Commencing, Serving, and Responding to Proceedings Flashcards
When will a claim be brought in the High Court?
If it is a non-PI claim over £100,000 OR a PI claim of more than £50,000 AND the case is complex, has an important outcome to the public, or the claimant believes that it ought to be dealt with by the High Court.
How will proceedings be brought/against deceased persons?
Trustees executors and administrators can bring claims or have claims brought against them.
Where a person who had interest in a claim has died and that person had no PR, the court may order the claim to proceed in the absence of a person representing the estate of the deceased, or a person to be appointed to represent the estate of the deceased.
When a defendant against whom a claim could have been brought has died; if a grant of probate or admin has been made, the claim must be brought against the persons who are the PR of the deceased. If not, claim must be brought against ‘the estate of’ the deceased, and claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
What are the special provisions for claims relating to children and protected parties?
What is a protected party?
Any person who lacks capacity to conduct the proceedings within the meaning of the Mental Health Capacity Act 2005. Unable to make the decision in question at the time it needs to be made.
How is the issue of incapacity determined?
Cam the person recognise the problem they encounter?
Can the person explain with sufficient clarity the problem to those from whom they seek the appropriate advice?
Can the person understand and evaluate the advice received from an appropriate source?
Can the person understand the effects of choosing one course of action over another and give effect to their chosen course through instruction?
Who is a litigation friend?
Represents children and protected parties, can act if they can fairly and competently conduct proceedings on behalf of the child or protected party.
Have no adverse interest to that of the child or protected party.
Where the child/pp Is a claimant, undertakes to pay any costs which they may be ordered to pay in relation to the proceedings.
How are litigation friends appointed?
Often without court order by filing and serving a certificate of suitability demonstrating that they satisfy criteria when claim is made or when child takes first step in the proceedings.
Court may appoint someone to conduct proceedings for a protected party.
Court can also make an order permitting the child to conduct proceedings without a litigation friend.
Special provisions for service on children and protected parties?
Any document due to be served must be served on the litigation friend.
Refer to the child/PP as being represented by their litigation friend
Why might a court transfer
a case between courts?
If it disagrees with the claimants choice one the claim has been issued. Also potentially if a specialist judge will be available, facilities at court for disabled people etc.
What are the consequences of choosing the wrong court?
The court may transfer the case and order the claimant to pay the costs of the transfer.
If the matter continues in the High Court, there is a sepa- rate sanction, which is that any costs awarded in the claim can be deducted by up to 25%, but this is at the court’s discretion.
What do the claimants solici- tors send to the court to issue a claim at court?
At a minimum:
Copies of the claim form (N1) (one for the court file, one for every defendant, one for the claimant to keep on its own file); and the court issue fee.
What is the value of a claim?
Financial worth - ignoring
1. Interest
2. costs
3. any counterclaim
4. any contributory negligence
5. any deduction of social security benefits
Why is the date of issue of the claim form important in the High Court?
1) It stops time running for limitation purposes
2) Starts the clock for the time in which the claim form must be served.
What does the High Court do when it receives the claim form?
- It will stamp the covering letter with the date of receipt. This stops time running for limitation purposes.
-It enters a date of issue on the claim form, gives it a claim number and sealing (stamping with the court seal) all copies of the claim form.
- Court creates a case management file and places its own sealed copy of the claim form on that file.
How are many claims in the
County Court for money issued?
By post in the Civil National Business centre - a central center that manages the claims until a hearing is required, at which point they are transferred to a particular local County Court hearing centre.
This is done by sending the claim form (from N1) to the Civil national Business Centre and paying the appropriate issue fee.
How does money claim online work?
A service provided by HMCTS - claimant registers with the money claim online service and completes the online claim form.
Limits on Money Claim online?
Only money claims with a value up to £100k and which are against no more than two defendants.
Issuing bulk County Court
claims?
Users who are going to issue many claims can become registered users in the County Court Business Centre.
