Commencing Proceedings

Question 1

Take note of this sneaky thing, if a document is delivered on good Friday after 4.30 then when is the day is deemed service?

Answer 1

-Its on a Tuesday, since the Monday that follows after good Friday is bank holiday.

Question 2

Can a Defendant pursue a counterclaim against a co-defendant

Answer 2

NO RMBR THIS, A DEFENDANT CANNOT PURSUE A COUNTERCLAIM AGAINST A CO-DEFENDANT

They may however, if they are liable to the C and in respect of the same damage. Then the Def should seek a contribution by serving a contribution notice under CPR 20.6 (pg600)

Question 3

If the Defendant solictor has mentioned that they are instructed to accept service of the proceedings, and the C want to issue proceedings via email can they just serve it anyway to the Def solicitor?

Answer 3

No, if the Def solicitor said they instructed to accept service must be served on them, but if the C want serve via email, this can only be done if the Def solicitor states that their email may be used for service (CPR 6.7)

Question 4

IF first class post when is it deemed served?

Answer 4

The deemed service of the Claim form is on the second business day after the relevant step

Question 5

If the C wishes to sue the D and the defendant contends that it was the fault of another party. What can the Def do?

Answer 5

The Def should file and serve a contribution notice (rmbr on a def can do this) claiming contribution towards any liability the Df may have against the C. ( RMBR SINCE THE DEF AND THE CO-DEF ARE liable in respect of same damage then the other party is co-def and the def can seek contribution

Question 6

If the C claim against the def is struck out and the def has sought to claim an indemnity from TP, what will happen?

Answer 6

since that is the case where def seek to claim indemnity from TP, there is nothing TP to contribute and nothing to indemnify that def against. But if the Def file an additional claim, that is a separate claim itself

That claim will continue since its separate.

Question 7

IF a C discontinue a claim, and a def files a defence and counterclaim . what will happen to the counterclaim?

Answer 7

-Discontinuing the main claim wont discontinue the counterclaim as its separate claim. (CPR 20.3(1)

Question 8

IF the C sues the Def for road trafifce accident, and finds out the TP contributed what are the options for the Defendant.

Answer 8

-The def can bring an addiotional claim if the TP has not been joined to the proceedings as second def ( ITS NOT MUST TO DO THIS AS IF THE DEF LOSES HE CAN DEFEND THE CLAIM AND IF LOST THEN HE CAN BRING A CLAIM AGAINST TP)

IF the TP joined as second defendant then the defendant can serve a contribution notice on the second defendant (CPR 206)

Question 9

Does the Def need to seek court permission to file contribution notice to the second defendant?

Answer 9

-No they dont need to.

• The defendant can file and serve it with the defence or if additional claim for contribution

or they may do so any another time BUT THEN MUST GET WITH COURT PERMISSION

Question 10

Where the C issued and served a claim form and particular of claim on D for damages. IF D believes that he has complete defence, and believes that it has nothing to do with him, and its due to another party.

What can the D do?

Answer 10

The D should file a defence denying liable and identify the TP as the perpetrator. He does not need to bring an additional claim against TP

Question 11

If C is suing the D, and the D says he acted on the advice of TP. D believes that TP advice was negligence. What can the D do if Defence has not been filed?

Answer 11

-Since the TP is not a party to the proceedings yet. He needs to be made an addition party. (CPR 20.2(1). The D can do this without court permission if he issues an additional claim at the same time as filing his defense

-Rmbr that the def cannot join the TP as a second defendant as only the C can do this

-Take note. Though if its two separate issue of negligence and breach of contract, since both claims arose from same issue its better for them to be tried together. (CPR 20.9)

Question 12

IF the C bring proceedings against D, and where CF and POC have been served, and at Conference C view his wife is jointly entitled to relief sought and thinks she shld be added as a party. What shld the C do?

Answer 12

• In order to add wife as an additional party, need COURT PERMISSION and wife written consent (CPR 19.4.4)

Question 13

IF PI claim is above 50k, where will the claim go?, and if such must it go there?

