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SQE 1 > DR 2: Commencing & responding to claim > Flashcards

DR 2: Commencing & responding to claim Flashcards

1
Q

Which claims MUST be started in County Court

A

£100k or less
OR £50k or less for PI

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2
Q

Which claims MAY be started in High Court (C can choose)

A
  1. More than £100k OR more than £50k for PI
  2. Claim complex (fact, legal issues, remedy, procedures)
  3. Outcome important to public in general
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3
Q

If a claim is issued in High Court, can a judge decide to transfer to County Court later?

A

Yes

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4
Q

What organisation issues most claims and retains those that are undefended?

A

Civil National Business Centre (CNBC) in Northampton

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5
Q

Where/how are proceedings issued?

A
  • Money only made on paper=send to CNBC, will be sent to Ds local County C if hearing required
  • Online for specified sums max £100k=website Money Claim Online
  • All other County Court claims-any of the County Court hearing centres
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6
Q

What are the divisions of the high court and what do they deal with?

A
  1. Kings Bench-Tort/contract
  2. Chancery-land, trusts, inheritance, partnership/company
  3. Family-divorces/adoption
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7
Q

What are the Business and Property Courts used for?

A

For national/international specialist business/other disputes
Inc:
*Commercial Court-complex cases arising from business disputes over contracts, insurance, banking and finance
*Tech and Construction Court-buildings, engineering, surveying

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8
Q

What is the overview of the process for commencing and responding to a claim?

A
  1. Issue and serve claim form and particulars of claim
  2. Defences, counterclaims and additional claims filed
  3. Court allocates claim to a track
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9
Q

When are proceedings formally started?

A

when claim issued to court (is when limitation period time stops running)

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10
Q

What is a statement of case and its purpose?

A

○ Are the formal docs where parties concisely set out their respective cases
○ Served between parties and filed at court
○ Enable parties to assess strength of opponants case, see what evidence is needed to counter it, decide whether to settle

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11
Q

At trial, will the court decide issues not raised in the statements of case?

A

No

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12
Q

What documents will a statement of case usually be?

A
  1. Claim form and particulars of claim
  2. Defence
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13
Q

What additional documents can a statement of case be?

A
  1. Claimants reply
  2. Counterclaim
  3. Defence to counterclaim
  4. Response to request for further information
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14
Q

When drafting statements of case, what type of language should be used

A

clear plain English where possible

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15
Q

Where a solicitor prepares a statement of case, whos name should it be signed in?

A

Firms name

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16
Q

What documents need to be sent to the court to issue a claim?

A
  1. Claim form N1
  2. Particulars of claim (on claim form or in sep doc)
  3. Docs required to be annexed by CPR (eg. copy of contract)
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17
Q

What should be included in the heading (top right corner) of the claim form?

A

*Details of relevant court
*Details of solicitors fee account
*Claim number (inc. on all court docs) assigned when claim form issued
*Date of issue

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18
Q

What is the rule for what name should be entered onto the claim form depending in the capacity of the party?

A

*Individual=Full unabbreviated names and title
*Sole traders= name and business name
*Partnerships=Should sue and be sued in name of firm
*Companies=Registered name/address (check with company search)
*If C dead=Executors, administrators, PRs

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19
Q

On the claim form, what should the brief details of claim include?

A

Concise statement on nature of claim and specify remedy

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20
Q

On the claim form, what should the statement of value include?

A

a. HC: put ‘claimant expects to recover more than £100k/£50k’
b. CC: state whether expect to recover:
*not more than £10k
*More than £10k but not more than £25k
*more than £25k but not more than £100k
* more than £100,000;
*they cant say how much they expect to recover.
c. For PI, also state whether amount C expects to recover as general damages for pain, suffering and loss of amenity is not more than £1500 or more than £1500

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21
Q

When calculating how much a party expects to recover in the claim form, what is disregarded?

A
  • Costs and interest
  • Contributory negligence
  • Counterclaims
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22
Q

On the claim form, what name and address for service should be given?

A
  1. Defendants
  2. OR solicitors IF confirmed in writing sol instructed to accept service of court proceedings on clients behalf
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23
Q

On the claim form, what should be included in the Financial summary of claim box?

A

1. Amount claimed’ box:
*Specified: exact figure inc interest
*Unspecified: estimate of amount genuinely expected to recover

2. Court fee

3. Legal reps costs:
* fixed for specified money claims
*For all others- ‘to be assessed

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24
Q

In the financial summary of claim on the claim form, what is the court fee based on?

