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Dispute Resolution > Commencing and responding to a claim > Flashcards

Commencing and responding to a claim Flashcards

1
Q

Where must proceedings be started if a claim is £100,000 or less?

A

County Court

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2
Q

Where must proceedings be started if a claim exceeds £100,000?

A

High Court

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3
Q

What happens if a party admits they fail to mitigate their losses and the claim value drops below £100,000?

A

It must instead be issued in the County Court.

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4
Q

When can a claim be started in the High Court for personal injury claims?

A

When the value of the claim is £50,000 or more.

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5
Q

What other factors may constitute a claim being started in the High Court?

A

Where the claim is complex in relation to the facts, the legal issues, the remedy or the procedures

OR

The outcome is important to the public in general

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6
Q

What are the two types of claims that be heard in relation to damages?

A

Specified claims - specific sums of money to be claimed

Unspecified claims - where the amount is in dispute and will need to be quantified by the court

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7
Q

Where do most civil claims get issued?

A

The Civic National Business Centre

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8
Q

Where should money-only claims worth up to £100,000 be made?

A

Via the website Money Claim Online.

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9
Q

What are the three civil division of the High Court?

A

The Kings Bench Division
The Chancery Division
The Family Division

There are also specialist courts known as the Business and Property Courts.

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10
Q

What types of civil claims does the Kings Bench Division hear?

A

Primarily consisting of actions in contract and tort

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11
Q

What types of civil claims does the Chancery Division hear?

A

Disputes arising over land, trusts, contentious inheritance matters, partnership claims and company law

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12
Q

What are the Business and Property Courts?

A

Courts which deal with specialised business and other civil disputes.

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13
Q

What courts are included under the Business and Property Courts?

A

The Commercial Court - deals with claims arising out of business disputes over contracts, insurance, banking and finance

The Technology and Construction Court - deals with claims on buildings, engineering and surveying

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14
Q

When are proceedings officially commenced?

A

When a claim form, particulars of claim and other documents are sent to the court for issue.

This will be the ‘issue date’.

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15
Q

What documents must be sent to the court for them to serve proceedings to the defendant?

A

The claim form (N1)

Particulars of claim

Documents that are required to be annexed per the CPR

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16
Q

How do you illustrate the name of an individual on a claim form?

A

Use their full abbreviated name and title

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17
Q

How do you illustrate the name of a sole trader on a claim form?

A

The name of the individual’ t/a (trading as) ‘Name of the business’

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18
Q

How do you illustrate the name of a partnership on a claim form?

A

The full name of the firm should be included as opposed to naming individual partners

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19
Q

How do you illustrate the name of a company on a claim form?

A

For limited liability companies, the correct registered name and address must be stated.

It must also contain the correct ending i.e. ‘ltd’ or ‘limited’

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20
Q

How do you illustrate the name of an individual who has died before proceedings are commenced on a claim form?

A

The claim should be made against the executors or administrators if appointed.

Where none are appointed, it should just read ‘the personal representatives of [name] deceased’

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21
Q

What details should be included on the claim form in relation to the matter in issue?

A

A concise statement of the nature of the claim should be included.

The remedy sought should be included.

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22
Q

What statement of value should be included for an unspecified claim in the High Court?

A

‘The Claimant expects to recover more than £100,000’ should be included in the claim form.

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23
Q

What should be put on a claim form where they don’t have an exact figure to recover?

A

The claimant should indicate which bracket their claims fall into or if they do not know how much they expect to recover.

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24
Q

What are the statement of value brackets for the County Court?

A

The claimant should include whether they expect to recover:

  • not more than £10,000
  • more than £10,000 but no more than £25,000
  • more than £25,000 but no more than £100,000
  • more than £100,000
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25
Q

What should be disregarded when calculating the statement of value?

A

Possible awards of interest or costs
Contributory negligence
Counterclaims

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26
Q

In a claim for personal injury, what should the claimant state in respect of their general damages for pain, suffering and loss of amenity?

A

Whether they expect to recover not more than £1,500 or whether they expect more than £1,500

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27
Q

When must a statement of truth be included on a claim form?

What does the CPR require for the statement of truth?

