Additional claims and changing parties

What is a counterclaim under CPR 20?

A separate claim brought by the defendant, usually against the claimant, within the same proceedings.

When is a counterclaim normally served?

At the same time as the defence.

Is permission needed to serve a counterclaim with the defence?

No.

When is permission required for a counterclaim?

If it is served after the defence.

How should a defence and counterclaim usually be presented?

As one clearly labelled document, with the counterclaim following the defence.

Does a counterclaim use a separate claim number?

No; it is pursued in the same proceedings under the same claim number.

Must a counterclaim arise from the same facts as the claimant’s claim?

No.

In what capacity must parties sue and be sued in a classic counterclaim?

In the same capacities as in the main claim.

What powers does the court have over a counterclaim?

It may strike it out under CPR 3.4 or order it to be heard separately under CPR 3.1(2)(e).

What pleading rules must a counterclaim comply with?

The rules governing particulars of claim.

What is set-off?

A defence where the facts giving rise to the counterclaim also reduce or extinguish the claimant’s claim.

What is the effect of set-off?

It extinguishes the claimant’s claim up to the amount of the defendant’s cross-claim.

When can set-off commonly arise in a sale of goods claim?

Where the seller sues for the price and the buyer has a claim for breach of implied terms as to quality or fitness.

When can set-off arise in a services claim?

Where the claimant seeks payment for services and the defendant claims damages for defective performance.

What is equitable set-off?

Where claims are so closely connected that it would be manifestly unjust to enforce one without taking account of the other.

Where should a plea of set-off appear?

In the defence part of a defence and counterclaim.

What options does a claimant have in response to a counterclaim?

Admit it or defend it.

Does a claimant need to acknowledge service of a counterclaim?

No.

What is the time limit for a claimant’s defence to counterclaim?

14 days after service of the counterclaim.

What may happen if the claimant fails to defend a counterclaim in time?

The defendant may obtain default judgment.

What pleading rules apply to a defence to counterclaim?

The usual defence rules under CPR 16.5 and the relevant Practice Direction.

What is a reply?

An optional claimant statement of case responding to facts raised in the defence that were not pleaded in the claim.

When should a reply normally be filed?

With the directions questionnaire.

Must a reply be verified by a statement of truth?

Yes.

How are a reply and defence to counterclaim usually presented?

In one document, with the defence to counterclaim following the reply.

Is the reply normally the last statement of case?

Yes; permission is required for any later statement of case.

What is an additional claim under CPR 20?

Any claim other than the claimant’s claim against the defendant.

How should an additional claim generally be treated procedurally?

As a claim, subject to limited exceptions.

What can happen if an additional claim is not defended?

The party may be deemed to admit it, depending on the type of additional claim.

What are the two main statements of case in every defended claim?

Particulars of claim and defence.

What is a classic counterclaim?

A defendant’s claim against the claimant under CPR 20.4.

Does a classic counterclaim require permission if filed with the defence?

No.

What form does a classic counterclaim usually take?

Particulars of counterclaim incorporated into the same defence-and-counterclaim document.

Can a defendant counterclaim against the claimant and another person?

Yes, under CPR 20.5.

What connection is needed between the claimant and third party for a counterclaim against both?

There must be some connection concerning the counterclaim, e.g. potential joint liability.

What must happen to the third party in a counterclaim against the claimant and another person?

They must be joined into the proceedings.

Must the original claimant remain involved in a CPR 20.5 counterclaim?

Yes.

Must a CPR 20.5 counterclaim arise from the same facts as the main claim?

No.

Is permission required for a counterclaim against the claimant and another person?

Yes, always.

What is a contribution claim?

A claim to recover all or part of a sum that the claimant on contribution is itself liable to pay.

What is an indemnity claim?

A claim to recover the whole amount the claimant is liable to pay.

How is an indemnity treated for CPR purposes?

As equivalent to 100% contribution.

Against whom may a defendant bring a contribution or indemnity claim under CPR 20.6?

Another person already party to the proceedings.

What document may be used to claim contribution or indemnity from an existing party?

A contribution notice.

When is permission not needed for a contribution/indemnity claim against an existing party?

If filed and served with the defence, or against a later-added party within 28 days of that party’s defence.

When is permission required for a contribution/indemnity claim against an existing party?

Outside those circumstances.

Is there a prescribed form for a contribution notice?

No, though PF22 is given as an example format.

What is a CPR 20.7 claim against an existing party?

An additional claim seeking a remedy other than contribution or indemnity.

When is permission not needed for a CPR 20.7 claim against an existing party?

If issued before or at the same time as the defence.

