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Civil Litigation > Commencing and responding to a claim (W4) > Flashcards

Commencing and responding to a claim (W4) Flashcards

1
Q

CPR 7.2: How to start a claim (Part 7)

A
  • Proceedings are issued when the court issues a claim form at the request of the claimant.
  • A claim form is issued on the date entered on the form by the court.
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2
Q

CPR 7.3: Right to use one claim form to start two or more claims (Part 7)

A

A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.

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3
Q

CPR 7.4: Particulars of claim (Part 7)

A

Particulars of claim must:

(a) be contained in or served with the claim form; or
(b) be served on the defendant by the claimant within 14 days after service of the claim form.
- Particulars of claim must be served on the defendant no later than the latest time for serving a claim form.
- Claimant must within 7 days of service on the defendant, file a copy of the particulars

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4
Q

CPR 8.1: When the Part 8 procedure can be used

A
  • Where the claimant seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact
  • Where a rule or PD may require/permit the use of Part 8 procedure
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5
Q

CPR 8.1: Procedure

A
  • In the County Court, a claim under Part 8 may be made at any county court hearing centre unless an enactment, rule or PD provides otherwise
  • The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and may give any directions it considers appropriate
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6
Q

What is the Part 8 procedure?

A

An alternative, simpler procedure to CPR 7 to seek the court’s decision on a question which is unlikely to involve a substantial dispute of fact and can be resolved without lengthy/complex proceedings.

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7
Q

8A PD 3.1: Examples of the use of Part 8

A
  • To obtain the court’s permission to accept a pre-action settlement of a claim by or against a child or protected party (use of Part 8 is compulsory here - CPR 21.10)
  • To obtain a consent judgment in a claim for provisional damages which has been settled pre-action
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8
Q

8A PD 3.2: Specific claims where Part 8 must be used

A
  • Any claim or application in relation to which an Act, rule or PD provides that the claim or application is brought by originating summons.
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9
Q

CPR 8.2: Part 8 Claim form

A
  • Form N208
  • Must include:
    (a) That part 8 applies
    (b) The question the claimant wants the court to decide or the remedy the claimant seeks (and the legal basis for seeking that remedy)
    (c) Any enactment the claim is being made under
    (d) If either the claimant or defendant are acting in a representative capacity, what that capacity is
  • Claimant will have to pay a court fee to issue the claim form and may choose to file a draft order alongside the claim form and written evidence
  • Usual rules of service for Part 7 apply
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10
Q

CPR 8.5: Filing written evidence (Part 8)

A
  • Claimant must file any written evidence it wishes to rely on at the same time as filing the claim form
  • Both the claim form and the evidence must be served on the defendant
  • or the claimant can rely on the claim form as evidence provided it is verified by a statement of truth
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11
Q

CPR 8.3: Acknowledgement of service

A
  • Defendant must file at court and serve on claimant an acknowledgement of service not more than 14 DAYS after service of the claim form
  • Form N210
  • Acknowledgement of service must include:
    (a) Whether the defendant contests the claim
    (b) If the defendant seeks a different remedy from that set out in the claim form, what that remedy is
  • If defendant wishes to rely on evidence, it must be filed with the acknowledgement of service
  • The defendant does not need to file a defence
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12
Q

CPR 8.4: What happens if the defendant does not file an acknowledgement of service within the time period for doing so?

A

Defendant may still attend the hearing, but cannot take part in it unless the court gives permission.

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13
Q

CPR 8.5: Claimant’s reply

A

Claimant can file and serve further evidence in reply but must do so within 14 DAYS of service of the defendant’s evidence.