Answer 13

• If its a PI claim, must not be started in HC unless the val is 50k or more. So though the C MAY bring proceedings in HC, they don’t have to. Such proceedings may be brought in CC.

Question 14

How are court proceedings started?

Answer 14

CPR 7.2
-Proceedings are started when the court issues a CF at the req of the Claimant.

Question 15

Once CF issued how long does the C have to serve the CF?

Answer 15

CPR 7.5(1)
-C must serve before 12 midnight on the calendar day four months after the date of issue of the Claim form

Question 16

If the C wants to serve the CF but don’t want to effect personal service to the Def, and has not given his address to be served, what can the C do?

Answer 16

The C can serve at his usual or last known address (CPR 6.9(2)

Question 17

If the C wishes to serve CF andwishes to serve personal service to D, but in his letter provides address of solicitor who accept service what shld the C do?

Answer 17

The C must serve to the solicitor (CPR 6.7(1). The C don’t have option of personal service

Question 18

IF the Def is a business and he has moved and has not provided his new address to the C nor has he provided his solicitor address what can the C do?

Answer 18

• Where absence of nominated solictor or defendant providing his address.

CPR 6.9 will apply, as the df is an individual being sued in name of business, the place of service is usually or last known residence of the individual or principal or last known place of business (CPR 6.9(2).

If Def not have biz, the C shld take reasonable steps to ascertain the address of the def current residence or place of biz, if can’t find then must look for alternative method of serving, if still cant then C must make an application to court for permission to serve alt place (CPR 6.9(5) .

Alt methods- email address

Question 19

If C is 15 and got injured due to D. The C has litigation friend (CPR 8), The D want to amend defence, what shld the D do?

Answer 19

The D needs to serve application to amend to the LF conducting proceedings on behalf of child or protected party

Question 20

IF the C serve application, after 5pm via email on Monday when is it deemed date of service (Monday)

Answer 20

Served on Tuesday, rmbr that email or by electronic means sent after 4.30 is deemed to be served on the next business day.

Deemed date of CF differ from deem date of other doc (ex: POC)

CF and Non-CF
So if its first class post- its second biz dat

-If its email- then its next biz day

Question 21

What is Part 8 procedure and when may C use it to issue proceedings as an alt to the procedure set out in Part 7

Answer 21

Part 8 procedure- alt procedure to Part 7 of the CPR for commencing a claim.

C use Part 8 procedure when he seeks the court decision on a question which is unlikely to involve a substantial dispute of fact (CPR 8.1(2) or where a rule or PD may require the use of Part 8 procedure.

Ex of Part 8:
-Claims by or against the child or protected party which have been settled before the commencement of proceedings and the sole purpose of the claim is to obtain approval of the court to the settlement (CPR 21.10(1)

CPR 21.10(1)- no settlement or compromise shall be valid for claim on behalf of child without permission of court.

The LF must bring claim through Part 8 and include a req to the court for approval of the settlement or compromise

Question 22

how long does C have to AOS of proceedings under Part 8

Answer 22

14 days from the date of service of the Part 8 CF

Question 23

What’s rule to filing and servind written evidence for parties to rely on in Part 8

Answer 23

C- must file and serve on Df any written evidence he intend to rely on when file CF

D-must file and serve any written evidence he wish to rely upon at time he files his AOS (CPR 8.5(3) and (4)

C must then file and serve further written evidence in reply to D written evidence within 14 DAYS of service of the D written evidence

Question 24

When C brought against TP in respect of Trust, who shld be named as C

Answer 24

Trustees (NOT BENEFICIARY) CPR 19.10(1)

Question 25

Who may be appointed as LF

Answer 25

CPR 21.4
-Deputy appointed by Court of Protection

In absence of court-appointed LF, a person can become LF if:

-Can fairly and competently conduct the proceedings on behalf of the child or protected party;

-Has no interest adverse to that of the child or protected party; and

-Where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party- see CPR 21.4(3). [WB v 1 p. 613]

Question 26

Where settlement agreed on behalf of child what steps taken to obtain approval of the court and what doc needed

Answer 26

Claim in Part 8 need to include a req to the court for approval of settlement reached

