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Additional Claims Flashcards

1
Q

What are counterclaims?

A

Counterclaims are a form of additional claim made by a defendant against a claimant in the same proceedings as the main claim

Counterclaims are governed by CPR 20.

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2
Q

When should a counterclaim be served?

A

A counterclaim should normally be made at the same time as the defendant files its defence

If made later, permission of the court is needed (CPR 20.4(2)).

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3
Q

What must a counterclaim contain?

A

A counterclaim must include the four necessary elements: duty, breach, causation, and loss

This is similar to the requirements for a particulars of claim.

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4
Q

What is the legal basis for a set-off?

A

The legal basis for set-off includes mutual debts, claims under the Sale of Goods Act 1979, defective services, and equitable set-off

The set-off can extinguish a claim up to the amount of the counterclaim.

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5
Q

What is the purpose of a reply in the context of a counterclaim?

A

A reply is an optional statement of case served by the claimant to allege facts in answer to the defence not included in the claim

It must be filed with the directions questionnaire.

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6
Q

How is a defence to a counterclaim structured?

A

A defence to a counterclaim must comply with the usual rules for defences and is similar to a normal defence

It must be served within 14 days after service of the counterclaim.

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7
Q

What happens if a claimant fails to serve a defence to a counterclaim on time?

A

A judgment in default might be entered by the defendant

This is according to CPR 12.3(2)(b).

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8
Q

What is the effect of a set-off?

A

The effect of a set-off is to extinguish the claimant’s claim against the defendant up to the amount of the defendant’s claim against the claimant

It can be a partial or complete defence to the main claim.

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9
Q

What is an additional claim?

A

An additional claim is defined as any claim other than the claim by the claimant against the defendant

Counterclaims are one type of additional claim.

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10
Q

What must a counterclaim comply with?

A

A counterclaim must comply with the rules on particulars of claim, including CPR 16.4 and the corresponding provisions in 16 PD

It is treated as a particulars of claim by another name.

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11
Q

What is the time limit for serving a defence to counterclaim?

A

The defence to a counterclaim must be served within 14 days after the counterclaim is served

This adheres to CPR 15.

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12
Q

True or False: A counterclaim can be filed as a separate claim.

A

True

However, it is usually more convenient to combine it with the main claim.

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13
Q

What is the significance of CPR 19?

A

CPR 19 deals with the addition and substitution of parties to a claim

It is used when a claimant is adding a party to an existing claim.

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14
Q

What is the primary focus of amendments in legal proceedings?

A

Amendments relate to any type of changes to statements of case, not just new causes of action or counterclaims

This includes correcting factual mistakes.

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15
Q

What are the consequences if the court does not allow a counterclaim to be heard with the main claim?

A

The court can order that the counterclaim be struck out or heard separately

This is under CPR 3.4 and CPR 3.1(2)(e).

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16
Q

Fill in the blank: A counterclaim is typically included in the same _______ as the main claim.

A

[proceedings]

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17
Q

What is the time frame for filing a reply to a counterclaim?

A

A reply must be filed with the directions questionnaire

The time limit is at least 14 days after the claim is defended.

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18
Q

What must a reply be verified by?

A

A reply must be verified by a statement of truth

According to CPR 22.1(1)(a).

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19
Q

What is the definition of a counterclaim?

A

A claim brought by a defendant in response to the claimant’s claim, which is included in the same proceedings as the claimant’s claim.

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20
Q

What are the types of additional claims according to CPR 20.2?

A
  • A counterclaim by a defendant against the claimant
  • A counterclaim by a defendant against the claimant and some other person
  • An additional claim by a defendant against any person claiming a contribution or an indemnity
  • An additional claim by a defendant against any person claiming some remedy other than a contribution or an indemnity
  • An additional claim against a person not already a party claiming a contribution or an indemnity or some other remedy
  • An additional claim by a party joined to the main proceedings
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21
Q

True or False: A claim by the original claimant can be considered an additional claim.

A

False

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22
Q

What is the definition of ‘contribution’ in the context of CPR?

A

A right of someone to recover from a third person all or part of the amount which he himself is liable to pay.

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23
Q

What is the definition of ‘indemnity’ in the context of CPR?

A

A right of someone to recover from a third person the whole amount which he himself is liable to pay.

