Commencing a claim, responding to a claim, progressing a claim Flashcards
The following claims MUST be commenced in the County Court:
*Claims worth £100,000 OR less (except claims regarding media and communications work).
*PI claims worth £50,000 OR less.
Claims falling within the County Court jurisdiction CAN be started in the HC IF there is a reason to believe that they should be heard by a HC judge for reasons such as the following:
*Financial value of the claim AND the amount in dispute.
*Complexity of the facts, legal issues, remedies, OR procedures.
*Importance of the outcome of the claim to the public in general.
Absence of special reasons claims worth less than £100,000 that have been commenced in the HC WILL generally be transferred to?
the County Court UNLESS there is another specific requirements for them to be tried in the HC.
Following claims SHOULD be commenced in the HC (though there is the option to commence them in the County Court):
- Claims worth more than £100,000 OR £50,000 for PI claims, where –
Case has complex facts.
Outcome of the case has a public interest element. - Claim for damages OR for an unspecified sum is started in the HC, the claim force MUST state –
Claimant expects to recover more than £100,000 (or £50,000 OR more if the claim is for PI)
OR
Some enactment provides that the claim CAN only be commenced in the HC and specify that enactment
OR
That the claim is to be in one of the specialist HC lists AND specify that list.
Specialist courts -
The Chancery Division:
Insolvency and companies court.
IP
Enterprise court
Patent court
Specialist courts -
The King’s Bench Division:
Administrative court
Admiralty court
Commercial court
Commercial circuit court
Technology and construction court.
Typical claims -
The Chancery Division:
equity
Trusts
Commercial land
Tax
IP
Land
Business disputes, contentious probate, regulatory work, bankruptcy.
Professional negligence.
Typical claims -
The King’s Bench Division:
JR
Defamation
Breach of contract
Negligence and other tortious conduct
PI
Non-payment of debts.
Breaches of the HRA 1998.
Breaches of statutory duty.
Business and property courts: Umbrella term and user-friendly name for…
a number of the specialist jurisdictions of the HC.
HC, the Business and Property courts encompass the following specialist courts and lists:
*The commercial court (King’s Bench Division).
*The Admiralty Court (KBD)
*Circuit commercial court (KBD).
*Technology and construction court (KBD)
*The financial list (KBD/CD)
*Business list (CD)
*Insolvency and companies list (CD).
*IP list including patents court, and the IP & Enterprise court (CD).
*Property, Trusts, and probate list (CD).
*Competition list (CD).
*Revenue list (CD).
Issuing a claim form:
Claimant MUST file with the court:
Claim form (N1 with court fee).
Particulars of claim (included in form OR attached separately).
Supporting evidence.
Court will seal the claim form,
Allocate a claim number
AND…
claim will be considered formally issued.
Limitation time period stops running.
Claim form is valid for 4 calendar months, in which to serve on defendant.
Adding a party -
Within a limitation period:
Court can order a person to be added if…
Desirable to add the new party so the court can resolve all the matters in dispute
OR
Issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings
AND it is desirable to add the new party so the court can resolve that issue.
No one CAN be added as a claimant UNLESS their consent in writing has been filed at court.
Adding a party -
Outside limitation period:
Court can add a party if…
Relevant limitation period was current when proceedings started
AND the addition is necessary.
Necessary means:
Original party was named by mistake
OR original party has died OR is subject to a bankruptcy order
AND their interest or liability has passed to the new party
OR claim CAN’T be properly carried on without the new party.
Substituting a party -
Within a limitation period:
Court can order a new party to be substituted for an existing one IF…
Existing party’s interest or liability has passed to the new party
OR desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.
No one CAN be substituted as a claimant UNLESS their consent in writing has been filed at court.
Substituting a party -
Outside limitation period:
Court can substitute a party IF…
Relevant limitation period was current when proceedings started
AND addition is necessary
Necessary means:
Original party was named by mistake
OR original party has died OR is subject to a bankruptcy order
AND their interest or liability has passed to the new party
OR claim CAN’T be properly carried on without the new party.
Removing a party -
Within limitation period:
Court can order any person to cease to be a party IF
it ISN’T desirable for that person to be party to the proceedings.
Method of service -
Personal service:
Steps taken & where to service if no solicitor authorised to accept service:
Individual?
claim should be left with individual by handing it to them at the usual/last known address.
