DR - Additional Claims and Changing Parties

What is an additional claim?

any claim other than the claim by claimant against defendant

What are the 4 types of additional claim?

1. counterclaim against claimaint

2. counterclaim against claimant and a third party

3. claim for a contribution/indemnity from another party in proceedings

4. any other claim involving a third party

What is a counterclaim?

- claim made by D pursued in the same proceedings as the main claim

What are the rules around counterclaims?

- must follow rules for particulars of claim e.g., state whether interest is sought, explain what damages are sought

- must contain DBCL

- must pay court fee when filing

What is the defence of set off?

- where the facts that give rise to a counterclaim may also amount to a defence in the main claim.

- has effect of 'extinguishing' any claim up to the same amount against the D - and will reduce amount to pay if the amount owed to D is more than amount claimed

e.g., A claims £20,000 from B. B counterclaims £10,000 from A. If they both succeed, B will only need to pay A £10,000

In what cases can the set-off defence work?

- mutual debts - can be set off against one another (does not apply to mutual damages!)

- Sale of Goods Act - where seller sues for price of good sold and delivered, buyer can set off a claim for breach of implied terms as to quality and fitness for purpose

- defective services - where a claim is made for the price of services, the defendant can set off a claim for damages for poor services.

- equitable set-off - when the court considers that there is such a close connection between the two transactions that it would be manifestly unjust to allow enforcement of one claim without taking into account the cross-claim.

What is this?

"Further or in the alternative, if the Defendant is held liable to the Claimant, the Defendant will seek to set off against the Claimant's claim as much of the sum awarded by way of counterclaim in these proceedings as to reduce it or extinguish it altogether."

The defence of set-off, included in D's Defence and Counterclaim, before the start of the counterclaim

What are the rules around C's response to D's counterclaim?

- MUST file a defence in response

- if not, then D can apply for default judgment against them

- otherwise same response rules as usual

e.g., no need to acknowledge service, but can do, defence to a counterclaim must be served within 14 days after service of the counterclaim, if they fail to respond, counterclaim will be admitted.

What is a 'reply'?

- optional statement of case served by the claimant if they wish to allege facts in answer to the defence which were not included in the claim

- must be verified by a statement of truth

- should be the last statement of case in a claim - permission is needed to file after this

How and when should a reply be filed?

- reply should be filed with the the directions questionnaire.

- directions questionnaire is a case management doc which should be filed after a claim is defended

What is 'contribution' under CPR?

D's right to recover from T all or some of the amount D is due to pay to C

What is indemnity under CPR?

right to recover from T the whole amount D is liable to pay

Who can D get contribution/indemnity from?

- an existing party

- a third party

Can D bring a counterclaim against someone other than C?

- yes, would have to be against C and someone else

- there must be some connection between the claimant and third party in respect of the counterclaim

- but claim can arise from separate set of facts

e.g., D engages a builder and architect, D thinks the work is shoddy and does not pay builder (C). C brings claim for non-payment, D brings counterclaim against both C and architect.

When does D need permission from the court to file a counterclaim?

- no permission needed if filed at the same time as the defence

- will need permission if filed at any other time

When does D need permission from the court to file a counterclaim against someone other that C?

permission always required

When does D need permission from the court to claim contribution or indemnity from one of the parties in their case?

- no permission needed if filed at the same time as the defence

- will need permission if filed at any other time

How should additional parties be referred to in proceedings?

- 'third party', 'fourth party'

- in the order they joined the proceedings

What will happen if a party does not file a defence to a counterclaim?

can apply for default judgement as usual

What will happen if an existing party does not reply to a notice of contribution or indemnity?

NOT possible to apply for default judgment

What will happen if a third party does not respond to a claim?

- it will generally be deemed to admit the claim and will be bound by the judgment or decision given at trial of the main claim, to the extent that it is relevant to the matters in the additional claim

- BUT not possible to apply for default judgment unless in exceptional cases

Why might a party request further information from the other party?

- to obtain admissions

- to get information which may reveal weakness in other side's case

- to get information about what a witness may say before exchange of witness statements

- to get clarification of the other party's case, to prevent them from departing from it later

What can a party request information about?

any matter which is in dispute in the proceedings

- broader than simply information contained in statement of case/particulars of claim etc

What is the limit on making requests of other parties?

requests should be confined to matters reasonably necessary and proportionate to enable requesting party to prep own case/understand other party's case

What must the response to a request include?

