6. Commencing Proceedings

Question 1

How are proceedings started?

Answer 1

proceedings are started when the court issues a claim form at the request of the claimant

Question 2

What is the date that a claim form is issued?

Answer 2

a claim form is issued on the date entered on the form by the court

Question 3

Can a claimant use one claim form to start two or more claims?

Answer 3

Yes, so long as the claims can be disposed of in the same proceedings

Question 4

How can the time for serving a claim form be extended?

Answer 4

the claimant can apply to the court for an extension of time to comply with service

Question 5

when must an application for extension of time to serve a claim form be made?

Answer 5

within the 4/6 month period (or if the period has already been extended then within the extended period). Retroactive applications can be granted but only in more limited circumstances.

Question 6

Can the court extend the period of time for service if the claimant applies outside of the 4 month period?

Answer 6

Yes if-

(1) the court failed to serve the claim form; or
(2) the claimant has taken reasonable steps to comply with the rule but has been unable to do so; and
(3) the claimant has acted promptly.

Question 7

Does an application for extension of time need to be made with notice?

Answer 7

No

Question 8

What will happen if a claim is required to be made at a particular County Court centre, but is made at the wrong centre?

Answer 8

a court officer will send the claim to the correct centre before they issue it

Question 9

What must the claim form and every other statement be headed with?

Answer 9

the title

Question 10

What should the title state?

Answer 10

(1) the number of proceedings
(2) the court or division in which they are proceeding
(3) the full name of each party
(4) each party’s status in the proceedings

Question 11

Where there is more than one claimant and/or defendants how should the parties be described?

Answer 11

(1) AB
(2) CD
(3) EF Claimants

and

(1) GH
(2) IJ
(3) KL Defendants

Question 12

What date was the claim form issued if there is an issue of limitation?

Answer 12

the date that the claim form was brought to the Court Office

Question 13

How will the date that the claim form was received by the court be noted?

Answer 13

either on a date stamp on the claim form or on the letter that accompanied the claim form when received by court

Question 14

Who should queries as to the date on the claim form be directed to?

Answer 14

the court officer

Question 15

Against whom should a claim form that is issued against a deceased person be issued?

Answer 15

the claim form should be issued against “the personal representatives of AB deceased”

Question 16

When should the PoC be served if not included on the claim form?

Answer 16

within 14 days after service of the claim form provided that the service of the PoC is within 4 months after the date of issue of the claim form

Question 17

If the PoC are not included in the claim form, what must be stated in the claim form?

Answer 17

that the PoC will follow

Question 18

What should the evidence state in an application for an extension of time for service of the claim form?

Answer 18

(1) all the circumstances relied on
(2) the date of issue of the claim
(3) the expiry date of any extension; and
(4) a full explanation as to why the claim has not been served

Question 19

What value must a claim have for proceedings to be capable of being brought in the HC?

Answer 19

• Generally = At least £100,00
• PI claims (not including medical negligence) = £50,000

Question 20

Should a claim that has the minimum value for it to be brought in the HC be brought in the HC?

Answer 20

Only if by reason of (a) the financial value of the claim and the amount in dispute, and/or (b) the complexity of the facts, legal issues, remedies or procedures involved, and/or (c) the importance of the outcome of the claim to the public in general, the claimant believes that the claim ought to be dealt with by a HC judge.

Question 21

What does personal injuries mean for the purposes of determining whether the jurisdictional threshold for the HC is £50,000 or £100,000?

Answer 21

personal injuries to the plaintiff or any other person, and includes diseases, impairment of physical or mental condition and death, excluding medical negligence cases

Question 22

what should the value of the claim, be calculated in accordance with?

Answer 22

CPR r 16.3(6) - this is the rule that tells us how to calculate for the purposes of including this figure in the statement of case

Question 23

What are the different methods of service for a claim form?

Answer 23

(1) personal service (rule 6.5)
(2) first class post, document exchange or other service which provides for delivery on the next business day.
(3) leaving it at a specified place
(4) fax or other means of electronic communications
(5) any method authorised by the court under rule 6.15

Question 24

Who will serve the claim form?

Answer 24

The court will serve the claim form except where-

(a) a rule or PD provides that the claimant must serve it
(b) the claimant notifies the court that the claimant wishes to serve it; or
(c) the court orders or directs otherwise

Question 25

When the court serves the claim form, who determines the method of service to be used?

