Commencement Flashcards
When calculating a period of time under CPR 2.8, what does a ‘clear day’ mean?
It means that the day on which the period begins, and the day on which a specified end event occurs, are not included.
For example, if a hearing is on Friday 20th and application must be served 3 days before, the last date for service is Monday (as Tues-Thurs is 3 clear days).
If a court gives notice of a hearing on 1st October, and the hearing must be at least 28 days after the hearing, the earliest date for the hearing is 30 October.
Does Rule 1.4(2) CPR confer powers on the court?
No: it just contains a list of case management elements and objectives.
To be contrasted with r3.1(2)
Are the aspects of case management in r1.4(2) mutually exclusive?
No. As such, there may be difficulty reconciling multiple objectives.
Rule 3.4 gives the court the power to strike out a…
Statement of Case.
True or False. The court can impose sanctions falling short of striking out in appropriate cases.
True.
Commencement provisions which are designed to assist parties to consensually settle the whole/part of their claims include:
(2)
Expanding pre-litigation disclosure
Encouraging greater use of ADR
Provisions designed to consensually settle post-commencement include:
(2)
Offers to settle;
Summary disposal of issues, to narrow the dispute.
Under CPR 6.2, a “business day” means
Any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day.
Under CPR 6.3 and 6.20, a claim form may be served by any of the following methods: (7)
Personal service
First class post
Document exchange
Any other service which provides for delivery on next business day
Leaving at a specified place
fax or other means of electronic communication
Any method authorised by the court under rule 6.15/6.27
True or False. Companies and LLPs can only be served by methods permitted under CPR 6.3/6.20.
False. They can also be served by permitted methods under Companies Act 2006.
Under CPR 6.4 the court will serve the claim form, except where:
A rule or practice direction provides that the claimant must serve it;
The Claimant notifies the court that they wish to serve it; or
The court orders or directs otherwise.
True or False. When the court is to serve the claim form, it is for the court to decide which method of service is to be used.
True.
True or False. When the court is to serve the claim form, the claimant only needs to file a copy for the court.
False. They must ALSO provide a copy for each defendant to be served.
Can personal service ever be mandated?
Yes. Under CPR 6.5, it can be required by a Part, enactment, practice direction or court order.
How is a claim form personally served on:
An individual?
A company
A partnership?
By leaving it with the individual;
By leaving it with a person holding a senior position in the company;
By leaving it with a partner or a person who has control or management of the partnership business
How is a claim form to be served on an individual where the defendant does not give an address at which the defendant may be served?
At their usual or last known address
CPR 6.7 concerns:
Service of claim form on solicitor or European Lawyer.
CPR 6.8 concerns:
Service of a claim form where the Defendant gives address at which the defendant may be served.
How is a claim form to be served on an individual being sued in the name of a business, where the defendant does not give an address at which the defendant may be served?
Usual or last known residence of the individual; or principal or last known place of business.
How is a claim form to be served on an individual being sued in the name of a partnership, where the defendant does not give an address at which the defendant may be served?
Usual or last known residence of the individual; or principal or last known place of business of the partnership.
How is a claim form to be served on a LLP where the defendant does not give an address at which the defendant may be served?
Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.
How is a claim form to be served on a corporation where the defendant does not give an address at which the defendant may be served?
Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
How is a claim form to be served on a company registered in England and Wales where the defendant does not give an address at which the defendant may be served?
Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.
How is a claim form to be served on an company not registered in England and Wales where the defendant does not give an address at which the defendant may be served?
Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.
If the Claimant is unable to ascertain the Defendant’s current address, the Claimant must consider whether there is:
(tip: very simple)
An alternative place or method by which service may be effected.
Can the method of service of a claim form be contractually agreed?
Yes.
A claim form served in the UK is deemed to be served on…
the second business day after completion of the relevant steps in rule 7.5(1) (concerning service of a claim form)
For documents other than claim forms, when are they deemed served if sent through first class post?
The second day after it was posted, left with, delivered to or collected by the relevant service provider, provided that day is a business day. If not, the next business day after that.
For documents other than claim forms, when are they deemed served if sent through document exchange?
The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.
For documents other than claim forms, when are they deemed served if sent by delivering the document or leaving it at a permitted address?
If it is delivered to or left at the permitted address on a business day before 4.30p.m., on that day; or in any other case, on the next business day after that day.
For documents other than claim forms, when are they deemed served if sent through fax?
If the transmission of the fax is completed on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was transmitted.
For documents other than claim forms, when are they deemed served if sent through any other electronic methods?
If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent.
For documents other than claim forms, when are they deemed served if sent through personal service?
If the document is served personally before 4.30p.m. on a business day, on that day; or in any other case, on the next business day after that day.
When can service be made through document exchange?
Where the address at which the party is to be served includes a numbered box at a DX;
Where the writing paper of the party 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 for that party has not indicated in writing that they are unwilling to accept service by DX.
How is service effected by post, alternative service provider or DX?
(think practically) (3)
Placing document in a post box;
Leaving or delivering document to the relevant service provider;
Having doc collected by the relevant service provider.
To serve by fax, must the recipient have indicated that they are willing to accept service this way?
Yes.
What counts as indication for accepting fax?
Including fax number
What counts as an indication for accepting email?
Email address and a statement that the email may be used for service. (for writing paper)
If statement of case, just inclusion is fine.
True or False. Hard copies must also be delivered alongside electronic means.
False.
Who counts as a person holding a senior position in a registered company or corporation?
Director
Treasurer
Secretary
Chief executive
Manager
Who counts as a person holding a senior person in a non-registered company?