Who can serve a claim form?
Claimant, their solicitor or the Court.
What will the court do if it
serves the claim form?
Service will usually be by first class post. Once the court has effected service, it will send the claimant a notice of issue stating the deed date of service. If the court is unable to serve the claim for any reason, the claimant will be sent a notice of non-service.
How will the
claimant/claimant’s solicitor serve the claim form?
They must notify the court when issuing the claim form that they do not wish the court to serve it.
The court will give the claimant’s solicitor the issued claim form with sealed copies for service on the defendants.
The claimant affects service.
The claimants solicitor then must file a certificate of service at court within 21 days, with details of the dates and methods used for service.
Not necessary to file certificate of service if all the defendants have filed an acknowledgement by that time.
Service by fax and email
Only permitted if the defendant has indicated it will accept service by these methods.
Time limits for service of the
claim form.
Where the claim form is being served in the jurisdiction, the ‘relevant step’ to serve the claim form must be completed by 12.00 midnight on the calendar day four months after the date of issue of the claim form.
What are the ‘relevant steps’ for service of a claim form?
Personal Service = leaving with defendant First class post = posting.
Fax = completing transmission.
Electronic = sending.
What happens if the claim form is not sent within the four months after issue?
The claim will fail automatically. The claimant will need to issue a new claim and pay the court fee again.
Extension of time for serving the claim form?
The application should be made within the four-month period of validity, and the claimant will need to show GOOD REASONS.
If the application is made after the four month period, extension will only be granted if it is the court that failed to serve the claim form or claimant has taken all reasonable steps to comply.
If the particulars of claim are contained in or served with the claim form,
The claimant must also serve the response pack along with the claim form and particulars of claim.
Response pack = form for admission, form for defending, form for acknowledging service.
If particulars are not con-
tained within 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 (4 months after issue).
Response pack should be served with particulars, not claim form.
Once the particulars of claim are served, the claimant must ..
FIle a copy at court within seven days of service, unless they have already been filed.
Deemed date of service - claim form
2nd business day after completion of relevant step.
Deemed date of service - particulars of claim
If contained in the claim form, 2nd business day after completion of relevant step.
If sent separately and instantly by 4:30 pm on a business day, deemed served the same day.
If sent separately and instantly after 4:30pm or on a non-business day, deemed served the next business day.
Non instant methods:
- Business day - second day after posting or giving to a DC provider.
- Otherwise, deemed served the next business day.
How might a defendant respond to proceedings?
- File or serve an admission.
- File a defence.
- File or serve an admission and file a defence.
- File an acknowledgement of service.
Why would a defendant file
an acknowledgement of service?
If it is unable to file the defence in time and needs longer than 14 days from the deemed date of service of the particulars of claim in which to serve a defence;
If it wishes to dispute that the court has jurisdiction to hear the claim.
When to acknowledge service?
Where the defendant is served with a claim form which states that the particulars are to follow, 14 days after service of the particulars of claim; and
In any other case, 14 days after service of the claim form (CPR 10.3).
How to acknowledge service?
The form for acknowledging service (Form N9) is sent to the defendant in the response pack.
Indicate whether they intend to defend all or part of the claim, or whether they intend to contest the jurisdiction.
Deadlines for defence and acknowledging service
Filing an acknowledgment of service extends the time for filing a defence (CPR 15.4):
- If the defendant does not file an acknowledgment of service, it must file and serve a defence within 14 days of the deemed date of service of the particulars of claim.
- If the defendant does file an acknowledgment of service indicating an intention to defend the claim, it extends the deadline for serving the defence to 28 days after the deemed date of service of the particulars of claim.
What happens after a defendant acknowledges service?
The court will notify the claimant in writing that this has been done, and the defendant’s solicitors will usually notify the claimant directly as well.
Parties calculate and diarise the deadline for the filing of the defence.
