Defence, additional claims and counterclaims MCQs Flashcards
Rabbit entered into a contract with Kanga Ltd for the provision of gardening services. Under the terms of the contract, Kanga was to dig up and replant part of Rabbit’s commercial garden, called “100 Acre Spuds”. Kanga hired the JCB from Owl Ltd. Unfortunately, during the digging up of the garden, things went wrong; the digger malfunctioned and somehow, large areas of Rabbit’s perfectly prepared vegetable patches (which were not supposed to be dug up and replanted) were destroyed.
Rabbit has brought proceedings against both Kanga Ltd and Owl Ltd for breach of contract/negligence and loss consequent thereon. Seven days ago, Rabbit served the claim form (containing the particulars of claim) on both Kanga Ltd and Owl Ltd. Kanga Ltd, which has not yet filed an acknowledgement of service or a defence, believes that Owl Ltd is responsible (whether in whole or in part is still to be determined) for the loss which Rabbit suffered.
What is the BEST ADVICE to give to Kanga Ltd here?
Kanga Ltd should immediately file its defence to Rabbit’s claim and, at the same time as it files that defence, should bring an additional claim for a contribution or indemnity against Owl Ltd by asking the court to issue an additional claim form.
Kanga Ltd should acknowledge service of Rabbit’s claim. It should then bring an additional claim for a contribution or indemnity against Owl Ltd by filing a notice containing a statement of the nature and grounds of the additional claim and serving that notice on Owl Ltd at the same time as Kanga Ltd files its defence.
Kanga Ltd should immediately make an additional claim for contribution or indemnity against Owl Ltdby filing a notice containing a statement of the nature and grounds of the additional claim and serving that notice on Owl Ltd.
Kanga Ltd should file a defence and then, having waited 14 days, file particulars of counterclaim against Rabbit and Owl Ltd.
Kanga Ltd should acknowledge service of Rabbit’s claim. It should then bring an additional claim for a contribution or indemnity against Owl Ltd by filing a notice containing a statement of the nature and grounds of the additional claim and serving that notice on Owl Ltd at the same time as Kanga Ltd files its defence.
This is the BEST ADVICE to give in this situation. Owl Ltd is already a party to proceedings (Rabbit sued both Kanga Ltd and Owl Ltd). Accordingly, Kanga Ltd should use the procedure set out in CPR 20.6 to bring an additional claim for contribution or indemnity against Owl Ltd and acknowledge service of Rabbit’s claim by filing an acknowledgement of service in accordance with CPR 10.3 (in order to prevent Rabbit from entering default judgement against Kanga Ltd under CPR Part 12). The notice for a contribution or indemnity should be served on Owl Ltd at the same time as Kanga Ltd serves its defence, as this can then be done without the court’s permission under CPR 20.6.
In 2015, Hot Heating Ltd agreed to install a heating system in Carl’s factory. The contract stated that the installation of the heating system should comply with appropriate UK regulatory standards. The system was installed defectively and it failed to comply with those appropriate UK standards. In consequence, Carl suffered loss and damage.
In August 2019, Carl commenced proceedings against Hot Heating Ltd for damages for breach of contract, alleging failure to install the system to British standards. The action has still not reached trial and Carl now wishes to know whether he can amend his particulars of claim in order to include a negligence claim in addition to the breach of contract claim. There is no personal injury claim.
Which ONE of the following statements is CORRECT?
Carl requires the permission of the court in order to amend his particulars of claim and to obtain this, Carl should rely on the fact that the new claim arises out of the same facts as the current one.
Carl does not require the permission of the court in order to amend his particulars of claim.
Where Carl wishes to amend his particulars of claim, he must request that the court use their discretionary power to exclude the limitation period pursuant to s.33 of the Limitation Act 1980.
Carl cannot amend his particulars of claim because the limitation period has expired.
Carl requires the permission of the court in order to amend his particulars of claim and to obtain this, Carl should rely on the fact that the new claim arises out of the same facts as the current one.
Here the limitation period has expired for both the contract and negligence claims (as more than 6 years has passed from the date on which the cause of action accrued for both).
