2.1 Parties to proceedings Flashcards
Naming parties: how should partnerships be named in the claim form?
7APD 5A.3
Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.
16PD 2.6(c)
In the case of a partnership (other than a LLP)—
(i)
where partners are being sued in the name of the partnership, the full name by which the partnership is known, together with the words “(A Firm)”; or
(ii)
where partners are being sued as individuals, the full unabbreviated name of each partner and the title by which he is known;
Naming parties: how should sole traders be named?
7A PD 5C.2
The claim may be brought against the business name as if it were the name of a partnership.
16PD 2.6(b)
For sole traders, commonly both the individual and trading name will be used when describing a party to the claim. For example:
John Flagstone (trading as John’s Café)
Naming parties: how should LLPs be named?
16PD 2.6(d)
In the case of an LLP registered in England and Wales, the claim would be brought against the full registered name, including the suffix LLP, for example:
Flagstones LLP
Naming parties: how should companies be named?
16PD 2.6
(d)
in the case of a company or limited liability partnership registered in England and Wales, the full registered name, including suffix (plc, limited, LLP, etc), if any;
(e)
in the case of any other company or corporation, the full name by which it is known, including suffix where appropriate.
Who represents companies at trial?
A company may be represented at trial by an employee if:
• The employee has been authorised to do so by the company and
• The court gives permission
Naming parties: how should trusts be named?
CPR 19.7A
(1)
A claim can be brought by or against trustees, executors or administrators. It is not necessary to add the beneficiaries of the trust or estate as parties to the claim.
(2)
Any order made in the claim is binding on the beneficiaries unless the court orders otherwise.
Can a claim proceed where the claimant has died and has no personal representative?
CPR 19.8(1)
The court may order:
(a)
The claim to proceed in the absence of a person representing the estate of the deceased; or
(b)
A person to be appointed to represent the estate of the deceased.
Can a claim proceed where the defendant has died?
CPR 19.8(2)
Where a defendant against whom a claim could have been brought has died and—
(a)
a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;
(b)
a grant of probate or administration has not been made—
(i)
the claim must be brought against “the estate of” the deceased; and
(ii)
the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
Which part deals with parties who are children and protected parties?
CPR 21 (“Part 21”)
How does CPR define a child?
CPR 21.1(2)(b)
‘child’ means a person under 18
How does CPR define a protected party?
CPR 21.1(2)(a), (c) and (d)
A protected party means any person who lacks capacity to conduct the proceedings within the meaning of the Mental Capacity Act 2005. This means that by reason of impairment or disturbance of the brain or mind, the party is unable to make the decision in question at the time it needs to be made.
Who bears the burden of proving incapacity?
Whoever asserts incapacity.
In determining the issue of incapacity, what questions must be asked?
“Masterman-Lister”
(Martin Masterman-Lister v (1) Brutton & Co (2) Jewell & Home Counties Dairies [2002] EWCA Civ 1889)
1.
Can the person recognise the problem they encounter?
2.
Can the person explain with sufficient clarity the problem to those from whom they seek appropriate advice?
3.
Can the person understand and evaluate the advice received from an appropriate source?
4.
Can the person understand the effects of choosing one course of action over another and give effect to their chosen course through instruction?
Who has litigation friends?
CPR 21.2
(1)
A protected party must have a litigation friend to conduct proceedings on his behalf.
(2)
A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3).
(3)
The court may make an order permitting a child to conduct proceedings without a litigation friend.
Who can be a litigation friend?
CPR 21.4(3)
… a person may act as a litigation friend if he –
(a)
can fairly and competently conduct proceedings on behalf of the child or protected party;
(b)
has no interest adverse to that of the child or protected party; and
(c)
where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.