Mayor
Chairman
President
Town clerk
Where a claim form is served within the jurisdiction, the claimant post/leave/deliver the relevant documents before when?
before midnight on the calendar day four months after the date of issue of the claim form
Where a claim form is served within the jurisdiction, the claimant must deliver their document at the relevant place before?
before midnight on the calendar day four months after the date of issue of the claim form
Where a claim form is served within the jurisdiction, what must the claimant do for personal service before midnight on the calendar day four months after the date of issue of the claim form?
DELETE THIS QUESTION
Completing the relevant step required by rule 6.5(3)
Where a claim form is served within the jurisdiction, what must the claimant do for fax before midnight on the calendar day four months after the date of issue of the claim form?
DELETE THIS QUESTION
Completing the transmission of the fax
Where a claim form is served within the jurisdiction, what must the claimant do for other electronic methods before midnight on the calendar day four months after the date of issue of the claim form?
DELETE THIS QUESTION
Sending the e-mail or other electronic transmission
What will a court consider when a claimant asks for a time extension for the period between claim issue and claim being served?
(2)
Consider if the court failed to service the claim form; or
Whether the Claimant took all reasonable steps to comply with the required methods of CF service but was unable to do so and whether C acted promptly in making the application.
True or False. The court can extend time (between claim issue and claim service) prospectively under r7.6(2) without being satisfied that the claimant has taken all reasonable steps to comply with r7.5?
True. (Marshall v Maggs).
Proceedings are started when;
the court issues a claim form at the request of the claimant.
Where a claim form was received in the court on an earlier date then when it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act on…
That earlier date.
Where the Claimant does not include the particulars of claim in the claim form, they may be served separately:
At the same time as the claim form; or
Within 14 days after service of the claim form (provided that service is within 4 months of issue)
This is 14 clear days, as defined in CPR2.8(2).
An application for an extension of time should state:
(4)
(CDEF)
The circumstances relied on
The date of issue of the claim
The expiry date of any rule 7.6 extension
A full explanation as to why the claim has not been served
A claimant may use the Part 8 procedure where:
2
He seeked the courts decision on a question unlikely to involve a substantial dispute or fact; or
Para 6 applies (a rule or PD may permit Part 8 procedure)
Where the claimant uses Part 8 procedure, the claim form must state:
(4)
That Part 8 applies;
The question C wants the court to decide/ the remedy they seek;
Any enactments under which the claim is made
ANy representative capacity of C or D
Under CPR 8.3, D must acknowledge service no more than
14 days after service or the claim form.
An acknowledgement of service must state:
2
Whether D contests the claim; and
If D seeks a different remedy, and what that remedy is.
If D fails to provide an acknowledgement of service, can they attend they hearing?1
Yes, but they cannot take part unless the court gives permission.
Must written evidence be included when filing a claim form under Part 8?
Yes.
If written evidence is not included with the claim form under CPR 8.5, can it be relied on at the hearing?
Only if the court gives permission.
On what basis can the defendant contend the use of Part 8 procedure?
(tip: think about when part 8 procedure can be used!)
That there is a substantial dispute of fact; and
The use of Part 8 procedure is not required or permitted by a rule or practice direction.
The types of case for which Part 8 procedure can be used includes:
(tip: think when you would have a situation involving no substantial factual dispute)
(2)
Claims against children/protected party, which has been settled and the court only has to approve the settlement; or
Claims for provisional damages which have been settled and parties just need a consent judgment.
If a defendant wishes to rely on written evidence, must they file it with their acknowledgement of service?
Yes.
Except for Pi claims, claims for money in County Court can only be commenced in the High Court if the value is more than
£100k
For PI claims, the claim can only be commenced in the High Court if the value is more than
£50k
Judgments of a county court for the payment of a sum of money which it is sought to enforce by execution of goods can be enforced ONLY in the High Court where the sum sought is X, and ONLY in the County Court where the sum is less than
£5000 or more.
£600 or less.
If a claim is for more than £100k, does it have to start in the High Court?
No; that is just the threshold of permissibility.
What must a High Court consider when deciding to accept a claim?
Value of dispute
Complexity
Importance
Are interests/costs included in the valuation of the claim, for determining the appropriate court?
No (see CPR 16.3(6))
Which court is quicker, cheaper and more convenient? HC or CC?
CC
A claim form must be served within X after the date of issue?
4 months
True or False. Part 8 should only be used for questions involving a substantial factual dispute.
False; that is when it SHOULDN’T be used!
Use Part 7 procedure instead!
What are some of the features of Part 8 Procedure?
No defence is required;
Default judgment is not available;
Claims are automatically allocated to the multi-track;
The Claimant should file any written evidence he intends to rely on with his claim form;
D should file any written evidence he intends to rely on with his claim acknowledgement of service.
When can the court make an order permitting service by an alternative method or at an alternative place?
Where it appears to the court that there is a good reason to authorise such service (CPR 6.15(1))
TRUE or FALSE. The court cannot dispense with service of a claim form.
FALSE. Under CPR 6.16(1), the court may dispense with service of a claim form in exceptional circumstances.
TRUE or FALSE. A claimant may obtain default judgment where he uses Part 8 procedure.
FALSE. See CPR 12.2
TRUE of FALSE. A claim is formally commenced when the Claim Form is issued.
TRUE. See CPR 7.2(1)
If a claimant serves their claim form by first class post on Thursday 22 October 2020, and it is received by the Defendant on Friday 23 October 2020, will the claimed form be deemed served on the 23 October?
No. Goodwin v Swindon Borough Council (and Para 6.14.1) say the day on which service was actually effected may not be the deemed date of service. The deemed date of service will be as per the rules. This provides certainty, preventing rebuttal.
If instructing solicitors issue a Claim Form but shortly before it is due to expire have still not been able to service it, what should be done?
Apply to the Court for an extension of time: see CPR 7.6