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24
Q

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

A
  • The claim form (CPR 16.2 and 16.3)
  • The particulars of claim (CPR 16.4)
  • The defence (CPR 16.5)
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25
What is a classic counterclaim?
A defendant’s counterclaim against the claimant, pursued in the same proceedings as the main claim.
26
Fill in the blank: If disputed, the claimant will serve a _______ to counterclaim in response.
defence
27
What happens if a party served with an additional claim does not file a defence?
It will be deemed to admit the additional claim (CPR 20.11).
28
What distinguishes a counterclaim against a person other than the claimant?
The counterclaim must be against the claimant and some other person who is jointly liable with the claimant.
29
Provide an example of a classic counterclaim.
C sues D for £35,000 for machinery payment; D countersues claiming losses due to unsatisfactory machinery quality.
30
What is required for a defendant to pursue a counterclaim against a person other than the claimant?
The other party must be joined into the main claim as a third party.
31
What is a claim for contribution or indemnity?
A claim made by a defendant against another party to cover liability owed to the claimant.
32
True or False: A claim for contribution or indemnity can arise in tort, contract, or under the Civil Liability (Contribution) Act 1978.
True
33
What must exist for a claim for contribution or indemnity to arise?
There must be other existing parties already involved in the action.
34
What is the procedure if permission is required for a counterclaim?
Permission is applied for using the normal interim application procedure, accompanied by a draft order and evidence.
35
What is the typical format for a classic counterclaim?
The particulars of counterclaim, usually filed with the defence as one single document.
36
What does CPR 20.7 include regarding additional claims?
* Claims for contribution or indemnity from an existing party * Claims for contribution or indemnity from a third party * Additional claims by a party joined to the main proceedings
37
What must be demonstrated for claims against a third party?
There must be a legal basis for the claim and case analysis is essential.
38
What is an example of a scenario involving a claim for indemnity?
A defendant sued for professional negligence might have a contractual right to claim an indemnity from his insurers.
39
What happens if a defendant files a counterclaim at the same time as the defence?
No permission is required.
40
What is the significance of the connection between the claimant and the third party in a counterclaim?
There must be some connection for the counterclaim to proceed.
41
Fill in the blank: A claim for a contribution or indemnity from an existing party must be made by serving the appropriate _______.
notice
42
What does CPR stand for?
Civil Procedure Rules
43
What is required to make a claim for contribution or indemnity from another party?
Serve the appropriate notice ## Footnote There is no set form for making a CPR 20.6 claim, but an example format is provided on the Court Service website.
44
What is the procedure if the court's permission is required for an additional claim?
The court will give directions as to when the notice should be served.
45
What is the claim form used for additional claims?
N211 claim form ## Footnote The N211 claim form is buff coloured and allows more space for details of all parties.
46
What must accompany an additional claim served on a new party?
A response pack and a copy of every statement of case ## Footnote This is specified under CPR 20.12(1).
47
How does a party become involved in additional claims?
By being served with an additional claim ## Footnote The party becomes a party to the proceedings if they were not already involved (CPR 20.10).
48
What determines whether remedies should be sought via an additional claim or as a separate action?
The court will consider the substantial connection between the original proceedings and the proposed additional claim.
49
What happens if a defendant to an additional claim files a defence?
The court will arrange a hearing to consider case management of the additional claim.
50
How should claimants and defendants be referred to in the title of proceedings?
As claimants and defendants, regardless of any additional procedural status.
51
What is the treatment of an additional claim under CPR 20?
An additional claim is treated as a claim, subject to exceptions.
52
What happens if a party does not respond to an additional claim form?
They may be deemed to admit the claim and bound by the judgment in the main claim.
53
What rules govern amendments to statements of case?
CPR 17 for general amendments and CPR 19 for amendments involving parties.
54
What is required for amendments to statements of case?
Verification by a Statement of Truth, unless the court orders otherwise.
55
When can a party amend a statement of case without permission?
At any time before it is served.
56
What must be done if a statement of case is amended with the court’s permission?
File an application notice with the proposed amended statement of case.
57
What is the general principle regarding late amendments?
The court will be mindful of potential unfairness and the risk of postponing the trial.
58
What did the case Swain-Mason v Mills & Reeve establish regarding late amendments?
The court should be less ready to allow very late amendments unless justified.
59
What is the main test for adding, removing, or substituting a party?
The amendment must be 'desirable'.
60
What happens if the limitation period has expired?
Specific rules apply, which are discussed under CPR 19.6.
61
What is the consequence of failing to respond to a notice of contribution or indemnity?
It is not possible to apply for a default judgment.
62
What must an amended statement of case include if it changes the substance?
It must be re-verified by a statement of truth.
63
What should be included when filing an amended statement of case?
It should be endorsed with the appropriate endorsement indicating it is amended.
64
What is the policy objective of the court when considering adding parties to a claim?
