4: Commencing Proceedings Flashcards
PoC MUST be served
within 14 days after service of CF + within period of validity of CF.
PoC MUST be served within 14 days after service of CF + within period of validity of CF. FAILURE:
app for relief from sanctions.
PoC must:
- Be contained in CF; or
- Served on D within 14 days after service of CF.
Where C serves PoC, unless copy already been filed, C must file
within 7 days.
County Court claims where the only remedy sought is an amount of money, whether specified or unspecified, are started by
sending the claim form for issue to the County Court Money Claims Centre in Salford
Period for serving CF
The period of validity of a claim form is:
- WITHIN JURISDICTION
- OUTSIDE JURISDICTION
- 4 months if it is served within the jurisdiction
- 6 months if it is served outside the jurisdiction
If SERVICE IS within the jurisdiction = C MUST
complete step required before 12am four months AFTER DATE OF ISSUE. (This means four months and a day).
Who should serve?
County Court claims
- are usually served by the court.
Usually by first class post
Documents to be served:
- CF sealed by court;
- PoC;
- In PI claims:
- Medical report
- Schedule of past + future loss + expenses
- Response pack
- A/S
- Admission
- Defence
- Counterclaim
METHODS OF SERVICE
CLAIM FORM
Permissible methods of service:
Personal service
(ii) 1st class post, NOT second class..
(iii) Mail transmission service providing for next day delivery
(iv) Document Exchange (DX)
(v) Leaving documents at the other side’s address
(vi) Fax
(vii) Other electronic systems
(viii) In accordance with contract
Service effected by taking the step required by chosen method of service.
Method of service
First class post, document exchange or other service which provides for delivery on the next business day
Step required
Posting, leaving with, delivering to or collection by the relevant service provider
- Method of service*
- Step required*
Delivery of the document to or leaving it at the relevant place
Delivering to or leaving the document at the relevant place
- Method of service*
- Step required*
Personal service under rule 6.5
Completing the relevant step required by rule 6.5(3)
Personal Service =
Personal service on a person.
Postal Service = Permissible to post CF either:
- By ordinary first class post – 2nd not good enough;
- Any other postal delivery service that provides for next day.
Letter MUST include full postcode.
Service by document exchange (DX) = May ONLY be used where –
- Address includes numbered box at a DX; or
- The writing paper of the party who is to be served or of the solicitor sets out a DX box number; and
- Party/solicitor has not indicting in writing that they are not unwilling to accept service by DX.
Service by fax or electronic means
Where doc to be served by fax or electronic means =
- The party/solicitor who is to be served MUST have previously indicated in writing to party serving-
- Party/solicitor to be served is willing to accept service by fax or other electronic means; and
- The fax number, e-mail address or electronic identification to which it must be sent; and
Sufficient written indications –
- Fax number set out on writing paper of the solicitor.
- An email address set out on writing paper of the solicitor acting for party to be served but only where stated that the email address MAY be used; or
- A fax number, email address or electronic identification set out on statement of case or response to a claim filed.
What is: Sufficient written indications –?
- Fax number set out on writing paper of the solicitor.
- An email address set out on writing paper of the solicitor acting for party to be served but only where stated that the email address MAY be used; or
- A fax number, email address or electronic identification set out on statement of case or response to a claim filed.
This occurs also to emails. Also with emails: Where party intends to serve by email that party must ask whether there are any limitations to the recipient’s agreement to accept service. The party serving the doc need not in addition send or deliver a hard copy.
Example of not “giving” solicitors address?
EXAMPLE: purported service on D by faxing CF to D’s solicitor didn’t comply with CPR where D’s solicitor (using letterhead including fax number) entered into correspondence. This was not the same as “giving” the solicitor’s address.
A solicitor is “acting for” D when
D has given written notification his address for service is that of solicitor or solicitor notified C of this. Solicitor engaging in correspondence NOT sufficient.
Is it sufficient to include fax number on letter head?
For Fax = NOT sufficient to include fax number on litigant’s letter head.
SERVICE HIERARCHY
C MUST use highest level that applies:
WHAT IS THIS?
- Personal service on D where required.
- At D’s solicitor’s address. Required if –
- D gives C a solicitor’s address for service; or
- D’s solicitor notifies C in writing he is instructed by D to accept service.
