#16063 - Counterclaims And Pt 20 Additional Claims - BPC Civil Litigation

CPR Part 20, Counterclaims & Other additional claims [[with PD 20]]

Part 20 claims, summary of below (good revision notes)

• Purpose of Part 20: (20.1): enable counterclaim and other additional claims to be managed in the most convenient & effective manner.

• Part 20 claim can be:

  • (a) counterclaim by D against C (or against C and some other person).

  • (b) an additional claim by D against any person for contribution/indemnity or some other remedy

  • (c) where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person.

• Main claim = C against D

• Part 20 Claims run alongside the main claim

• Part 20 Claim, Type 1 (20.4) counterclaim (D against C)

  • WHAT: [[D must have suffered a loss]]

  • WHEN to make a counterclaim. And is permission required?

    • Without court’s permission if files it with the defence. So preferable time is at same time as filing defence. [Defence & counterclaim should be one document]

    • At any other time with court’s permission if need court’s permission, see factors for court in 20.9.

  • Parties are still called: ‘Claimant’ and ‘Defendant’

  • PROCEDURE: file the particulars of the counterclaim (should normally be in same document as defence).

  • NEXT: The C must file a defence to counter-claim within 14 days (no A/S for counterclaims) otherwise D can get default judgment on the counterclaim.

    • If C serves a reply and defence to counterclaim, should form one doc.

• Part 20 Claim, Type 2 (20.5) counterclaim against C and a 3^rd party

  • WHEN: normally at same time as filing the defence.

  • Permission: But always need court’s permission (because it involves adding the new party) so see factors in 20.9 court will consider.

  • Apply for joinder of the third party, can apply without notice. file a draft of the proposed statement of case with the application notice.

  • If you get permission to join the third party:

  • How/procedure: file and serve the particulars of counterclaim; court will give case management.

  • Name of parties: ‘Claimant’, ‘Defendant’ and ‘Third Party’.

  • Again, default judgment could apply: so D to counterclaim (both C and 3^rd party) should file a defence to counterclaim within 14 days of service of particulars of counterclaim, if not default judgment. No A/S available.

• Part 20 Claim, Type 3 (20.6) D’s additional claim for contribution or indemnity from another (existing) party file and serve a contribution notice

  • NB: D must FIRST HAVE FILED an A/S or defence before taking this step

  • PROCEDURE/HOW:

    • FILE a NOTICE (containing nature & grounds of the additional claim)

    • And SERVE the notice on that party.

  • WHEN/permission?

    • Without court’s permission if:

      • (a) files and serves it with the defence

      • OR (b) if the claim is against a party added to the claim later, within 28 days after that new defendant files his defence.

      • [[So preferable time is at same time as filing defence]]

    • At any other time with court’s permission if need court’s permission, see factors for court in 20.9.

  • NEXT: the Defendant to the additional claim should file a defence within 14 days. D can file an A/s or defence.

    • But note NO DEFAULT judgment available for additional claims other than counterclaims.

• Part 20 Claim, Type 4 (20.7) Any other additional claim (new Part 20 claim form)

  • (20.7 is the ‘catch-all category’ for claims not fitting into above 3 categories. Eg a contribution claim against a non-existing party).

  • Name of parties: ‘Claimant’, ‘Defendant(s)’, ‘Third Party’

  • WHEN/do you need permission

    • Without court’s permission (even though an additional party is being joined) if claim form is issued before, or at same time, as filing defence.

      • [So preferable time is at same time as filing defence.]

    • At any other time with court’s permission if need court’s permission, see factors for court in 20.9. Can apply without notice.

  • PROCEDURE: you have to issue and serve (on the additional party) a Part 20 claim form (the only Part 20 claim you need a new claim form)

    • WITH a PARTICULARS of additional claim contained in or served with the claim form.

    • An additional claim is made WHEN the court issues the appropriate claim form.

    • NB: 20.8, re service of claim form where an additional claim is made without court’s permission:

    • (a) in case of a counterclaim against an additional party only, claim form must be served on every other party when a copy of the defence is served.

    • (b) in case of any other additional claim claim form must be served on the person against whom it is made, within 14 days of date on which additional claim is issued by the court.

  • The additional claim is ‘made’ when the court issues the claim form.

