Civil Claims and Commencing Proceedings

Question 1

What is the limitation period for a contract claim? When does the period start to run?

Answer 1

6-years;

The time period starts to run from the breach of contract.

Question 2

What is the limitation period for a tort claim? When does the period start to run?

Answer 2

6 years (unless PI - which is 3 years);

The time period starts to run from when the tort is committed. In negligence, this is when the damage occurs due to the breach of duty.

Question 3

In a claim in negligence, where the damage is latent, when does the limitation period expire?

Answer 3

Either;

6 years from the date of the cause of action; or

3 years from the knowledge of the damage (whichever is later); but must be brought within 15 years of the negligent act or omission.

Question 3

When does the time limit start to run for PI claims?

Answer 3

Either from the date of the cause of action, or from the date of the knowledge of the person injured.

For children, it only starts to run from their 18th birthday.

Question 4

Can a contract vary a limitation period?

Answer 4

Yes, a contract can shorten the period, which would override the statutory provision.

Question 5

What is the effect of limitation?

Answer 5

If a party brings a claim outside of the limitation period the defendant will have a technical defence to the claim.

Question 6

In which capacity should a defendant be sued?

Answer 6

Depends on how the defendant acted previously.

E.g. if a contract was entered with a company, you should sue the company;

if a contract was entered into with an individual, you should sue the individual.

Question 7

What searches can you take to ensure a defendant is worth suing?

Answer 7

A search at companies house;

a K16 bankruptcy search;

inquiry agent; or

any internet searches.

Question 8

When would a claimant submit specified and unspecified claims respectively?

Answer 8

Specified claims should be submitted when a claim is for a fixed amount of money (e.g. price of goods);

Unspecified claims should be submitted when the court will have to determine the value of the money payable

Question 9

What are the legal elements of a breach of contract claim?

Answer 9

(1) Existence of a contract;

(2) Terms relied on;

(3) Breach of those terms;

(4) Consequences of breach;

(5) Damage and loss;

(6) Interest on damages

Question 10

What are the 4 elements of the standard pre-action directions?

Answer 10

(1) Litigation is a last resort;

(2) Parties should exchange information to understand each other’s position better (with concise details and key documents being disclosed);

(3) Only reasonable and proportionate steps should be taken to identify the issues;

(4) if the practice direction hasn’t resolved the dispute, the respective positions should be reviewed to narrow the issues if the parties go to litigation

Question 11

What are the consequences of failing to comply with the practice directions?

Answer 11

(a) party at fault pays some or all of their opponent’s costs;

(b) depriving the claimant at fault of some or all of their interest on the damages; or

(c) requiring a defendant at fault to pay interest on damages at a rate of up to 10%

Question 12

Which court must a party commence proceedings in if the value of the claim is under £100,000 (non-PI)?

Answer 12

County Court. If it is a PI claim, it must be issued in the county court only when it is under £50,000.

Question 13

Must a claim be issued in the high court if its value exceeds £100,000 (£50,000 for PI)?

Answer 13

No. If it is over the threshold, it may be issued in the high court, but it is not a must.

Question 14

What would suggest that a claim over the monetary threshold should be issued in the high court, rather than the county court?

Answer 14

• If it is significantly over the threshold;
• if the claim is complex in relation to the facts, remedies and procedures; or
• it is of high public interest.

If none of these are present, the claim is more suitable for the county court.

Question 15

What documents are required to issue proceedings?

Answer 15

• A claim form; and
• Particulars of Claim

Question 16

When does the limitation period stop running?

Answer 16

When the claim form is received (issued) in the court office.

Question 17

In what capacity do you address parties in proceedings?

Answer 17

With their appropriate legal form:

• Individual - their name;
• Sole trader - business name (T/A);
• Partnership - Name of the partnership, not the individuals;
• Company - Registered company name

Question 18

When is permission required to add, substitute or remove an existing party from a claim?

Answer 18

When the claim form has been served, permission is needed.

Question 19

What are the grounds for adding, removing or substituting a party, after service, when the application is made within the limitation period?

Answer 19

It is desirable:

• to add a new party to resolve matters in dispute; or
• to remove a party; or
• to substitute a party when the existing party’s liability has passed to them

Question 20

What are the grounds for adding, removing or substituting a party, after service, when the application is made outside the limitation period?

Answer 20

May only be added if the limitation period was current when proceedings started, and:

• original party was named by mistake; or
• original party’s liability has shifted; or
• claim cannot be properly carried out without the new party.

Question 21

How long after issuance must a claim form be served on the other parties?

Answer 21

4 months.

Question 22

When can a claim form be served on a firm of solicitors?

Answer 22

Only if the defendant has nominated in writing.

Question 23

What methods of service are permitted in the CPR?

Answer 23

(1) personal service;
(2) first class post or DX;
(3) leaving the claim form at a specified place;
(4) fax or other means of e-communication

Question 24

Where should you serve the claim form?

Answer 24

Usual or last place of residence / office of partnership / office of the company

Question 25

When is deemed service of the claim form?

Answer 25

On the second business day after the claim form is served.

E.g. a claim form served on Friday would be deemed served Tuesday.

Question 26

When is the deemed date of service for other documents (instant method)?

Answer 26

If served before 4:30pm, the same day;

if after 4:30, the next business day

Question 27

When is the deemed date of service for other documents (1st class post/DX)?

Answer 27

The second day after it was posted provided it was a business day;

if not, the next business day.

Question 28

If a claim form is being served outside of the jurisdiction, how long does the claimant have to serve the document?

Answer 28

Six months, rather than four.

Question 29

When does the Hague Convention (regarding jurisdiction) apply?

Answer 29

Where:

• The matter is civil or commercial;
• is not an employment or consumer dispute;
• a clause in the contract grants jurisdiction to a convention state; and
• the agreement is in writing/evidenced in writing.

Question 30

Under the common law, when will E/W have jurisdiction to hear a dispute?

Answer 30

If:

(i) it is possible to serve the proceedings in this jurisdiction;
(ii) court gives permission to serve proceedings outside of the jurisdiction; or
(iii) E/W are given jurisdiction under a clause in the contract

Question 31

In order to obtain permission to serve proceedings outside of the jurisdiction, what 3 matters must be established?

Answer 31

(i) C needs to establish the claim was made in that jurisdiction, is governed by English law, or contains a term showing the court shall have jurisdiction;

(ii) Claim must have a reasonable prospect of success; and

(iii) E/W is the proper place to bring the claim

Question 32

How do parties settle a dispute regarding which country’s law will apply? (Contract)

Answer 32

(1) If they have agreed it in contract, that law applies;

(2) If it’s a sale of goods, provision of services, or distribution contract - the seller’s habitual residence applies (if a land dispute, the law of the land applies);

(3) If not one of the above, the law of the characteristic performer, i.e. the person who satisfies the contractual obligation, applies

Question 33

How do parties settle a dispute regarding which country’s law will apply? (Tort)

Answer 33

• If there is agreement, it is determined;
• If C and D live in the same country, that law applies;
• If not, the law the country in which the damage occurred applies; then
• If the tort is manifestly more connected to another country, the court may apply discretion to use that country’s law (unlikely)