-
Address D gave C for purposes of serving proceedings – address must be:
- Where D resides or carries on business; and
- Within UK or EEA state
- At D’s usual or last known home or business address
- Nature of defendant to be served*
- Place of service*
1. Individual
Usual or last known residence.
- Nature of defendant to be served*
- Place of service*
2. Individual being sued in the name of a business
Usual or last known residence of the individual; or
principal or last known place of business.
- Nature of defendant to be served*
- Place of service*
3. Individual being sued in the business name of a partnership
Usual or last known residence of the individual; or
principal or last known place of business of the partnership.
- Nature of defendant to be served*
- Place of service*
4. Limited liability partnership
Principal office of the partnership; or
any place of business of the partnership within the jurisdiction which has a real connection with the claim.
- Nature of defendant to be served*
- Place of service*
5. Corporation (other than a company) incorporated in England and Wales
Principal office of the corporation; or
any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
- Nature of defendant to be served*
- Place of service*
6. Company registered in England and Wales
Principal office of the company; or
any place of business of the company within the jurisdiction which has a real connection with the claim.
- Nature of defendant to be served*
- Place of service*
7. Any other company or corporation
Any place within the jurisdiction where the corporation carries on its activities; or
any place of business of the company within the jurisdiction.
Address for service MUST include
postcode unless court directs otherwise.
D’s solicitor’s address may be either in UK or EEA state.
Service at a “last known” address =
MAY be “last known” even if D is known to have left. BUT you need to have taken “Reasonable steps to ascertain the actual address”. NOT to an address person has never resided.
Reasonable inquiries before using last known address
Where C has reason to believe D no longer resides or carries on business, C must
take reasonable steps to ascertain the address D currently resides or place of business.
Reasonable inquiries before using last known address
Where C:
Ascertains D’s current address
—- WHAT MUST HAPPEN?
CF MUST be served at that address
Reasonable inquiries before using last known address
Where C:
Unable to ascertain D’s current address
—- WHAT MUST HAPPEN?
- C MUST CONSIDER if there is
- An alternative place where; or
- Alternative method which
Service may be effected.
What if C cannot ascertain D’s current address, method or place where service may be effected, C MUST:
C MUST make an application.
Where C has taken REASONABLE STEPS to ascertain address, C MAY serve on D’s usual/last known address.
DEEMED DATE OF SERVICE
A CF is deemed to be served on
SECOND BUSINESS DAY AFTER completion of step.
What happens when a CF is served?
Irrebuttable presumption of service = They are DEEMED to be served = creates irrebuttable presumption. Evidence it didn’t arrive = INADMISSIBLE, even if evidence is convincing that it didn’t arrive, even if it leads to absurd results.
What happens where C applies for extension of time for serving CF within time?
C doesn’t need to show it has taken all reasonable steps. A good/valid reason MUST be advanced. Reason is highly material factor. Weaker reason -) more likely refuse extension.
Incompetence or oversight might not amount to good reason. Primary question: of extension granted, if D would be deprived of limitation defence. If good reason -) court should balance hardship between parties.
Where C applies for extension of time for serving CF within time
TEST:
Good reason – MUST consider balance of hardship.
Inadequate reasons:
- Negligence or incompetence of C’s solicitor
- Deliberately not serving to avoid prejudicing ongoing negotiations
- Awarding expert’s report to draft PoC
- Seeking time to prepare
- Seeking extension for arranging funding for litigation
Where C applies OUTSIDE of time = Court may only make order if:
- Court failed serve CF; or
- C taken all reasonable steps to comply but unable to
- In either case, C acted promptly in making the app.
The reasonable steps MUST have been taken within 4 month period. NOT good if things done last minute. Court looks @ whether mistake in method of service could have been corrected in time.
App for extending time MUST be supported by evidence + may be made without notice.
OTHER DOCUMENTS
MUST be at party’s “address for service”. Each party must provide an address for service, this happens:
- C: inserting this on CF
- D: inserting this on A/S or defence
Address for service MUST be:
- Party’s solicitor’s address
- If no solicitor, party’s residence or business address
- Otherwise, nominated address
- AND in UK or EEA
DEEMED DATE OF SERVICE
Doc, other than CF deemed to be serve:
- Method of service*
- Deemed date of service*
1. First class post (or other service which provides for delivery on the next business day)
The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or
if not, the next business day after that day.
- Method of service*
- Deemed date of service*
2. Document exchange
The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or
if not, the next business day after that day.
