CIVIL LITIGATION EXAM

Question 1

How are proceedings commenced?

Answer 1

Proceedings are started when the court issues a claim form at the request of the claimant (CPR 7.2 (1).

The claims form is the first statement of case and is prepared by the claimant, it is usually form N1.

Question 2

Under which CPR are the rules of issue of proceedings in?

Answer 2

Standard procedure is under CPR 7

Question 3

In the CPR, where are the rules relating to the contents of the claim form found?

Answer 3

CPR 16.2

• HIGHLIGHT

16.2(1)(b)
16.2(5)
16.4(2)
16.3
16.3(2))
16.3(2)(a)
CPR 16.3(2)(c
CPR 16.3(5) s

Question 4

What is a particulars of claim?

Where are the rules for particulars of claims held?

Answer 4

CPR 16

16.4 sets out the content required for the particulars of claim.

The particulars of claim is the document in which the claimant sets out its case in detail.

Question 5

Where are the rules for a statement of truth?

Answer 5

CPR 22

A person who makes a false statement in a document verified by a statement of truth could be the subject of proceedings for contempt of court (CPR 32.14(1)).

Question 6

What rule deals with “counting time”

Answer 6

CPR 2.8

Question 7

Pre-action protocols - where is the courts power to punish failure to comply found.

Answer 7

To incentivize the claimant to carry out the steps in the pre-action protocol, courts have the discretion to punish parties who fail to do so.

CPR 44.2(5) allows the court to consider any non-compliance with pre-action protocols when making costs orders.

The court is also given the discretion to consider whether the parties have complied with the protocol when giving discretions - CPR 3.1(4)

Question 8

What are the key procedures in the pre-action protocol?

Answer 8

Practice Direction on Pre-action Conduct and Protocol Paragraph 3 (PDCP), the courts expect the parties to have

• exchanged sufficient information to understand each other’s position;
• considered alternative forms of dispute PDCP paragraph - reduced the costs of resolving the dispute per PDPCP paragraph 3
• Claimant should then send a claim letter to the defendant
• Defendant has 14 days if the claim is straightforward or 3 motnhs if the claim is complex to reply per PDCP paragraph 6

Question 9

What CPR contains rules to determine which court a claimant should pursue its claim

Answer 9

CPR Chapter 7 and 7A PD

Question 10

Value of claims for high court or county court

Answer 10

£100k or more - Either high court or country court
Less than £100k - County Court (per 7A PD 2.1)
For PI claims this is reduced to £50k per 7A PD 2.2

If the cliamant has a choice (i.e. over 100k) the factors listed in 7A PD 2.4 indicate high court to be most appropriate

Question 11

What CPR details how to ascertain the value of a claim

Answer 11

CPR 16.3(6)

Question 12

Divisions of the Court - where are the rules determining the which division of the high court a claim should be brought

Answer 12

s.61 Senior Courts Act 1981

Question 13

Chancery Division v Queens Bench Division cases

Answer 13

Chancery:

• Land
• Mortgages
• Trusts, administration of estates
• Bankruptcy
• Partnerships and company matters
• Intellectual property

QB

• Contract
• Tort
• Commercial matters
• Judicial review
• Admiralty

Question 14

CLAIM FORM

Answer 14

Document used to commence proceedings.

• Claimants solicitor prepares the form using form N1.
• Court then issues the form by sealing the claim form and allocates a claim number.
• Claim is then valid for four months and the “relevant step” for validly serving it on the defendant must be completed within this time.

If it is not possible to serve within this time limit,
the claimant may apply for an extension under CPR 7.6

Question 15

What case sets out that a claimant can run concurrent claims in both tort and contract

Answer 15

Henderson v Merrett

Question 16

Limitation period for tort and contract

Answer 16

Contract - 6 years from the date of the breach, excluding the date of the breach

Tort - 6 years from the date of the actionable damage. exceptions are 3 years for PI claims

Question 17

CLAIM FORM - METHOD AND TIMING OF SERVICE

Answer 17

CPR 6 deals with service in detail and is accompanied by 6APD (service within the United Kingdom)

Methods for seving the claim form - CPR 6.3

These methods determine the date on which the claim form will be deemed served - CPR 6.14

Deemed date of service of the claim form will be the second business day after the “relevant step” has taken place.

