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Civil litigation and evidence > 10 Commencing proceedings > Flashcards

10 Commencing proceedings Flashcards

1
Q

What is the difference between DS with CFs or with any other document?

A

A claim form is deemed served on the second business day after;

Another document is deemed served on the second day UNLESS it’s been a weekend or bank holiday, then it’s that next working day

CF emailed Friday - DS = Tuesday
POC emailed Friday - DS = Monday

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2
Q

Can a child represent themselves?

A

Yes if they make an application to court (with notice if already have a litigation friend, without notice if they do not)

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3
Q

Once a child has an order that they can represent themselves, is this binding for the whole trial?

A

No, if at anytime the court feels it would be DESIRABLE to Ch to have a litigation friends they will appoint one

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4
Q

What steps can a party NOT take, whilst awaiting for a litigation friend to be appointed to a child?

A

• cannot take any step in litigation or
• make an application against the child

UNLESS
• other than an app to get the child a litigation friend
• or it is service of a claim form
• the court orders otherwise or

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5
Q

Any step taken against a child or PP awaiting LIT/FRI…

A

Has no effect unless court orders that it does

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6
Q

Is a protected party like a child, where they make an application?

A

No. PP must have a LF

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7
Q

Who may be a LF for a child?

A

(Less strict than PP)
• can fairly and competently conduct proceedings
• has no interest adverse to that of the child
• where Ch is C, undertakes to pay costs of (subj to any right to be repaid)

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8
Q

Who may be an LF for a PP?

A

Court appoint deputy by the court of protection under MCA 2005. With powers to conduct proceedings on behalf of PP

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9
Q

If nobody has been appointed, who can stand as a PP LF?

A

• can fairly and competently conduct proceedings on his behalf
• where he has no interest adverse to the PP
• where PP is a C, undertakes to pay costs (subject to being repaid)

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10
Q

£ recovered for PP or child

A

The court will give directions, all or part of it may be paid into court and invested

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11
Q

What must the Part 7 claim form and all other statements of case be headed with? (4)

A
  1. The number of the proceedings
  2. The court or division
  3. The full name of each party
  4. Each parties status in proceedings
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12
Q

Start of proceedings —> C files CF with court —> Court issues the claim form (usually same day)…

A

C has 4 calendar months to serve it on D —> POC must be served with (midnight) 14 days of CF but at very latest, within 4 calendar months of issue of CF

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13
Q

Partnership

A

= firm

Unless inappropriate to do so

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14
Q

What are acceptable methods of service?

A

• personal service (instant)
• email (instant)
• fax (instant)
• DX (next working day)
• first class post (next working day)
• other method permitted

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15
Q

Can you do personal service on D’s Sol?

A

No you cannot - or the Crown!

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16
Q

What signifies the start of litigation?

A

The court ISSUING a claim form

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17
Q

What must a claimant do if they are seeking to bring a claim against a deceased person but probate and letters of administration have yet to be appointed?

A

C should refer to the D as ‘the Estate of CB, deceased’, once the claim form issued C should apply to the court for the appointment of such representatives

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18
Q

With regard to trusts and trustees, do beneficiaries need to be join in a ruling will be binding on them?

A

No, there is no need to join trustees even if binding on them

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19
Q

Sole trader =

A

Miss HANNAH BARTON (trading as BabyB)

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20
Q

Partnerships =

A

BARTON AND HARPER (a firm)

Unless inappropriate to do so

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21
Q

A claim may be brought against a business name as if it were the name of a partnership

A

? ask MUHAMMAD

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22
Q

What do all claim forms need to set out? (8)

A
  1. Concise statement of the nature of the claim
  2. Statement of value
  3. Statement of interest
  4. Anything a PD requires
  5. Any representative capacity
  6. Remedy sought (court may grant remedy C did not request)
  7. If POC not served with CF, a statement that it will follow
  8. Verified by a statement of truth (contempt of court if not true)
23
Q

What are the addition contents required for a MONEY CLAIM?

