Part 18 – Ancillary Claims

Meaning of ancillary claim

18.1

1. An “ancillary claim” is any claim other than a claim by a claimant against a defendant or a claim for a set off contained in a defence and includes a –
   1. claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and
   2. claim by an ancillary defendant against any other person (whether or not already a party); and
   3. counterclaim by a defendant against the claimant or against the claimant and some other person.
2. In this Part –
   • “ancillary claimant” means a person who makes an ancillary claim; and
   • “ancillary defendant” means the defendant to that claim
3. If an ancillary defendant makes an ancillary claim against a further person that person is to be called the “second (or as the case may be) ancillary defendant”.

Ancillary claim to be treated as claim for purposes of these Rules

18.2

1. An ancillary claim is to be treated as if it were a claim for the purposes of these Rules except as provided by this rule.
2. Particulars of an ancillary claim must be contained in or served with the ancillary claim form in Form 9.
3. An ancillary claim form must include –
   1. the ancillary claimant’s address for service in accordance with rule 3.11; and
   2. a certificate of truth in accordance with rule 3.12.
4. The following rules do not apply to ancillary claims –
   1. rules 8.12 and 8.13 (time within which a claim may be served);
   2. Part 12 (default judgments); and
   3. Part 14 (admissions) other than rule 14.1(1) and (2), 14.3 and
5. If the ancillary claim is a counterclaim by the defendant against a claimant (with or without any other person) the claimant is not required to file an acknowledgment of service and therefore Part 9 (acknowledgment of service) does not apply to the claimant.

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

18.3

1. A defendant who has filed an acknowledgment of service or a defence may make an ancillary claim for contribution or indemnity against another defendant by –
   1. filing a notice containing a statement of the nature and grounds of the claim; and
   2. serving the notice on the other defendants.
2. Rule 18.4 does not apply to an ancillary claim under this rule.
   • Part 9 deals with filing an acknowledgment of service.
   • Part 10 deals with filing a defence.

Procedure for making ancillary claim

18.4

1. A defendant may make an ancillary claim (other than a claim falling within rule 18.3) without the court’s permission if in –
   1. the case of a counterclaim – it is filed with the defence; or
   2. any other case – the ancillary claim form is filed before the 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 under paragraph (2) may be made without notice unless the court directs otherwise.
4. The applicant must attach to the application a draft of the proposed ancillary claim form and ancillary statement of claim.
5. The court may give permission at the case management conference.
6. The court may not give permission after the first case management conference to any person who was a party at the time of that confer­ence unless it is satisfied that there has been a significant change in circumstances which became known after the case management con­ference.
7. The ancillary claim is made in –
   1. the case of a counterclaim – when it is filed; and
   2. any other case – when the court issues the ancillary claim form.

Service of ancillary claim form

 18.5

1. An ancillary claim which may be made without the court’s permission must be served on the person against whom it is made within 14 days after the date the defendant files a defence.
2. If the court gives permission to make an ancillary claim it must at the same time give directions as to the service of the ancillary claim form.
3. A copy of the ancillary claim form and ancillary statement of claim (if any) must be served on all other parties.

Counterclaim may survive claim

18.6

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

Restrictions on right to make counterclaim or set-off in proceedings by or against the Crown

18.7

1. A counterclaim may not be made or set-off pleaded in proceedings by the Crown if the –
   • proceedings are for the recovery of; or
   • counterclaim or set-off arises out of; a right or claim to repayment in respect of any tax, duty or penalty.
2. A counterclaim may not be made or set-off pleaded in any other proceedings by or against the Crown without the permission of the court or the consent of the Attorney General.

Adding other defendants to counterclaim

18.8

1. The defendant who alleges that another person as well as the claimant is liable on the counterclaim 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 add the person’s name to the title of the claim as “defendant to the counterclaim”.
   • Rule 18.13 deals with the documents to be served on a defendant who is not already a party.

Defence to ancillary claim

18.9

1. A person against whom an ancillary claim is made may file a defence.
2. The period for filing a defence is the period of 28 days after the date of service of the ancillary claim.
3. The Rules relating to a defence to a claim apply to a defence to an ancillary claim except Part 12 (default judgments).
4. An ancillary defence must include –
   1. a certificate of truth in accordance with rule 3.12; and
   2. the ancillary defendant’s address for service in accordance with rule 3.11.

Matters relevant to question whether ancillary claim should be dealt with separately from main claim

18.10

1. This rule applies when the court is considering whether to –
   1. dismiss an ancillary claim;
   2. permit an ancillary claim to be made; or
   3. require the ancillary claim to be dealt with separately from the claim.
      • Rules 26.1(d) and (e) 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 must have regard to all the circumstances of the case including –
   1. the connection between the ancillary claim and the claim;
   2. whether the ancillary claimant is seeking substantially the same remedy which some other party is claiming from the ancillary claimant;
   3. whether the ancillary claimant wants the court to decide any question connected with the subject matter of the proceedings –
      1. not only between the existing parties but also between exist­ing parties and the proposed ancillary claim defendant; or
      2. to which the proposed ancillary defendant is already a party but also in some further capacity; and
   4. whether the facts in the ancillary claim are substantially the same, or closely connected with, the facts in the claim.

Effect of service of ancillary claim form

18.11

1. A person on whom an ancillary claim form (other than a counterclaim) is served becomes a party to the proceedings if that person 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 judgment on failure to file defence to 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 18.9(2) deals with the time for filing a defence to an ancillary claim.
2. The party against whom the ancillary claim is made –
   1. 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;
   2. subject to paragraph (5), if judgment under Part 12 is given against the ancillary claimant – may apply to enter judgment in respect of the ancillary claim.
3. Paragraph (2) does not apply in ancillary proceedings against the Crown unless the court gives permission.
4. An application for the court’s permission under paragraph (3) may be made without notice unless the court directs otherwise.
5. The ancillary claimant may not enter judgment under paragraph (2) (b) if the ancillary claimant 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 the ancillary claim­ant.
6. The court may at any time set aside or vary a judgment entered under paragraph (2) if it is satisfied that the ancillary defendant –
   1. applied to set aside or vary the judgment as soon as reasonably practicable after finding out that judgment had been entered;
   2. gives a good explanation for the failure to file a defence; and
   3. has a real prospect of successfully defending the ancillary claim.

Procedural steps on service of ancillary claim form on person who is not a party

18.13

1. An ancillary claimant who serves an ancillary claim form on a person who is not already a party must also serve on that person a copy of –
   1. every statement of case which has already been served in the proceedings; and
   2. such other documents as the court may direct.

Case management where there is defence to ancillary claim

18.14

1. If 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.