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14
Q

CPR 8.6: Evidence

A
  • Normally given by witness statement (8 PD 7.1)
  • Oral evidence is not normally given, but the court can permit or require a party to give it
  • Court can also give directions requiring a witness who has given written evidence to attend for cross exam
  • If oral evidence/extensive cross exam is needed, court is likely to consider Part 8 procedure inappropriate and order the claim to continue as if the claimant had not used Part 8
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15
Q

8A PD 7.5: Extending time for service by agreement

A
  • Parties can agree an extension of time for the defendant to file and serve evidence, provided the extension is no longer than 14 DAYS after the defendant files its acknowledgement of service
  • Agreement must be filed at court at the same time as filing the acknowledgement of service
  • Parties can agree to an extension of time for the claimant to file and serve further evidence in response, provided it is not more than 28 DAYS after service of the defendant’s evidence.
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16
Q

8A PD 7.4: Extending time for service by court application

A

A party may apply to the court for:

  • An extension of time to file and serve its evidence (if the parties cannot agree on one)
  • Permission to file and serve further evidence (e.g. if they need permission under CPR 8.6 to rely on evidence at hearing because it has not complied with CPR 8.5)
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17
Q

CPR 8.8: Objecting to a Part 8 claim

A
  • Defendant must be able to show:
    (a) There is a substantial dispute of fact; and
    (b) The use of the part 8 procedure is not required or permitted by a rule or practice direction
  • Defendant must state the reasons for objecting in the acknowledgement of service
  • Court can make an order that the claim continues as if the claimant had not used the Part 8 procedure (8.1(3))
  • If it appears to a court officer that the claimant is using the Part 8 procedure inappropriately, the court officer can refer the claim to a judge for consideration (8A PD 3.4)
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18
Q

CPR 7.2A, 7A PD 5A: Bringing claims against partnerships

A
  • Claims must be brought against the name under which a partnership carried on business at the time the cause of action accrued unless it is inappropriate to do so e.g. where there have been multiple changes of name or multiple mergers
  • If it seems likely that enforcement of judgment will be needed against personal assets as well as partnership assets, it is useful to name the parties personally too
  • A claim can be brought against a business name as if it were the name of a partnership if a claim is brought against an individual who carries on business within the jurisdiction in a name other than the individual’s own name (CPR 7A PD 5C)
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19
Q

Bringing claims against sole traders

A

Both the individual and trading name used

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20
Q

Bringing claims against LLPs

A

Brought against full registered name of the LLP

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21
Q

Bringing claims against companies

A
  • Must include full registered name of the company, including the suffix (e.g. Limited in full)
  • A company can be represented at trial by an employee if:
    (a) Employee has been authorised to do so by company
    (b) Court gives permission
22
Q

CPR 19.7: Bringing claims against trusts

A
  • Can be brought against trustees, executors or administrators. Do not have to add beneficiaries as parties to the claim (CPR 19.7A)
  • Any order made in the claim is binding on the beneficiaries, unless the court orders otherwise
23
Q

CPR 19.8: Bringing claims against deceased persons

A
  • Where a person who had an interest in a claim has died and that person has no personal representative, the court may order:
    (a) The claim to proceed in the absence of a person representing the estate;
    (b) A person to be appointed to represent the estate
  • Where a defendant against whom a claim could have been brought has died:
    (a) If grant of probate/administration has been made,claim must be brought against personal representatives of the deceased
    (b) if it has not been made:
    (i) claim must be brought against ‘the estate of’ the deceased; and
    (ii) claimant must apply to the court for an order appointing a person to represent the estate of the deceased
24
Q

CPR 21: Definition of children and protected parties

A

Child = anyone under the age of 18 years

Protected party = any person who lacks capacity to conduct proceedings within the meaning of MCA 2005, i.e. by reason of impairment or disturbance of the brain/mind, the party is unable to make the decision in question at the time it needs to be made

A person of adult age is presumed to have capacity until the contrary is proved. The burden on proving this rests with whoever asserts incapacity.

25
Q

Protected parties: Legal advisors’ role

A
  • Should be satisfied that a party is capable of understanding the issues on which the party’s consent or decision is likely to be necessary
  • Should ask:
    (a) Can the person recognise the problem
    (b) Can they explain with sufficient clarity the problem
    (c) Can they understand and evaluate the advice
    (d) Can they understand the effect of choosing a course of action
  • May involve an assessment/report by the party’s GP, advice sought from a psychologist/psychiatrist, or personal evidence from solicitor/family/friends.
26
Q

CPR 21.2: Litigation friend

A

Children and protected parties are represented in civil proceedings by a litigation friend

27
Q

CPR 21.4: When can a person act as a litigation friend?