CPR 21.10(3) [WB v 1 p. 620] provides additional requirements in terms of information that must be included in the claim/ documentation that must be attached, as follows:

A draft consent order setting out the proposed settlement terms;

Details of whether and to what extent the defendant admits liability;

The age and occupation (if any) of the child or protected party;

The litigation friend’s approval of the proposed settlement or compromise;

A copy of any relevant medical, financial or other expert evidence or advice;

In a personal injury claim arising from an accident, details of the accident and of claimed loss and damage;

Any documents relevant to the consideration of liability; and

A legal opinion on the merits of the settlement, except in very clear cases, together with any relevant instructions unless they are sufficiently set out in the opinion.

Question 27

Where proceedings started an a party wants to make an application to add or substitute another party in existing proceedings, does party need permission of court?

Answer 27

Yes.
CPR 19.2- provides that addition and subsi of parties needs court permission where proceedings started.

Question 28

What doc is req where need to file with court if permission is req

Answer 28

CPR 23- An application need to made, supported by evidence

The application for add or sub a C, party must file:
a) proposed amended CF and POC and
b) signed written consent of new C to be added or subsi (CPR 19.4(4)

Question 29

What does Part 20 deal with?

Answer 29

CPR 20.2(1)
-Counterclaim
-Additional Claim by def against person for contribution or indemnity
-Add claim against person not a party

Question 30

how Does a Def make a counterclaim against the C

Answer 30

By filing particulars of counterclaim (CPR 20.4(1)

Question 31

Do defence and counterclaim need to be in one doc and if so what format

Answer 31

PD 20 para 4.1
Where D serves countercliam, the defence and counterclaim shld form one document with the counterclaim following on from the defence.

Question 32

does D need to get permission to file a counterclaim ?

Answer 32

Nt if he files it with his defence

BUT, the permission of court req if defendant wish to make counterclaim against the C at another time, if he has alrdy file his defence to the claim (CPR 20.4(2)(b)

Question 33

Does D who seek to make another person apart from the C, a defendant to the counterclaim must they need court permission?

Answer 33

YES (CPR 20.5(1), a D who wish to counterclaim against a person other than the C must apply to the court for an order that the person be added as an additional party

Question 34

CPR 20.2(1)(b) what is meant by contribution

Answer 34

Contribution- Right of someone to recover from TP all or part of amount which he is liable to pay.

This arises when joint wrongdoers and the D claims that the Co-D/TP is wholly responsible for the harm that the C has suffered and seeks contribution from him.

Question 35

What is meant by indemnity (CPR 20.2(1)(b)

Answer 35

Claim for an indemnity, arises where there is contractual relationship between D and TP.

Question 36

when making application to issue an additional claim, what doc shld be filled in support of the appliation

Answer 36

The application notice should be filed together with a copy of the proposed additional claim- PD20 para 1.1. [WB v 1 p. 605]
The application must be supported by evidence stating:
The stage which the proceedings have reached (PD20 para 2.1(1)) [WB v 1 p. 605]
The nature of the additional claim to be made or details of the question or issue which needs to be decided (PD20 para 2.1(2)) [WB v 1 p. 605]
A summary of the facts on which the additional claim is based (PD20 para 2.1(3)) [WB v 1 p. 605]
The name and address of any proposed additional party (PD20 para 2.1(4)) [WB v 1 p. 605]
Where delay has been a factor contributing to the need to apply for permission to make an additional claim, and explanation of the delay should be given in evidence (PD20 para 2.1(5)) [WB v 1 p. 605]
Where possible, the applicant should provide a timetable of the proceedings to date (PD20 para 2.2) [WB v 1 p. 605]

Question 37

What is the period of time that a party has to serve an additional claim after it has been issued?

Answer 37

CPR 20.8- Where an additional claim may be made without court permission any claim form must

a) in counterclaim against additional party, be served on every other party when a copy of defence is served

b) in additional claim, be served on person within 14 days after the date on which the additional claim is issued by the court.

Question 38

IF the C serves the CF and it does not contain POC when it is served then how long C have to serve POC

Answer 38

C has 14 days from the date of service of CF in which to serve POC