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Dispute Resolution > Commencing and serving proceedings > Flashcards

Commencing and serving proceedings Flashcards

1
Q

What is meant by ‘serving’ documents? What must C do once served?

A
  • Getting documents over to other side in a way that is recognised by the court
  • C waits for D to respond
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2
Q

What is disregarded when considering the ‘financial value’ of a claim?

Used to decide which court

A
  • Interests
  • Costs
  • Any coutnerclaim
  • Any contributory negligence
  • Any deduction of social security benefits
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3
Q

What are the rules re which court for a non-PI claim?

A
  • Value of claim greater than £100,000 = either HC or CC
  • Value of claim £100,000 or less = CC
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4
Q

What are the rules re which court for a PI claim?

A
  • Value of claim £50,000 or more = either HC or CC
  • Value of claim less than £50,000 = must be CC
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5
Q

Where a claim can be started in CC or HC, on what grounds will issuing in HC be justified?

A

On grounds of:

  1. Financial value of claim and amount in dispute; and/or
  2. Complexity of the facts, legal issues, remedies or procedures involved; and/or
  3. Importance of the outcome to the general public; and/or
  4. C believes that claim ought to be dealt with by HC judge

Even if way over £100,000, may still be more suitable in CC

C agrees to sell a consignment of timber to D for D to use in its manufacturing business, in return for a payment of £175,000.
C delivers the goods as agreed and the consignment is accepted by D, who successfully uses the timber in its own business as planned.
Despite there being no issue with the timber or C’s performance of its obligations under the contract, D has not paid the invoice .
C wishes to commence proceedings to recover the unpaid £175,000.

  • The claim is a breach of contract claim worth over £100,000, therefore both County Court and High Court have jurisdiction. Applying the factors:
  • The financial value of the claim is £175,000; over the High Court threshold.
  • The facts and issue are not complex; unpaid debt
  • Only C and D have an interest in the outcome; no wider importance to the public.
    C might conclude that the County Court is the most appropriate for the claim, despite its value, as there is nothing complex about the claim requiring a High Court judge to deal with it.
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6
Q

Is there an upper limit for claims in the County Court?

A

No! So can be over £100,000 (PI or non-PI) but still more suitable for the County Court

e.g. is not complex

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7
Q

What criteria will the court consider if it disagrees with C’s choice of court once claim issued?

A
  • Same as before (where there is a choice); and
  • Whether a specialist judge available, facilities at court for disabled witnesses/parties
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8
Q

What is the consequence of commencing a claim in the wrong court?

A

C may be ordered to pay costs of transfer

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9
Q

Where a matter continues in the HC - when it should have been issued in CC - what penalty might the C suffer?

A

Costs awarded in claim can be deducted by up to 25%

At court’s discretion!

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10
Q

What 2 things must be sent to the court to issue the claim?

A
  1. Claim form (N1) to be issued and sealed - one on cout file, one for every D, one for C to keep on own file
  2. Court issue fee - varies depending on value of claim
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11
Q

When the HC stamps covering letter with date - claim is issued - what are the effects on timings?

For HC!

Timings = time period to do things

A
  • Time stops running for limitation period
  • Time starts running for time in which claim can be served

Same for CC!

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12
Q

What does the High Court do to issue the claim form?

A
  • Enters date of issue on claim form
  • Gives case claim number and
  • Seals all copies of claim form (stamps with court seal)

Will create case management file and places own sealed copy of claim form in that file

Docs can be taken into court and issued on same day

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13
Q

Where will money claims and not-money-only claims be issued for the CC be issued? What is sent for each?

A
  • Money claims = issued centrally in the County Court Money Claims Centre
  • Not-money-only claims = at any of the County Court Hearing Centres

For both = send claim form and pay issue fee

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14
Q

What does the County Court Money Claims Centre do?

For money claims

A

Manages claims until a hearing is required, at which point they are transferred to a particular local county court hearing centre

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15
Q

What can C do if they have a preferred County Court Hearing Centre?

A

Specify it on form - claim may be transferred to this one if hearing required

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16
Q

What is Money Claim Online? What are its limits re claim value and Ds?

Alternative to County Court Money Claims Centre

A
  • Online service designed to provide a quick and cost-effective resolution for simple claims
  • Can only be used for money claims up to value of £100,000 which are against no more than 2 Ds
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17
Q

How is the claim form served in Money Claim Online and what can D do? What happens if claim is defended?

A
  • Served in usual way
  • D can respond through online service
  • If defended = will be transferred to appropriate local county court hearing centre
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18
Q

What is the Northampton County Court Business Centre for?

A

‘Bulk users’ e.g. users who are
going to issue many claims (eg utility companies)

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19
Q

Who will effect service of claim form?

A

Either court or C(‘s solicitor)

20
Q

If the court serves the CF, what will they do? What happens if they cannot?

A
  • Send C notice of issue stating deemed date of service
  • If unable to serve = C sent notice of non-service (then up to C to serve)

Sent by first class post

21
Q

What must happen if C wishes to serve? What will the court do?

A
  • C must notify court when issuing CF they do not wish court to serve
  • Court will give C the issued CF with sealed copies for service on D’s
22
Q

What must C’s solicitor file at court after service and when? What does it specify?

A
  • Certificate of service within 21 days of service
  • Specifies date on which claim was posted/delivered and method and addressed used
23
Q

When does C’s solicitor not have to file a certificate of service?

A

If Ds have filed acknowledgement of service within this time (21 days)

24
Q

What methods of service are recognised by the CPR?

A
  • Personally on D (must be appropriate person!)
  • Leaving document at permitted address
  • First class post
  • DX (delivery on next business day)
  • Fax
  • Other electronic method
  • Any other method authroised by the court
25
Q

If service is by leaving document at permitted address, what happens if no one is present to receive?