A

Amount C expects to recover (in following format not more than £10,000 / more than £10,000 not exceeding £25,000 / more than £25,000 / cannot say)

24
Q

What must C include in a PI claim?

A

Amount C intends to recover in PSLA (less than 1k / more than 1k)

If CF to be issued in the HC C must state:
1. Expects more than 100k over all (if PI less than 50k) or expects to recover more than ASKING MUHAMMAD
2. Enactment provides it should
3. Claim is to be within a HC specialism
statement of value does not limit courts power

25
Q

An extension for the time allowed for service would of course be without notice (as who are you notifying - D doesn’t know anything other than LBA). What must an application state?

A

a) circumstances relied on for issue of the claim (CPR 7.6)
b) the expiry date for service
c) current date
d) full explanation as to why it is needed

26
Q

What is the irrebutable presumption regarding service of CF?

A

If the appropriate steps have been carried out by the C, the document either CF or otherwise, is deemed served regardless if D never receives it

27
Q

What is the timeframe for service outside of jurisdiction?

A

6 months

28
Q

What does DEEMED SERVED mean?

A

Depends on type of document and method of service

CF = 2 working days after delivered (email / fax instant, DX or first class post add 1 more day)

Any document other than the CF, the second day if that day is a business day, if not the next working business day

29
Q

When must POC be served on D?

A

Within 14 days of the service of the CF

30
Q

In what circumstances do the rules of service not necessarily apply?

A

When the parties have agreed via the terms of a contract a method of service of a CF. UNLESS proceedings include a child (even with litigation friend)

31
Q

Usually the court will serve CF on D but C can if they wish. It is not sufficient for C to…

A

Photocopy a CF it has to be the original

32
Q

What are the methods of a claim form? CPR 6.3

A

a) personal service (not on sol or crown)
b) first class post DX or other next business day delivery
c) leaving at a specified place (residence, place of business, tenant serving landlord @ address given by landlord, partnership = real connection to claim) CPR 6.9
d) fax or other means of electronic communication

33
Q

D’s solicitor has confirmed they are authorised to accept service, but did not specifics a method. Their letter is headed with an email address and a fax number. Does this mean you can email them a CF and this will be sufficient?

A

No. An email address provided on a letter is not a sufficient indication that sold will accept service by email but a fax number is sufficient as this does indicate (due to fax not being normal method of commas these days)

Confirmation of acceptance of service via email but me in writing

34
Q

Where can C serve on D (individual or sole trader)?

A

If D has not given an address

a) known address
b) usual residence
c) personal service to D himself

Reasonable steps must be taken

35
Q

Where must C serve on a LLP?

A

Principle office or any place within the jurisdiction with a real connection to the claim

36
Q

Where must C serve CF if D is a company?

A

a) principle office
b) registered office
c) personal service of person who holds senior position
d) place with real connection to the claim
e) last known place of business (if reasonable steps failed to give current)

37
Q

Your client, Bob the claimant in a matter has failed to serve the CF and POC. He has one more week to do so but he is very busy for the next 7 days so he intends to make an application to extend the time for service pursuant to CPR 7.6(3) as this application would be outside of the 4 calender months from the issue of the claim form. How would you BEST advise Bob?

A

If Bob has already taken reasonable steps / is aware of the D’s address / place for valid service. He should make every effort to serve the CF and POC. However, if he cannot it is likely he also cannot apply to the court within the timeframe and seek the extension.

It may be futile Bob filing an extension outside of the relevant time frame as to for this application to be accepted is a GREAT HURDLE. If Court refuse providing Bob is within the LP, he may file a new CF with court.