A

They must be included in all claim forms. Where particulars of claim are issued separately, these must also be verified.

The CPR requires the statement to be in the witness’ own language, signed and dated.

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28
Q

Who can sign a statement of truth?

A

The party or their legal representative.

For businesses - Any of the partners or a person having the control or management of the business may sign for a partnership.

For companies - A person holding a senior position such as director, secretary, chief executive or treasurer may sign on behalf of a company.

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29
Q

What are the presumptions when a legal representative signs a statement of truth on a claim form?

A

That the client has authorised them to do so.

They have explained to the client that in signing the solicitor is confirming the client’s belief and the facts stated in the document are true

The client was warned of the possible consequences if it should subsequently transpire that the client did not have an honest belief in the truth of those facts, and may be held in contempt of court.

30
Q

What should be included a statement of truth signed by a legal representative?

A

The representative’s own name

The capacity in which they sign

Add the name of firm if appropriate

31
Q

What happens if a client fails to include a statement of truth in the claim form?

A

The court may strike out the document or the claimant may be precluded from relying upon its contents.

32
Q

Who can make an application to add, substitute or remove a party from proceedings?

A

An existing party or a person who wants to become a party may make an application.

33
Q

Is permission required to add, substitute or remove a party from proceedings?

A

Only if the claim form has not been served.

34
Q

What are the grounds to add, substitute or remove a party from proceedings when a claim is within the limitation period?

A

It may be to add a new party to resolve matters in a dispute in dispute or where a party’s liability has been passed on.

35
Q

What are the grounds to add, substitute or remove a party from proceedings when a claim is outside of the limitation period?

A

A party may only be added or substituted if the limitation period was current and proceedings were started within that period

AND

if the party was named by mistake
the original party has died or subject to a bankruptcy order; or
the claim cannot properly be carried on without the new party

36
Q

When should a claim form be served on the other party?

A

Within four months

37
Q

When is the claim form considered ‘served’?

A

The date the personal delivery was made
The date the letter was posted or left with DX provider
Date the fax or email was sent

38
Q

What are the methods of service of a claim form? (5)

A

Personal service

First class post or document exchange

Leaving the claim form at a specified place

Fax or other electronic communication

Any other method authorised by the court

39
Q

Is inclusion of contact information on a letterhead sufficient for service?

A

No, only where it is expressly stated.

There is an exception of fax - fax is deemed appropriate if included on a letterhead.

40
Q

What is deemed service of a claim form?

A

A claim form is deemed to have been served on the second business day after the required step (i.e. putting it in the post, faxing etc.)

41
Q

What is deemed service of another document (not a claim form)?

A

Delivery, personal service, email or fax will be deemed to be served on the same day if it is served before 4:30pm. If not, this will be the following day.

First class post will be deemed to be served on the second day if it is a business day. Otherwise it will fall to the next business day.

42
Q

When do particulars of claim need to be served if not being sent with the claim form?

A

Within 14 days after service of the claim form.

Maximum of four months if they cannot find locate a defendant.

43
Q

What is the time limit for a claim form to be served outside of England and Wales?

A

Within six months of being issued.

44
Q

Is permission required to serve proceedings outside of England and Wales?

A

Yes, particularly for EU Member States.

However, when a contract contains an English jurisdiction clause - no permission will be sought to serve the claim.

45
Q

What must be accompanied with a claim form when serving outside of the court’s jurisdiction?

A

A notice setting out the grounds the claimant is entitled to serve.

Evidence that England and Wales is the proper forum.

46
Q

Who usually effects service outside of England and Wales?

A

Judicial authorities of the state or the British Consul.

47
Q

What are the three options available to a defendant once they receive the claim form and Particulars of Claim?

A
  1. Admit the claim in whole or part
  2. File an Acknowledgement of Service and then file a defence within 28 days of the deemed service of the Particulars of Claim.
  3. File a full defence.
48
Q

What is an Acknowledgement of Service?

A

Where a defendant may want to defend a claim and needs to investigate, filing an Acknowledgement of Service gives them 28 days from the service of the Particulars of Claim to file a defence.

49
Q

What is the general rule for the period for filing a defence?