- Method of service*
- Deemed date of service*
3. Delivering the document to or leaving it at a permitted address
If it is delivered to or left at the permitted address on a business day before 4.30 p.m., on that day; or
in any other case, on the next business day after that day.
- Method of service*
- Deemed date of service*
4. Fax
If the transmission of the fax is completed on a business day before 4.30 p.m., on that day; or
in any other case, on the next business day after the day on which it was transmitted.
- Method of service*
- Deemed date of service*
5. Other electronic method
If the e-mail or other electronic transmission is sent on a business day before 4.30 p.m., on that day; or
in any other case, on the next business day after the day on which it was sent.
- Method of service*
- Deemed date of service*
6. Personal service
If the document is served personally before 4.30 p.m. on a business day, on that day; or
in any other case, on the next business day after that day.
Do business days include weekends?
excludes weekends
EXAMPLES
Doc posted (first class) on Monday =
WHEN SERVED?
- served Wednesday
EXAMPLES
- Doc left in numbered box at DX on Friday
WHEN SERVED?
= served Monday
EXAMPLES
- Doc sent by fax on Saturday
WHEN SERVED?
= served Monday
EXAMPLES
- Doc personally served before 4:30pm Sunday
WHEN SERVED?
= served Monday
EXAMPLES
- Doc delivered to address after 4:30 Thursday
WHEN SERVED?
= served Friday
EXAMPLES
- Doc posted (first class) on bank holiday Monday
WHEN SERVED?
= served Wednesday
SUMMARY
CF deemed service IS:
SECOND BUSINESS DAY after posting letter
CURING DEFECTS IN PROCEEDING
Where error of procedure:
- Error doesn’t invalidate step taken unless court says so; and
- Court may make order to remedy the error
Attempting to serve @ wrong address is an “error of procedure” + court MAY order the remedy of error.
Alternative service
Where there is
GOOD REASON to authorise service by method or at place not permitted, court MAY make order permitting service by alternative method or alternative place. Court MAY order steps already taken to bring CF to attention of D.
Alternative service
What does this require??
There is a factual evaluation of whether there is GOOD REASON.
Requires:
- Good reason
- Discretion
Is there a one stage test for alternative service or two?
Despite this, SC held this to be a one stage test. Court undertakes factual evaluation of whether good reason, if there is, requirement to make the order. In making evaluation, looks at:
- Reasons why sought
- Contents of CF brought to D’s attention before expired (critical)
- Whether C taken reasonable steps to effect service
- Any prejudice to D
An app for alternative service MUST be supported by writing
What does GOOD REASON mean?
Requires:
- Good reason
- Discretion
Despite this, SC held this to be a one stage test.
An app for alternative service MUST be supported by writing evid:
- Stating reasons for alternative service
- Stating proposed alternative method/place of service
- Explain why
What are
Part 7 CF
for?
where dispute of fact.
What are
Part 8 CF
for?
No substantial dispute of fact.
Some statutes/rules/PDs require Part 8 to be brought, e.g.
- if case brought by child/protected party settles before proceedings initiated, Part 8 used to obtain court’s approval.
- Claim for provisional damages which settles before proceedings started
Different Part 7 and 8
Evidence MUST be served
@ SAME TIME as CF for Part 8.
Does Part 8 require a Defence?
D doesn’t need to file defence, but MUST A/S within 14 days of service of CF. D @ SAME TIME must file written evidence. BUT parties may agree in writing to extend time for service of evidence. C may rely on evid in CF if verified by SoT.
Part 8 = allocated to
MULTI-TRACK
Default judgment NOT available for
Part 8
If D thinks this is a Part 7 case, D MUST
raise this point in A/S. Subject rule where Part 8 MUST be used, Court MAY order claim continue as Part 7 claim.
Summary of differences between Part 8 and Part 7 claims
- No defence required
- No default judgment available
- Claim treated as being allocated to the multi track
- Key difference: evidence is provided at the outset
Money claim over £100,000 = MAY bring in CC or HC.
PI claim £50,000 or more = MAY bring in HC.
VALUE OF CLAIM CALCULATED BY: adding together
and ignoring:
- General damages for pain, suffering and loss of amenity
- Past losses (property damage, loss of income, expenses etc)
- Future losses (through to death or recovery)
IGNOREING
- Interest
- Costs
- Contributory negligence
- Counterclaims
- Recovery of State Benefits under Social Security (Recovery of Benefits) Act 1997