CPR rule 17.4(2) provides that the court may allow an amendment to add a new claim after the end of a relevant limitation period, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings. This is the case on the facts here.
Section 33 of the Limitation Act 1980 is not relevant to the facts here as this section deals with the court’s discretionary exclusion of time limit for personal injury and death actions. We are told that this is not applicable here.
Jennie has issued and served a claim form (containing her particulars of claim, which you drafted) on Libel Newspapers Group (the “Group”), alleging that an article which the Group published was defamatory of her. The Group filed its defence, denying all liability. The court listed the trial to begin in nine months.
Four months later (but still well within the limitation period), Jennie comes to you for advice. She now wishes to amend her particulars of claim to better particularise the allegations which she makes. You take the view that some of what Jennie is now saying to you is minor or peripheral, whilst some of it is of importance to the central allegations in the case. While the trial date is not going to be put in jeopardy by the amendments and the Group will suffer no prejudice, you are instructed that the Group is not willing to agree to any amendments.
Which ONE of the following is the BEST ADVICE to give to Jennie in this situation?
Jennie can simply make the proposed amendments to the particulars of claim without the permission of the court.
Jennie will have to obtain the permission of the court in order to amend her particulars of claim. In the circumstances of this case, the court will grant permission to Jennie to make all of the amendments (including those which you consider peripheral) because the amendments will not jeopardise the trial date.
Jennie will have to obtain the permission of the court in order to amend her particulars of claim. In the circumstances of this case, the court will only grant Jennie permission to make the amendments which are of importance to the central allegations in the case. Jennie will probably have to pay the costs of and arising from the amendment.
Jennie will have to obtain the permission of the court in order to amend her particulars of claim. The court will refuse Jennie’s application to amend because it cannot grant permission after a statement of case has been served on the other party to proceedings.
Jennie will have to obtain the permission of the court in order to amend her particulars of claim. In the circumstances of this case, the court will only grant Jennie permission to make the amendments which are of importance to the central allegations in the case. Jennie will probably have to pay the costs of and arising from the amendment.
This is the BEST ADVICE to give on this set of facts. It follows on from CPR 17.1 that permission is required. The circumstances in which the court is likely to grant permission is based on the decision of the High Court in Cook v News Group Newspapers Ltd (a case you do not need to be able to identify by name) in the examinable commentary on ‘Late Amendments’ which follows CPR 17.3 of the White Book. Moreover, the advice is comprehensive, in that you tell the client about the costs implications of taking the particular step in issue (see the paragraph at the start of PD 17).
Question 2
The defendant is served with proceedings for damage caused to the claimant’s reception
building when his van collided into it. He denies liability and files and serves a defence
alleging that the reason he lost control of the van was because there were shards of glass
on the driveway approaching the reception, which caused a puncture to the front tyre. The
defendant alleges that he was a visitor within the meaning of the Occupiers’ Liability Act
1957 and that the claimant failed in its statutory duty to safeguard him from danger and a
foreseeable risk of damage to his property. He also makes a claim for the cost of repair to
his van. This is disputed by the claimant.
Which of the following statements correctly describes how the defendant should
approach drafting his statements of case?
A When drafting his defence, the defendant need only admit facts that he accepts and
deny those which he disputes.
B The defendant should adopt a structured approach to drafting his defence, but any
facts missed are deemed to have been denied.
C The defendant should include a counterclaim with his defence if he wishes to claim for
the repair of his van.
D When drafting a counterclaim, the defendant should include all the relevant facts even
if these have already been set out in the defence.
E The counterclaim need not be verified by a statement of truth as it is part of the
defence.
Answer
Option C is correct. Option A is wrong because there is a third option – that of a non-
admission and this applies to those facts of which the defendant has no knowledge. Option
B is wrong as any facts missed are deemed to be admitted. Option D is also wrong as
there is no need to include facts that have already been set out in the defence and the first
paragraph will simply state that the relevant paragraphs are repeated. Option E is wrong
because all statements of case must be verified by a statement of truth.
