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Civil Lit > 5: Parties > Flashcards

5: Parties Flashcards

1
Q

What happens in a partnership and claims?

A

Where partnership has a name, unless INAPPROPRIATE, claims MUST be brought in or against the name under which that partnership carried on business. Need at least 2 people.

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2
Q

What happens in a Limited liability partnerships and claims?

A

sued in name of LLP.

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3
Q

What happens in sole trader and claims?

A

= person trading on their own. Trading name is pseudonym for person.

  1. Where claim brought against individual;
  2. That individual carries on business within jurisdiction; and
  3. Business carried on in name other than individuals own name

Claim MAY be brought against business name as if it were name of partnership.

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4
Q

What happens with companies and claims?

A

Company must sue + be sued in its own name.

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5
Q

Types of company

Companies registered under the Companies Act 2006 may be either:

A
  • private companies. Name ends with “Limited” or “Ltd”
  • public companies. Name ends with “PLC” or “plc”
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6
Q

Service on Companies

Companies may be served:

A
  1. At the registered office. This takes place under the Companies Act 2006, and is NOT governed by the CPR.
  2. At the principal office of the company or the place where the company carried on activities having a real connection with the claim.
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7
Q

For registered office

Does the CPR apply?

How can you serve it?

A

For registered office = as CPR doesn’t apply, you can serve by first or second class post = created REBUTTABLE presumption of service. With CPR = ONLY first class.

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8
Q

Under the Companies Act there is a

WHAT PRESUMPTION?

A
  • Under the Companies Act there is a rebuttable presumption of due service (“unless the contrary is proved”), so service at the registered office does not have the certainty given by the irrebuttable presumption under the CPR.
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9
Q

wHAT IS THE Deemed date @ registered office?

A

= Deemed to take effect in ordinary course of posting.

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10
Q

What is Personal service on company?

A

Service on company MAY be effected personally by leaving documents:

  1. With person in “senior position”;
    i. e director, treasurer, secretary, manager or other officer.
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11
Q

Trusts

Trustees, executors, administrators should

A

act jointly, so ALL should be named.

NO need to name beneficiaries

Any judgement/order/claim is BINDING on beneficiaries unless court orders otherwise.

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12
Q

Deceased persons

Where person had interest in a claim has died + no personal representative, court MAY order –

A
  1. Claim to proceed in absence of person representing estate of deceased; or
  2. Person be appointed to represent estate of deceased.
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13
Q

Deceased persons

Where D has died and C could have brought a claim against him and –

A
  1. Grant of probate or administration has been made, claim MUST be brought -) PERSONAL REPRESENTATIVES of deceased
  2. Grant of probate or administration NOT made –
    1. Claim MUST be brought against “estate” of deceased; and
    2. C MUST apply for permission to appoint someone to represent estate
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14
Q

Deceased persons

Died before issue

POSITION

A

A claim commenced in the name of a claimant who died before the claim was issued, and before the grant, is a nullity and will be struck out.

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15
Q

Deceased persons

Died after issue

POSITION

A

Where a party dies after the claim form is issued, the claim is not a nullity. It is not a nullity even if the claimant dies in the period between issue and service of the claim form.

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16
Q

A child MUST have litigation friend UNLESS

A

court makes ORDER.

17
Q

CHILDREN

Person MAY act as litigation friend if he –

A
  1. Can fairly and competently conduct proceedings;
  2. Has no interest adverse;
  3. Where C/protected party is CLAIMANT, undertakes to pay costs which may be ordered.
18
Q

Service on Children

Gen rule:

A

Docs must be served on Litigation friend, unless order made allowing proceedings without litigation friend.

19
Q

Service of application to appoint litigation friend

Must be served on

A

C’s parents or guardians, MAY issue app without notice to serve on some other person.

20
Q

Approval of Settlements for children

Where a claim is made –

A
  1. By or on behalf of C or protected party; or
  2. Against C or protected party;
21
Q

What is the case where there are CHILDREN AND SETTLEMENT?

A

NO SETTLEMENT, compromise or payment + no acceptance of money paid will be valid WITHOUT APPROVAL.

22
Q

CHILDREN AND SETTLEMENT

before proceedings:

When will the court NOT make detailed assessment of costs?

