Commencing Proceedings Flashcards
A claimant wishes to issue proceedings in the County Court for damages for personal injury caused at the defendant’s premises. The defendant denies liability. The claimant’s solicitor has advised the claimant that he is likely to recover general damages for pain, suffering and loss of amenity of £11,000 and special damages in the sum of £2,000, but his damages are likely to be reduced by 25 per cent for contributory negligence.
What is the correct statement of value to be included in the claim form?
That the claimant expects to recover damages of more than £10,000 and that the amount he expects to recover as general damages for pain, suffering and loss of amenity is more than £1,000.
Two sisters traded in partnership as beauticians using the trading name ‘Pretty Faces’. They employed a trainee beautician. During 2023, after a disagreement, the trainee left the sisters’ employment. In January 2024, the partnership was dissolved as one of the sisters decided to retrain. The other sister stayed in business as a sole trader working as a beautician at the same premises as the partnership but uses her own name, Vanessa, as the trading name. The trainee wishes to bring a claim for breach of her employment contract on various grounds.
Pretty Faces (a firm) as that is the relevant trading partnership.
Under PD 7A para 5A, as where claims are brought against two or more persons who were partners and carried on that partnership within the jurisdiction at the time when the cause of action accrued, unless it is inappropriate to do so, claims must be brought against the name under which the partnership carried on business at the time when the cause of action accrued, ie Pretty Faces.
A solicitor, whose practice is in Southampton in the south of England, has agreed, on behalf of his client, the defendant, to accept all methods of service. The claimant, who lives in Durham in the north of England, has been ordered by 30 January to serve further information about her particulars of claim pursuant to a Part 18 request. The claimant’s solicitor has been absent from the office and has only just returned. It is now 3.30 pm on 29 January.
Which of the following, if any, is the best method of service of the further information for the claimant’s solicitor to select to ensure that the court order is complied with?
Email.
ONLY INSTANTANEOUS FORM.
Placing the document in the DX would mean that the document would arrive too late. Deemed service for document exchange would be the second day after it was left with the relevant service provider, ie 31 January. CPR 6.26 sets out the methods of service and the deemed date of service for documents other than claim forms. Email is the only method by which, if sent on a business day before 4.30 pm, the document is deemed served on that day. So there is still time to send the email with the particulars of claim attached.
A claim form was issued on 4 February. The claim form, in an envelope, addressed to the defendant and with a first-class stamp on it, is placed in the postbox on Friday, 3 June. The defendant receives the claim form on 4 June.
What is the deemed date of service on these facts, and why?
7 June as the claim form is deemed to be served on the second business day after 3 June.
The claim form was issued on 4 February, the claim form was posted by first-class post on 3 June and so service is deemed on 7 June (see CPR 6.14). The deemed date of service of a claim form is the second business day after completion of the relevant step for service under CPR 7.5(1). Here, service is effected by first-class post. The relevant step is placing the claim form in the postbox on 3 June. Completion of the relevant step is required by midnight on the day four months after the date of issue.
Two brothers jointly own a piece of freehold land which is leased to a clay pigeon shooting club. The lease to the club provides for both brothers to have an equal share of the rental income. Over a period of months, the club has failed to pay its rent. The elder brother now wishes to issue proceedings against the club for unpaid rental. The younger brother does not wish to become involved in the litigation and will not agree to be a claimant. The elder brother instructs his solicitor.
What advice should the elder brother’s solicitor give him about issuing proceedings in these circumstances?
The younger brother must be joined as a defendant as he is jointly entitled to the remedy claimed.
A party can only be joined as a claimant if they consent, and the younger brother does not so the proper recourse is to join him as a defendant (see CPR 19.3(1) and (2) and CPR 19.4(4)).
A claimant has brought proceedings in the County Court claiming damages for nuisance. The claimant believed the property to be owned and occupied by the defendant. However, in his defence, the defendant denies causing any nuisance and states that, before the date when the nuisance is said to have arisen, he had sold the property to a cousin, who has exactly the same name as him, and it is the cousin who should be the defendant instead.
What is the best advice for the claimant’s solicitor to give the claimant as to the next step in relation to the proceedings?
He should apply to the court for an order that the cousin is substituted for the defendant on the grounds that it is desirable to substitute him to resolve the matters in dispute.
A client consults his solicitor about a potential negligence claim against a surveyor who, in August 2020, carried out a survey on a property which the client wished to buy. In September 2020, in reliance upon the surveyor’s report, the client agreed to buy the property. Purchase of the property was completed in December 2020. In January 2021, the client noticed dry rot in the floorboards and called in a specialist who was surprised that the problem had not been picked up in the survey. Then, in June 2022, the client noticed a crack in an outside wall of the property and asked for further advice from the specialist, who suggested that the crack was caused by subsidence which, again, should have been noted in the survey.
When does the client’s cause of action accrue for the purposes of the Limitation Act 1980?
January 2021.
This date is not relevant in terms of the cause of action which does not accrue on the date when the survey was carried out. It was in January 2021 that the client discovered dry rot. Time runs from the date of knowledge.
A solicitor has just been instructed by a defendant in proceedings brought by a claimant who is aged 16. Brief particulars of claim have been endorsed on the claim form. The solicitor notes that a litigation friend has not yet been appointed. It is anticipated that a counterclaim will be raised in the defence. As it is a while since the solicitor acted against a child, the solicitor refreshes his memory about what steps, if any, can be taken in the proceedings.
Which of the following is correct as to what steps, if any, can be taken in the absence of a litigation friend?
No steps can be taken without permission by the solicitor until a litigation friend has been appointed.
The court will not allow a party, without permission, to make any application against a child until the child has a litigation friend. Any step taken before the child has a litigation friend has no effect unless the court orders otherwise (see Part 21.3).
A solicitor is deciding whether his client, a child aged 16, and who is extremely intelligent, requires a litigation friend in proceedings against the trustee of a fund of which the child is a beneficiary.
Which of the following is correct as to the requirement for a litigation friend in these circumstances?
The child may conduct proceedings without a litigation friend if permitted to do so by the court.
CPR 21.2 which provides that a child must have a litigation friend unless the court makes an order permitting the child to conduct proceedings without a litigation friend.
Your assistant has drafted a claim form for your client, a child, who is acting through her litigation friend, Jason Coker. The assistant has described the child in the claim form simply as “Alexa Boren (Claimant).
How should the client’s status as a party be correctly described on the claim form?
Miss Alexa Boren (a child by Jason Coker as litigation friend)
