SA9 - Multiple Causes of Action, etc.

Question 1

What is the rule in relation to how many causes of action can go on one claim form?

Answer 1

Claimant may use a single claim form for as many actions as he wishes, provided they can be conveniently disposed of in the same proceedings.

Question 2

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

Answer 2

Any number of claimants or defendants can be joined as parties to a claim.

Question 3

How can court stop the number of claimants/defendants/causes of action becoming unwieldy?

Answer 3

By using its case management powers in Part 3, e.g. Dividing things into separate issues.

Question 4

Where a claimant is jointly entitled to a remedy with some other person…

Answer 4

…that other person MUST be joined as a party to the proceedings (but this doesn’t apply to probate proceedings).

Question 5

If a potential claimant (i.e. someone jointly entitled to a remedy) is reluctant to be joined as a claimant…

Answer 5

…he must be made a defendant unless the court orders otherwise.

Question 6

What is required to add or substitute someone as a claimant?

Answer 6

Their written consent, filed at court.

Question 7

When is the court’s permission to change the parties required/not required?

Answer 7

Not required if a claim form has not yet been served. Otherwise, court’s permission always needed.

Question 8

Application for substitution of a new party…

Answer 8

…may be made without notice and must be supported by evidence.

Question 9

Commissioners for HMRC may be added as a party…

Answer 9

…only if they consent in writing and their consent is filed with the court.

Question 10

An order for removal, addition or substitution of a party must be…

Answer 10

…served on all parties to proceedings and anyone else affected by the order.

Question 11

When court makes the order for removal, addition, or substitution of a party it may give…

Answer 11

…consequential directions for filing/serving of the claim form of any new D, serving relevant documents on new party, and the management of proceedings.

Question 12

An application for removal, addition or substitution of a party may be made by…

Answer 12

…an existing party or someone who wises to become a party.

Question 13

What is the test for the granting of an order for removal, addition or substitution of a party?

Answer 13

Desirability. Court will be concerned to ensure that the right parties and right causes of action are before the court, to enable them to reach a proper determination of the dispute. NB. There is provision for a new party to be substituted where an existing party’s interest has passed to the new party and it is desirable

Question 14

The court may also order any person to cease to be a party if…

Answer 14

…it is not desirable for that person to be a party to proceedings.

Question 15

When can the court add or substitute a party after the end of the relevant limitation period?

Answer 15

When the limitation period was current when proceedings were started and addition or substitution is necessary.

Necessary if:

• Substitution is to take place because a party was named in the claim form by mistake
• Claim cannot be carried on by or against the original party unless a new party is added/substituted
• Original party has died or had a bankruptcy order made against him and his interest or liability has passed to a new party.

Court may allow an amendment after expiry of limitation period in a personal injury case, if limitation issues (questions of application of special time limits for fatal accidents and PI) are to be determined at trial.

Question 16

A new defendant does not become a party until…

Answer 16

…the amended claim form has been served on him

Question 17

Other rules to statements of case…

Answer 17

…apply to new defendants as to any other defendant. Hence, new defendant will need to acknowledge service, file a defence, and so on.

Question 18

What is a right to contribution?

Answer 18

A right of someone to recover from a third person all or part of the amount he is liable to pay. Based on fault. Comes from the concept of joint and several liability. Where two or more persons liable in respect of same damage, jointly or severally, each may claim a contribution from the other.

Question 19

What is an indemnity?

Answer 19

Right of someone to recover from TP whole amount he himself is liable to pay. Based on obligation of third party, such as contractual obligation. Obvious example is insurance - insurer agrees for payment of premium to indemnify insured for losses.

Question 20

These additional parties may also use Part 20 to…

Answer 20

…make their own claims against anyone else.

Question 21

What is a counterclaim?

Answer 21

Claim in response that is included in the same proceedings. May or may not be connected with the same facts as the original claim. Key thing is it comes from D back to C.

Question 22

Rule 20.5

Answer 22

Permission needed to bring counterclaim against the claimant and someone else. E.g. C sues D for non-payment of invoice (D is a solicitor), D wants to counterclaim for non-payment of her bill from C in D’s capacity as executor of a will. C is executor jointly with sister. Counterclaim needs to be against both executors, so sister needs to be joined as a party. Under Rule 20.5, D needs permission to make that counterclaim and add the sister as an additional party. This rule is rarely used.

Question 23

All other additional claims (not counterclaims) are sometimes called

Answer 23

Third party proceedings. Counterclaims come from D to C. All other additional claims come from D to someone else but not the claimant.

Question 24

Procedure when making an additional claim against an existing party

Answer 24

Rule 20.6. Must file and serve notice detailing nature and grounds of claim. Can do without court’s permission at same time as filing defence, or can add it later (within 28 days of filing defence).

Question 25

Procedure when making an additional claim against a new party

Answer 25

Rule 20.7. Additional claim made by issuing a claim form. Claim made for limitation purposes when court issues it. Particulars must be endorsed on it or served with the claim form. TP claim form can be issued without court’s permission if issued at same time defence is filed. Otherwise, court’s permission is required. Additional claim form must be served on TP within 14 days of date of issue. Needs to be accompanied by same forms as when serving an ordinary POC, such as documents to help TP respond. In addition, all other statements of case must be served so TP knows what has happened so far in the case.

Question 26

Procedure when making counterclaim

Answer 26

Rule 20.4. Should be made at the same time as the defence. Should be in one document (defence and counterclaim). Permission not required to make counterclaim if filed with defence, which it will be if defence and counterclaim are in one document. If made at any other time, permission needed. Counterclaim treated as if claim so response pack must be served with it. Response must be made within 14 days of service of counterclaim, since Part 12 default judgment rules apply to counterclaims. So, default judgment can be entered on the counterclaim if no defence to counterclaim filed. Part 10 (acknowledgement of service) does not apply to a claimant who wishes to defend a counterclaim.

Question 27

CPR Rules that don't apply to Part 20

Answer 27

Time within which claim form may be served; statement of value when claim to be issued in HC; preliminary case management. Part 12 (default judgment) does apply to counterclaims but not additional claims under Rule 20.6. Part 14 (admissions) applies to a counterclaim, but only the rules which provide that a party may admit the truth of another party’s case in writing and rule 14.3 about admission by notice in writing (application for judgment) apply to additional claims.

Question 28

Evidential matters for Part 20

Answer 28

Normally an application without notice for an additional claim. Additional claim should have statement of truth. Court will consider whole case and make apt case management decisions.

Question 29

Considerations by court when determining application for permission to make additional claim or when deciding whether to dismiss an additional claim or requiring for it to be dealt with separately from the claim between D and C.

Answer 29

1. Is there a connection between additional claim and main claim? 2. Is D seeking substantially same remedy? 3. Is court being asked to decide any matter connected with subject matter of proceedings?

Question 30

What happens to Part 20 claim if case between C and D settles?

Answer 30

Answer depends on nature of additional claim. If D seeking contribution, can proceed. if seeking indemnity from TP, could continue with that. But, if D had had C’s claim struck out or got summary judgment, there’d be nothing left to pursue. So depends what happened. With counterclaims, in reality they will settle both but if the counterclaim is peripheral then it might proceed to trial.