Answer 25

the court -> will normally be first class post

Question 26

Where the court is serving the claim form, what must the claimant provide when issuing the claim form?

Answer 26

a copy of the claim form for each defendant to be served when filing the court’s copy.

Question 27

When can a CF not be served personally?

Answer 27

If a solicitor has been nominated by D for service under r 6.7

Question 28

Who must a claim for be served on if it is to be served personally in the case of (a) an individual, (b) a company or corporation and (c) a partnership?

Answer 28

1. on an individual by leaving it with that individual
2. on a company or other corporation by leaving it with a person holding a senior position within the company or corporation; or
3. on a partnership by leaving it with (a) a partner; or (b) a person who, at the time of service, has the control or management of the partnership business at its principal place of business

Question 29

Can the claim form be served on a solicitor?

Answer 29

Yes it can if-

(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or
(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant.

Question 30

If D has given the address of a solicitor for service, can the CF be served on D personally or in any of way?

Answer 30

No - the nomination by D of a solicitor makes service at the solicitor’s business address compulsory

Question 31

The CPR contains a table which indicates where the CF must be served on D. Can D name a different address?

Answer 31

Yes - D can specify an address at which D resides or carries on business within the UK for service. BUT C is not obliged to serve D there. Unlike the nomination of a solicitor, D’s indication that they are willing to accept service at this other address does not make service at that address compulsory.

Question 32

Give the list of places identified in the White Book where D has to be unless D is served personally, at their solicitor’s address or where D has specified a different address for the following list of defendants: (a) individuals, (b) individuals being sued in the business name of a business, (c) individuals being sued in the business name of a partnership (d) corporations (other than companies) registered in EW, (e) company registered in EW, (f) any other company or corporation

Answer 32

the claim form must be served in one of the following places:

(1) on an individual: in their usual or last known residence
(2) individual being sued in the name of a business/name of a partnership: usual or last known residence of the individual; or principal or last known place of business
(3) individual being sued in the business name of a partnership: same as (2)
(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
(5) corporation: same as (4) above
(6) company registered in England and Wales: same as (4) above
(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

Question 33

What should C do if they have reason to believe that the address they have for “D’s usual or last known residence” is an address at which D no longer resides or carries on business?

Answer 33

1. C must take reasonable steps to ascertain the address of D’s current residence or place of business.
2. If C has ascertained D’s proper address of residence or place of business, D must be served there.
3. If C has been unable to find the address of D’s residence or place of business, C must consider whether there is (i) an alternative place where or (ii) an alternativ method by which service may be effected.
4. If there is an alternative method or place, C must apply to the court to serve the CF there/in that way.
5. If none of these methods have worked out, C can serve the CF at the original address of ‘D’s usual or last known address of residence or place of business’ (i.e. the pre-investigation address).

N.B. even though the court serves the CF, C has to state the address for service on the CF so C will basically have to do all of this before issuing the CF

Question 34

Can a CF be served in accordance with a place/method of service specified in a contract?

Answer 34

Yes, but only if the claim is solely in respect of that contract. Special rules apply if the address is outside of the jurisdiction.

Question 35

When is a claim form deemed to be served?

Answer 35

• The second business day after the completion of the ‘relevant step’
• The main thing to note about ‘the relevant step’ is that in cases where you’re not physically handing the CF over (i.e. personal service or delivery of the CF /leaving it a relevant place), the ‘relevant step’ is the doing of the act needed to serve, rather than receipt by D of the CF. I.e. you will have taken the step necessary to post, once you have given the letter to the postal office/placed it in a post box/have had it collected by the service provider; you will have taken the step necessary to serve via e-mail by sending the e-mail. That’s why we’re speaking of ‘deemed’ service.

Question 36

What powers does the court have to authorise a person to serve the CF at a different place or by an alternative method?

Answer 36

• The court can allow this if it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part the court may permit the service by an alternative method or at an alternative place
• The court can even order that steps already taken before the application constitute good service (i.e. retroactive permission)

Question 37

When can service be made by document exchange?