Method of service -
Personal service:
Steps taken & where to service if no solicitor authorised to accept service:
Partnership?
claim should be left with partner or person who has control or management of the partnership business at the usual/last known residence of the individual OR principal/last known place of business of the partnership.
Method of service -
Personal service:
Steps taken & where to service if no solicitor authorised to accept service:
Company/LLP?
claim should be left with a person holding senior position within the company/LLP at the principal office of the company/LLP or any place of business of the company/LLP within the jurisdiction that has a real connection with the claim.
Method of service -
Leaving the claim form at a specified place:
Steps taken & where to service if no solicitor authorised to accept service:
Individual?
leaving the document at the usual/last known residence.
Method of service -
Leaving the claim form at a specified place:
Steps taken & where to service if no solicitor authorised to accept service:
Individual t/a business?
leaving the document at the usual/last known residence of the individual or principal/last known place of business.
Method of service -
Leaving the claim form at a specified place:
Steps taken & where to service if no solicitor authorised to accept service:
Partnership?
leaving the document at the usual/last known residence of the individual partner OR principal/last known place of business of the partnership.
Method of service -
Leaving the claim form at a specified place:
Steps taken & where to service if no solicitor authorised to accept service:
Company/LLP?
leaving the document at the principal office of the company/LLP OR any place of business of the company/LLP within the jurisdiction that has a real connection with the claim.
Method of service -
1st class post, DX:
Steps taken & where to service if no solicitor authorised to accept service:
Post/DX?
validly served if send by 1st class post OR if leaving the document with or having it collected by the DX service provider to.
Method of service -
1st class post, DX:
Steps taken & where to service if no solicitor authorised to accept service:
Individual?
usual/last known residence.
Method of service -
1st class post, DX:
Steps taken & where to service if no solicitor authorised to accept service:
Individual t/a business?
usual/last known residence of the individual or principal/last known place of business.
Method of service -
1st class post, DX:
Steps taken & where to service if no solicitor authorised to accept service:
Partnership?
usual/last known residence of the individual partner OR principal/last known place of business of the partnership.
Method of service -
1st class post, DX:
Steps taken & where to service if no solicitor authorised to accept service:
Company/LLP?
principal office of the company/LLP or any place of business of the company/LLP within the jurisdiction that has a real connection with the claim.
Method of service -
Fax or other form of electronic communication:
Steps taken & where to service if no solicitor authorised to accept service:
Provided they have confirmed they are willing to accept service by fax/email:
Completing of the transmission of the fax.
Sending the email.
Method of service -
Any other method authorised by the court:
Steps taken & where to service if no solicitor authorised to accept service:
Court can authorise the service by other methods.
Permission ISN’T required to serve a claim form for outside the jurisdiction for proceedings in?
Scotland OR Northern Ireland,
where the English court has jurisdiction.
Within the UK:
MUST be no parallel proceedings elsewhere in the UK AND at least one of the following conditions MUST apply:
Defendant is domiciled in the UK.
English court has exclusive jurisdiction.
Defendant is party to an English jurisdiction agreement.
Not necessary to obtain the court’s permission to serve the claim form outside the jurisdiction where:
Court has power to determine the claim under the Hague Convention
AND the defendant is party to an exclusive jurisdiction clause to which the Hague Convention applies
AND
There is a jurisdiction clause that the English courts have jurisdiction to determine the claim.
Claim DOESN’T fit within the above, court’s permission is required to serve the proceedings out of the jurisdiction.
Enables the court to exercise jurisdiction where the subject matter of the dispute has sufficient connection with?
England by fitting within one of the jurisdictional gateways (key common law gateways).
Permission obtained, service needs to be carried out within?
6 months of being issued in accordance with the procedures and law of the country commenced.
Deemed service of claim form:
Claim form is deemed served on the second business day after the relevant step is taken.
Deemed service of documents other than claim form:
(e.g., particulars of claim if served separately and the defence).
* Personal service, leaving the claim at a specified address, fax, email – if served before 4.30pm on a business day, on that day.
If not, next business day.
* 1st class post or DX – second day after it was posted provided that day is a business day.
If not, on the next business day.
4-month time limit to serve?
claim form.
