Commencing a Claim Flashcards
what documents are to be filed on issuing?
o Claim form (Form N1) (3x)
o POC (not compulsory at the point of issue) (3x)
o Cover letter inc. whether C will serve the proceedings
o Court issue fee
what are the rules for issuing in the civil national business centre?
- Money claims for a specified amount of money which are less than £100,000 are sent to and issued by the Civil National Business Centre
- Neither C nor D can be a child or protected party
- There can only be 1 or 2 defendants if the claim is for a single amount of money against each of them
what claims does the CNBC deal with?
- CNBC keeps undefended claims. Defended claims are sent to the CC.
which claims are dealt with in the county court?
PI claims for £50k or less must be commenced in the CC
All other claims for £100k or less must be commenced in the CC
(NB: if the claim is below these thresholds but is particularly compelx or of general public important it may be started in the HC)
can a claim which exceeds the CC financial thresholds be commenced in the CC?
yes, if it is straightforward and practical and expedient to do so.
what cases does the KBD issue?
primarily deals with actions in contract and tort
which claims are dealt with in the high court?
- PI more than £50k
- All other cases more £100k
- A judge can transfer a case from the HC to the CC
what cases does the chancery division issue?
o disputes arising over land, trusts, contentious inheritance matters, partnership claims and company law. w
what cases does the family division issue?
defended divorces and adoption cases
what the divisions of the High Court?
o King’s Bench Division
o Chancery Division
o Family Division
o Business and property courts (umbrella term for various courts i.e. TTC, admiral courts)
where are cases to be issued by the High Court sent?
Cases are sent to either the Royal Courts or Justice or District Registries which sit outside London.
re: service
what happens once a solicitor has been nominated?
- Once a solicitor has been nominated, all documents are served on them (except documents which must be served personally i.e. injunctions)
re: service
what is the general position regarding methods of service of claim form and other documents?
- The methods and rules regarding the address for service are the same for service of a claim form and other documents (some minor exceptions), but the date of deemed service is different.
re: service
what are the methods of service?
- Personal service
- Delivery of the document to or leaving it at the relevant place
- First class post, DX or other service which provides for delivery on the next business day
- Electronic communication (i.e. fax or email)
- An alternative method (i.e. by text message) with permission of the court (evidence would be required)
Applicable to service of the claim form only:
o If there is a contract which stipulates the method/address of service, it is permissible under the CPR to adhere to this
o C can make an application to allow for service of a claim form on an agent of the principal where:
The principal is out of the jurisdiction;
The contract was entered into in the jurisdiction / through the agent; &
The agent is still in business relations with the principal
re: service
explain personal service
o If an individual refuses to accept service it can be left near them
o Partnership can be left with a partner or person who has control / management of the partnership at its principal place of business
o Company can be left with a person who holds a senior position i.e. director, treasurer, secretary or chief exec
re: service
what is the position regarding email service
D / their solicitor must have expressly stated they will accept service by email
re: service
what is the position regarding fax service
a fax number on a solicitor’s (NB: not the party’s) headed paper indicates they will accept service by fax (this does not apply to an email signature)
re: service
what are the methods of service applicable to service of the claim form only?
o If there is a contract which stipulates the method/address of service, it is permissible under the CPR to adhere to this
o C can make an application to allow for service of a claim form on an agent of the principal where:
The principal is out of the jurisdiction;
The contract was entered into in the jurisdiction / through the agent; &
The agent is still in business relations with the principal
re: service
which address should be used for service?
- D should be served at the address they gave for service (not relevant where there is personal service or where a solicitor has been nominated for service)
re: service
if D is an individual and they have not given an address for service, where are they to be served?
Usual or last known address
re: service
if D is a sole trader/partnership and they have not given an address for service, where are they to be served?
Usual or last known address of the individual or principal or last known place of business
re: service
if D is an LLP/company and they have not given an address for service, where are they to be served?
The principal office of the LLP/company; or any place of business of the LLP/company within the jurisdiction which has a real connection with the claim.
re: service
where D has not given an address for service, if C wants to serve to a place not prescribed in the CPR, what must they do?