Answer 37

only where-

(1) the address which the party is to be served includes a numbered box at a DX, or
(2) the writing paper of the party who is to be served or of the solicitor acting sets out a DX box number, and
(3) the party or solicitor has not indicated in writing that they are unwilling to accept service by DX.

Question 38

How is service effected by post, an alternative service provider or DX?

Answer 38

(1) by placing the document in a post box
(2) leaving the document with or delivering the document to the relevant service provider; or
(3) having the document collected by the relevant service provider

Question 39

When can service by fax or other electronic (i.e. usually email) means be used?

Answer 39

the part who is to be served or solicitor must have indicated in writing to the party serving-

(a) that they are willing to accept service by fax or other electronic means; and
(b) provide the fax number, email address or other electronic identification to which it must be sent

Question 40

What is a sufficient written indication for the purposes of showing a willingness to be served through electronic communication/fax?

Answer 40

(1) a fax number set out on the writing paper of the solicitor acting for the party to be served
(2) an email address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the email address may be used for service; or
(3) a fax number, email address or electronic identification set out on a statement of case (I always forget this!)

Question 41

If a party indicates that service by email must be effected by sending the CF to multiple email addresses, how many does C have to send it to?

Answer 41

C will have successfully served the CF, if it has sent the CF to two of the specified email addresses.

Question 42

What should a party do before serving via email?

Answer 42

Check with D whether there is any limitation on their agreement to accept service by such means.

Question 43

Who is a person holding a senior position in a company or corporation?

Answer 43

a director, the treasurer, the secretary of the company or corporation, the CEO, a manager or other officer of the company or corporation

Question 44

Who is a person holding a senior position in a corporation that is not a registered company?

Answer 44

all the same people that also qualify has holding a senior position in a company + “a director, treasurer, secretary, the CEO, a manager, the mayor, the chairman, the president, a town clerk”

Question 45

Where the court serves the claim form, what is the usual method of service?

Answer 45

first class post

Question 46

How can the PoC be served?

Answer 46

either with the claim form or separately within 14 days after service of the claim form, but within the 4 month time limit for service of the CF

Question 47

What are the differences between the rules governing the service of the CF and other documents?

Answer 47

• Very similar (e.g. all the same methods of service apply, court can allow changes to method/place, etc.)
• The default rule regarding who will serve the document differs: (a) the court will serve it, if the document was prepared by the court; (b) if it was prepared by a party, the party that prepared it will serve it. Obviously all of this is subject to the court ordering something else + also the party may serve a document prepared by the court if it notifies the court that it wishes to do so.
• Docs other than the CF must be served on the litigation friend of a child of protected party (the rules for the service of the CF on these parties are not on the syllabus. But the point is that obviously there won’t be a litigation friend before proceedings have been issued, so once this has happened and we’re serving other docs you serve them on the litigation friend). The court can permit documents to be served on someone other than the litigation friend and it can order that a document that was served on someone other than the litigation friend be treated as if it had been properly served. Obviously, if the child is permitted to conduct proceedings without a litigation friend, then these rules do not apply.
• The key difference concerns the rule when such documents are deemed to have been served. Remember the CF is deemed to have been served on the second business day after completion of the relevant step:

(a) Any form of post/DX/next day delivery -> the second day (counting also non-business days) after it was posted/left with/delivered to/collected by the relevant service provider. If that day is not a business day, then the next business day after that day.

(b) Any other mode of service (incl. personal service, e-mail, personal delivery, etc.) -> if the step that needs to occur (i.e. it is delivered, e-mail is sent, fax is faxed, etc) happens before 4.30pm on a business day, then the doc is deemed to have been served on that day. If it happens at any other time, then the next business day.

• A useful point to remember is that all documents (CF and others) can only ever deemed to have been served on a business day.

Question 48

If the claimant serves a PoC when must they file a copy with the court?

Answer 48

within 7 days of service on the defendant.

Question 49

If the claim form is served within the jurisdiction when must the relevant step be completed by?

Answer 49

before 12:00 midnight on the calendar day 4 months after the date of issue of the claim form

Question 50

If the claim form is served outside of the jurisdiction when must the claim form be served?

Answer 50

within 6 months of the date of issue

Question 51

What is the relevant step for first class post, DX, or other service which provides for delivery on the next business day?