Can a defendant bring an additional claim against someone not already a party?

Yes.

What may a defendant claim against a non-party under CPR 20.7?

Contribution, indemnity or some other remedy.

Does such a third-party claim need to involve the claimant directly?

No, but it may depend on the outcome of the main claim.

What is an example of a third-party claim depending on the main claim?

A defendant seeks from a third party whatever amount it is ordered to pay the claimant.

When is permission not needed for an additional claim against a non-party?

If issued before or at the same time as the defence.

What claim form is used for an additional claim against a non-party?

N211.

What must accompany an N211 claim form?

An acknowledgement of service and response pack.

When should an N211 claim be served if no permission is required?

Within 14 days of issue.

What happens if permission is required for an N211 claim?

The court gives directions about service.

Can a party who has itself been joined bring an additional claim?

Yes, under CPR 20.2(1)(c) and 20.7.

When can a newly joined party bring an additional claim without permission?

If issued before or at the same time as its defence.

What happens when an additional claim is served on someone who was not already a party?

They become a party to the proceedings.

What must be served with an additional claim on a new party?

Response pack, every statement of case, and any other document directed by the court.

What must be served on existing parties when a new additional claim is issued?

A copy of the additional claim form.

What happens when a defence is filed to an additional claim other than a counterclaim?

The court arranges a case-management hearing.

How should original claimants and defendants be described after additional parties are joined?

They remain “claimant” and “defendant”.

How are additional parties usually described?

By the order in which they joined, e.g. “third party”.

What happens if a claimant fails to defend a counterclaim?

The defendant may seek default judgment.

Can default judgment normally be obtained for failure to respond to a contribution or indemnity notice?

No.

What happens if a new party fails properly to respond to an N211 additional claim?

They are generally deemed to admit it and may be bound by the judgment in the main claim.

Is default judgment generally available for failure to respond to an N211 additional claim?

No, except in exceptional circumstances.

How is permission for an additional claim sought?

By the normal interim application procedure.

What should accompany an application for permission to bring an additional claim?

Application notice, draft order and supporting evidence.

What should supporting evidence for permission to bring an additional claim cover?

Stage of main claim, details of additional claim, relevant facts, explanation of delay and details of proposed party.

Which CPR governs amendments to statements of case?

CPR 17.

Must an amended statement of case be verified by a statement of truth?

Yes.

Why are amendment rules particularly strict after limitation expires?

Because amendments may otherwise circumvent the limitation rules.

Who generally bears costs caused by an amendment?

The party seeking or making the amendment.

Can a statement of case be amended before service without permission or consent?

Yes.

When may changing parties require permission even before other amendments would?

If the claim form has already been served.

Can parties amend statements of case by agreement?

Yes, at any time with written consent of all parties.

What endorsement should appear on an amendment made without court permission?

That it was amended under the relevant CPR 17.1 provision, with the date.

Can the court disallow an amendment agreed between parties?

Yes.

When is court permission needed to amend a statement of case?

Where all parties do not give written consent.

What must accompany an application for permission to amend?

An application notice and copy of the proposed amended statement of case.

Can an amendment application be dealt with without a hearing?

Yes, where parties consent and written submissions are sufficient.

What does the court do if permission to amend is granted?

Gives directions for consequential amendments and service.

How quickly should an amended statement of case normally be filed after permission is granted?

Within 14 days of the order, unless otherwise directed.

Who must receive the amended statement of case and amendment order?

Every party.

What endorsement should appear on an amendment made by court order?

That it was amended by order of the named judge on the stated date.

When must an amended statement of case be reverified by a statement of truth?

Where the substance has changed.

What general approach does the court take when deciding whether to allow an amendment?

Balance injustice to the applicant if refused against injustice to opponents and other litigants if allowed.

What should parties do once a proposed amendment becomes apparent?

Tell opponents as soon as possible.

Will an amendment to a defence be allowed if it has no prospect of success?

No.

Can an amendment plead an inherently implausible or self-contradictory factual case?

The court may refuse it.

Can an amendment introduce an allegation unsupported by evidence?

No.

Why are late amendments treated more strictly?

They may create unfairness, impose additional preparation burdens and cause trial adjournment.

What must an applicant for a late amendment explain?

Why it was not sought earlier and why justice requires it despite prejudice to others and court resources.

Which case sets out key principles on very late amendments?

Swain-Mason v Mills & Reeve.

What did Swain-Mason v Mills & Reeve say about very late amendments?

Courts should be less willing to allow them unless prompted by genuinely late material such as new disclosure or evidence.

Who bears the burden on a very late amendment application?

The party seeking the amendment.