D. Starting Proceedings Flashcards
Where do claims start?
County Court
What if value of claim exceeds £100k?
Client has choice. Either commence proceedings in CC or HC
Where client has choice, CPR states claims only to HC if one/all of the following apply:
1 financial value well over £100k
- facts/legal issues/remedies complex
- outcome important to public
3 HC divisions
- Kings Bench Division (claims on contract/tort- commercial disputes)
- Chancery Division (property, land, trusts & IP)
- Family Division
Reference to days in litiagtion is always…
clear days
UNLESS time limit for taking relevant step to serve CF i.e. 4 months from date of issue
Rules for any period of days (3 days, 5 days, 14 days)
Day after period begins. Can include bank hol & weekend.
E.g. file AoS within 14 clear days of deemed service of CF = CF served on 02 Oct and last day for AoS is 16 Oct
Application made 3 days before hearing = hearing on 16 Dec therefore file on 12 Dec
Rules for 5 days or less which includes Saturday/Sunday/Bank hol
Day after period begins.
End of period = next day
Sat, Sun & bank hol not included.
E.g. affadavit served at least 5 days b4 hearing. Hearing = 16 April
Serve by = 8 April
When is first class post/doc exchange actually served (deemed date of service)?
Next day after posting it, if business day; if not, next business day
When is email actually served (deemed date of service)?
If emailed on business day before 4:30pm, that business day; if not, next business day
When is left at address actually served (deemed date of service)?
If left at address on business day before 4:30pm, that business day; if not, next business day
What are the 3 rules to remember when issuing and serving CF?
- C complete CF, send to court & pay fee
- proceedings are commenced when court issues CF, court seals it with court seal
- once CF issued by court = proceedings officially begin
Why would you add/sub parties?
After CF issued, C discovers someone else contributed to their loss and should be sued too.
Make application to court (with evidence) unless CF not served.
Who can make an application to add/sub parties?
Existing party or someone who wants to be added
Send app notice + evidence + draft order and served on o/s
Can’t add/sub C without that person’s consent and this consent needs to be filed with court.
Grounds required to add/sub parties if within limitation period
‘desirable’ to do; so. New party needed to:
- resolve dispute/ issue connected with main dispute or
- remove party or
- sub party no longer relevant as liability has passed to new party (without notice app can be made)
Grounds required to add/sub parties if outside limitation period
proceedings must have started within the limitation period (CF must be issued within LP) AND:
- original party named by genuine mistake or
- original party bankrupt/dead or
- the claim cannot go on without new party
How long does C have to serve CF?
4/6 months
When should PoC be served?
Either with CF or within 14 days of CF (BUT always within LP of 4/6 months)
In the UK: Four months
Outside the UK: Six months
Different methods of service to serve CF within jurisdiction.
In writing D told C to use:
- sol’s business address or sol confirms they can accept
- email and supplied the email address to use
- business or personal address given to C
- unless sol’s address used, can use personal service. To serve indiv = indiv address. To serve comp = leave with director To serve partnership/LLP = leave with partner
What happens if D has not given an address/email for C to serve CF and C does not want to use personal service?
C can use post/leave CF at address set out in CPRS:
- suing indiv = leave at usual address/ last known resi address
- indiv is sole trader/ sued part of partnership = serve at place of business
- LLP = reg office address or principal place of business
- if none of the above available, C must take reasoanble steps to locate D’s current resi/business address
If still cannot find it, C should make application for alternative method of service at alternative place
What must a claimant show to the court to be granted an order to permit service by alternate means or in an alternative place?
Good reason for the order, e.g. service might not be achieved within the validity period
This order can be retrospective and serve to greenlight previous steps taken to serve
What seven things must a claim form contain?
- Names/addresses of parties
- Details of claim
- Value of claim and remedy sought (if specified claim, specify the amount of the debt)
- Claimant’s preferred court
- Fees and costs
- Particulars of claim (optional as can be served on its own within 14 days of service of the claim form)
- Statement of truth
What are the two options for including the Particulars of Claim?
- Include on back of claim form, or
- Produce as a separate document and either serve with claim form, or within 14 days following service
Even though the Particulars of Claim must be served within 14 days of service of the claim form:
What must happen if this 14-day period would take the claimant beyond the validity period, i.e. four/six months from issue depending on where defendant is?
The Particulars of Claim must be served within the validity period
Within what time of the date of deemed service of the Particulars of Claim must a defendant respond to a claim?
14 days
Claimant can obtain judgment in default if defendant does not respond by this time
What is the deemed date of service for first class post, services with next day delivery, and document exchange, where Particulars are not included with the claim form?
The second day (as long as it is a business day) after it was posted, left with, delivered to, or collected by the relevant service provider. If not a business day, then the next available business day
What is the deemed date of service for personal delivery, fax, electronic service, and personal service, where Particulars are not included with the claim form?
On the business day it is left at the address, transmitted, or served personally if this is before 4.30pm. If not, the next business day