A

The figure in the amount claimed box, max £10,000

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25
Q

Can you indicate your Preferred County Court hearing centre on the claim form?

A

Yes

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26
Q

What information about witnesses should be entered on the claim form?

A

C/witness is vulnerable and how

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27
Q

What information regarding human rights should be entered on the claim form?

A

If claim raises any issues under the HRA 1998 (rare)

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28
Q

What is the effect of not including a statement of truth on the claim form?

A

court could strike out

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29
Q

What are the language must the statement of truth on a claim form be in?

A

The witnesses own language

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30
Q

Who should sign the statement of truth?

A

*Party
*OR their legal rep
*Partnership-partner/person having control/management of business
*Company-person holding senior position such as dir, sec, chief exec, treasurer

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31
Q

If an individual signs a claim form on behalf of a party, what should be added to the statement of truth?

A

‘I am duly authorised by [party] to sign this statement’

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32
Q

What should the statement of truth include?

A

That they believe the facts to be true and understand contempt of court proceedings may be bought against them for false statement in a doc verified by a statement of truth

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33
Q

For a statement of truth in a particular of claim where the legal rep signs what will be taken in their statement has happened? ?

A
  1. Client authorised them to do so
  2. They explained to client that in signing the statement of truth thesolicitor is confirming the client’s belief that the facts stated in the document are true
  3. Client was warned of possible consequences if client didnt have an honest belief in the truth of those facts; specifically, prosecution for contempt of court
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34
Q

What must the particulars of claim document include?

A
  1. Concise statement of facts on which C relies
  2. If seeking interest, statement to that effect and details
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35
Q

Where a contract relates to the parties acting in the course of business, what should the claimant confirm in the particulars of claim?

A

the defendant’s business

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36
Q

For breach of contract, what should the particulars of claim include?

A
  1. Status of parties
  2. chronological events
  3. Existence of contract
  4. Express terms included/implied
  5. What parts of contract have been performed
  6. Particulars of Breach
  7. Factual consequences
  8. Damage and loss alleged and itemised
  9. Interest
  10. Summary of relief (remedies)
  11. Signed statement of truth
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37
Q

Particulars of claim: what should be included regarding the existence of the contract?

A
  • Date
  • Type (written/oral)
  • Parties
  • Subject matter
  • Consideration
    (Attach copy to be served with particulars of claim)
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38
Q

Particulars of claim: what should be included regarding the particulars of breach?

A

itemise exactly what Ds done wrong/what they did or didn’t do to breach the contract

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39
Q

Particulars of claim: how is interest that may be awarded calculated?

A

□ Contract may specify rate
□ OR may be claimed under Late Payment of Commercial Debts (interest) Act 1998 -applies only to specified damages and is 8% per annum above BoE rate -also entitled to statutory composition for inconvenience of having to recover debt
□ OR court has discretion to award

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40
Q

What should the particulars of claim for negligence include ?

A
  • Similar to contract above
  • Reflect legal elements of DOC, breach of duty, causation, loss
  • Court has discretion to award damages in any negligence claim (Normally awarded from when loss was sustained)
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41
Q

Time limit for service of claim form on other parties once it has been issued

A

4 calendar months
Time limit met when ‘step required’ completed

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42
Q

Can a claim form be served on a firm of solicitors?

A

Yes if nominated (and all docs must be served on the solicitor once nominated)

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43
Q

Time limit for service of particulars of claim

A

At same time or within 14d after service of claim form but no later than 4mo

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44
Q

What methods of service are permitted by the CPR?

A
  1. Personal service
  2. 1st class post/doc exchange
  3. Leaving at specified place
  4. Fax/other electronic communication
  5. Any other method authorised by court (ie. Text)
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45
Q

How do you personally serve documents on an individual?

A

handing to them OR leaving with or near them

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46
Q

How do you personally serve documents on a partnership?

A

Leave with a partner or person who has control or management of the partnership at its principle place of business

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47
Q

How do you personally serve documents on a company?

A

leaving docs with person who holds senior position

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48
Q

When can you serve docs using 1st class post/doc exchange?

A

Where doc exchange (DX) no. on letter heading, can use unless otherwise specified

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49
Q

When can you serve docs using fax or other electronic communication?