CPR 7.5 lists the relevant steps.

Question 18

What rule deals with deemed date of service for the CLAIM form?

Answer 18

CPR 6.14

The rule for working out the deemed date of service of the claim form is at CPR 6.14 which states that a claim form is deemed served on the second business
day after completion of the relevant step in CPR 7.5(1)

Question 19

What rule deals with deemed date of service for ALL OTHER DOCUMENTS ASIDE FROM THE CLAIM FORM

Answer 19

CPR 6.26

Question 20

METHOD AND TIMING OF SERVICE OF PARTICULARS OF CLAIM

Answer 20

CPR 7.4(1)(b) - If prepared separtely to claim form, the particulats of of claim must be served within 14 days of the deemed date of service of the claim form

Where served as a separate document, CPR 6.26 is the rule to determine the deemed date of service of the particulars of claim

Question 21

What rule sets out the content required for particulars of claim

Answer 21

16.4 and further guidance in 16 PD 3

Question 22

FORMAT OF A PARTICULAR OF CLAIM

Answer 22

1. TITLE OF PROCEEDINGS
   - number of proceeding
   - full name of each party per 16 PD 2.6
   - Each partys status in the proceedings (claimant/defendant)
2. MATERIAL FACTS

At all material times, the claimant [business/profession] and the Defendant [business/profession]

3. DESCRIPTION OF FACTS
4. TERMS OF THE CONTRACT / DUTY
5. BREACH

“In breach of the implied terms outlined in paragraph X of these particulars of claim, the defendant [explain breach].

“In breach of the duty of reasonable care and skill outlned in paragraph X of these particulars of claim, the defendant explain breach]

6. Causation

“As a result of the breach set out in paragraph x above, the claimant had to [action taken to compensate for breach]”

7. LOSS

“As a result of the breaches referred to in paragraph X above, the climant has suffered loss and damage”

[PARTICULAT OF LOSS AND DAMAGE TABLE]

INCLUDE INTEREST

8. SUMMARY OF REMEDIES SOUGHT (THE PRAYER)

and the claimant claims:

[for a specified claim]

i. the sum of £X
ii. interest under paragraph x above to todays date in the sum of £Y; and
iii. Further interest under paragraph Y above at a daily rate of £Z until judgement or earlier payment

[for an unspecified claim]

i. damages under paragraph x above
ii. interest under paragraph y above

9. STATEMENT OF TRUTH

[if signed by another person]
The claimant believes that the facts in this Particulars of Claim are true. I am duly authorised by the Claimant to sign this statement.

[if signed by actual party]
I believe the facts in this Particulars of Claim are tue.

Question 23

Where can you find the implied terms of a contract

Answer 23

SALE OF GOODS ACT 1979 s 13 and 14

Question 24

What are the main statements of case?

Answer 24

The main statements of case are:

1. the claim form;
2. the particulars of claim (if separate from the claim form);
3. the defence; and
4. the counterclaim.

Question 25

What happens after the particulars of claim is served?

Answer 25

The defendant must either file an acknowledgement of service or defence with the court within 14 days of the deemed date of service of the Particulars of Claim per CPR 15.4.

If you file an acknowledgement of service, this gives the defendant 28 days from the deemed date of service of the particulats of claim to then admit or file a defence.

If a defence has been filed at court, the defendant must also serve it on the other parties per CPR 15.6

Question 26

What if the defendant needs more time to file the defence?

Answer 26

CPR 15.5 - parties solicitors can agree to extend the deadline for filing and serving the defence by up to 28 days.

They must notify the court in writing if they do so.

If the defendant requires more time but the climant does not consent the defendant mus apply to the court using an interim application to request an extension. This will put the case on hold until the interim hearing and the defendant will not be required to file a defence during that period

Question 27

What happens if a defendant fails to reply to the claimant’s particulats of claim?

Answer 27

Claimant can apply for default judgement per CPR Part 12.

This can only be done after any relevant deadlines have passed and the defendant failed to file an acknowledgement of service or defence.

The claimant must apply for default judgement promptly and provide evidence showing that the particulars of claim has been served, that the time for filing a defence/AOS has expired; the claim has not been admitted.