Enabling parties to be heard if their rights may be affected by a decision in the case and the overriding objective.
65
What effect does adding parties to a claim have on case management?
Increases complexity, case management decisions, cost, and time.
66
In the context of additional claims, what should be considered regarding the main claim?
The status of the parties to the additional claim and how it might impact the main claim.
67
True or False: A claimant can be added without their consent.
False.
68
What must be filed at court when adding a new claimant?
Consent of the claimant.
69
What is required for the court to allow amendments to add, remove, or substitute a party?
Court's permission, unless the claim form has not yet been served.
70
What is the general rule regarding amendments after the limitation period has expired?
Amendments are usually not allowed unless exceptions apply.
71
What does s 35 of the Limitation Act 1980 pertain to?
Amendments in relation to limitation periods.
72
What is the court's discretion regarding personal injury actions after the limitation period?
The court can disapply the limitation period if it is equitable to do so.
73
When can a new cause of action be added after the limitation period?
If it arises out of the same facts as the original claim.
74
What must the applicant show for an amendment to be allowed after the limitation period?
That the proposed amendment falls within specified criteria.
75
What are the three main situations for changing parties in an action?
* Correcting a mistake in the name of a party * Changing the capacity of a party * Changing the identity of a defendant
76
Under what conditions can new parties be added post limitation?
If the limitation period was current when proceedings started and the addition is necessary.
77
What is the court's test for identifying a mistake in the name of a party?
Whether the intended defendant has been identified by a specific description in the statements of case.
78
What happens if a claim is made against the wrong party due to a fundamental mistake?
The amendment to substitute the correct party will not be allowed.
79
What does CPR 17.1(2) state about amending a statement of case?
Amendments require either written consent of all parties or permission from the court.
80
What is the consequence of late amendments close to the trial date?
The court may be less willing to allow such amendments.
81
What must be included in the format of an amended statement of case?
* No need to show original text unless ordered * Amendments shown using colored amendments or numerical codes * Must contain appropriate endorsement and be verified by a statement of truth
82
What is the effect of amending a claim after the limitation period has expired?
It is treated as a separate claim commenced on the same date as the original claim.
83
What is the significance of CPR 19.4(1)?
It allows a party to amend without court permission if the statement of case has not been served.
84
What is the effect of late amendments on claims?
Amendments may add new causes of action or change parties, treated as a separate claim commenced on the original claim date. ## Footnote Late amendments require careful consideration to avoid prejudice to the defendant's limitation defense.
85
What special rules apply to post limitation amendments?
The court will decide whether to allow such amendments and will exercise particular care to ensure no prejudice to the defendant. ## Footnote This is critical when the limitation period has expired.
86
What does CPR 18 allow parties to do?
Obtain further information from the other party to clarify or give additional information regarding any matter in dispute. ## Footnote This is crucial for preparing one’s own case or understanding the opponent's case.
87
Why might a party request further information?
* To obtain admissions * To reveal weaknesses in the other party's case * To gather facts needed to prove their case * To acquire witness details before statements * To clarify the other party’s case * To narrow issues to save time and costs ## Footnote These requests should be reasonable and proportionate.
88
What is expected before making a formal application for further information?
A party should seek information voluntarily from the other party first. ## Footnote An application to the court should be a last resort.
89
What must a written request for further information include?
A statement of the date for response, be concise, and relate to necessary matters for preparing the case. ## Footnote The CPR provides format and layout instructions.
90
What must a response to a request for further information contain?
It must be written, dated, signed, include a statement of truth, and be sent to the other party and filed at court. ## Footnote Objections must be communicated with reasons within the set timeframe.
91
What can the court do regarding requests for further information?
Order a party to clarify any matter in dispute or provide additional information, regardless of whether it is in a statement of case. ## Footnote This is applicable if the other party does not respond or objects.
92
What happens if a party doesn't respond to a request for further information within 14 days?
An application can be made without notice to the opponent, and the court can deal with it without a hearing. ## Footnote This expedites the process for the requesting party.
93
What must a party do if a court orders further information?
File and serve their response within the specified time, verified by a statement of truth. ## Footnote Compliance with court orders is essential for procedural fairness.
94
What restriction can the court impose on further information provided?
The information cannot be used for any purpose other than the current proceedings. ## Footnote This protects the confidentiality and integrity of the proceedings.
95
True or False: A request for further information must relate to matters in a statement of case.
False ## Footnote Requests can pertain to any matter in dispute, not just those in a statement of case.
96
Fill in the blank: Parties are expected to make a _______ request for further information before involving the court.
[voluntary] ## Footnote This promotes cooperation and reduces court involvement.

Dispute resolution (6 decks)

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