Civil Litigation SGS 6 Further Steps

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Author:
billsykes
ID:
204275
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Civil Litigation SGS 6 Further Steps
Updated:
2013-03-10 13:59:44
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Civil Litigation
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Civil Litigation
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  1. When is the permission of the court required to amend a cause of action on a claim form? Which ONE of the following statements is CORRECT?

    [A] After issue of the claim form.

    [B] After service of the claim form where the Claimant has the consent ofthe other parties in writing to the amendment.

    [C] After issue of the claim form where the Claimant does not have theconsent of the other parties in writing to the amendment.

    [D] After service of the claim form when the Claimant does not have theconsent of the other parties in writing to the amendment.
    [D] After service of the claim form when the Claimant does not have the consent of the other parties in writing to the amendment.

    [[D] is CORRECT. See CPR Rule 17.1(1) and (2)]
  2. ‘J.J. Builders & Son’ have made a claim against ‘Payless’. Payless have been advised that they should make a counter claim.

    Which ONE of the following statements is CORRECT?

    [A]  The counter claim must be filed within 28 days of the defence.

    [B]  The counter claim must be filed with the defence, otherwise the defendant will need the court’s permission to file it.

    [C]  The counter claim must be filed within 28 days of the defence, otherwisethe defendant will need the court’s permission to file it.

    [D]  The counter claim must be filed with the defence.
    [B]  The counter claim must be filed with the defence, otherwise the defendant will need the court’s permission to file it.

    [[B] is CORRECT.See CPR Rule 20.4(2)]
  3. In 2004, Hot Heating Ltd agreed to install a heating system to British standards in Carl’s factory. The system was installed defectively and failed to comply with British standards, causing Carl loss and damage.In August 2005, Carl commenced proceedings against Hot Heating for damages for breach of contract, alleging failure to install the system to British standards. The action has still not reached trial, and Carl now wishes to know whether he can amend his particulars of claim in orderto include a negligence claim in addition to the breach of contract claim.

    Which ONE of the following statements is CORRECT?

    [A] Carl cannot amend his particulars of claim because the limitation periodhas expired.

    [B] Carl does not require the permission of the court in order to amend hisparticulars of claim.

    [C] Carl requires the permission of the court in order to amend hisparticulars of claim and should rely on the fact that the new claim arisesout of the same facts as the current one.

    [D] Carl can only amend his particulars of claim if the court extends thelimitation period under the Limitation Act 1980 s.33.
    [C] Carl requires the permission of the court in order to amend his particulars of claim and should rely on the fact that the new claim arisesout of the same facts as the current one.

    [[C] is CORRECT. See CPR Rule 17.4(2)] There is discretion under CPR Rule 17.4(2) to allow the amendment despite the fact that the limitation period has expired.
  4. Gladbury Buses Limited have been sued by Mr King for personal injury and loss sustained boarding a bus. The particulars of claim are brief and imprecise. Gladbury Buses Limited need further details in order to understand the case against them to enable them to prepare a defence.

    Which ONE of the following statements contains the CORRECT advice to give to Gladbury Buses Limited?

    [A] Prepare as good a defence as possible based on the information that isprovided in the particulars of claim.

    [B] Serve a written request for further information on Mr King and once the information is received file a defence.

    [C] Acknowledge service of the particulars of claim and then serve a writtenrequest for further information on Mr King. Ask the Claimant for anextension of time for filing of the defence.

    [D] Apply to the court for an order that further information be provided.
    [C] Acknowledge service of the particulars of claim and then serve a written request for further information on Mr King. Ask the Claimant for an extension of time for filing of the defence.

    [[C] is CORRECT. See CPR Rules 10.1(3)(a), 18.1(1) and PD18 paragraph 1.1 and Rule 15.5]
  5. Proceedings for damages have been brought by a motorist against Gladbury Council for breach of statutory duty under the Highways Act1980. Gladbury Council have not yet filed a defence. The relevant repair work had been carried out by independent contractors and Gladbury Council wish to join them to the proceedings.

    Which ONE of the following statements is CORRECT?

    [A] They may make an Additional Claim against the contractors without the permission of the court provided the claim form is issued before or at thesame time as the defence is filed.

    [B] The court’s permission is always required in order to make an Additional Claim.

    [C] Gladbury Council must apply to the court for an order that the contractors be added as defendant to the proceedings.

    [D] They may make an Additional Claim against the contractors without the permission of the court provided the claim is issued within 14 days ofservice of the defence. No permission is needed if the additional claim is issued before or atthe same time as the defence is filed, not within 14 days of serviceof the defence.]
    [A] They may make an Additional Claim against the contractors without the permission of the court provided the claim form is issued before or at the same time as the defence is filed.

    [[A] is CORRECT. See CPR Rule20.7(3) (a)]
  6. A claimant issues a claim form against the wrong party and wants to correct the error.

    What test(s) would the court apply in deciding whether to allow this amendment?
    Depends if the limitation period has expired:

    MISTAKE as to entity (i.e. they have Identified the wrong entity) Claimant can apply to the court to substitute entity and the court may substitute them as a party  only if the limitation period was current when the proceedings were started and the substitution is necessary. The court must be satisfied that the new party is to be substituted for a party who was named in claim form in mistake for the new party.

    MISTAKE as to name (not identity of the party) the court may allow an amendment to correct the mistake if genuine and not one that would cause reasonable doubt as to the identity of the party 

    In both circumstance the court has a discretion as to whether they will allow the amendment.
  7. A claimant sues a party for breach of contract but now wishes to add a cause of action for negligence to their claim. The limitation period has expired. What can the claimant do and what test would the court apply in deciding whether to allow the amendment?
    Even thought the limitation period has expired the court may allow an amendment whose effect will be to all or substitute a new claim, but only of the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings. (r.17.4(2))
  8. Who is likely to be held responsible for the costs of making amendments to a claim?
    The party applying for the amendment will usually be responsible for the costs of and caused by/arising from or occasioned by the amendment.

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