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3. Additional claims and changing parties - Coggle Diagram
3. Additional claims and changing parties
Counterclaims and other possible statements of case
Counterclaims by a defendant against a claimant
form of additional claim (
CPR 20
)
Classic counterclaim (CPR 20.4) - separate claim to the main claim and made at the same time the defendant files defence.
If counterclaim is made after the defence has been filed, permission of the court is needed (
CPR 20.4(2))
Form of counterclaim
'Defence and Counterclaim'
CPR 15.7
a particulars of claim by another claim.
must comply with rules on particulars of claim.
must contain four necessary elements of claim: duty, breach, causation and loss.
must comply with
CPR 16.4 and 16 PD
court fee is payable
Fact:
Parties suing/being sued in the same capacities of the main claim, even if it the counterclaim doesn't have anything to do with the claimant's substantive cause of action.
Legal basis for set off
Mutual debts:
claimant and defendant owe each other money.
Section 53(1) Sale of Goods Act 1979:
seller sues for price of goods sold and delivered, buyer can set off a claim for breach of implied terms for quality and fitness for purpose.
-
Defective services:
claim is made for the price of services, the defendant can set off a claim for damages for poor services.
Equitable set-off:
developed by the courts when it considers that there is a close connection between 2 transactions.
A claim brought by the defendant in response to the claimant's claim, which is included in the same proceedings as the claimant's claim.
Defence to counterclaim
Time for serving defence to counterclaim
no requirement for claimant to acknowledge counterclaim using acknowledgement of service (
CPR 20.4(3)
must be filed in accordance with usual rules for defences (
CPR 15
) (defence must be served within 14 days after service of counterclaim)
if a claimant fails to serve a defence within requisite time limit, judgment in default might be entered into by defendant (
CPR 12.3(2)(b
)
Contents of counterclaim must comply with rules in relation to defences (
CPR 16.5 and 16 PD)
Additional claims
A counterclaim by a defendant against the claimant - CPR 20.2(1)(a) and 20.4
Any claim other than the claim by the claimant against the defendant.
A CLAIM BY THE ORIGINAL CLAIMANT IS NOT AN ADDITIONAL CLAIM.
Contribution:
A right of someone to recover from a third person all or part of the amount which is liable to pay.
Indemnity
- right of someone to recover from a third person the whole amount which is liable to pay.
A counterclaim by a defendant against the claimant and some other person - CPR 20.2(1)(a) and 20.5
If the other party is not already a main party, the other party needs to be joined into the main claim as a third party for the counterclaim to proceed.
Any additional claim by a defendant against any person (already a party to the proceedings) claiming some remedy other than a contribution or an indemnity - CPR 20.2(1)(b) and 20.7
Any 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 - CPR 20.2(1)(b)
An additional claim being made by a party which has itself been joined to the main proceedings pursuant to CPR 20 - CPR 20.2(1)(c) and 20.7
Any additional claim by a defendant against any person (already a party to the proceedings) claiming on contribution or an indemnity - CPR 20.2(1)(a) and 20.6
Filing a contribution notice with the court and serving that notice on the other party.
Procedure:
No permission required from the court
Classic counterclaim (
CPR 20.4)
- if filed at the same time as defence.
Counterclaims against a person other than the claimant (
CPR 20.5
) - N/A - permission always required.
Claims for a contribution or indemnity from an existing party (
CPR 20.6
) - if filed and served as same time as defence
Other additional claims (
CPR 20.7
) - if the additional claim is issued before or at the same time as the defence is filed.
Permission required from court
Classic counterclaim
(CPR 20.4
) - if filed at any other time.
Counterclaims against a person other than the claimant
(CPR 20.5
) - Permission is always required.
Claims for a contribution or indemnity from an existing party
(CPR 20.6)
-If filed at any other time.
Other additional claims (
CPR 20.7)
- If filed at any other time
Structure and form of additional claims
Classic counterclaims - particulars of counterclaim (CPR 20.4(1))
Defence and counterclaim form one document, they are filed and served together.
Counterclaim against a person other than a claimant - serve the appropriate notice. No set form for making claim.
