Multiple Causes of Action, Counterclaims and Other Additional Claims (Syllabus 9)

Question 1

How many claimants or defendants can be joined as parties to a claim?

Answer 1

any number

Question 2

Can parties be added or substituted in a claim?

Answer 2

Yes, the court may order for a new party to be added if-

(a) it is desirable to add the new party so that the court can resolve the matters in dispute; or
(b) 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.

Question 3

Can parties be removed from proceedings?

Answer 3

Yes, the court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings

Question 4

When might a new party be substituted for an existing party?

Answer 4

if-

(a) the existing party’s interest or liability has passed to the new party; and
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute

Question 5

What happens where two or more persons are jointly entitled to a remedy?

Answer 5

where a claimant claims a remedy which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise

Question 6

What happens where a party jointly entitled to a remedy does not agree to be a claimant?

Answer 6

he must be made a defendant unless the court orders otherwise

Question 7

Does the rule about parties jointly entitled to a remedy apply in probate proceedings?

Answer 7

No

Question 8

What is the procedure for adding, removing or substituting parties?

Answer 8

(1) the court’s permission is required, unless the claim form has not yet been served
(2) an application for permission may be made by an existing party or a person wishing to become a party
(3) an application for an order for the substitution of a new party where the existing party’s interest or liability has passed- may be made without notice and must be supported with evidence.
(4) an order for the removal, addition or substitution of a party must be served on- all parties to the proceedings and any other person affected by that order.

Question 9

What must occur for a party to be added or substituted as a claimant?

Answer 9

they must have given their consent in writing and the consent must be filed with the court

Question 10

When the court makes an order for the removal, addition or substitution of a party what directions may it give?

Answer 10

(a) filing and serving the claim form on any new defendant.
(b) serving relevant document son the new party; and
(c) the management of the proceedings

Question 11

What happens where a party wants to add or substitute parties after the end of the limitation period?

Answer 11

the court may add or substitute a party only if-

(a) the relevant limitation period was current when proceedings were started; and
(b) the addition or substitution is necessary.

Question 12

When is the addition or substitution of a party necessary?

Answer 12

(1) the new party is to be substituted for a party who was named in the claim form in mistake for the new party
(2) the claim cannot be properly carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
(3) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party

Question 13

What is the meaning of a new claim under s.35 LA 1980?

Answer 13

any claim involving the addition or substitution of a new cause of action or a new party

Question 14

What are the two conditions that must be satisfied for the court to add or substitute a party pending proceedings after the expiry of a limitation period?

Answer 14

(1) the proceedings must have been commenced before the limitation period expired; and
(2) the addition of the new party must be necessary.

Question 15

Can the court refuse an application for addition or substitution after the expiry of the limitation period even if both conditions are satisfied?

Answer 15

Yes, the court has a discretionary power, which should exercised in accordance with the overriding objective.

Question 16

What happens where the original party named was named in mistake?

Answer 16

the court jay permit the substitution of a new party if it is satisfied that the new party is to be substituted fir a party who was named in mistake in the claim form for the new party

Question 17

What is the outcome of Sardinia Sulcis and what is the bearing of this on mistake?

Answer 17

this case showed that where a party was being substituted due to mistake, this mistake had to be as to the name of the party not to their identity.

Question 18

Can doubts as to identity be a consideration for the court when they are deciding whether to exercise their discretion in relation to substitution due to mistake?

Answer 18

Yes

Question 19

What are the 6 main points to be derived from the Sardinia Sulcis case?

Answer 19

(1) r.19.5(3)(a) allows more than the mere correction of the name of a party as it is a provision that allows for the substitution of a new party for the original named party.
(2) a claimant always intends to sue the person who is liable for the wrong that they have suffered; but the test cannot be that they have made a mistake which may be corrected where they sue another person
(3) there must be a test that includes mere correction of name but narrower than substitution of the person intended to be sued for the person actually sued
(4) the test is: is it possible to identify the intended defendant “by reference to a description more or less specific to the particular case”
(5) if the claimant gets the right description but the wrong name for their intended defendant, there is unlikely to be any doubt as to the identity of the person intended to be sued
(6) this test might allow the substitution of a new defendant unconnected with the original defendant and unaware of the claim until after the expiry of a relevant limitation period.

Question 20

Does an application for addition, substitution or removal of a party from a claim require a hearing?

Answer 20

No, if all the parties are in agreement, then no hearing is necessart

Question 21

Who can apply for parties to be added, substituted or removed?

Answer 21

the court can make an order on its own initiative, on the application of an existing party or a person who wishes to become a party

Question 22

Is evidence required for an application to add, substitute or removed a party?

Answer 22

Yes

Question 23

What must a party applying to add or substitute a new party as a claimant file?

Answer 23

(1) the application notice
(2) the proposed amended claim form and PoC; and
(3) the signed, written consent of the new claimant so to be added

Question 24

Where the court has made an order adding or substituting a new claimant what might the court direct?