Particulars of claim CAN be served at same time as claim form OR?
with 14 days after service of the claim form (BUT within the 4-month time limit within which the claim form was issued).
Within 21 days of service of claim form one MUST file?
certificate of service with court.
Where it proves difficult to serve the defendant with the claim form at the place OR by the method stipulated the court can:
Make an order permitting service by a method OR at a place not otherwise permitted where it appears that there is a good reason to do so.
Make an order that steps already taken to bring the claim form to the attention of the defendant by an alternative method, OR at an alternative place is good service.
When served with the particulars of claim, the defendant has three ways to respond included in the response pack (Form N9):
File an acknowledgement of service
File a defence and/or counterclaim.
File an admission.
Defendant has 14 days to respond to the service of particulars of claim not the claim form alone, UNLESS…
the claim form has the particulars of claim attached.
If the defendant ignores the claim, the claimant WILL apply for?
judgment in default.
Specified claims (debt claims) - Admission of whole claim:
Defendant MUST provide – details of income, expenditure, proposal of payment (Form N9A).
Claimant MUST:
Accept proposal OR
Object to proposal, in which case court WILL decide appropriate rate of payment.
Specified claims (debt claims) - Admission of part claim:
Defendant CAN admit only part of claim for specified amount.
Claimant MUST within 14 days:
Accept part admission in full satisfaction
OR accept part admission BUT not the proposal for payment and let court decide
OR reject offer and proceed with their claim.
Unspecified claims (damages claims) - Admission of a claim (no offer made):
Defendant admits liability BUT no offer is made (Form N9C).
Court will send Form N9C to claimant for completion and return within 14 days.
Claimant requests judgment to be entered AND for an amount in damages to be decided by court (disposal hearing).
Unspecified claims (damages claims) - Admission of a claim (offer made):
Defendant admits liability and offers a sum of money.
Claimant MUST decide whether to accept or reject the offer.
Offer accepted, judgment WILL be entered for amount offered.
Rejected, will enter judgment for damages at a disposal hearing.
Acknowledgement of service:
Filing acknowledgement of service by the defendant extends the period to file a defence from 14 days to 28 days after service of the particulars of claim.
Acknowledgment of service form is part of the response pack (Form N9).
Defence and/or counterclaim:
Defence MUST be filed within 14 days of service of particulars of claim OR 28 days from filing of acknowledgment of service.
As part of the defendant’s response, defendant CAN pursue a counterclaim against a claimant.
The filing of a defence CAN be extended by agreement between the parties (without court involvement) for a period of up to 28 days.
Disputing the court’s jurisdiction:
Disputing the court’s jurisdiction MUST be indicated on the Acknowledgement of Service.
MUST make an application to the court within 14 days disputing its jurisdiction.
MUST be supported by evidence why E&W ISN’T the proper forum.
Granted, claim will be set aside, and proceedings closed.
Defendant DOESN’T file an Acknowledgment of service OR defence within the time limit, claimant MUST?
enter a judgment in default.
Specified claim will be calculated for?
a final sum of money and proceed to enforcement.
Unspecified claim judgment is for damages to be determined at?
a disposal hearing.
Judgment in default CAN be set aside either on:
and judge can make one of the following orders?
- Mandatory grounds – judgment entered BEFORE expiry of time for filing acknowledgement of service or defence, or claim has been paid in full.
Judgment will be set aside: - Discretionary grounds –
Real prospect of successfully entering a defence
OR some other good reason why the judgment should be set aside.
Then the defendant MUST apply promptly by filing an application notice (Form N244) with a witness statement.
Judgment is set aside AND the defendant is allowed to defend the court proceedings
OR judgment against the defendant stands and the claimant can enforce the judgment
OR judgment is set aside on the condition that the defendant pays monies into court.
Discontinuance:
Discontinuance halts the action.
Claimant CAN discontinue without seeking leave of the court (UNLESS the court granted an interim injunction, or any party has given an undertaking to the court).
Claimant has received an interim payment either the defendant MUST consent in writing OR the court gives permission.
Claimant MUST file a discontinuous stating that a copy has been served on every party to the proceedings and attaching a copy of the consent.
Claimant will be liable for the cost of the proceedings on a standard basis.
