Commencing Proceedings Flashcards
PD on pre-action conduct
Best practice and parties must comply with this (it saves money and time and encourages quick resolution)
objective of PD on pre-action protocols - HOW do we achieve?
para.3
para.8, PD on pre-action conduct
litigation should be the last resort
para.9, PD on pre-action conduct
parties should try to reach settlement at all times
how do the pre-action protocols and PD on pre-action conduct achieve its objective?
ONE - encourage pre-action contact/discussion/exchange of info
TWO - ensure full pre-action investigation of the claim
THREE - encourage parties to resolve the claim early and fairly by negotiation or ADR without the need for litigation
non-compliance with PD on pre-action conduct
para.13 - courts will consider the non-compliance when making:
ORDER FOR COSTS (CPR 44.2(5)a)
and when
GIVING DIRECTIONS (CPR 3.1(4))
para 16, PD on PAC
sanctions for non-compliance
which court do you commence proceedings?
- 3 things to consider
- JURISDICTION (HC and CC have concurrent jurisdiction over most claims)
- RULES GOVERNING COMMENCEMENT (7APD2.1)
- RULES GOVERNING TRANSFER (to minimise chance of case subsequently being transferred) - CPR 30
RULES GOVERNING COMMENCEMENT
can only be in HC if worth more than £100,000 (7APD2.1) unless personal injury or a few other exceptions
if recovering more than £100,000, you have a CHOICE Consider:
ONE - FINANCIAL VALUE (CPR16.3(6))
TWO - COMPLEXITY
THREE - PUBLIC IMPORTANCE
Important to choose correctly/most appropriate court because of the rules governing transfer
which division?
QBD: tort/contract
CD: land/trust
documents required to start an action
CF
POC
Response Pack
fee payment
IF POC not served with CF - NO NEED to send Response Pack (served later with POC which needs to be verified by separate SOT)
deadlines
C must serve to D the CF and POC within 4 months after date of issue of CF (7.5)
D must respond within 14 days of deemed service of POC with acknowledgement (10.3) or defence (15.4(1)a)
D must respond with defence within 28 days of service of CF if D served an acknowledgement (15.4(1)b)
counting time exam structure
- what is the document which has been served?
- how has it been served?
- what is the deemed date of service? (6.14, 6.26, 7.5(1))
- how should you respond and when by?
- count time to establish deadline using CPR 2.8 to assist you
if deadlines missed
CPR 12: JUDGEMENT IN DEFAULT
- start with definition 12.1
- apply for it by (1) showing you’ve affected service correctly and (2) D failed to acknowledge or file defence and time has now expired
C will win the case and get a judgement in default
no evidence heard or read
CPR 13: SETTING ASIDE A JUDGEMENT IN DEFAULT
2 ways of setting aside:
ONE - court MUST if the judgement in default was wrongly entered (i.e. one of the CPR 12 conditions not met)
TWO - court MAY if D has a real prospect of success (or some other good reason) - nb. an arguable defence is not good enough, + this is not a mini trial but court won’t just accept anything without analysis
nb. FOR TWO, court may consider D’s promptness in setting aside
HOW TO I START A CLAIM
Take to the court a number of copies of CF and a court fee (one CF for court, one for C, one for each D)
ONE - court stamps covering letter with date of receipt (this stops time for limitation)
TWO - court seals CF (this issues proceedings)
Page v Heweetts Solicitors
if solicitor sends the wrong court fee, C has not issued proceedings until correct fee sent (this means time not frozen for limitation period)
when must CF be served
CF and POC must be served on D by midnight on calendar day 4m from date of issue of CF
(extension - very strict rules, CPR 7.6)
procedure for CPR 12 (judgement in default) - for money claims
- C files request ‘request for judgement’
- application dealt with on paper
IF SPECIFIED SUM - court enters judgement for
- amount sought
- fixed costs
- interest accrued to date of judgemnet
IF NOT SPECIFIED SUM - court enters judgement for
- sum to be decided by court
- costs
- set timetable leading up to hearing where court decides sum
procedure for CPR 12 (judgement in default) - non-money claims
- C must apply for judgement in default hearing
- not on paper
Court will enter judgement it considers appropriate based on merits of the case
extending time for serving defence (between parties)
C and D’s solicitors can agree extension of up to 28 days (CPR 15.5)
- MUST give court notice in writing
- so D has max 56 days from deemed date of POC service
