DR 7 - Statement of Case II Flashcards
(32 cards)
Can a counterclaim be brought against a party other than the claimant?
Yes, but only if the third party is connected and permission is obtained. They must be added to the case.
When is a counterclaim against a third party not a true counterclaim?
If it’s only against a third party and not the claimant—it becomes a separate claim, not a counterclaim.
What is a contribution claim?
A right of someone to recover from another existing party part of the amount which he himself is liable to pay
What is an indemnity claim?
A claim to recover the full amount the defendant has to pay, often based on a contract.
How is a claim for contribution/indemnity from an existing party made?
By filing and serving a contribution notice after acknowledging service or filing a defence.
What are the other additional claims?
- A defendant against any person (party to the proceedings) claiming some remedy other than a contribution or an indemnity.
- A defendant against any person (not party to the proceedings) claiming a contribution or an indemnity or any other remedy.
- An additional claim being made by a party which has itself been joined to the main proceedings
What is an example of an additional claim?
D is sued by C for misrepresentation. D then brings a claim against E (their accountant) for misleading advice.
What is the process for counterclaims or additional claims?
What does the court consider in case management of additional claims?
Efficiency, connection to main claim, potential for inconsistent judgments, and party notification.
How are parties named in additional claims?
Original parties keep their roles; new parties are ‘Third Party,’ ‘Fourth Party,’ etc.
What happens if someone fails to respond to an additional claim?
They may be bound by the judgment but default judgment is rare, unless it’s a counterclaim.
When is a statement of truth needed for amendments?
Always—unless the court orders otherwise.
Who pays the costs of amendments?
The amending party, especially if adding/substituting parties.
When can a party amend without permission?
Before serving the statement of case (including claim form).
When can a party amend by consent?
Anytime, with written consent from all other parties.
What if consent isn’t given after service?
Must apply to the court for permission with an amended draft and application notice.
When might the court refuse permission to amend a defence?
If the new version is implausible, speculative, or unsupported by evidence.
What factors does the court consider for late amendments?
- Reason for delay
- Impact on trial
- Whether it furthers justice
- If it risks postponing trial
What is the ruling in Swain-Mason on late amendments?
Courts are cautious; applicants bear a heavy burden to justify timing.
When can a party be added/substituted after limitation has expired?
Only if:
* The claim was in time when issued
* It’s necessary (e.g. mistake in name [genuine mistake+ caste no reasonable doubt OR adequately described], change in capacity (died/bankruptcy)
Can a new cause of action be added after limitation expires?
Only if it arises from substantially the same facts as the original claim.
What is an example of a permissible name change?
Mistaking ‘Daryl’ for ‘Darren’ Boardman when the intent to sue the driver is clear.
How should amended documents be formatted?
- Colour-coded: (1) Red (2) Green (3) Violet (4) Yellow
- Endorsed with relevant CPR rule or court order
- Verified by a statement of truth
- No need to show original text unless ordered
Summary of amendment rules