38
Q

What would C need to satisfy the court of, in order for an extension of time for service outside the 4 months? (I think this will be exam question)

A

That either
a) the court has failed to serve D
b) C has taken all reasonable steps to comply with 7.5 but has been UNABLE TO DO SO
c) in either case C has acted promptly in making the application

(Carelessness on part of C will not be accepted, this is a great hurdle as C has had FOUR MONTHS to serve / check with Muhammad, but I think upon an application when C has taken all reasonable steps the court may find that C has satisfied the requirements of CPR 6.15 Alternate Service (providing sufficient evidence has been provided)

39
Q

What be served with a POC?

A

A response pack
a) forms for AOS
b) admitting
c) defending

40
Q

What are the rules regarding POC and Part 8?

A

Part 8 claims do NOT need POC, only a WS

41
Q

What are the two words that come to mind when we think ALTERNATIVE (place or method) of service?

A

GOOD REASON

42
Q

What does the court need to be satisfied of when considering permission for alternative service? CPR 6.15 (app contents)

A
  1. Good reason to authorise alternative service (method or place)
  2. On application court may find steps already taken by C via alternative method or place are good service
  3. An application under this rule
    a) must be supported by evidence
    b) may be made without notice (obvs)
43
Q

What must an ORDER for alternative service under CPR 6.15 specify?

A

a) method or place authentised
b) the date on which the claim form is deemed served, and
c) the period for:
i) filing an AOD
ii) filing an admission or
iii) defence

44
Q

What must the evidence show in an application under CPR 6.15?

A

In an application for alternative service, C must evidence to the court
a) reason why the order is sought, steps already taken
b) what alternative method or place is sought
c) why b) will likely be successful

Court must be satisfied GOOD REASON to permit

45
Q

What must POC contain (4) main sections

A
  1. Concise statement of facts
  2. Copies of any relevant documents (written contract, oral contract required details, conditions of sale)
  3. If seeking interest, a statement to that effect
  4. A statement of truth
46
Q

In a POC what must an interest statement refer to?

A

a) terms of contract re interest
b) other enactment (usually s88 CC or something?)
c) some other basis
d) if the claim is for specific of money?
~ the rate at which interest is claimed
~ the date to which it is claimed from
~ the date is it claimed to
~ the interest claim up to date of CF? Asking Muhammad
~ the daily rate

47
Q

What must a POC for provisional damages specify?

A

a) either claiming under County Court Act or Senior Court Act
b) the CHANCE of C developing serious disease or some serious deterioration
c) disease or the type deterioration in respect of which an application may be made
d) grounds to effect that C is seeking provisional damages

48
Q

What DETAILS OF THE CLAIM must be set out in the POC for PI?

A

a) C’s DOB
b) brief details of C’s PI
c) past and future expenses and losses
d) any medical report C wishes to rely on (must be fixed costs, further medical report must be justified)
e) for whiplash / soft tissue injury, the medical report needs to be done by
~ GP registered with GMC
~ A&E consultation
~ orthopaedic surgeon
~ physiotherapist

49
Q

What must C include in a POC if he wishes to rely on a court finding, such as conviction, paternity or adultery?

A

POC must include TYPE of conviction or DATE the court made the finding

50
Q

When will a Part 8 claim be more suitable than Part 7?

A

a) unlikely to involve substantial dispute of fact
b) in applying for an NPO prior to proceeding claim being issued
c) PD or rule allows it

51
Q

What if a court officer sees a Part 8 and feels it is more suitable for Part 7?

A

Court officer may refer it to judge to consider, if judge agrees with CO as if P8 had not been used

52
Q

What are the required contents of a Part 8 claim form?

A
  1. Question C wants court to decide
  2. Remedy sought and legal basis
  3. Any enactment under which the claim is made
  4. Any representative capacity of C or D (lit/ fri)
  5. C may rely on any CF if verified by statement of truth
53
Q

Part 8 and disability

A

When C is a child or PP and settlement has been reached outside of court, cannot do so without court appproval

CF signed by Ch or PP, or by litigation friend

Must include:
a) CF verified by S of T
b) WS verified by S of T

Court will, in private, look at success / likely damages. Court considers if settlement is enough

Civil litigation and evidence (28 decks)

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