Orders

The Report on the Review of Civil Procedures

Part 18

Counterclaims, Third Party and other similar claims

Contents of this part

Meaning of 'Ancillary Claim'	Rule 18.1
Ancillary Claim to be treated as a claim for the purposes of the Rules	Rule 18.2
Defendant's claim for contribution or indemnity from co-defendant	Rule 18.3
Procedure for making an Ancillary Claim other than a Counterclaim	Rule 18.4
Making a Counterclaim	Rule 18.5
Counterclaim may survive Claim	Rule 18.6
Restrictions on right to make Counterclaim or Set-off in proceedings by or against the State	Rule 18.7
Adding other defendants to counterclaim	Rule 18.8
Defence to a counterclaim	Rule 18.9
Matters relevant to whether an Ancillary Claim should be dealt with separately from main claim	Rule 18.10
Effect of service of Ancillary Claim form	Rule 18.11
Special provisions relating to judgment in default on an Ancillary Claim	Rule 18.12
Procedural steps on service of an Ancillary Claim form on a non-party	Rule 18.13
Case management where there is a defence to an Ancillary Claim form	Rule 18.14

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Meaning of Ancillary Claim

18.1 (1) An Ancillary Claim" is any claim other than a claim by a claimant against a defendant and includes -

(a) a counterclaim by a defendant against the claimant or against the claimant and some other person; and

(b) a claim by the defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and

(c) where an ancillary claim has been made against aperson who is not already a party, any claim made by that person against any other person (whether or not already a party).

(2) In this Part;

"ancillary claimant" means a person who makes an ancillary claim; and

"ancillary defendant" means the defendant to that claim.

(3) Where an ancillary defendant makes an ancillary claim against a further person that person shall be called the "second (or as the case may be) ancillary defendant"

(4) No ancillary claim may be made in proceedings by or against the State unless the court gives permission.

(5) The court shall not give permission under paragraph (5) for the issue of an ancillary claim against the State unless it is satisfied that the State is in possession of all such information as it reasonably requires -

(a) about the claim made against it; and

(b) as to the departments and officers of State concerned.

Ancillary Claim to be treated as a claim for the purposes of the Rules

18.2 (1) An ancillary claim shall be treated as if it were a claim for the purposes of these Rules except as provided by this rule

(2) The following rules do not apply to ancillary claims -

(a) rules 8.9 and 8 10 (time within which a claim may be served); and

(b) those provisions in Part 12 which enable a claimant to enter judgment in default of appearance or defence; and

(c) rule 12.7 (nature of default judgment).

Defendant's claim for contribution or indemnity from co-defendant

18.3 (1) A defendant who has filed a defence may make an ancillary claim for contribution or indemnity against another defendant by -

(a) issuing a notice containing a statement of the nature and grounds of his claim; and

(b) serving that notice on the other defendants.

(2) Rule 18.4 does not apply to an ancillary claim under this rule.

Procedure for making an Ancillary Claim other than a Counterclaim

18.4 (1) A defendant may make an ancillary claim without the court's permission, if the ancillary claim is issued before the date of any case management conference.

(2) Where paragraph (1) does not apply an ancillary claim may be made only if the court gives permission.

(3) An application for permission to make an ancillary claim may be made without notice unless the court directs otherwise.

(Part 11 deals with applications to the court)

(4) The court may give permission to an existing party at a case management conference.

(5) The court shall not give permission after the case management conference to any person who was a party at the time of the case management conference unless it is satisfied that there has been a significant change in circumstances since the date of the case management conference.

(6) The ancillary claim is made when the court issues an Ancillary Claim Form except where it is a counterclaim when it is made when filed.

Making a counterclaim

18.5 (1) A defendant who alleges that he has a claim or is entitled to a remedy against the claimant may file and serve a counterclaim, as well as filing and serving a defence.

(2) There need be no connection between the claim and a counterclaim.

(3) The defendant may make a counterclaim -

(a) without the court's permission if he files and serves it at the same time as the defence; or

(b) with the court's permission at any other time.

(4) The court may give the defendant such permission at a case management conference.

(5) The court may not give the defendant such permission after a case management conference unless the defendant can show that there has been a significant change in circumstances since the date of the case management conference.

(6) All rules which apply to claims apply also to counterclaims except -

(a) rule 8.10 (time within which a claim may be served)

(b) Part 9 (appearance); and

(c) those provisions in Part 12 which enable a claimant to enter judgment for failure to file a defence.

Counterclaim may survive claim

18.6 The defendant may continue a counterclaim even if the court gives judgment on the claim for the claimant and does not dismiss the counterclaim or the claim is stayed, discontinued or dismissed.

