements of Case - b) Which add, remove or substitue parties - iii) Amendments after limitaiton period: (1) What are the circumstances when a new cause of action can be added to existing statement of case after limitation?
- Whencourt directs limitation period will not apply in PI action - s33 Limitation act which corut has general discreiton to disapply if jsut and equityable to do so.
- The new cause of action is an original set-off or counter claim - S35(3)
- The new cause of action arises out of the same facts or substanially the same facts as are in issue in the original claim - S35 (5)
So, courts permission is required and may allow but only if new claim arises out fo same facts or substtnally same as claim in respect of which party seeking permission to amend has already claimed remedy - CPR 17.4(2)
Amending statements of Case - b) Which add, remove or substitue parties - iii) Amendments after limitaiton period: (2) What are the cirucmstances court may allow parties to be added post limitation?
- to correct mistake as to name of a party - CPR 17.4(3)
- To change capacity of a party - CPR 17.4(4)
- To change identity of defendant
Amending statements of Case - b) Which add, remove or substitue parties - iii) Amendments after limitaiton period: (2) What are requirements for court to give permission for circumstances above?
Parties may only be added or substituted afer end of limitation period if:
* Limitation period was current when rpoceedings were actually started; and
* Addition or substition is necessary - CPR 19.5(2)
Amending statements of Case - b) Which add, remove or substitue parties - iii) Amendments after limitaiton period: (2) When will it be deemed necesary?
Only if court is satisfied that CPR 19.5(3):
* (a) The new party is to be substituted for one that was named in claim form in mistake for new party.
* (b) The claim cannot be properly carried on/by/against original party unless new aprty is added or substituted or
* (c) Original party has died or had bankruptcy order made against him and his interest or liability passed to new party.
Amending statements of Case - b) Which add, remove or substitue parties - iii) Amendments after limitaiton period: How do courts apply when it is necessary?
Court will distiguish between mistakes in name only and those which actually result in an entirely different person or entity becoming a party i.e mistakes to idetntity, to which there are two types:
- Intended party may have been named in claim form but genuine mistake which does not cause no reasonable doubt as to identity of party in question e.g naming defendant Daryl instead of Darren.
- Sometimes, mistake more fundamental and situation can only be made right by new party being substituted e.g driver of vehicle Darren, but wife registered keeper and claimant issues on the registered keeper and not the driver, but in the statement, makes clear they intend to sue the driver then therforedefendant identified “by reference to a description more or less specific to the particular case” then court has power to allow amendment.
However, if claimant issues on Sarah due to serious misunderstanding of the law, and then wants to amend to Daren, they would not be able to as not adequately described.
Se eexample on 107 and case of Sardinia Sulcis sets out bold above.
Amending statements of Case - c) Format of amended statement of case: How should an amendment look once agreed?
- No need for amended statement of case to show original text unless court orders otherwise
- Amendments are to be shown by either (i) using coloured amendments or (ii) by using numerical code 17 PD 2.2
- If colour coding is used, the order of colour for successive amendments is (1) Red (2) Green (3) Violet and (4) Yellow
- The amended statement of case sohuld contain appropiate endorsement 17 PD 2.1 and be verified by statement of truth CPR 22.1(2)
Amending statements of Case - d) Summary:
Request for further information - Introduction: What is the prupose of requests for information?
- Sometimes the statement of case can be somewhat confusing or fails to set out the case precisely enough.
- If so, CPR 18 comes into play which provides at any time, either court or parties may request further information.
Request for further information - Introduction: What if successful in request?
- Party ordered to clarify any matter in dispute or
- Give additional information in relation to any such matter.
Request for further information - a) Procedure: What is party first expected to do?
- Seek information from other party on volunatrary basis and should only make application if request cannot be resolved. 18 PD 1
- Party seeking information serves written request on the other party stating a date for a reapsonse allowing reasonable time to respond.
Request for further information - a) Procedure: What should the request be?
- Concise and confined to matters which are reasonable necessary and proportionate to enable the requesting party to prepare its own case/understand opponents.
Request for further information - b) Responding to request: How must party respond?
- Response must be written, dated and signed by the party or its legal representative and include a statement of truth. - 18 PD 2 and then sent to other party and filed at court.
Request for further information - b) Responding to request: What if they wish to object?
- Must inform party who made the request giving reasons for objection and object within time frame in the request - 18 PD 4.
- If request can only be complied with at disproporionate expense, reasons why must be explained.
Request for further information - c) Request to court for further information: When is this appropiate and what can corut order?
- If other party not responded or objectved to provide information - 18 PD 1.1
- Court can order party to clarify any matter in dipsute in the proceedings or give additional information in relation to any such matter whether or not the matter is contained or referred to in statement of case - CPR 18.1
- court can direct further information given by a party to another either voluntarily or pursuant to an order is not to be usedf for any purpose of than proceedings - CPR 18.2.
Request for further information - c) Request to court for further information: How should the application be made?
- As an interim application - CPR 23 and 18 PD 5
- If other party has not responded after 14 after 14 days passed, application can be made without notice to them and court can deal with application without hearing.