- dated and signed by party/their legal rep

- statement of truth

- must be sent to other party and filed at court

What if the other party cannot provide a response?

- must inform the party who made the request giving reasons for the objection and object within the timeframe set out in the request

- if it would be disproportionately expensive to comply with request, reasons why must be explained, for example, the request is about matters that are irrelevant, disproportionate, not reasonably necessary or privileged.

How can the court compel a party to respond to a request for further information?

- court can order a party to clarify any matter in dispute in proceedings or to give additional information in relation to any such matter even if the matter is contained or referred to in a statement of case

- may apply to court when the other party has not responded or has objected

- application will be an interim application

Why might a party need to amend their statement of case?

- to add a party or claim

- after change of knowledge of a case

- to amend drafting error

What must be included along with an amendment?

statement of truth

- unless court orders otherwise

Who will be responsible for the costs arising from an amendment/adding or substituting a party?

- the party applying

How can a party make an amendment with consent of other parties?

- Any statement of case can be amended at any time with the written consent of all the other parties

- will not need court permission ahead of time

- but can still be disallowed by the court

Whose permission is required to add additional defendants?

permission needed from the court

- no need for permission from other Ds

What will P need if they want to make an amendment when statement of case has been served, and they do not have consent of other parties to amend?

must apply to court for permission to make an amendment

- will be dealt with at a hearing or on written submissions

- if granted, P must file the amended statement of case within 14 days of grant, to every party in proceedings

- if the amendment changes the substance of the statement, will need a statement of truth

What factors will the court consider when considering permission to amend?

- overriding objective of dealing with cases justly and at proportionate cost

- will reject amendment if it has no prospect of success

- will reject if amendment presents a version of the facts which is implausible, self-contradictory or not supported by evidence

Why would the court be wary of accepting amendments close to date of trial?

- can put parties on unequal footing and burden respondent

- may even cause postponement of trial, which J will want to avoid

- more willing to accept when arising from late disclosure or new evidence

- may impose heavy costs penalty when accepting

What is the test for adding Cs and Ds to a claim before limitation period has expired?

1. amendment must be 'desirable', either:

- it is desirable to add the new party so that the court can resolve all 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.

2. will also consider the overriding objective (adding parties leads to cost and time spent)

3. limitation period must not have expired!

Whose consent is needed to add/remove parties?

- can never add a C without their consent

- court's permission is always required to add, remove or substitute a party after the claim form has been SERVED

- can usually get consent from the court as long as amending party pays costs

Are amendments allowed after the limitation period has expired?

starting point: will not be allowed

When can a new cause of action be added to an existing statement after limitation period has expired?

- in a personal injury action if it would be equitable to do so

- if new cause of action is an original set-off or counterclaim

- if new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim

What 4 changes can be made to the parties to a claim after the limitation period has expired?

- correcting a mistake as to the name of a party

- changing the capacity of a party

- changing the identity of a defendant

- can add and substitute parties after limitation period has expired (with conditions)

When can parties be added or substituted after the end of the relevant limitation period?

- the limitation period was current when the proceedings were actually started

AND

- the addition or substitution is 'necessary'

When will the addition/substitution be 'necessary'?

- the new party is to be substituted for one that was named in the claim form in mistake for the new party

or

- the claim cannot properly be carried on/by/against the original party unless the new party is added or substituted

or

- the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.

How does the court distinguish between mistakes in name and mistakes in identity?

- Mistakes in name: Genuine mistake that causes no reasonable doubt about the party's identity

- Mistakes in identity: More fundamental, requiring substitution of a new party

- The court considers whether the intended defendant was identified by a specific description in the statements of case

What is the test set out in The Sardinia Sulcis case for allowing amendments to parties?

"Has the intended defendant been identified in the statements of case 'by reference to a description more or less specific to the particular case'?"

If yes = the amendment may be permitted

If no = the court cannot permit the amendment

- The court retains discretion to allow or disallow the amendment to avoid potential injustice

Where will D include their counterclaim?

Will follow straight after their defence, usually on the same document