#10365 - Additional Claims Under Part 20 - BPC Civil Litigation

ADDITIONAL CLAIMS UNDER PART 20

• D to existing claim can bring claim against a third party

WHEN CAN A THIRD PARTY CLAIM BE BROUGHT?

ADDITIONALCLAIM AGAINST EXISTING PARTY AND NON-PARTY

1. Counterclaim against C AND third party (r20.2)

1. before claiming - D must apply for order adding third party as additional party

   • application procedure

     1. application notice - may make without notice

     2. evidence in support must set out:

        1. stage of main claim

        2. nature of third party claim

        3. summary of facts

     3. must file draft SoC

2. order made adding third party

1. court will also give case management directions:

   1. service of SoCs + response pack on third party

   2. time for third party to respond

   3. disclosure for third party

3. must issue additional claim

1. pay issue fee

2. pay fee for adding third party

ADDITIONAL CLAIM AGAINST NON-PARTY

2a. Claim for indemnity, contribution or some other remedy against third party

• defensive - only arise by D's liability to C

• indemnity

  • D entitled to indemnity from third party

  • arises from D's relationship with third party

    • usually contract e.g. insurance

    • 100% of D's liability to C

• contribution

  • D claims contribution from third party

  • arises from third party's liability to C (if third party's liability to C excluded, D cannot claim)

    • D can recover from anyone liable in respect of the same damage (s1 CL(C)A)

    • usually where third party is a joint tortfeasor

    • usually a proportion, but up to 100%

• some other remedy than indemnity / contribution

  • where D also seeks e.g. damages from third party

  • court will only allow part 20 claim if substantial connection between original and third party claim - subject matter AND remedy

Related claims

• judgment only binds parties to proceedings

• 2 ways of avoiding irreconcilable judgments:

1. seek order for joinder of third party (r19.2(3)) (method promoted by CPR); OR

2. add third party by making additional claim

• court will allow if desirable (same test as for joinder)

Procedure for additional claim against non-party

• application for permission to issue

  • permission NOT required - if D issues before OR with defence to main claim

  • permission IS required - once defence filed

1. apply for permission to issue

1. application notice - may make without notice

2. evidence in support must set out:

   1. stage of main claim

   2. nature of third party claim

   3. summary of facts

   4. name + address of third party

   5. where delay a factor, reasons for delay

3. must file draft SoC

2. court exercises discretion in deciding whether to grant (see factors below)

3. court grants permission - gives directions for service

4. D must issue additional claim form (pay issue fee AND fee to add third party)

• service

  • additional claim form must be served

1. within 14 days of issue

2. with response pack + copies of SoCs in main case

3. on all other existing parties

   • once served, third party becomes a party to main claim

ADDITIONAL CLAIM AGAINST EXISTING PARTY

2b. Contribution notice against existing party

• D1 with additional claim against D2 may issue contribution notice

• DON'T file contribution notice if only relief sought is a contribution under CL(C)A

• procedure

  • need permission - unless:

1. D1 files with defence; OR

2. if D2 added after D1 files defence, within 28 days of D2 filing defence

COURT'S DISCRETION

• court retains discretion to whether allow additional claim to continue, even if falls within part 20

• court can:

1. permit additional claim

2. dismiss additional claim

3. require commencement of separate proceedings

• any objections to allowing additional claim to continue should usually be made after third party serves defence

Considerations for court

• court may have regard to:

1. degree of connection between main and additional claim

2. whether D seeking substantially same remedy from third party as C is seeking from D

3. whether additional claim raises any questions connected with subject matter of main claim

MANAGING ADDITIONAL CLAIMS

• court considers case management when third party files defence

• court manages main claim and additional claim together

• case management hearing

  • considers SJ / dismissal of additional claim

  • gives directions:

1. role, if any, of third party at trial

2. extent third party bound by judgment in main claim

3. third party disclosure etc.

RELATIONSHIP TO MAIN CLAIM

• essentially a separate claim (connection is only procedural)

• therefore, settlement / dismissal / strike out of main claim will NOT affect additional claim (unless additional claim seeks only indemnity / contribution - basis lost if main claim dismissed / struck out)

DEFAULT JUDGMENT IN ADDITIONAL CLAIMS

• applies as if additional claim is a separate claim

• if seek some other remedy against a third party must apply