Answer 24

(1) a copy of the order to be served on every party to the proceedings and any person affected by the order;
(2) copies of the statements of case and of documents referred to in those statements of case to be served on the new party
(3) the party who made the application to file within 14 days an amended claim form and PoC

Question 25

When does a new defendant become a party to the proceedings?

Answer 25

once the amended claim form and PoC has been served on him

Question 26

Where a party is making an application for transfer of interest or libaility what must the evidence supporting the order show?

Answer 26

what stage the proceedings have reached and what change has occurred to cause the transfer

Question 27

What is the purpose of CPR 20?

Answer 27

to enable counterclaims and other additional claims to be managed in the most convenient and effective manner

Question 28

What claims does CPR 20 apply to?

Answer 28

(1) a counterclaim by a defendant against the claimant or against the claimant and some other person
(2) an additional claim by a defendant against any person for contribution or indemnity or some other remedy; and
(3) where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person

Question 29

What is the meaning of additional claim?

Answer 29

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

Question 30

What CPR rules do not apply to additional claims?

Answer 30

(1) time within which a claim form must be served
(2) statement of value where claim to be issued in High Court and
(3) case management - preliminary stage

Question 31

Does Part 12 apply to additional claims and counterclaims?

Answer 31

it applies to counterclaims but not additional claims

Question 32

How can a defendant make a counterclaim against a claimant?

Answer 32

by filing particulars of the counterclaim.

Question 33

Can a counterclaim be made without the court’s permission?

Answer 33

Yes, if he files it with his defence, if he wishes to file it at any other time, the court’s permission is required

Question 34

How can a defendant make a counterclaim against a person other than the claimant?

Answer 34

they must apply to the court for an order that that person be added as an additional party.

Question 35

Does an application for a defendant to make an add additional party for the purpose of making a counterclaim require notice?

Answer 35

No, the application can be made without notice unless the court directs otherwise

Question 36

How can a party make an additional claim for contribution or indemnity from another person?

Answer 36

If the defendant is making the claim against an existing party under CPR 20.6.

Any other case under CPR 20.7

Question 37

For an application under CPR r.20.6 does the defendant need the court’s permission?

Answer 37

No if he has filed and served a notice with his defence or if his additional claim is against a party added to the claim later, within 28 days after that party files his defence.
If not, he will need the court’s permission.

Question 38

Requirements for a defendant to make an additional claim for contribution or indemnity from another party?

Answer 38

• the defendant must have filed an acknowledgment of service or a defence.
• he can only make the additional claim against a person already party to the proceedings
• he must file a notice containing a statement of the nature and grounds of additional claim
• serve that notice on the party

Question 39

What is the procedure for making any other additional claim under CPR r.20.7?

Answer 39

• the claim is made when the court issues the appropriate claim form.
• a defendant may make the additional claim-
  (a) without the court’s permission if the addiotnal claim is issued before or at the same time as he files his defence
  (b) at any other time with the court’s permission.
• particulars of an additional claim must be contained in or served with the additional claim
• an application for permission may be made without notice, unless the court directs otherwise

Question 39

What is the procedure for making any other additional claim under CPR r.20.7?

Answer 39

• the claim is made when the court issues the appropriate claim form.
  a defendant may make the additional claim-

Question 40

Where an additional claim can be made without the court’s permission what must happen with the claim form?

Answer 40

(1) in the case of a counterclaim against an additional party only, be served on eery other party when the defence is served.
(2) in the case of any other additional claim, be serve don the person against whom t is made within 14 days, after the date on which the additional claim is issued by the court

Question 41

What matters will the court have regard to when considering whether an additional claim should be permitted, dismissed or tried separately?

Answer 41

(1) the connection between the additional claim and the claim made by the claimant against the defendant
(2) whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him; and
(3) whether the additional claimant wants the court to decide any question connected with the subject-matter of the proceedings

Question 42

What is the effect of service of an additional claim?

Answer 42

a person on whom an additional claim is served becomes a party to the proceedings if he is not a party already

Question 43

What must an application for permission to make an additional claim be supported with?

Answer 43

evidence stating:

(1) the stage which the proceedings have reached
(2) the nature of the additional claim to be made or details of the question or issue which needs to be decided
(3) a summary of the facts on which the additional claim is based
(4) the name and address of any proposed additional party.
(5) if there has been any delay, an explanation as to why

Question 44

What might the court do at a hcase management hearing for an additional claim?

Answer 44

(1) treat the hearing as a summary judgment hearing
(2) order that the additional claim be dismissed
(3) give directions as to how the claim should be dealt with.
(4) give directions as to the part the additional defendant will play in the trial of the claim.
(5) give directions about the extent to which the additional defendant is to be bound by any judgment or decision to be made in the claim

Question 45

How should additional parties be referred to in the title of the proceedings?

Answer 45

As third party, fourth party, fifth party for example.

If the additional claim is brought jointly “first named third party, second named third party).