Settlement:
Pre-action
After proceedings issued:
Consent order
Tomlin order
Pre-action consent order SHOULD?
be drafted to end the proceedings in return for a settlement sum.
Order is breached, fresh proceedings will need to be issued.
Consent order:
terms of the settlement can be recorded in a formal court order.
Tomlin order:
court order where the claim is stayed on terms agreed between the parties in a confidential schedule attached to the order.
The formal documents in which each party concisely sets out their case.
These include:
Claim form
Particulars of claim
Defence
Reply to defence
Statements of case SHOULD identify?
the issues to be determined thereby allowing the parties to direct their evidence AND submissions on law.
Statements of case should only plead:
Material facts (no evidence)
Facts relevant to the action (not background facts)
Refer to any point of law on which claim, or defence is based.
Name any witnesses a party proposes to call.
Attach any document which is necessary to the claim or defence.
Court WILL NOT normally allow a party to pursue an issue OR…
claim a remedy not stated in the statement of case
UNLESS addressed in subsequent documentation.
Subsequent statement of case MUST NOT…
contradict OR be inconsistent with an earlier one.
Heading - information required in a claim form
Insert details of the relevant court
Court will assign a claim number
Date of issue will be inserted.
Parties - information required in a claim form
Ensure defendant’s name is accurately described with full address and postcode OR claim will be struck out.
Follow the specific rules on how to describe individuals, sole traders, partnership, and companies.
Brief details of claim - information required in a claim form
Insert concise statement of the nature of the claim and the remedy sought.
Statement of case - information required in a claim form
Specified claims, amount claimed plus interest.
Unspecified claims, in County Court MUST state one of the following values:
Not more than £10K.
More than £10K BUT NOT more than £25K.
More than £25K.
OR CAN’T say how much they expect to recover.
Court fee payable on issue is based on the statement of value (up to a maximum of £10K).
Preferred county court hearing centre - information required in a claim form
Claimant SHOULD include a named court convenient to them though the court can transfer the claim AFTER it has been issued (if appropriate).
Defendant’s address for service -information required in a claim form
Defendant’s title, full name, address OR postcode OR solicitor’s details if they have been instructed to accept service on behalf of defendant.
Particulars of claim - information required in a claim form
Set out the details of the claim within the claim form or separately by way of particulars of claim.
Statement of truth - information required in a claim form
Confirms the facts stated in it are true, signed by claimant or solicitor.
Address for service - information required in a claim form
Insert claimant’s address or solicitor’s address.
Parties & status - content of a particulars of claim form (contract)
Sets out the parties.
Confirms their status e.g., a business.
Parties & status - content of a particulars of claim form (tort)
Sets out the parties.
Confirms their status e.g., a business.
Facts - content of a particulars of claim form (contract)
Set out the chronological events of what has happened.
Include material facts.
Facts - content of a particulars of claim form (tort)
Set out the chronological events of what has happened.
Include material facts.
Contract terms or relevant duty of care - content of a particulars of claim form (contract)
Establish existence of contract (date, parties, subject, consideration, material terms).
Written contract, include copy of the contract.
Contract terms or relevant duty of care - content of a particulars of claim form (tort)
Set out the relevant duty of care and why the defendant owed it to the claimant.
Breach alleged - content of a particulars of claim form (contract)
Specify which contract terms have been breached and how by the defendant.
Breach alleged - content of a particulars of claim form (tort)
Specify the breach of duty of care by the defendant.
Consequences of breach (contract) or causation (tort) -
content of a particulars of claim form (contract)
Set out the nature of losses (direct and indirect) caused by the defendant’s breach.
Consequences of breach (contract) or causation (tort) -
content of a particulars of claim form (tort)
Set out the causation link to the defendant.
Damages - content of a particulars of claim form (contract)
Set out damage and losses alleged and then itemise.
Damages - content of a particulars of claim form (tort)
Specified claim – set out nature and amount of losses.
Unspecified claims – indicate the range of damages they are seeking.
Interest - content of a particulars of claim form (contract)
Interest will only be awarded if specifically claimed.
Refer to rules on calculating interest.
Interest - content of a particulars of claim form (tort)
Interest will only be awarded if specifically claimed.
Refer to rules on calculating interest.
Statement of truth - content of a particulars of claim form (contract)
Confirms the facts stated in it are true.