  • NEXT, an additional claim = a ‘claim’: so D to additional claim should respond, with A/S or defence. (no default judgment available except for counter-claims).

CPR PART 20

20.1, Purpose of this part

• Purpose of Part = to enable counterclaim and other additional claims to be managed in the most convenient and effective manner.

20.2, Scope & interpretation

• This part applies to:

  1. A counterclaim by a D against C, counterclaim

  2. A counterclaim against the C and some other person;

  3. An additional claim by a D against any person (whether or not already a party) for contribution or indemnity or some other remedy; and

  4. Where an additional claim has been made against a person who is not already a party: any additional claim made by that person against any other person (whether or not already a party).

• “Additional claim” = any claim other than the claim by the C against the D (including counterclaims);

• [[claims under this Party were formerly called ‘Part 20’ claims, now called ‘additional claims’. However, some court forms describes them as ‘Part 20’ claims these should be construed as being ‘additional claims’.

• References to a ‘claimant’ or ‘defendant’ include a party bringing or defending an additional claim (unless context requires otherwise).

20.3, application of these rules to additional claims an ‘additional claim’ = a ‘claim’, so CPR applies as if they were a ‘claim’:

• An ‘additional claim’ shall be treated as if a ‘claim’ for purposes of these Rules, except as provided by this Part.

• PD 20, Para 3: So the CPR apply generally to additional claims as if they were ‘claims’:

  • Thus the provisions re failure to respond to claim will apply to additional claims: i.e. a defendant to an additional claim should file a defence to that claim.

  • NB: you cannot file an A/S in response to a ‘counterclaim’ (see below); but you can to another type of additional claim

  • Default judgment is available only for counterclaims, not other additional claims.

• The following rules do not apply to additional claims (including counterclaims):

  1. Rules 7.5 & 7.6 (time within which a claim form may be served).

  2. Rule 16.3(5) (statement of value where claim to be issued in the High Court)

  3. Part 26 (case management, preliminary stage).

• Part 12 (default judgment)

  • applies to a counterclaim;

  • BUT not to other additional claims.

    • [[i.e., if no defence to a counterclaim is filed within 14 days of service of particulars of counterclaim, default judgement can be sought on the counterclaim]]

• Part 14 (admissions) applies to a counterclaim

• But for other additional claims, only following rules of Part 14 apply:

  1. Rules 14.1(1)-(2): (a party may admit the truth of another party’s cause in writing); and

  2. Rule 14.3: (admission by notice in writing—application for judgment).

• [[rule 12.3(2) sets out how to obtain judgment in default of defence for a counterclaim against the C; r20.11 makes special provision for default judgment for some additional claims]].

(PD) Statement of truth

• The contents of an additional claim should be verified by a statement of truth.

20.4, (1) Defendant counterclaim against the claimant

• A D may make a counterclaim against a C by: filing particulars of the counterclaim

• A D may make a counterclaim against a C:

  1. Without court’s permission IF he files it with his defence [defence & counterclaim should be in same document, Part 16]; OR

  2. With court’s permission at any other time

     • [[ see PD, cases where court’s permission to make additional claim is required]]

     • if permission is required, court will decide considering the factors in r20.9.

• NB: When D makes counterclaim, the defence and counterclaim should normally form one document (as should C’s reply and defence to counterclaim).

• Defence to counterclaim (since the counterclaim is itself a ‘claim’):

  • (Part 15 makes provision for a defence to a claim, and applies to a defence to a counterclaim by virtue of r20.3).

  • PD15: Where C serves a reply and defence to counterclaim they should form one document

  • Part 10 (acknowledgment of Service) does not apply to counterclaims: to a claimant who wishes to defend a counterclaim (i.e. there is no A/S for a defence to a counterclaim)

  • So the C must file a defence to C’s counterclaim within 14 days (of service of particulars of counterclaim) (no A/S can be used) otherwise the D could seek default judgment on the counterclaim

20.5, (2) Counterclaim against a person other than the Claimant (as well as the C)

• A D who wishes to counterclaim against a person other than the C (as well as C himself), must: apply to the court for an order that that person be added as an additional party.

  • [[ see PD, cases where court’s permission to make additional claim is required]]

  • since permission is required, court will decide considering the factors in r20.9.

• An application for such an order may be made without notice unless court directs otherwise. Must file...