A

Other party specify they’re happy, eg:
*Fax no on solicitors letterhead
*NOT email/fax number on parties headed paper
For email: solicitor must specifically confirm

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50
Q

‘Step required’ for service by First class post, document exchange or other service which provides for delivery on the next business day

A

Posting, leaving with, delivering to or collection by the relevant service provider

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51
Q

‘Step required’ for service by delivery of the document to or leaving it at the relevant place

A

Delivering to or leaving the document at the relevant place

52
Q

‘Step required’ for personal service under rule 6.5

A

Completing the relevant step required by rule 6.5(3)

53
Q

‘Step required’ for service by electronic method

A

Sending the e-mail or other electronic transmission

54
Q

WHERE to serve docs on individual?

A

Usual or last known residence

55
Q

WHERE to serve forms on individual being sued in the name of a business (sole trader)

A

Usual or last known residence of individual
OR principle or last known place of business

56
Q

WHERE to serve forms on individual being sued in the name of a partnership

A

Principle office of partnership
OR any place of business of the partnership within the jurisdiction that has a real connection with the claim

57
Q

WHERE to serve forms on a company registered in England and Wales?

A

Principle office of company
OR any place of business of the company within the jurisdiction that has a real connection with the claim

58
Q

What is deemed service?

A

As with all methods of service other than personal, sender cant be sure when it arrives, the doc will be taken to have arrived on a given dat regardless of whether it actually did

59
Q

When is a claim form deemed to have been served?

A

On the second business day after the ‘step required’ occurred

60
Q

For the purposes of deemed service, what is a business day?

A

Any day but:
* Sat/Sun
*Bank holiday
*Good Friday
*Christmas

61
Q

When are other documents (other than claim form) deemed to have been served?

A
  1. First class post/DX= 2nd day after it was posted provided its a business day and if not, the next business day
  2. Personal/delivering to address/fax/email=if served before 4.30pm on a business day, that day, if not the next business day
62
Q

For deemed service of the particular of claim, if sent separately from the claim form, are the rules for claim forms or other docs used?

A

Other documents

63
Q

Time limit for service out of the jurisdiction

A

6mo of being issued

64
Q

When is permission required for service outside the jurisdiction?

A

NOT for Scotland, N. Ireland,or where contract contains English jurisdiction clause
PERMISSION required for all other cases

65
Q

What will the court need to see to grant permission to serve claim form outside the jurisdiction

A

– Will need to attach to claim form grounds on why they’re entitled to serve outside the jurisdiction and evidence of why Eng & Wales is proper forum
– Eg. Breach of contract occurred in Eng/Wales/excessive delay of case being heard in a foreign court

66
Q

Who can make an application to add/substitute/remove a party?

A

An existing party
OR person who wants to become a party

67
Q

What is required for someone to be added/substituted as a claimant ?

A

Their consent in writing filed at court

68
Q

Is permission needed to add/remove/substitute a party?

A

Yes unless a claim form has NOT been served

69
Q

What are the grounds for adding/removing/substituting a party if an application is made WITHIN the limitation period?

A

It is desirable:
1. to resolve matters in dispute
2. to remove party
3. to substitute party where existing party interest/liability has passed to them

70
Q

What are the grounds for adding/removing/substituting a party if an application is made OUTSIDE the limitation period?

A
  1. The limitation period was current when proceedings were started
  2. AND original party named by mistake/died/subject to bankruptcy
    OR liability passed to new party
    OR claim cant properly be carried on without new party
71
Q

Time limit for D to respond to a claim form and particulars of claim

A

14 days

72
Q

Form for responding to a claim form?

A

Form N9 (will receive response pack)

73
Q

Defendants options on receiving a claim form/particulars of claim?

A
  1. File an admission
  2. File an acknowledgment of service
  3. File a defence
  4. Ignore claim
74
Q

For specified claims, what is the process of admission of a whole claim?

A
  1. D Provide details of income, expenditure of offer payment in full/instalments
  2. C can then file request for judgement
  3. If C rejects D payment terms, judge will make decision in absence of hearing
75
Q

For specified claims, what are the options for admitting part of a claim?

A
  1. Accept part admission in full satisfaction of claim then request judgement be entered by court for that amount
  2. Accept part admission but not Ds proposals for payment (court will decide on suitability in absence of hearing )
  3. Reject offer and proceed with claim as defended action
76
Q

What is the process for filing admission for unspecified claims?

