6. Commencing Proceedings Flashcards
How are proceedings started under the Part 7 procedure?
Proceedings are started when the court issues claim form at the request of the claimant. A claim form is issued on the day entered by the form by the court, though for limitation purposes where the claim form was received earlier than the date on which it was issued by the court, the claim is brought for the purposes of the limitation act 1980. The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form how long court file or on the letter that accompanied the claim form when it was received by the court. Any inquiry about the date on which the claim form was received by the court should be directed to the court officer. Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date on which the claim form was received by the court should themselves make arrangements to record the date.
The claimant can use a single claim form to start two or more claims.
What must be served alongside the claim form?
Particulars of claim must also be served with the claim form. Or be served on the defendant by the claimant within 14 days after service of the claim form. Particulars of claim must not be served later. Particulars of claim must not be served later than the last date for serving a claim form.
When serving the particulars of claim on the defendant, the claimant must within seven days of service on the defendant, file a copy of the particulars, unless that copy has already been filed. This is not so if the claim is being dealt with at a production centre or the Civil National Business Centre.
Where may the claim be started where both the county court and the High Court have jurisdiction to hear the claim?
In either of those courts, except:
1. For more than £100,000 where the claim may only be started in the High Court.
2. Proceedings for personal injury which are more than £50,000 which may only be started in the High Court (does not apply to clinical or medical negligence claims).
3. If an enactment so requires a claim to be started in one or the other
4. Should be started in the high court if, by reason of,:
a. the financial value of the claim and the amount in dispute
b. the complexity of the facts legal issues remedies or procedures involved
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 High Court judge
The value of the claim shall be calculated with CPR 16.3(6):
(6) When calculating how much the claimant expects to recover, the claimant must disregard any possibility—
(a)that the court may make an award of—
(i)interest;
(ii)costs;
(b)that the court may make a finding of contributory negligence;
(c)that the defendant may make a counterclaim or that the defence may include a set-off; or
(d)that the defendant may (under section 6 of the Social Security (Recovery of Benefits Act 1997) be liable to pay direct to the Secretary of State part of any award of money made by the court to the claimant against the defendant.
A claim that can be started in the county court under part 7 can be started in any county court hearing centre unless any enactment rule or practise direction provides otherwise. If a claim is started in the wrong hearing centre by virtue of this, then a court officer will send the claim to the correct hearing centre before issuing the claim.
A claim relating to business and property work may, said, rule or practice direction, started out within the High Court or in the county court. The claim form should, if issued in the High Court, be marked in the top right hand corner business and property courts and, if issued in the county court, be marked business and property work.
How should a claimant issue a claim against a deceased defendant where probate or letters of administration have not been granted?
Where a person seeks to start proceedings against the estate of a deceased defendant where probate or letters of administration have not been granted, the claimant should issued the claim against “the personal representatives of A B deceased”. The claimant then, before the expiry of the period of service for the claim form, should apply to the court for the appointment of a person to represent the estate of the deceased.
Should a statement of truth accompany a claim form?
Yes, in the standard prescribed in the practice direction 22 para 2.1 In the following form
“[I believe or the claimant believes] that the facts stated in this [named document being verified] are true. [I understand the claimant] understands that proceedings for contempt of court may be brought against anyone who makes or causes to be made a false statement in a document verified by a statement of truth without an honest belief in its truth.”
Can the time be extended for serving a claim form?
Yes, in accordance with part 23 and supported by evidence which may include: all the circumstances relied on, the date of issue of the claim, the expiry date of any rule 7.6 extension, and a full explanation as to why the claim has not been served.
The general principles are thus:
a. The defendant has a right to be sued by means of originating process issued within the statutory period of limitation and served within the period of its initial validity of service. Any departure from the starting point will need to be justified;
b. The reason for the inability to serve within time is a highly material factor. The better the reason, the more likely it is that an extension will be granted. Incompetence or oversight or waiting some other development may not amount to a good reason. Further, what may be a sufficient reason for extension of time for service of particulars of claim is not necessarily a sufficient reason for an extension for service of the claim form
c. where there is no good reason for the need for an extension the court still retains a discretion to grant an extension of time but is not likely to do so
d. whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation defence will or may be prejudiced by granting of an extension of time the claimant should have to show at the very least that they have taken reasonable steps to serve within time
e. The discretionary power to extend time prospectively must be exercised in accordance with the overriding objective.