Answer 51

posting the form, leaving it with the relevant person, delivering to or collection by the relevant service provider

Question 52

What is the relevant step for delivery of a document to or leaving it at a relevant place?

Answer 52

delivering it to, or leaving it at the relevant place

Question 53

What is the relevant step for personal service?

Answer 53

leaving the document with the individual or the person with a senior position in a company

Question 54

What is the relevant step for service by fax?

Answer 54

completing the transmission of the fax

Question 55

What is the relevant step of other electronic methods of service?

Answer 55

sending the email or other electronic transmission

Question 56

How are documents (other than the CF) served on children or protected parties?

Answer 56

the document must be served on the litigation friend conducting the proceedings on behalf of the child or protected party.

Question 57

Examples of documents that are not claim forms.

Answer 57

PoC, evidence, reports etc.

Question 58

For what types of claims is the part 8 procedure used?

Answer 58

• Where a party seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact or where a rule or PD specifically requires the use of Part 8
• Examples of claims that are often appropriate for this procedure: declarations as to the construction of documents, questions of law and administration of estates
• In essence the procedure is designed for the determination of relevant claims without elaborate pleadings
• Contentious claims involving substantial factual dispute will not usually be suitable for the Pt 8 procedure.

Question 59

What are the main procedural differences between Pt 7 and Pt 8?

Answer 59

In Pt 8 (i) a defence is not required (instead D is required to acknowledge service - this is a bit like a simplified defence), (ii) no requirement for particulars of claim or replies, (iii) default judgment is not available and (iv ) the claim is treated as allocated to the multi-track.

Question 60

Can a claimant obtain default judgment if the Part 8 procedure is used?

Answer 60

No

Question 61

What can the court do if it does not consider that the use of the Pt 8 procedure is appropriate?

Answer 61

Direct that it should continue under Pt 7. This also means that the other side can apply for it to proceed under Pt 8 bc it objects to the use of the Pt 8 procedure.

Question 62

What must the claim form for a Part 8 claim contain?

Answer 62

(1) that Part 8 applies
(2) the question that the claimant wants to court to decide or, the remedy which the claimant is seeking and the legal basis for the claim to that remedy.
(3) if the claim is being made under an enactment, which enactment
(4) if the claimant is claiming in a representative capacity, what that capacity is
(5) if the defendant is sued in a representative capacity, what that capacity is

Question 63

What does D have to do after a Pt 8 CF has been served on him?

Answer 63

• D must file an acknowledgement of service not more than 14 days after service of the claim form; and serve it on the claimant and any other party.
• D does not need to file a defence: i.e. the acknowledge acts in lieu of the defence and is basically a simplified version of a defence

Question 64

What should the acknowledgement of service for a Part 8 claim state?

Answer 64

Whether the defendant contests the claim and if the defendant seeks a different remedy, what that remedy is.

Question 65

What is the consequence of a defendant not filing an acknowledgement of service for a Part 8 claim or failing to file it in time?

Answer 65

The defendant may attend the hearing of the claim but may not take part unless the court gives permission.

Question 66

What are the rules for the filing and serving of evidence under Pt 8?

Answer 66

1. C must file and serve on D any written evidence that they intend to rely on at the same time and with the CF
2. D has to file and serve on all parties any written evidence when filing and serving the acknowledgement of service
3. C then has 14 days to file and serve on all other parties written evidence in reply

Extensions of time:

• Parties can apply to the court
• The parties can also agree on an extension. Obviously they can’t agree to extend the time C has to file and serve written evidence, bc C’s evidence is tied up with service of the CF. For D’s evidence and evidence in reply the rules are: (a) D’s evidence - up to 14 days (i.e. 14 extra days), the agreement must be filed with the court with D’s acknowledgment of service; (b) evidence in reply - up to 28 days (i.e. 28 extra days), agreement must be filed within 48h of the agreement with the court

Question 67

Which evidence can be relied on in Pt 8 proceedings?

Answer 67

• Written evidence - only if filed in accordance with Pt 8 rules or if the court gives permission
• The court can allow the use of oral evidence, but is unlikely to do so (more likely that the case is not suitable for Pt 8 if such evidence is needed)
• The court can allow cross-examination (again, unlikely)

Question 68

When the Part 8 procedure is followed where will the claim be allocated?

Answer 68

it will be treated as allocated to the multi-track