A

Can do so, with or without court order, provided they:

(a) Can fairly and competently conduct proceedings
(b) Have no adverse interest
(c) Undertake to pay any costs which the child or protected party may be ordered to pay

28
Q

CPR 21.2 - 21.6: Appointment of a litigation friend

A
  • Often a relative/person the court has appointed
  • Often made without court order by filing and serving a certificate of suitability demonstrating the litigation friend satisfies the criteria in CPR 21.4
  • If a court order is required, specific procedure must be followed (CPR 21.6)
  • For a protected party, Court of Protection may appoint someone (CPR 21.4)
  • Court may also make an order permitting a child to conduct proceedings without a litigation friend (CPR 21.2)
29
Q

Service on children and protected parties

A
  • Special provisions in CPR 6.25
  • Must be served on the litigation friend
  • For an application to appoint a litigation friend, see CPR 21.8
30
Q

CPR 21.3: Steps in proceedings before the appointment of a litigation friend

A
  • Cannot make an application or take any step in proceedings unless child/protected party has a litigation friend
  • Exceptions: to issue and serve a claim form or to apply for the appointment of a litigation friend by court order
  • If during proceedings, party lacks capacity to continue, no further steps may be taken until appointment of a litigation friend
  • Any step taken before a child/PP has a LF has no effect unless the court orders otherwise
  • Children and PP should be referred to in the title to proceedings on documents (21 PD 1.1 and 1.2)
31
Q

Settlement for a child or PP

A
  • No settlement is valid without the approval of the court (CPR 21.10)
  • Where settlement/compromise is reached BEFORE proceedings have begun, proceedings should be commenced under Part 8 procedure and the court’s approval should be requested (CPR 21.10)
  • Where the approval is sought AFTER proceedings have been issued, an application must be made to the court for its approval
32
Q

21 PD 5.1: Settlement for a child or PP before proceedings have begun: documents to be filed with the claim

A

(a) Details of the claim
(b) Terms of the settlement with attached draft consent order (using form N292)
(c) Details of whether and to what extent defendant admits liability
(d) Age and occupation of child/PP
(e) Litigation friend’s approval
(f) Copy of any financial advice on proposed settlement
- In personal injury cases: medical and quantum reports and joint statements material to the opinion of counsel or solicitor as to quantum must also be filed. As must schedules of past and future expenses, and where consideration of liability are raised, any evidence in criminal proceedings or inquest

33
Q

PD 21 6.4: Settlement for a child or PP after proceedings have begun: what must be filed

A
  • An application must be made to the court for its approval
  • Court must be supplied with prescribed opinion as to quantum of counsel or a solicitor and must include documentary evidence material to that opinion
  • Additional provisions under 21 PD 5.3-5.5 and 6 for personal injury cases where damages are being settled either before or after proceedings and the settlement includes provision for future pecuniary loss
34
Q

CPR 21.11: Control of monies recovered by or on behalf of a child or PP

A

Must be dealt with in accordance with the court’s directions.

  • For PPs: Court of Protection is responsible for protecting the property. CoP charges for administering funds and these fees should be provided for in any settlement. When the PP ceases to lack capacity, an application for payment out of funds must be made to the CoP
  • For child: Court may direct that the money is invested for the benefit of the child. May also direct that the money be paid directly to the child or litigation friend. If the amount is very small, may order it to be paid directly to the LF to be put into a building society account for the child’s use. It must be paid out when the child turns 18
35
Q

Purpose of statements of case

A
  • Informs the parties of each other’s case
  • Enables parties and court to identify dispute
  • Provides the judge with a concise statement of case
36
Q

The main statements of case

A
  • Claim form
  • Particulars of claim
  • Defence
  • Counterclaim
  • Reply
37
Q

Consequences with not complying with necessary format and content requirements of CPR for statements of case

A
  • Will require formal amendment, requiring input of the court
  • Cost consequences for parties who serve deficient statements of case
38
Q

7A PD 4.1: Statements of case: case heading

A
  • Must be headed with the title of the proceedings
  • Court and/or devision in which the claim is proceeding in the top left hand corner in capitals
  • Claim number in the top right hand corner
  • Full name of each party and the party’s status in the proceedings
39
Q