A lot of cases turn on the interpretation of reasonable steps by the claimant. A failure by consular services to server claim form did not fall within CPR 7.6. Reasonable steps must be taken to locate a defendant before serving at their last known address. Correcting the application to extend time after it has been granted when a mistake has been made does not circumvent rules 7.6. Where a defendant is given a claim form via document exchange but they are not a member of document exchange an application to extend time would likely not be granted. Serving the claim form on a defendant when they have solicitors would not result in effective service.
What are the general rules of service?
A claim form may be served via:
1. personal service
2. first class post, document exchange, or other service which provides delivery on the next business day (any day except Saturday, Sunday, a bank holiday, Good Friday, Christmas Day)
3. leaving it at:
a. if a solicitor’s address where the defendant has given in writing the business address within the jurisdiction of a solicitor as an address for service and the solicitor has notified the claimant they are instructed to accept service THE CLAIM MUST BE SERVED HERE IF SO
b. an address the defendant resides or carries on business within the UK and which the defendant has given for the purpose of being served with the proceedings or (for claims against landlords by tenants) an address given by the landlord under s 68 LTA 1987 or s39 Renting homes (Wales) Act 2016
c. the following if address not given:
i. individual – usual or last known address
ii. individual being sued in name of business – usual or last known residence of individual; or principal or last known place of business
iii. 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
iv. LLP – principal office of the partnership or any place of business of the partnership within the jurisdiction which has a real connection with the claim
v. Corporation (other than company) incorporated in E+W – principal office; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim
vi. Company registered in E+W – principal office; or any place of business of the company within the jurisdiction which has a real connection with the claim
vii. 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.
Where a claimant has reason to believe that the defendant referred to in i-iii no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business. If a such a new address is identified, it must use that. If not, it must consider an alternative place or method by which service can be effected. If there is an alternative one, it must make an application under CPR 6.15. where no such address is forthcoming, the claimant can serve on their last or usual known address.
d. fax or other means of electronic communication in accordance with PD 6A
e. any of the following methods
any of the above apply to companies, but also so do the methods of service permitted under the companies act (same for LLPs, except as modified by regulations made under the LLP Act 2000)
What are the rules on asking for alternative service?
Where it appears to the court that there is good reason to authroise service by a method or place not otherwise permitted, the court may make an order permitting service via those. On such an application, the court may order that steps already taken via an alternative service or at an alternative place is good service.
An application for an order under this rule:
* Must be supported by evidence; and
* May be without notice.
The order must specify the method or place, the date on which the claim form is deemed served, and the period for filing an acknowledgment, an admission, or a defence.
Who serves the claim form?
The court, except where:
* A rule or PD provides the claimant must serve it
* The claimant notifies the court that they wish to service it
* The court orders or directs otherwise
Where the court is to service, it is for the court to decide how to serve.
Where the court is to serve, the claimant must provide copies for the court and every defendant.
Where the court has sent a notification of outcome of postal service to the claimant or a notification of non-service by a bailiff, the court will not try to serve again.
Where must the claim form be served?
In the jurisdiction except where rule 6.7/6.11 applies.
The claimant must include in the claim form an address at which the defendant may be served, including a full postcode (unless the court otherwise directs), unless a 6.15 order is made.
Can the parties contractually agree another method of service?
Yes, where the contract containing that term is the sole cause of action. May be served either with permission or without if serving out of jurisdiction.
If part 6 is complied with, is the claim form deemed served and, if so, when?
Yes, on the second business day after completion of the relevant step.
When may service be made by document exchange?
Only where:
* The address at which the party to be served includes a numbered box at a DX or
* The writing paper of the party who is to be served or of the solicitor acting for that party sets out a DX box number, and
* The party or the solicitor acting has not indicated in writing that they are unwilling to accept service by DX
How is service effected by post, an alternative service provider, or DX?
Second business day after:
* Placing the document in a post box
* Leaving the document with or delivering the document to the relevant service provider; or
* Having the document collected by the relevant service provider.
What are the rules on electronic service for it to be effective?
The party who it to be served must have previously indicated their willingness in writing to receive by such means and the address to which it should be sent.
The following are sufficient writing indications:
* A fax number set out on the writing paper of the solicitor
* An email address/addresses set out in the paper only where it is stated the email address or addresses may be used or service; or
* A fax number/email e.c.t. set out on a statement of case or response to a claim filed with the court.
Where a party has indicated service must be effected by sending to multiple emails, the document may be served by sending it to any 2 of those identified.
Where electronic means (other than fax) are to be used, the party must ask the party to be served if there are any limitations to the recipient’s agreement to accept service by such means (i.e. the format or maximum size of attachments)
No hard copy need be given