A

a) 14 days after service of the particulars of claim; or

(b) if the defendant files an acknowledgment of service in time, 28 days after service of the particulars of claim

50
Q

How can a counterclaim be raised?

A

The defendant should put forward the counterclaim at the same time as the defence in the same document called “Defence and Counterclaim”

51
Q

What is a default judgment?

A

The claimant will make an application and request default judgment where they have received no response from the defendant in the relevant time.

52
Q

What details must a claimant provide to the court for a default judgment in a specified claim?

What is the deadline for payment?

A

An updated total for interest and state a daily rate at which interest accrues from date payment was due.

Payment will be required within 14 days of the judgment being entered.

53
Q

What details must be provided to the court for a default judgment of an unspecified claim?

A

The court will grant the judgment but require a disposal hearing to determine the amount of damages.

54
Q

What are the two grounds where the defendant can apply to have a judgment set aside?

A

Mandatory grounds
Discretionary grounds

55
Q

What is the mandatory ground to set a judgment aside?

A

Where judgment has been entered too early or the claim has already been paid.

56
Q

What is the discretionary ground to set a judgment aside?

A

Where the defendant has a real prospect of successfully defending the claim or there is another good reason why the defendant should be allowed to defend the claim e.g. they were ill or away on holiday.

57
Q

What orders can a judge make when setting aside a judgment?

A

The defendant succeeds and the judgment is set aside

The claimant wins and the judgment remains

A conditional order is made, where the judgment is set aside on a condition e.g. the defendant pays money into the court

58
Q

What costs orders can be made during the application to set aside a judgment? (4)

A

If the application is granted on a mandatory ground = claimant is at fault and liable to pay defendant’s costs

If defendant established the discretionary ground and neither party is at fault = they do not have to may claimant’s costs

If defendant established the discretionary ground of a defence with real prospect = the defendant will pay the claimant’s costs

If application fails = defendant will pay claimant’s costs of application

59
Q

Can a claimant discontinue all or part of a claim?

A

Yes, at any time during the proceedings.

60
Q

Is permission required to discontinue a claim?

A

Permission must be obtained in certain circumstances, such as if the court has granted an interim injunction.

61
Q

If there is more than one claimant, can a claim be discontinued?

A

Every other claimant must consent in writing or the court gives permission.

62
Q

What is the procedure to discontinue proceedings?

A

The claimant must file and serve a notice of discontinuance on the parties to the proceedings. A copy of the consent from other parties must be attached to the notice.

63
Q

What is the effect of discontinuance?

Who pays costs at the point of discontinuance?

A

The proceedings are brought to an end against the defendant on the date the notice of discontinuance is served on them. The claimant will be liable for the costs unless the court orders otherwise.

64
Q

Is a claimant entitled to recover their legal costs if they settle prior to issuing proceedings?

A

No, not unless this has been expressly agreed.

65
Q

How should a settlement be recorded if proceedings have already commenced?

A

It should be recorded in a court order or judgment to ensure enforcement proceedings can be commenced later if required.

66
Q

What are the two types of orders following a settlement outside of court?

A

Consent order
Tomlin order

67
Q

What are the formalities for a consent order?

A
  • It must be agreed by the parties and drawn up on the terms agreed
  • It must be expressed as being ‘By Consent’
  • It must be signed by the legal representatives acting for each of the parties to whom the order relates
  • It should not be used when a party is a litigant in person.
68
Q

What is a Tomlin order?

A

An order which stays the claim on agreed terms which are set out in a schedule to the order or separately.

69
Q

When should a Tomlin order be used?

A

Where the parties want any terms to be confidential or that are beyond the power of the court to order.

70
Q

What are the requirements for a Tomlin order?

A
  • Must be ‘By Consent’
  • Must confirm the proceedings are ‘stayed’
  • Must confirm that any party is at liberty to apply to the court to ask them to enforce the settlement.
  • Must confirm if one party is paying the other’s costs.
  • It must be signed by the parties’ solicitors.
71
Q

How should a court’s jurisdiction be disputed?

A

This must be stated in the acknowledgement of service. From this point, they have 14 days to make a challenge.

If successful, the claim form will be set aside.

If refused, they will need to file a further acknowledgement of service.

Dispute Resolution (8 decks)

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