A
  1. Court will serve notice on C asking whether or not they accept the figure in satisfaction of claim
  2. If accepted, C may enter judgement for the amount offered
  3. If not accepted/D makes no offer-C will enter judgement for damages to be assessed at disposal hearing
77
Q

Effect of filing an acknowledgement of service?

A

Have 28 rather than 14 days from service to file a defence

78
Q

Time limit for filing a defence?

A

14d from service or 28d if acknowledgement of service filed

79
Q

Can the time limit to file a defence be extended?

A

Yes by maximum of 28d (total 56 days) with agreement from other parties
Further extension needs courts permission

80
Q

Once a defence is filed, who is responsible for serving it on all the other parties?

A

The court unless Ds sol indicates otherwise

81
Q

What must a defence state?

A

If each allegation is:
1. Denied, inc reasons and own version of events (=C needs to prove)
2. Not admitted, where D has no knowledge (=C needs to prove)
3. Admitted (=C doesn’t need to prove)

82
Q

What happens if you don’t address an allegation in a defence?

A

It will be deemed to be accepted

83
Q

What are the contents of a defence (formalities required by CPR)?

A

□ Name of court
□ Claim number
□ Parties
□ Title (DEFENCE)
□ Date and signature of solicitors in name of firm
□ Statement of truth
□ Details of who is to be served and where
□ If claiming limitation period expired-give details then burden of proof passes to C to show not statute barre

84
Q

What will happen if the defendant ignores a claim?

A

C can enter a default judgement

85
Q

Procedure for applying for a default judgement?

A

*C makes application under CPR Part 12
*Must satisfy court that:
1. particulars of claim have been served on D
2. D hasn’t filed acknowledgement of service form/defence within the relevant time period

86
Q

When applying for DJ for specified sum or unspecified sum, what must the claimant do?

A

SPECIFIED
1. Indicate date payment was due
2. Calculate up to date total for interest claimed
3. State daily rate at which interest accrues

UNSPECIFIED
Court will grant Cs request but case will need to come back before court to decide amount of damages payable (disposal hearing)

87
Q

When may a default judgement not be obtained?

A

in limited circumstances ie if theres a pending app by D for summary judgment/have Cs statement of case struck out

88
Q

Grounds for applying to set aside a default judgement?

A
  1. Mandatory ground
  2. Discretionary ground
89
Q

What is the mandatory ground for setting aside a default judgement?

A

Judgment wrongly entered, eg:
* Too early
* Before the time for filing an acknowledgement of service/defence expired
* Claim already paid in full

90
Q

What is the discretionary ground for setting aside a default judgement?

A

Where D:
1. Has a real prospect of successfully defencing claim
2. Theres some other good reason why D should be allowed to defend claim (ie. Ill/away NOT work pressure/docs misplaced
Court will also consider promptness of Ds app to set aside

91
Q

Procedure for setting aside a default judgement?

A

file application notice (Form N244) normally supported by witness statement outlining submissions

92
Q

What are the 3 possible court orders that could be made on application to set aside a default judgement?

A
  1. D succeeds and judgement is set aside so, continue to defend action
  2. C wins, judgement remains in place, proceed to enforcement
  3. Conditional order made, judgement set aside on condition D pays money to court
93
Q

How are costs awarded for a default judgement?

A

a. Granted on mandatory ground=C will have been at fault for entering judgment so liable for costs
b. Discretionary ground of good reason=neither side at fault, costs in the case
c. Discretionary ground of real prospect of success=D is at fault in failing to deal with proceeding, pay Cs costs
d. Application fails=D will pay Cs cost of application

94
Q

When can a claimant discontinue a claim and is permission needed?

A
  • At any time if they pay costs (unless court states otherwise)
  • No permission normally needed from court
  • If more than one C: Every other party must consent in writing/court gives permission
95
Q

Can a prospective claimant recover costs for a Pre-action settlement?

A

No unless agreed

96
Q

Must a pre action settlement be recorded in writing?

A

◊ Once settlement terms agreed, must be clearly and accurately recorded in writing so can be enforced
◊ May be ok to record correspondence but make formal settlement agreement in complex cases

97
Q

Settlement reached after issue of proceedings: what is a Consent Order

A

Where no litigants in person, can avoid application to court by drawing up consent order/judgement for sealing by a court officer (will only be refused if incorrect/unclear)

98
Q

Formalities for a consent order?

A

– Must be drawn up on agreed terms (Only terms within powers of court may be agreed)
– Expressed as being ‘by consent’
– Signed by legal rep acting for each party

99
Q

are the terms of a consent order open for public inspection?

