Commencing and serving proceedings Flashcards
Relevant steps for each method of serving a claim form
personal service
first class post/dx
fax
electronic method
Method of service: Personal service / leaving the document at a relevant place – Relevant step: Leaving the claim form with the defendant
Method of service: First class post / DX – Relevant step: Posting the claim form /leaving it with DX service
Method of service: Fax – Relevant step: Completing the transmission
Method of service: Electronic method – Relevant step: Sending the email or other electronic transmission
High or County court
Does a specific enactment tell you to issue the claim in the High or County court ? -> if no, then consider:
Non PI claims up to £100,000 must be in County Court. Non PI claims over £100,000 can be in either court.
Personal Injury claims of less than £50,000 must be in County Court. Personal Injury claims £50,000 or more can be in either court.
If you can start proceedings in both, then consider if issuing in the High Court justified on the grounds of:
Financial value of the claim/amount in dispute
Complexity of facts/legal issues/remedies/procedures
Importance to the public
Note: the value of the claim is its financial claim ( VAT counts in as well), so disregard interest, costs, counterclaim, contributory negligence, deductions for social security benefits
When must a claim form be served? what are the consequences of not doing it within the time limit?
serve the claim form must be completed before 12.00 midnight on the calendar day four months after the date of issue of the claim form.
If the claim form is not served within this time, then the claim will fail automatically
Grounds for extension of time for sending the claim form after the deadline
a. it is the court that failed to serve the claim form; or
b. the claimant has taken all reasonable steps to comply; and
c. either way, the application has been made promptly.
Mistakenly serving the defendant’s insurers or solicitors when the rules required service on the defendant is unlikely to justify an extension in these circumstances.
When to serve particulars of claim?
If particulars of claim are not contained in or served with the claim form they must be served within 14 days of service of the claim form, and also within the period of validity of the claim form, ie within 4 months of issue
Deemed date of service of the claim form
A claim form is deemed served on the second business day after completion of the “relevant step”
‘Business day’ means any day except Saturdays, Sundays, bank holidays, Good Friday or Christmas day
Particulars of claim - when are they deemed served?
If particulars of claim are contained in the claim form, they are clearly part of the claim form and the rules on deemed service above apply
If particulars of claim are served separately from the claim form, ie served within 14 days after service of the claim form then the rules set out below which apply to documents other than the claim form will apply to those particulars of claim.
Deemed date of service of documents other than the claim form:
instant methods
Non-instant methods
Instant methods
(personal service, fax, email, delivering / leaving at a permitted address)
If done before 4.30pm on a business day: deemed served the same day.
Otherwise: deemed served the next business day
Not-instant methods
(Post / DX)
Deemed served second day after posting / giving to DX provider, if a business day.
Otherwise: deemed served the next business day
What happens if a statement of case does not have a statement of truth?
A party’s statement of case can be used as evidence in the proceedings only if verified by a statement of truth
If there is no statement of truth the court may strike out the defence and the solicitor may face proceedings for contempt of court if the document contains false information
What if there is false information in a document verified by a statement of truth?
Person can be held in contempt of court, or even imprisoned
What happens if a deficient statement of case is served?
Cost consequences
But errors such as formatting etc. -> the consequence is that the court may require the solicitor to amend the document to comply with formatting rules, possibly causing delays and additional costs
What must particulars of claim for personal injury contain?
Personal injury claims need to set out the claimant’s date of birth and injuries, and to include a schedule of past and future expenses and losses, and the report of any medical expert medical practitioner relied on by C
What must particulars of claim for a contract claim contain?
Attach the actual contract to the particulars
Overriding objective of the court
The overriding objective of the CPR is ‘to enable the court to deal with cases justly and at proportionate cos
General rule on costs
General rule: The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party
BUT the court has a discretion to make a different order
