#15717 - Advanced Statements Of Case - Advanced Commercial Litigation

Advanced Commercial Litigation

Advanced Statements of Case

Misrepresentation & Negligent Misstatement Claims

Misrepresentation

Fraudulent, Negligent and Innocent Misrepresentation requires:

1. An untrue statement

2. Relied upon by the claimant

3. Which induced them to enter into a contract

Negligent Misstatement

Negligence Misstatement requires under Hedley Byrne v Heller:

1. An assumption of responsibility by the Defendant;

4. Foreseeability that loss could be caused;

5. Proximity between the parties; a

6. It is just, fair and reasonable to impose the duty (Caparo v Dickman).

It is just, fair and reasonable to impose a duty of care on accountants (ADT v Binder)

Counterclaims

Against the Claimant

A defendant can counterclaim against the Claimant under CPR 20.4, this is usually contained in the same document as the defence (20 PD 6). This application can be made without the court’s permission if it is filed with the defence; in all other circumstances the court’s permission is required.

Against a Third Party

A defendant can counterclaim against a third party to the proceedings under CPR 20.5 as long as there is an existing counterclaim against the Claimant. The defendant must get the court’s permission in order to make the counterclaim (CPR 20.5(1)).

Additional Claims

Joining Third Parties

Third parties can be joined by the defendant pursuant to CPR 20.7. This application can be made without the court’s permission if it is filed with the defence; in all other circumstances the court’s permission is required.

The test to apply to join a party to the proceedings is found in CPR 19.2(2) and the court will consider whether it is desirable to add the party or that there is a connection which means it is desirable to add the party to the proceedings

Under PD 19 the applicant who is applying for permission to join an additional party to the claim will be liable to pay the costs of and arising out of the application.

Where a party is joined into the proceedings they must be served with all of the documents under CPR 20.12.

Claiming Against a Third Party

A defendant can make a claim against a third party under CPR 20.7 as an additional claim. However, because they will be a ‘quasi-claimant’ they will be making a claim pursuant to the rules in CPR 19.2 and CPR 19.4.

Default judgment is not available in this instance (CPR 20.11).

Contribution & Indemnities

A defendant can seek a contribution or indemnity from a third party under CPR 20.6. This application can be made without the court’s permission if it is filed with the defence; in all other circumstances the court’s permission is required.

Amending Statements of Case

CPR 17.1 provides that a party may amend their statements of case at any time before it has been served on the other party. However, if the statement of case has been served then they must either get: the written consent of all parties OR the permission of the court.

CPR 17.1(3) states that if the parties want to substitute, remove or add a party then this must be done under CPR 19.4. Therefore, the applicant must always get the court’s permission before they can add a party to the claim.

Under PD 19 the applicant who is applying for permission to amend their statement of case will be liable to pay the costs of and arising out of the application.

Requests to Provide Further Information

Under CPR 18 the court can require a party to ‘clarify any matter’ or ‘give additional information’ in relation to the case. Such an application will usually arise out of an unclear or incomplete statement of case.

Such an application should be ‘concise’ (18 PD 1.2) and refined to the matters which are reasonable and proportionate to provide the clarity or explanation sought. The application should not relate to matters which will be resolved in disclosure/inspection of documents and evidence. Therefore, the court will make a clear distinction between unclear/imprecise documents and points of evidence.

A failure to comply with this request may mean one of the following consequences:

1. ‘Unless Orders’ being awarded (CPR 3.1(3));

2. The claim may be struck out (CPR 3.4); or

3. Cost consequences (CPR 44.2(4)).

Set Off

Set off is a partial or full alternative defence to a claim. Such a defence can only be claimed in the following cases:

1. Mutual Debts: the...