Restrictions on right to make Counterclaim or Set-off in proceedings by or against the State

18.7 (1) No counterclaim may be made or set-off pleaded in proceedings by the State if

(a) the proceedings are for the recovery of; or

(b) the counterclaim or set-off arises out of a right or claim to repayment in respect of any taxes duties or penalties.

(2) No counterclaim may be made or set-off pleaded in any other proceedings by or against the State without the consent of the Attorney General.

Adding other defendants to a counterclaim

18.8 (1) If the defendant to the claim says that someone else is liable on the counterclaim as well as the claimant, he may add that other person as a defendant to the counterclaim.

(2) If a person so added is not already a party, the defendant must -

(a) add his name to the title of the proceedings as 'Defendant to the counterclaim'; and

(b) serve on him a copy of -

(i) the claim; and

(ii) the counterclaim; and

(iii) the defence, if that is separate from the counterclaim.

Defence to a counterclaim

18.9 (1) A person against whom a defendant makes a counterclaim may file a defence to the counterclaim.

(2) The period for filing a defence to the counterclaim is the period of 28 days after the date of service of the counterclaim.

(3) The rules relating to a defence to a claim apply to a defence to a counterclaim except Part 12 (Judgment for failure to respond).

(4) If no defence to the counterclaim is served prior to the case management conference the court may give judgment for failure to respond.

Matters relevant to the question whether an Ancillary Claim should be separate from the main claim

18.10 (1) This rule applies when the court as considering whether to -

(a) permit an ancillary claim to be made; or

(b) dismiss an ancillary claim; or

(c) require the ancillary claim to be dealt with separately from the claim

(Rules 26.1(g) or (h) deal with the court's power to decide the order in which issues are to be tried or to order that part of the proceedings be dealt with separately.)

(2) The court shall have regard to all the circumstances of the case including -

(a) the connection between the ancillary claim and the claim; and

(b) whether the ancillary claimant is seeking substantially the same remedy which some other party is claiming from him; and

(c) whether the facts in the ancillary claim are substantially the same, or closely connected with, the facts in the claim; and

(d) whether the ancillary claimant wants the court to decide any question connected with the subject matter of the proceedings -

(i) not only between the existing parties but also between existing parties and the proposed ancillary claim defendant

(ii) which he is already a party but also in some further capacity.

Effect of service of an Ancillary Claim form

18.11 (1) A person on whom an ancillary claim form is served becomes a party to the proceedings if he is not already a party.

(2) When an ancillary claim form is served on an existing party for the purpose of requiring the court to decide a question against that party in a further capacity, that party also becomes a party in the further capacity specified in the notice.

Special provisions relating to a judgment for failure to respond to an Ancillary Claim

18.12 (1) This rule applies if the party against whom an ancillary claim is made fails to file a defence in respect of the ancillary claim within the permitted time.

(Rule 10.3 deals with the time for filing a defence)

(2) The party against whom the ancillary claim is made -

(a) is deemed to admit the ancillary claim , and is bound by any judgment or decision in the main proceedings in so far as it is relevant to any matter arising in the ancillary claim; and

(b) subject to paragraph (4) if judgment under Part 12 is given against the ancillary claimant, he may enter judgment in respect of the ancillary claim.

(3) However, paragraph (2) shall not apply in ancillary proceedings against the State unless the court gives permission.

(4) An ancillary claimant may not enter judgment under paragraph (2)(b) if he wishes to obtain judgment for any remedy other than a contribution or indemnity for a sum not exceeding that for which judgment has been entered against him.

(5) An application for the court's permission under paragraph (3) may be made without notice unless the court directs otherwise.

(6) The court may at any time set aside or vary a judgment entered under paragraph (2) if it is satisfied that -

(i) the ancillary defendant applied to set aside or vary the judgment promptly, and

(ii) the ancillary defendant has a defence to the ancillary claim which has a realistic chance of success.

Procedural steps on service of an Ancillary Claim form on a non party

18.13 Where an ancillary claim form is served on a person who is not already a party -

(a) it must be served with a copy of

(i) every statement of case which has already been served in the proceedings; and

(ii) such other documents as the court directs.

(b) A copy of the ancillary claim form must be served by the ancillary claimant on every existing party.

Case management where there is a defence to an Ancillary Claim

18.14 (1) Where a defence is filed to an ancillary claim the court must consider the future conduct of the proceedings and give appropriate directions.,

(2) The court must fix a case management conference for all parties unless it is satisfied that such further directions as are required can be given in written form.

(3) In giving directions under this rule the court must ensure that, so far as is practicable, the ancillary claim and the main claim are managed together.

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