7. Parties

Question 1

Do beneficiaries have to be joined as parties to proceedings?

Answer 1

No - the claim may brought by or against trustees, executors or administrators and any judgment or order will be binding on the beneficiaries without adding them as parties.

Question 2

Which name should be used in a claim against partners where they are being sued in the name of the partnership? Which name should be used if they are being sued as individuals?

Answer 2

1. Sued in the name of the partnership -> The name under which the partnership carried on business at the time the cause of action accrued + (a Firm)
2. Sued as individuals -> full name of each partner and hte title by which each is known

Question 3

Which name should be used in a claim against a sole trader?

Answer 3

The name of their business (like with partnerships), but it would end up looking like this: Jane Smith “trading as” or “T/as” “JS Autos” (i.e. you give the full name of the person and the name that they were trading under when the cause of action accrued)

Question 4

What happens where a party who has an interest in a claim has died and that person has no personal representative?

Answer 4

• the court may order that the claim should proceed in the absence of a person representing the estate of the deceased; or
• it may order that a person should be appointed to represent the estate of the deceased.

Question 5

Against whom should you bring a claim if the defendant against whom it could have been brought has died?

Answer 5

1. If a grant of probate has been made (i.e. there is a letter confirming the executors of the will), the claim must be brought against the personal representatives of the deceased
2. If a grant of probate has not been made, the claim must be brought against ‘the estate of’ the deceased and the claimant must apply to the court for an order appointing a person to represent the estate in the claim

Question 6

What happens if you have brought the claim against ‘the personal representatives’ of the deceased but there isn’t actually yet a grant of probate (i.e. you should have brought it against ‘the estate’ but got it wrong) or you brought it against D, but D had already died then (e.g. you didn’t realise that the defendant had died)?

Answer 6

In both cases the claim is treated as having been brought ‘against the estate of’ the deceased (i.e. the mistake you make won’t have any negative repercussions).

Question 7

Who counts as a ‘child’?

Answer 7

A person under the age of 18

Question 8

Who must and who may have a litigation friend?

Answer 8

Technically, both protected parties and children must have a litigation friend. However, in the case of children the court can permit the child to conduct the proceedings without one.

Question 9

If a child already has a litigation friend, what must they do when applying to continue without a litigation friend?

Answer 9

Notify the litigation friend of the application

Question 10

What can the court do if they make an order allowing a child to conduct proceedings without a litigation friend, but it later appears desirable for a litigation friend to be involved?

Answer 10

The court can appoint a litigation friend.

Question 11

What are the special rules regarding the title of proceedings in the case of children and protected parties?

Answer 11

The title must state that they are children/protected parties. If they have a litigation friend, it must also say this.

Question 12

What cannot happen until a litigation friend has been appoint?

Answer 12

a person may not without the permission of the court-

1. make an application against a child/protected part before the proceedings have started; or
2. take any step in the proceedings except (a) issuing and serving the claim; or (b) applying for the appointment of a litigation friend

until the child or protected party has a litigation friend

My comment: basically, you can’t do things like make Pt 36 offers or get disclosure or anything else bc all of this might prejudice the vulnerable party

Consequence of taking any such steps in breach of this rule: the step taken is of no effect

Question 13

What happens if a party lacks capacity during the proceedings to continue?

Answer 13

A litigation friend has to be appointed and no further steps may be taken without the court’s permission.

Question 14

Who can be a litigation friend without a court order?

Answer 14

1. a deputy appointed by the Court of Protection under the 2005 Act with power to conduct proceedings on the protected parties behalf (this applies only to protected parties, not children!)
2. any person who-

(a) can fairly and competently conduct proceedings on behalf of the child
(b) has no interest adverse to that of the child or protected party
(c) where the child or protected party is a claimant, undertakes to pay any costs which the child may be ordered to pay.

Question 15

Can a settlement, compromise or payment be made or requested to/from a child or protected party without court approval?

Answer 15

No.

Question 16

If, before a claim is brought, the parties have reached an agreement in a claim involving a child or protected party, what is the procedure for seeking the court’s approval?

Answer 16

• Issue proceedings under Pt 8, requesting approval of the settlement.
• In your request you need to set out:

1. a draft consent order setting out the terms of the settlement or compromise
2. details of whether and to what extent the defendant admits liability
3. the age/occupation of the protected party or child
4. confirmation of the litigation friend’s approval of the proposed settlement or compromise
5. a copy of any relevant medical, financial or other expert evidence
6. in PI cases, details of the accident and of the claimed loss and damage
7. any docs relevant to considerations of liability
8. a legal opinion on the merits of the settlement, except in very clear cases, together with any relevant instructions unless they are sufficiently set out in the opinion

Question 17

Who controls money recovered by a child or protected party?

Answer 17

the court will provide directions for how to deal with this money.
Before giving directions the court will consider whether the protected party is a protected beneficiary.

Question 18

What happens with money that is recovered by or on behalf of a child or that is paid into court by or on behalf of a child? What if the same happens but the party is a protected party (rather than a child)?

Answer 18

• Child -> the money is dealt with in accordance with the directions given by the court (may order to invest the money, may also consider that it should be administered as a protected beneficiary’s fund, make any other order it sees fit)
• Protected party -> consider whether the protected party is a protected beneficiary