5A PD 2: Rules applicable to all statements of case

A
  • Numbered paragraphs
  • Numbered pages
  • All numbers and dates in figures
  • Reference in the margin to every document mentioned that has already been filed at court;
  • Name of the person who drafted the document
  • A statement of truth
40
Q

CPR 22.1: Statement of truth

A

Every statement of case needs a statement of truth otherwise it cannot be used as evidence in proceedings

41
Q

CPR 32.14: Consequences of signing a statement of truth without an honest belief that the statement was true

A
  • Proceedings for contempt of court may be brought against the person signing
  • This can lead to sanctions within proceedings, fines, and/or imprisonment in serious cases
42
Q

CPR 16.4: Particulars of claim general contents

A
  • ‘a concise statement of the facts on which the claimant relies’
  • so usually: a duty owed, breach of that duty, causation
43
Q

CPR 16.4: Particulars of claim specific contents

A
  • Any claim for aggravated damages, exemplary damages and/or provisional damages, giving the grounds for claiming them
  • Personal injury claims: claimant’s DOB, details of injuries, schedule of past and future expenses, losses and medical report (16 PD 4)
  • Claim in relation to possession/occupation/use/enjoyment of land: must identify the land and make clear whether it is residential (16 PD 7.1)
  • Where the claim is based on a written agreement, it should be attached (16 PD 7.3)
  • Where the claim is based on an oral agreement, it should set out words spoken, by whom, to whom, when and where (16 PD 7.4)
  • Where the claim is based on agreement by conduct, should set out conduct relied upon, by whom, when and where the acts were done (16 PD 7.5)
  • There are detailed rules on inclusion of info related to past convictions, fraud, illegality, unsoundness of mind (16 PD 8)
  • Any human rights relied upon must be included (16 PD 15)
44
Q

CPR 16.4: Particulars of claim - Interest

A
  • Legal basis for claiming interest can be either: (a) set out in contract or (b) statutory right under s 35A Senior Courts Act 1981 in High Court and s 69 County Courts Act 1984 in County Court
  • If the claimant seeks interest, must make a statement to that effect and put details in particulars of claim
  • Two ways of setting out paragraph(s) claiming interest:
    (1) Calculating the exact amount claimed
    (2) Claiming interest generally
45
Q

Particulars of Claim: Interest - Exact calculation

A
  • Only used in practice if the claimant is making a specified claim (ie a debt or a specified/liquidated damages claim)
  • Need to set out:
    (a) applicable percentage rate
    (b) dates from/to which interest is being claimed
    (c) total amount claimed up to the issue of the claim form
    (d) daily rate of interest thereafter
46
Q

Particulars of claim: Interest - Pleading generally

A
  • Used where the claimant is pursuing an unspecified claim, ie where the court has some decision to make on the amount of damages
  • Will say something like ‘the Claimant claims interest on the damages referred to….above pursuant to [right section and Act depending on court] at such rate and for such period as the court thinks fit.’
47
Q

Particulars of claim: Interest - what to do if the claim is partly specified and partly unspecified

A
  • Can treat the two claims separately

- Or can treat the whole claim as unspecified

48
Q

Particulars of claim: Statutory interest claims

A
  • Where the claimant relies on s 35A SCA 1981 or s 69 CCA 1984:
  • Court has to discretion as to whether to award interest, and how much, from the date the cause of action accrued until judgment
  • Different provisions cover interest after judgment
  • Personal injury claims where damages over £200: some interest must be awarded unless there are special reasons for not doing so, but amount is at court’s discretion
  • Debt claims: if the defendant pays the whole debt during the proceedings, some interest must be awarded, but amount is at court’s discretion
49
Q

Structure of particulars of claim

A

(1) Introduce each party
(2) Relevant duty/duties, incl. necessary background facts
(3) Specify breach(es)
(4) Plead causation
(5) Set out loss
(6) Summary of relief/Prayer

50
Q

Particulars of claim: Summary of relief/Prayer

A
  • A summary of the remedies sought
  • A quick means by which to ascertain what the claimant wants
    e. g. ‘and the Claimant claims:
    (i) damages under paragraph 13 above;
    (ii) interest under paragraph 14 above’

Civil Litigation (20 decks)

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