A
  1. Before proceedings – an agreement reached for settlement; and
  2. Sole purpose of proceedings is to obtain court’s approval, the claim must:
    1. Be made using Part 8 procedure; and
    2. Include request to court for approval of settlement/compromise

Court will NOT make detailed assessment of costs payable to C or PP but will assess costs.

23
Q

CHILDREN AND SETTLEMENT

after proceedings:

A
  1. After proceedings – money recovered for benefit of C or PP or money paid into court. Court will give directions.
  2. Directions MAY provide the money to be wholly or partly paid into court + invested
  3. Where money recovered/paid into court for PP, court MUST consider if PP is protected beneficiary.
24
Q

Simple situation where there are children and SETTLEMENT

A

BEFORE proceedings = Optional

AFTER proceedings = Mandatory

25
Q

CHILDREN AND SETTLEMENT:

BEFORE PROCEEDINGS

DOCUMENTS - Where claim by/on behalf of C or PP dealt with by agreement BEFORE ISSUE proceedings + approval sought. Claim MUST include:

A
  1. Terms of settlement or compromise or have attached draft consent order
  2. Details of whether + what extend D admits liability
  3. Age and occupation of C/PP;
  4. Litigation friend’s approval;
  5. Copy of any financial advice relating to settlement; and
  6. In PI case –
    1. Details of circumstances
    2. Medical and quantum reports + joint statements
    3. Schedule of past and future expenses and losses
    4. Where considerations of liability raised –
      1. Evidence/reports of criminal proceedings and inquest; and
      2. Details of any prosecution brought

An opinion on merits MUST be obtained, except in very clear cases. A copy of opinion + unless instructions clearly set out, a copy of instructions must be supplied to court.

26
Q

CHILDREN AND SETTLEMENT:

BEFORE PROCEEDINGS

When must an opinion on merits not be obtained?

A

An opinion on merits MUST be obtained, except in very clear cases. A copy of opinion + unless instructions clearly set out, a copy of instructions must be supplied to court.

27
Q

CHILDREN AND SETTLEMENT:

BEFORE PROCEEDINGS

Court MUST be satisfied

A

parties have considered whether damages should wholly/partially take form or periodic payments.

28
Q

CHILDREN AND SETTLEMENT

BEFORE PROCEEDINGS

Where settlement is for periodical payments, claim must –

A
  1. Set out terms; or
  2. Have attached to it a draft consent order

Apps for approval norm heard by: Master or District Judge if child; and Master, Designated Civil Judge or nominee for PP.

29
Q

CHILDREN AND SETTLEMENT

AFTER PROCEEDINGS

Court MUST be satisfied:

A

parties have considered whether damages should wholly/partially take form or periodic payments.

30
Q

CHILDREN AND SETTLEMENT

AFTER PROCEEDINGS

Where settlement is for periodical payments, claim must –

A
  1. Set out terms; or
  2. Have attached to it a draft consent order
31
Q

CHILDREN AND SETTLEMENT

AFTER PROCEEDINGS

DOCUMENTS: Court MUST be supplied with –

A
  1. Opinion on merits, except in very clear cases; and
  2. Copy of financial advice; and
  3. Documentary evidence material to opinion

Apps for approval norm heard by: Master or District Judge if child; and Master, Designated Civil Judge or nominee for PP.

32
Q

Default judgment against CHILDREN requires

A

APPLICATION

33
Q

Persons suffering from mental incapacity

Definition:

A

at material time he is unable to make decision for himself because of impairment of, or disturbance in the functioning of, the minds or brain = Protected person.

34
Q

Persons suffering from mental incapacity

Safeguarding POSITION:

A

A deputy appointed by the Court of Protection is “ENTITLED” to be the litigation friend. So sometimes someone else will be provided to conduct proceedings fairly and competently with no adverse interest.

35
Q

Default judgment against PP requires

A

APPLICATION

36
Q

Litigants in person are NOT required to provide

A

costs budgets.

37
Q

Main test =

A

change involving the addition or substitution of a party may be made, is whether the amendment is “desirable”.

Nobody may be added as a claimant unless he or she consents in writing and the consent is filed at court.

38
Q

The court’s permission is always required: to

A

remove, add, or substitute a party, unless the claim form has not been served.

Civil Lit (23 decks)

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