Prep 3 Additional Claims and Changing Parties

Counterclaim under CPR 20

A claim made by the defendant against the claimant separate to the main claim but still pursued in the same proceedings

Counterclaims under CPR 3.1(2)(2)

Court may strike out counterclaims or order it to be heard separately if not appropriate to hear it with the main claim

Form of Counterclaim under 15 PD 3

• Normally follows directly from the defence in a document entitled Defence and Counterclaim

• Must contain the four necessary elements of claim: duty, breach, causation and loss

Set Off

Where the counterclaim cancels out some or all of the value of the initial claim in the remedy

Legal Basis for Set Off

• s53(1) Sale of Goods Act 1979

• Defective Services

• Equitable Set-Off

Reply under CPR 15.8

An 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 under CPR 15.8

Amendments

Relate to amendments of:

• Statements of Case

• Parties to a case

• Adding additional claims

Additional Claim

Any claim other than the claim by the claimant against the defendant

Types of Counter Claim

• Classic Counterclaim

• Againnt the claimant and another third party

Contribution

Where a third party pays part of the remedy

Indemnity

Where a third party pays all of the remedy

Permission for a Classic Counterclaim under CPR 20.4

Only needed if filed after the defence

Permission for Counterclaims against a person other than the claimant under CPR 20.5

Permission is always required

Permission for Claims for a contribution/ indemnity from an existing party under CPR 20.6

Only needed if filed after the defence

Case Management

The court will have a hearing to determine whether the remedies sought by way of an additional claim should be hear as a separate action altogether

Amending Statements of Case without permission or consent under CPR 17.1(1)

Can be done at any time before the statement is served

Amendment of Statements by consent under CPR 17.1(2)(a)

Statements can be amended at any time with the written consent of all other parties

Amending a Statement with the court’s permission under CPR 17.1(2)(b)

An application with a proposed amendment should be filed to the court where there may be a hearing or parties may consent without a hearing on written submissions and the amendment should be filed within 14 days

When will the court grant permission to amend a statement?

• If the overriding objective is satisfied

• If the application has some prospect for success after its amendment

Late Amendments under Swain-Mason and ords v Mills & Reeve

• The court should be less ready to allow a late amendment

• There is a heavy onus to justify it

• The party cannot say that any deficiencies ill be rectified by further information/ evidence

Test for adding, removing or substituting parties under CPR 19

The amendment must be desirable

When will the court allow a new cause of action post limitation?

• In PI cases, if equitable

• If the new cause of action is an original set off or counterclaim

• If the new cause of action arises out of the same or substantially the same facts

Requirements for adding/ substituting parties post limitation under CPR 19.5

• Limitation period was current where proceedings were actually started; and

• Addition or substitution is necessary

When will a substitution be deemed necessary under CPR 19.5(3)?

• There is a mistake of identity

• The claim cannot be properly carried out without the new party

• The original party has died or gone bankrupt and so their liability has passed to the new party

Mistaken Identity or New person under The Sardinia Sulcis

“Has the intended defendant been identified in the statement of case by reference to a description more or less specific to the particular case?”

Request for Further Information under 18 PD 1

Should be made voluntarily between parties and only if not resolvable should the court be involved

Serving a Request for Further Information

• Should be written

• Should state a date for a response

• Should be confined to matters which are reasonably necessary and proportionate