When would a longer period for filing a defence apply? CPR 15.4
- Out of jurisdiction;
- Disputing jurisdiction;
- Claimant applies for summary judgement before defence is filed;
- Court makes an order for service of a claim form on an agent of a principal who is overseas.
Also D and C can agree an extension of time of up to 28 days - meaning that the defendant can have a total of 56 days from deemed date of service of particulars.
More than 28 days = apply to court.
Response of ‘money paid’
If the defendant is served with a claim for a specified amount of money (eg a debt claim), but has already paid the claimant before receiving the claim, they will respond to the claim with a defence which states that the debt has already been paid.
Court asks claimant if correct - claimant respond in 28 days - claimant serve copy of response to defendant
- claim proceeds as a defended claim if claimant wants to continue.
How and when to admit a claim?
The admission form is contained in the response pack sent to the defendant with the particulars.
Specified amount = form N9A. Unspecified amount = form N9C.
Within 14 days of the deemed service of the particulars of claim.
Admitting the whole of a specified claim
Exact amount can be calculated immediately. Interest can be calculated to the date of payment, court fees are known.
Admitting unspecified claims
D may indicate on N9C if they want to pay whole or part of an unspecified amount, admit liability for an unspecified amount to be determined, or offer a sum in satisfaction of the claim.
Admissions: Can a defendant request time to pay?
Yes - can propose to pay by a certain date or by instal- ments. Can request on the admission form. If C does not accept, the court will determine the rate of payment by taking into account the information supplied by the defendant and the objections raised by the claimant.
What is entering judgement following the claim being admitted?
Final order which disposes of the claim. indicated that the claimant is to some extent the successful. It is on a register for six years, which can be bad for D’s credit score.
Counting Time: Clear days
The day on which a period begins is never included. Al- ways start counting on the following day. (i.e. particulars are served on day 0).
Counting time: Clear days; end of period defined by an event.
IF the end of the period is defined by reference to an event (e.g. a hearing), that day is not included.
Clear days: Days which do not count.
If the specified period is 5 days or less, weekends, Bank Holidays do not count.
Deadlines on days on which
the office is closed.
Where a deadline related to doing any act at the court office, but it is closed, the act is treated as on time if done on the next day on which the court office is open.
What is default judgement?
Applying for judgement to be granted in the claimant’s favour without a trial if the defendant has not responded to the claim by serving an acknowledgement of service or defence within prescribed time limit.
In which types of claims can a default judgement not be obtained?
- Claims for a delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974.
- Part 8 aims.
- Nay other claims were a practice direction provides that the claimant may not obtain default judgement.
What must the claimant show to obtain default judgement?
- At the date on which judgement is entered, time has expired for filing an acknowledgement of service/defence.
- Claim has not been admitted or satisfied by the defendant.
- No application for summary judgement or strike out has been made by the the defendant.
What is a strike out?
Power to delete written material from statement of case so cannot be relied on in proceedings.
What is summary judgement?
Covers cases which are weak on the facts, so the court will consider the merits of the case.
Can default judgements for specified amounts of money include interest claimed to the date of judgement?
Yes, provided:
-Particulars of claim include details of interest.
- If statutory interest is claimed, the rate is no higher than the rate of the interest payable on judgement debts at the date when the claim form was issued.
- The claimant’s request for judgement includes a calculation of the interest claimed to the date of the request for judgement.
Setting aside a default judge-
ment.
By an application of the defendant or its own motion.
-MUST SET ASIDE: If the judgement was wrongly entered due to time limits not expiring, acknowledgement of ser- vice or defence has been filed in fact, summary judgement or strike out had been applied for before judgement was entered, or the defendant had satisfied the claim/admitted the claim before judgement was entered.
- MAY SET ASIDE: If the judgement was correctly entered, can be set aside if the defendant has a real prospect of successfully defending the claim, or it appears to the court that there is some other good reason why judgement should be set aside or the defendant should be allowed to defend.
