Dr 2 - Commencing proceedings Flashcards
Which court?
Country or High for civil matters.
£100,000 or less - Country Court
£100,000 or above - High Court
High Court (Personal injury) - £50,000 or more.
Claims in excess of £100,000 have a choice.
Depends on -
complexity
outcome important to public.
High Court can transfer to Country Court at later date (enforcement).
Country Court
Specified and unspecified
If part unspecified whole treated as unspecified.
Details of what should be in claim (Part 7).
All money-only claims on paper (specified and unspecified) sent to Country Court Money Claims Centre (CCMCC) - if hearing required transferred to country court hearing centre local to D.
County Court Business Centre - online claims for specified sums up to £100,000. made via Money Claim Online.
High Court
King’s Bench Division - primarily contract and tort
Chancery Division - Land, trusts, contentious inheritance matters, partnerships claims and company law.
Family division - family disputes.
Business and Property Courts
Commercial court - complex cases arising out of disputes over contracts, banking and finance
Technology and Construction Court -
claims about building, engineering and surveying.
issuing proceedings
When claim form sent and other documents.
Claim form (N1)
Particulars of claim
Documents that are required to be annexed by the CPR such as a copy of any contract.
Limitation stops when claim form received in court office. Sufficient copies sent to D and other parties, with covering letter indicating which court and court issue fee.
Once claim form issued by court proceedings started.
The claim form
Most important aspects of claim
Substantive law and facts in support.
Sufficiently detailed without full recitation.
Heading (A)
Relevant court
Details of Parties (B) -
names and status.
full address and postcode.
(Failure could result in struck out).
Sole traders (if use business name)
If deceased against executors.
Brief details of claim (C)
Concise statement of nature of claim and remedy seeking.
Statement of value (D)
specified - precise figure including interest accrued
Unspecified -
High Court - ‘expects to receive more than X
Country Court -
not more than £10,000
more than £10,000 but not more than £25,000
more than £25,000
Interests, costs, contributory negligence and counterclaim disregarded.
(Personal injury for general damages for pain suffering and loss of amenity must also state if more than £5,000).
Defendants name and address for service (E)
or solicitors representing
Financial summary of the claim (F) -
Amount claimed stated. (Specified exact figure including interest, estimate of what claimant genuinely expects to recover).
Court fee payable on issue based on statement of value (max £10,000).
Legal representatives costs fixed under P45 for specified money claims. Other claims ‘to be assessed’.
Preferred Country Court hearing centre (G) -
If money only in County Court Money Claims Centre will remain unless defended or hearing required.
-Will be transferred to D’s home country court or
-C’s preferred hearing centre.
Witnesses (H)-
Whether witness is vulnerable.
Human Rights (I)-
claim includes issues under Human Rights Act 1998
Particulars of claim (J)
-in form or on separate document
Statement of truth (K) -
P22 this and particulars contain statement of truth.
By party of legal representative
If partnership management and control
If company person holding senior position such as director, secretary, chief executive or treasurer.
If individual signs on behalf - ‘ I am duly authorised by the (party) to sign the statement.
Will
-show client authorised
-explained to client
-warned of possible consequences.
Name of firm as well.
Address for service -
Within jurisdiction
Add, remove or substitute parties.
Application to court to substitute.
Who can make? - existing party or person who wants to become a party (not claimant unless consent in writing)
Permission required -yes unless claim form has not been served
Within limitation period -
desirable to addd, substitute.
Outside limitation -
Limitation period current when proceedings started.
-named by mistake, died, subject to bankruptcy order, claim cannot properly be carried on.
Service of claim form
Within four months.
Only on firm of solicitors if nominated by D in writing.
Personal service -
handing it to them - if refuse leave nearby
Partnership - left with partner or person who has control or management of partnership at principal place of business
Company - senior position such as - director, treasurer, secretary or chief executive.
First class post or document exchange -
DX unless otherwise stated.
Leaving form at specified place -
(solicitor, D gives address, carries on business, usual or last known address, principal place of business).
By fax or electronic -
must have expressly confirmed -
email or fax on party head not enough
Fax on solicitor heads is (solicitor must confirm email).
Service by alternative method -
text, voicemail (court has to authorise).
S1139(1) CA 2006- documents may be left or posted to registered office.
No address?
Individual - usual or last known residence
Soletrader - same and principle place of business
Partnership - usual ur last known residence, principle place of business
LLP- principal office or any office that has real connection to the claim
Company - any place within jurisdiction that has real connection to claim.
When to serve
Claim form issued. Four calendar months to serve it on D.
Deemed service;
Rule 6.14. Claim form deemed to have been served on second business day after step required has occurred.
Step required - putting in post etc..
If particulars served separately falls under these rules;
Deemed service of documents other than claim form;
Personal service - Before 4:30 on business day, if not next.
First class post - second day after it was posted provided day is a business day. If not next business day.
Particulars of claim;
At same time or within 14 days after service. (but no later than four months after issue of claim form).
Service outside of jurisdiction
Six months of being issued.
Scotland and NI - permission not required.
Other cases - obtain permission forecourt (unless clause).
Grounds -
e.g. breach happened in UK (connection).
Responding
Receive form N9.
Can -
file and admission
file an acknowledgement
file a defence
Admissions
Should admit whole or part if unlikely to succeed.
Specified claims -
Admit whole amount - provide details of cinema and expenditure and make offer of payment. C may file request for judgement. If C rejects terms judge will decide rate usually in absence of court hearing.
Of part -
C has 14 days to consider offers and;
-accept part admission in full satisfaction
-accept part admission but not D’s proposals (court will decide).
-reject offer entirely and proceed with claim
Unspecified;
Court serve notice on C asking whether or not they accept. If accept may enter judgement for quantum. If does not accept or no offer - C enter judgement for damages assessed at disposal hearing.
Acknowledgement of service
Time increased from 14 to 28 days from service of particular of claims.
Defence
Served on all parties.
Court responsible if no indication by solicitor.
May counterclaim
Can extend further 28 days by agreement of other parties (56 in total).
Default judgement
C obtains judgement without there being any consideration of facts involved.
Procedure -
Application under CPR Part 12 (request for default judgement)
Must satisfy court -
particulars of claim have been served
defendant has not filed an acknowledgment of service form or defence within time period.
May not be able to obtain if D has application for summary judgement or to have C’s case struck out.
Specified;
Indicate date payment due
Up to date total of interest
State a daily rate at which interest accrues.
Once final judgment payment in 14 days
Unspecified needs to go back to court to decide damages.
