Commencing Proceedings Flashcards
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?
-Its on a Tuesday, since the Monday that follows after good Friday is bank holiday.
Can a Defendant pursue a counterclaim against a co-defendant
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)
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?
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)
IF first class post when is it deemed served?
The deemed service of the Claim form is on the second business day after the relevant step
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?
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
If the C claim against the def is struck out and the def has sought to claim an indemnity from TP, what will happen?
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.
IF a C discontinue a claim, and a def files a defence and counterclaim . what will happen to the counterclaim?
-Discontinuing the main claim wont discontinue the counterclaim as its separate claim. (CPR 20.3(1)
IF the C sues the Def for road trafifce accident, and finds out the TP contributed what are the options for the Defendant.
-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)
Does the Def need to seek court permission to file contribution notice to the second defendant?
-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
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?
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
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?
-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)
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?
- In order to add wife as an additional party, need COURT PERMISSION and wife written consent (CPR 19.4.4)
IF PI claim is above 50k, where will the claim go?, and if such must it go there?
- 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.
How are court proceedings started?
CPR 7.2
-Proceedings are started when the court issues a CF at the req of the Claimant.
Once CF issued how long does the C have to serve the CF?
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
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?
The C can serve at his usual or last known address (CPR 6.9(2)
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?
The C must serve to the solicitor (CPR 6.7(1). The C don’t have option of personal service
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?
- 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
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?
The D needs to serve application to amend to the LF conducting proceedings on behalf of child or protected party
IF the C serve application, after 5pm via email on Monday when is it deemed date of service (Monday)
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
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
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
how long does C have to AOS of proceedings under Part 8
14 days from the date of service of the Part 8 CF
What’s rule to filing and servind written evidence for parties to rely on in Part 8
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
When C brought against TP in respect of Trust, who shld be named as C
Trustees (NOT BENEFICIARY) CPR 19.10(1)