Question 3
The claimant has issued proceedings against the defendant, who files and serves a
defence and counterclaim in response. However, the claimant is unable to respond
effectively because the contents are lacking in clarity.
Which of the following statements provides the best advice as to the action the
claimant should take first?
A The claimant should write to the defendant to request further information on the
defence and counterclaim.
B The claimant should make an application to the court to request further information in
relation to the defence and counterclaim.
C The claimant should apply for permission from the court as they cannot make an
application for further information on the defence and counterclaim without this.
D The claimant does not need to respond to the counterclaim as they are deemed to
deny it.
E The claimant should file a reply to the defence and a defence to the counterclaim
based on the information that has been provided by the defendant.
Answer
Option A is correct. Under CPR Part 18, the client may request further information from their
opponent to clarify any matter that is in dispute or to obtain additional information in relation
to any such matter. Before applying to the court, the claimant should write to the defendant to
request this – hence, option B is wrong. Option C is wrong as the claimant does not need the
permission of the court to request further information on statements of case.
Option D is wrong as the facts state that the claimant disputes the counterclaim and if they
do not file and serve a defence, the defendant can enter judgment in default for this aspect.
Option E is not the best advice because responding to the defence and counterclaim where
the issues are unclear would be contrary to the overriding objective as the statements of case
would almost certainly need amending at a later stage.
Question 8
In March 2022, a claimant brought a claim against his plumber for a breach of contract alleged to have taken place in June 2016. The plumber operated as a sole trader.
In August 2022, the plumber died. The plumber’s assets are being dealt with by her personal representatives.
In October 2022, the claimant applied to substitute the plumber’s personal representatives for the deceased plumber in the claim, so that the claim could continue.
What powers does the court have to make a substitution for the plumber as a deceased party in the claim?
A. The court can order a new party to be substituted because the relevant limitation period was current when the claimant applied for the substitution.
B. The court cannot order a new party to be substituted because the relevant limitation period has expired.
C. The court can order a new party to be substituted because the relevant limitation period was current when the proceedings were started.
D. The court can order a new party to be substituted because the relevant limitation period was current when the plumber died.
E. The court cannot order a new party to be substituted because liability remains with the plumber’s business.
C - The court can order a new party to be substituted because the relevant limitation period was current when the proceedings were started.
The claimant issues proceedings against the defendant. The claim form indicating that particulars of claim are to follow is placed in the post, first class, properly addressed to the defendant, on Monday 4 January. The particulars of claim are placed in the post, first class, properly addressed to the defendant, on Friday 8 January. The defendant intends to respond with an acknowledgment of service.
By when must the acknowledgement of service be filed?
Select one alternative:
Monday 25 January.
Tuesday 26 January.
Wednesday 20 January.
Monday 8 February.
Tuesday 9 February.
The particulars of claim are deemed served the second day after posted if a business day, or if not, the next business day after that (CPR 6.26). They are posted on Friday 8 January, the second day after this is Sunday 10 January. This is not a business day. The next business day is Monday 11 January. The particulars of claim are deemed served on Monday 11 January. The period for filing the acknowledgment of service is 14 days after service of the particulars of claim – Monday 25 January.
A business owner brings a professional negligence claim against a financial adviser in relation to a cause of action accruing 6 months ago. Both parties file and serve the necessary statements of case and the court lists a first case management conference. Seven days before that case management conference, the business owner decides that it wishes to amend its statements of case to add a claim in professional negligence against its accountant, as it believes the accountant (as well as the financial adviser) has also contributed to its losses.
From whom does the business owner need permission or consent to make this amendment?
Select one alternative:
Permission / consent is not needed from the court, financial adviser or accountant.
Permission / consent is needed from both the court and the financial adviser.
Permission / consent is only needed from the court.
Permission / consent is needed from the court or from the accountant.
Permission / consent is needed from the court or from the financial adviser.
Permission / consent is only needed from the cour
If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4 (CPR 17.1(3)). This applies here because the business owner’s statements of case have been filed and served. The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served (CPR 19.4(1)). The claim form has been served (see above) and therefore the court’s permission is required. There is no rule stating that either the accountant’s or the financial adviser’s consent is needed.