extending time for serving defence (if more than 28 days extra)
C and D cannot agree extension of more than 28 days without court’s approval
D must apply to court for more time before deadline expires (interim application)
- issue application notice
- serve on C
- both sides attend before Master/District Judge who decides whether extension should be granted
(court will use case management powers to ensure OO is furthered)
summary judgement and time for filing defence
if either party makes application for summary judgement, D does not need to file defence before application is heard
money claims online
possible (7EPD)
- if for less than £100,000 (excl. interest and costs)
- quick resolution
- AOS/defence can be filed by email
- C can apply for default judgement or judgement following admission using online request form
IF CLAIM DEFENDED - transferred to relevant county court hearing centre upon completion of directions questionnaires
time limit different from CPR 7
D’s response once he recieves POC
D must respond in 14 days in one of these ways…
ONE - admit all or part (to withdraw/amend admission, need permission of court CPR 14)
TWO - file a defence (set out why claim is disputed, must be filed at court, served on all parties)
THREE - file AOS (Gives D longer to prepare defence or if D wants to dispute jurisdiction)
AOS
Form N9
- court will notify C in writing that D has filed AOS (cpr 10.4)
if court serves CF
- Service usually 1st class post
- After effected service, court sends C a notice of issue stating deemed date of service
- If court unable to serve CF for any reason, C sent notice of non-service
- Up to C to try and serve CF on D after that
If C’s solicitor serves CF
- Notify court when it issues CF that it does not wish court to serve it
- Court gives or sends C’s solicitor the issued CF with sealed copies for service on D(s)
- C’s solicitor effects service using methods in CPR 6.3
- C’s solicitor must file a certificate of service at court within 21 days of service confirming document has not been returned undelivered and certifying details of the date on which claim was posted/delivered/transmitted (CPR 6.17)
- NOT necessary to file a certificate of service if all D have filed an acknowledgement of service within that time
address for service
CPR 6.6(2) - C must include in CF an address where D may be served (with post code)
- address for service = business address of solicitor (if solicitor has been authorised to accept service)
- if no address given and no solicitor acting, CPR 6.9 service (leave or post CF to D’s usual or last known place of residence/principal/place of business) = presumed good service
CPR 6.16
Court may dispense with service (usually discretion only exercised if other side is aware of the document)
CPR 3.10
Court can cure procedural irregularities in service
Alternative service
CPR 6.15 - court can permit service by alternative method if good reason to do so (i.e. other methods impossible or ineffective)
in application to court:
- set out why
- state alternative method (e.g. advert in newspaper, serve on solicitor who was not authorised)
CANNOT BE USED RETROSPECTIVELY to remedy irregular service BUT court can order steps taken to be good service
if solicitor authorised to accept service
document must be served on solicitor (CPR 6.7(1))
IF CONTRACT specifies method of service of CF
CPR 6.11 - this is valid if in accordance with contractual method
what is in the CF
- Heading
- Parties + addresses
- concise statement of nature of cliam
- remedy sought
- statement of amount claimed
- jurisdictional endorsement
- POC (can be separate)
- statement of truth
- court fees, fixed costs
child
person under 18
- represented by litigation friend
E.g. “Alice Brown (a child, suing by Kate Brown her mother and litigation friend)”
protected party
person who lacks capacity to conduct proceedings
- represented by litigation friend
E.g. “Adam Black (a protected party by Clara Dunn his liigatio friend)
protected beneficiary
protected party who lacks capacity to manage and control any money recovered in the proceedings
[‘lacking capacity’ – defined in Mental Capacity Act 2005]
sole trader
if suing: Fred Flagstone (trading as Fred’s Café)
If sued: Fred Flagstone (trading as Fred’s Café)
OR
Fred’s Café
partnership
(1) name 1
(2) name 2
AND/OR
Name of Partnership (a firm)
service of CF - service under enactment
Methods of service in CPR 6 = alternatives to service under an enactment (e.g. a company may be served by any of the ways permitted in CA 2006 in additional to ways under CPR 6)
