WS3: Additional Claims and Changing Parties Flashcards
When is a counterclaim normally made?
Normally made at the same time as the defendant files the defence - if made afterwards, permission of the court will be needed.
What is the defence of set off?
When the facts that give rise to a counterclaim may also amount to a defence in the main claim; can be partial or complete, and has the effect of extinguishing any claim up to the same amount against the defendant.
In what circumstances can set off occur?
Mutual debts, claim for breach of implied terms as to quality and fitness for purpose, defective services, equitable set off.
When will a court consider a claim for equitable set off?
Such a close connection between two transactions that it would be manifestly unjust to allow enforcement of one claim, without taking into account the cross-claim.
What time limits are there for a response to a counterclaim?
No requirement to acknowledge service; C’s defence to a counterclaim must be filed within 14 days after DDS of counterclaim.
What might a court do if a new cause of action emerges which is directly concerned with or closely connected to an existing claim?
The rules may direct or allow it to become a part of the original claim in order to save time and costs.
If there is a need to apply for an amendment of a statement of case, who will bear the costs consequences of doing this?
The party who is responsible for costs of / arising from the amendment
How can a statement of case be amended at any time?
Written consent of all parties
When filed without court permission, words ‘amended under CPR Rule 17.1’ needed.
How can a party amend a statement of case if it does not have the written consent of all other parties?
Would need to apply to court for permission to make an amendment.
Need to file an application notice with the court, followed by a copy of the proposed amended statement of case
Once a court has approved an amendment to a statement of case, what should the applicant do next?
File the amended statement of case within 14 days of the order
Serve a copy of the amended statement of case / order on every party to proceedings.
If the substance has substantively changed - new statement of truth needed.
What general principles will the court apply when someone is seeking to amend their statement of case?
Overriding objective - 1.1
Court will balance injustice to applicant, versus impact on opposing party
When will an application for permission to amend a defence be refused?
If it is clear that the proposed amendment has no prospect of successW
Why are courts so hostile to late amendments of statements of case?
Can cause unfairness by putting parties on a fundamentally unequal footing / add excessive burdens
What would be a theoretically good reason for a late amendment to a statement of case?
Late disclosure or the emergence of new evidence
What is the test for an amendment adding, removing or substituting a party if the limitation period has not yet expired?
Is the amendment desirable?
Under this, the court will consider the following:
o Policy objective of enabling parties to be heard if rights will be affected
o CPR 1.1
o Is it worth the increase in complexity?
o Status in the main claim of the parties
What is the test for an amendment adding, removing or substituting a party if the limitation period has expired?
Is the amendment necessary?
Limitation period must have been current when the proceedings were started
If an amendment is approved, when is the cause of action deemed to have been started on?
Same date as the original action
In what circumstances will the court allow the addition of new causes of action after the limitation period?
New cause of action is an original set off / counterclaim
New cause of action arises out of the same facts / substantially the same facts as are already in issue
Applicant must show this.
Post-limitation adding new parties: when will an addition or substitution be considered necessary?
New party is substituted against one that was named in the claim in mistake for the new party
Claim can’t be properly carried on otherwise
Original party has died / bankruptcy order has been made against them
How will the court approach whether an edit is a change in name, versus an entirely new entity?
Apply the Sardinia Sulcis test: “Has the intended defendant been identified in the statements of case by reference to a description more or less specific to the particular case”?
Yes - may be permitted by court
No - cannot be permitted
In what specific instance will a court not have any power to allow an amendment of the parties in a case?
If named in the claim form in mistake for the new party, but are not adequately described.
What are requests for further information confined to?
Matters reasonably necessary and proportionate to enable party seeking clarification or information to prepare its own case / understand case it has to meet
How should a request for further information be made?
Parties can do this on a voluntary basis
Should be concise written request on the other party stating a date for a response
Should be confined to matters which are reasonably necessary and proportionate to enable requesting party to prepare its own case
How should a party respond to a request for further information?
Response must be written, dated, and signed by the party + legal representative + statement of truth
Response must be sent to other party and filed at court
If party objects to providing a request must inform the party who made the request giving reasons for the objection and object within timeframe set out by the request -
Examples of reasons for refusal: request is about irrelevant matters, disproportionate expense, unnecessary or privileged