A

Doesn’t matter

26
Q

What methods can only be used if D(‘s solicitor) has indicated it will accept the method?

A

Fax and other electronic methods (e-mail)

27
Q

Where personal service is used, where can D personally be served at?

I.e. where must they be

A

Wherever they are found within jurisdiction - does not rely on address for service

28
Q

When leaving document at permitted address/sending by post, when should D’s solicitor’s address be used? Otherwise what?

A

Only when D gives in writing solicitors’ address in jurisdiction for service - otherwise address at which D resides/carries on business and at which D has given for purpose of being served with proceedings

29
Q

If D has not given an address for purpose of being served with proceedings, what is the place of service for each type of entity?

Individual, individual being sued in name of business (name of a partnership), company

A
  • Individual = usual/last residence
  • Individual sued in name of business = usual/last residence or principal/last known place of business
  • Individual being sued in the business name of a partnership = usual/last residence or last known place of partnership
  • Company/LLP = principal office of parternship/company or any place of business of the company within jurisdiction which has a real connection with claim
30
Q

By when must a CF be served (if outside jurisdiction)? What must be completed for CF to have been served?

A
  • Before midnight on calendar day 4 months after date of issue (if outside jurisdiction - 6 months)
  • Relevant step must be completed
31
Q

What is the relevant step for each method of service?

A
  • Personal service/leaving at relevant place = leaving CF with D
  • First class post/DX = posting it/leaving with DX
  • Fax = completing transmission
  • Electronic method = sending email
32
Q

What happens if the CF is not served within 4 months and C still wants to pursue litigation? How is limitation affected?

A
  • Claim fails automatically and C must issue new claim and pay court fee again
  • Re limitation - the date the new claim is issued is relevant date (from which if 4 months pass the claim will fail)
33
Q

What are the 2 requirements for an extension to serve CF?

A
  1. Application must be made within 4 month period of validity of CF
  2. C must show good reasons for extension

Waiting for further evidence or for a response from the defendant to pre-action correspondence is unlikely to be a good reason

34
Q

If application is made after the deadline for service of CF, when will court grant an extension?

A

Only if…

  • It is the court that failed to serve CF; or
  • C has taken all reasonable steps to comply; and
  • Either way, application has been made propmtly
35
Q

Will mistakenly serving D’s insurers or solicitors when rules required service on D justify an extension?

A

Unlikely

36
Q

When must C serve a response pack and what does it contain?

A
  • Must serve if POC are contained in/served with CF
  • Response pack contains: form for admission, form for defending; and form for acknowledging service

If POC served later, serve response back with them

37
Q

If POC are not contained in/served with CF, in what 2 time limits must the POC be served?

A
  • Within 14 days of service of CF
  • Within period of validity (issue) of CF (4 months)
38
Q

What must the C file at court after POC served and when?

A

Must file copy of POC at court within 7 days of service (unless already filed)

39
Q

What must D provide when responding to the claim regarding documents served going forward?

A

An address which documents may be served at going forward (often D’s solicitor’s address)

Methods for serving documents other than CF are same as those already considered

40
Q

What is the deemed date of service? Will it always be the date it was actually received?

A

The date the court considers a document to have been received (regardless of when it was actually received)

Important to know for both parties:

  • C - because time limit for serving POC runs from deemed date of service of CF
  • D - deadline for serving response to CF runs from deemed date of service of CF
41
Q

When is a CF deemed served?

A

On the second business day after completion of the relevant step

42
Q

What is meant by business day and relevant step?

A
  • Business day = any day bar weekend, bank holidays, Good Friday or Xmas Day
  • Relevant step = step necessary to effect service by each particular method

A claim form is served by email on 5 September (a Wednesday). The relevant step is the sending of the email.
* The second business day after this step is Friday 7 September, which is therefore when the claim form will be deemed served.
It is likely that the claimant can show that the defendant received the claim form almost immediately after it was sent, on Wednesday 5 September. This is irrelevant. It will still be deemed served on Friday 7 September.

43
Q

What are the rules for…
1. POC contained in the CF
2. POC are attached to/served with CF in a separate document and contained in same envelope

A
  1. Clearly part of CF so rules on deemed service of CF apply (will be deemed served when CF is)
  2. Mixed law - act on presumption that POC served at earliest possible date (even if this means POC served before CF)

Important for responding side

44
Q

What is the deemed date of service for POC and other documents (i.e. not CF) for instant and non-instant methods?

A
  • Instant methods (personal service, fax, email, delivering/leaving at permitted address) = same day if done before 4:30pm on business day, next business day otherwise
  • Non-instant methods (post/DX) = second day after posting if a business day, otherwise next business day (e.g. posted on Friday, deemed served Monday [is ‘otherwise next business day’]

Example: Particularsof claim are served (separately from the claim form) by email at 2.30pm on 5 September. Please assume that day is a Wednesday.
Instant method + carried out before 4:30pm on business day = the particulars of claim will be deemed served on the same day as the email transmission - Wednesday 5 September.

45
Q

Summary of time limits and DDOS for a) claim form and b) POC/other forms (e.g. witness statement etc.)

A

Claim form

  • Time limit = 4 months after issue
  • DDOS = second business day after completion of relevant step

POC

  • Time limit = within 14 days of CF (and within 4 months of issue)
  • DDOS = instant: before 4:30pm = same day, after 4:30 = next business day / non-instant = second day after if a business day, otherwise day after
Why 'second day after if a business day, otherwise day after' is important (and different to 'second business day after'

Dispute Resolution (20 decks)

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