Signed by claimant OR solicitor.
Statement of truth - content of a particulars of claim form (tort)
Confirms the facts stated in it are true.
Signed by claimant OR solicitor.
Defence MUST respond to each allegation in…
the particulars of claim by answering each paragraph of the claim.
Defendant who fails to deal with an allegation is taken to…
admit it (rule of implied admissions). Defendant MUST ensure every allegation is dealt with.
Defendant can respond to each allegation in one of three ways:
Admit by allegation.
DON’T admit the allegation (non-admission) AND require proof from the claimant as to its truth,
made where the defendant has no knowledge of the matter alleged.
Deny the allegation (MUST explain their reasons for denial, offer their own version of events
AND explain how it differs from the claimant).
Content of a defence -
Court:
The name of the court should be set out.
Content of a defence -
Claim number:
Include the claim number allocated on issue of proceedings as set out in the claim form.
Content of a defence -
Parties:
Include the name of the claimant and the defendant
Content of a defence -
Title:
Document should be clearly headed ‘defence’.
Content of a defence -
Point by point response:
Ensure each allegation is admitted, NOT admitted OR denied.
Defendant alleges by the claimant causation, failure to mitigate, contributory negligence,
OR expiry of the relevant limitation period, details SHOULD be given by the defendant.
Content of a defence -
Legal Representative:
Date and signature of solicitor in the name of the firm.
Content of a defence -
Statement of truth:
Confirms the facts stated in it are true.
Signed by claimant OR solicitor.
Purpose, structure, and content of a reply to defence:
Reply to defence CAN be necessary where the defence has raised issues that were not included in the particulars of claim.
Claimant who DOESN’T file a reply ISN’T taken to admit the matters raised in the defence.
Part 20 claim is either a –
Counterclaim – claim by the defendant against the claimant
OR
Additional claim – claim by the defendant for a contribution, indemnity, OR other remedy from a third person whether OR not they are a party to the proceedings.
Particulars of counterclaim are filed at the same time as the…
defence, court permission ISN’T required.
Particulars of counterclaim are filed after the…
defence, then court’s permission IS required.
Claimant MUST file a defence in counterclaim within 14 days, failing which?
defendant CAN enter judgment in default on the counterclaim.
Defence and counterclaim SHOULD be?
titled defence and counterclaim
AND divided into 2 sections dealing firstly with defence and then counterclaim within single document.
Drafting a counterclaim, rules applicable to…
drafting a particulars of claim SHOULD be followed.
Additional claim filed at the same time as the…
defence, court permission NOT required.
Particulars of additional claim MUST be served with…
defence within a single document.
Purpose, structure, and content of a defence to part 20 claim:
(3 elements)
*Claimant has 14 days to file a defence to a counterclaim.
*An extension of up to 28 days CAN be agreed by the parties.
*Claimant MUST file a defence to the counterclaim to prevent a judgment in default.
Requests for further information about statements of case (part 18 request) -
Party requesting further information MUST:
Serve a written request on the other party AND allow a reasonable time to respond.
Ensure the request is concise, relevant, and proportionate.
Headed with the name of the court, title, claim number AND be identified as a part 18 request.
Requests for further information about statements of case (part 18 request) - Party receiving the request MUST:
Respond in writing to the request (dated and signed by the solicitor).
Serve it on all the parties and file with the court.
Accompany the response with a statement of truth.
Before service -
Before expiry of Limitation Period:
At any time
Before service -
After Expiry Of Limitation Period:
If the limitation period has expired the defendant has an absolute defence.
Court CAN allow an amendment only if:
To add or substitute a new claim IF it arises out of the same or substantially the same claim
OR to correct a genuine mistake as to the name of a party
OR to alter the capacity in which a party claims.
After Service -
Before Expiry of Limitation Period:
Either
With the written consent of all parties
OR permission of the court.
Court has discretion in whether to grant the application taking into account the injustice to the applicant IF amendment refused vs injustice to the defendant if amendment permitted.
After Service -
After Expiry of Limitation Period:
If the limitation period has expired the defendant has an absolute defence.
Court CAN allow an amendment only if:
To add or substitute a new claim IF it arises out of the same or substantially the same claim
OR to correct a genuine mistake as to the name of a party
OR to alter the capacity in which a party claims.
