s.41New claims in pending actions
41
Section 41Part 4 — Miscellaneous And General

New claims in pending actions

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For the purposes of this Law, any new claim made in the course of an action shall be deemed to be a separate action and to have been commenced in the case of —
a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
any other new claim, on the same date as the original action.
In this section — "new claim" means a claim by way of set-off or counterclaim, and a claim involving the addition or substitution of either a new cause of action or of a new party; and "third party proceedings" means proceedings brought in the course of an action by any party to the action against a person not previously a party, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings.
Except as provided by section 39 or by rules of court, a court shall not allow a new claim within paragraph (b) of subsection (1), other than an original set-off or original counterclaim, to be made in the course of an action after the expiry of any time limit under this Law which would affect a new action to enforce that claim. For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or counterclaim by a party who had not previously made any claim in the action.
Rules of court may provide for allowing a new claim to which subsection (3) applies to be made as therein mentioned, but only if the conditions specified in subsection (5) are satisfied, and subject to any further restrictions the rules may impose.
The conditions referred to in subsection (4) are in the case of a claim involving —
a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and
a new party, if the addition or substitution of the new party is necessary for the determination of the original action.
The addition or substitution of a new party shall not be regarded for the purposes of paragraph (b) of subsection (5) as necessary for the determination of the original action unless either —
the new party is substituted for a party whose name was given in any claim made in the original action in mistake for the new party's name; or
any claim already made in the original action cannot be maintained by or against an existing party unless the new party is joined or substituted as plaintiff or defendant in that action.
Subject to subsection (4), rules of court may provide for allowing a party to any action to claim relief in a new capacity in respect of a new cause of action, notwithstanding that he had no title to make that claim at the date of the commencement of the action. This subsection shall not be taken as prejudicing the power of rules of court to provide for allowing a party to claim relief in a new capacity without adding or substituting a new cause of action.
Subsections (3),(4),(5),(6) and (7) apply in relation to a new claim made in the course of third party proceedings as if those proceedings were the original action, and subject to such other modifications as may be prescribed by rules of court in any case or class of case.
In this section — "rules of court" means rules made under section 19(3) of the Grand Court Law (1995 Revision) or section 53(1) of the Summary Jurisdiction Law (1995 Revision).

Defined Terms

new claimthird party proceedingsrules of court

Cross References