Other additional claims - N211 claim form. Claim form should be served on the person against whom its made within 14 days of it being issue if additional claim made w/o courts permission - CPR 20.8
All additional claims - becomes a party CPR 20.10. If served on someone who is not party to proceedings, a response back and copy of statement of case - CPR 20.12(1).
Case management
Court will deal to directly separately unless there's a substantial connection - CPR 20.9
Where the defendant to an additional claim files a defence, court will arrange a hearing to consider case management of additional claim (20 PD 3.1 and CPR 20.13)
Title of proceedings where there are additional claims
claimants and defendants in original claim should always be referred in the title even if they acquire an additional procedural status - 20 PD 5.2
additional parties should be referred to as the order they joined, eg third party (20 PD 5.3)
Default judgment and additional claims - CPR 20.3
if a party doesn't file a defence, defendant can apply for default judgment (CPR 12.3(2)(b)
if an existing party does not reply to contribution or indemnity, it's not possible to apply for a default judgment.
where an additional claim form (N211) is served on a person not a party, should be with acknowledgment of service and response pack.
If a party fails to reply to a Form N211, it will be deemed to admit the claim an bound to judgment given to main claim - CPR 20.11(2)
Amending statements of case
General amendments - CPR 17
must be verified by statement of truth (CPR 22)
amendments which remove, add or substitute a party (CPR 19)
Amendments which add, remove or substitute parties - CPR 19
Amendment is 'desirable' CPR 19.2
Additional claims and adding parties - may impact issues in main claim.
Permission and/or consent needed - no one can be added as a claimant without their consent (CPR 19.4(4)) - if someone refuses, they can be added as a defendant (CPR 19.3(2)). Court's permission already required unless claim form has not been served (CPR 19.4(1).
Amendments after the limitation period has expired -
an amendment to add a new cause of action is deemed to be a separate action which is commenced on the same date as the original action.
General rule - under Limitation Act 1980 such amendments will not be allowed
Exceptions:
amendments in relation to PI (s33)
amendments generally (CPR 17.4)
amendments which add or substitute a party (CPR 19.6)
Amendment without permission or consent
Party may amend
at any time before it's served -
CPR 17.1(1) BUT the court retains power to disallow amendments (CPR 17.2)
Amendment by consent
Can be amended at any time
with the written consent
of all other parties (CPR 17.2(2)(a)
General rule: party making the amendments will bear the costs (PD 17)
Amendment with the court's permission
When a statement of case has been served and the written consent of all the parties has
not
been given, a party will need to apply to court for permission - CPR 17.1(2)(b)
Application notice with the court and amended statement of case (17 PD 1.2).
If permission to amend is given, the court will usually give directions as to any consequences (CPR 17.3(1))
Late amendments - goes against overriding objective.
Adding causes of action post limitation
Where new cause can be added to existing statement of case after end of limitation period
when the court directs the limitation period will not apply in a PI action.
cause or significance of PI or disease caused by negligence which only becomes apparent after 3 year period.
original set-off or counterclaim (s35(3)
arises out of same facts as those in original claim.
Adding parties post limitation
correcting a mistake as to name of a party (
CPR 17.4(3))
relates to changing the capacity of a party (
CPR 17.4(4))
relates to changing the identity of a defendant (
CPR 19.6
)
Requirements for adding/substituting parties post limitation
Parties may be added after end of limitation period if:
limitation period was current when proceedings were started; and
addition or substitution is 'necessary'
CPR 19.6(2)
Request for further information
Making a request
party is expected to seek information from the other party on a voluntary basis first and only to the court if no resolution - 18 PD 1
party serves written request for a response
request should be concise and confirmed to reasonably necessary and proportionate.
Response
must be written, dated and signed by the party or legal rep and include statement of truth (18 PD 2)
response must be sent to other party and filed at court.
if party objects, must inform party reasons (18 PD 4)
Request to court
court can order a party to clarify any matter (
CPR 18.1)
appropriate where other party has not responded or has objected request (18 PD 1.1)
application should be made as interim application (
CPR 23 and 18 PD 5)
OR if other party has not responded after 14 days have passed, the application can be made without notice to the opponent and deal without hearing.
if court makes an order - party must serve its response within timeframe. Response must be verified by statement of truth.
court can direct that further information given by a party to another (
CPR 18.2
)