C would need to apply to the court with evidence the document will be brought to D’s attention i.e. a report from an inquiry agent that D stays at the property three nights a week
re: service of the CF in E&W
who will serve the claim form?
- Will be served by court unless C states otherwise
re: service of the CF in E&W
what is the deadline for service of the claim form?
- C must take the step required before 12:00 midnight on the calendar day 4 months after the date of issue of the claim form (i.e. CF issued 2 Jan must take the step required before midnight on 2 May)
o In other words, C only has to despatch the CF within this time limit, the CF need not be deemed served within 4 months of issue
re: service of the CF in E&W
when can the claim form be served on a solicitor?
- A CF can only be served on a solicitor if:
o D has nominated them in writing
o D’s solicitor has informed C in writing they are instructed to accept service on behalf of D
re: service of the CF in E&W
if the limitation period has expired and C fails to despatch in time, what will likely happen?
D will raise the limitation defence
re: service of CF outside E&W
when must the claim form be served by?
- CF must be served within 6 months of issue
re: service of CF outside E&W
when is permission to serve the claim form outside the jurisdiction not required?
Permission is not required to serve the CF outside the jurisdiction where:
o Serving in Scotland or Northern Ireland (noting rules on service); or
o The contract contains an English jurisdiction clause
Permission must be obtained in all other cases
re: service of CF outside E&W
if permission is required, what must the claimant do?
- When the CF is sent to be issued, it must be accompanied by an N244 inc.:
o The grounds C is entitled to serve outside the jurisdiction i.e. the contract was made or breached in E&W; the contract is governed by E&W law; or there will be excessive cost if the matter was heard in a foreign court
o Evidence that E&W is the proper forum
re: service of CF outside E&W
if the court grants permission, what will they do?
- If the order is granted, the court will ext. the time for D to respond to the claim
re: service of CF outside E&W
how is service of the claim form usually effected?
- Service is usually effected through judicial authorities of the state in question or the British Consul
re: service
when is the claim form deemed served?
- The CF will be deemed served on the second business day after the step required has been taken (regardless of the type of service)
o i.e. CF is sent by post on a Monday, it will be deemed to be served on Wednesday
o NB: Saturday, Sunday and bank holidays are not business days
re: service
why is the date of deemed service of the POC important?
because D has 14 days to file an AOS / defence from the date of deemed service of the POC (AOS extends deadline for defence by 14 days)
re: service
when must POC be filed?
if the POC is not issued with the claim form, POC must be served within 14 days of despatch of the claim form (i.e. not deemed service), but no later than four months after the date of issue of the claim form.
re: service
what is the position regarding deemed service of all other documents (i.e. not claim form)?
- Personal service, leaving document at permitted place and electronic communication > deemed service is that day if served before 4:30pm and it is a business day. If not, it will be the next business day.
- First class post, DX etc > provided it was posted on a business day, deemed served will be the second business day after it was posted
re: adding/removing/substituting parties
when is the court’s permission not required?
- The court’s permission is required unless the CF has not been served
re: adding/removing/substituting parties
who can make this application?
An application for permission (along with evidence) can be made by either:
o An existing party; or
o Someone who wants to become a party
re: adding/removing/substituting parties
when can the claimant be substituted?
- No one can be substituted as C unless they have filed written consent with the court and provided amended documentation
re: adding/removing/substituting parties
what is the position when the application is made within the limitation period?
permission will be granted if it is desirable to:
o Add a new party to resolve a dispute; or
o Remove a party; or
o Substitute a party where the existing party’s interest or liability has passed to them
re: adding/removing/substituting parties
what is the position when the application is made outside the limitation period?
a party can only be added or substituted (NB: a party cannot be removed) if the limitation period was current when proceedings were issued and:
o The original party was named by mistake;
o The original party has died;
o The original party is subject to a bankruptcy order and their interest or liability has passed to the new party; or
o The claim cannot be carried on without the new party
re: adding/removing/substituting parties
give an example of when C may want to add a party
C brings a negligence claim against D following RTA. Transpires a pedestrian stepped out into the road. C may want to add them as a 2nd D.