A

Yes

100
Q

What is a Tomlin order?

A

Stays claim on agreed terms that are set out in schedule to order or separately
Used If parties want terms confidential/beyond powers of court order (eg. amount settled for)

101
Q

What does the term ‘liberty to apply’ mean in a Tomlin order?

A

Allows any party to apply to court for the stay to be lifted and for court to enforce settlement if other party doesnt perfom its part of the agreement
(=so dont have to start new proceedings)

102
Q

How does the D dispute the courts jurisdiction?

A
  1. Tick box on acknowledgement of service
  2. Apply to court within 14d after filing acknowledgement or will be treated as having submitted to jurisdiction
103
Q

What happens if a court rejects an application to challenge their jurisdiction?

A

Original acknowledgement ceases to have effect/D must file further acknowledgement within 14d

104
Q

If you want to dispute the courts jurisdiction should you file a defence?

A

No as this will be treated as accepting the court’s jurisdiction

105
Q

When may a defendant file a counterclaim?

A

If they have their own cause of action against C (ie could have taken action first)
Must have suffered loss attributable to C, if haven’t suffered loss, file defence

106
Q

How does the defendant serve a defence and a counterclaim at the same time?

A

Defence and new claim in single doc, divided into 2 sections
When drafting, treat counterclaim as stand alone claim (BUT don’t have to repeat aspects inc, in statements of case)

107
Q

is permission needed to file a counterclaim?

A

Not unless a defence has already been filed

108
Q

What may a C do after D has filed a counterclaim

A

file defence to counterclaim

109
Q

When may a defendant file an additional claim?

A

For contribution/indemnity/other remedy from another person (ie. Passing blame in whole or in part)

110
Q

When will a D file an additional claim for an indemnity?

A

Where contractual relationship between D and 3rd party and 3rd party obliged to indemnify bc of contract terms

111
Q

When will a D file an additional claim for contribution?

A

Where theres joint wrong doers and D argues the 3rd party is responsible for harm C has suffered

112
Q

What must a D do if they are filing an additional claim against a non party and is permission needed?

A

must serve Part 20 claim form with particulars of additional claim, can make without court permission IF done before or at time as file defence

113
Q

What must a D do if they are filing an additional claim against a someone whos already a party and is permission needed?

A

courts permission not required if notice filed& served with defence

114
Q

Time limit for filing a defence to counterclaim and consequences of missing?

A

*C must file within 14d (unless 28d agreed with D)
* If don’t, D may enter judgement in default

115
Q

Is a claimant under an obligation to respond to a defence?

A

No, often used to respond to matters raised in defence but not covered in particulars of claim

116
Q

When/how you amend a statement of case before the expiry of the limitation period?

A

– After filing but before service=at any time
– After filing and service=only with:
◊ written consent of all parties
◊ OR permission of court (file statement of case with amendments and application notice

117
Q

What will the court consider when deciding whether to grant permission to amend a statement of case before the expiry of the limitation period?

A

*Overriding objective of dealing with case justly and at proportionate cost
*Need to strike balance between injustice to applicant if amendment refused and injustice to opposing party and other litigants in general if its permitted

118
Q

How/when can you amend a statement of case after expiry of the limitation period?

A

Court will only allow:
1. To add/substitute a new claim if it arises out of same/substantially the same facts
2. To correct a (genuine) mistakes abt the name of a party
3. To alter the capacity in which a party claims

119
Q

Who can make a part 18 request for further info?

A

At any time, the court or parties

120
Q

What should be done before applying to the court for a request for further information?

A

Write to the opponent to ask for it first

121
Q

What may a party be ordered to do if a request for further information is successful?

A
  1. Clarify a matter in dispute
  2. Give additional info in relation to any such matter
122
Q

How do you make a written request for further information?

A
  1. Serve written request on other party, allow reasonable time for response
  2. Other parties response must be served on all parties and filed with court
  3. If request not responded to/cant be complied with, make app to court under Part 18 and court will grant an order if its happy the request is confined to matters that are reasonable necessary and proportionate to enable app to prep case/understand case against them
123
Q

What must a part 18 request for further info be confined to?

A

matters that are reasonable necessary and proportionate to enable app to prep own case/understand the case they have to answer

124
Q

What should a part 18 request for further information contain?

A
  1. Headed with name of court
  2. Title
  3. Claim no.
  4. identify it’s a Part 18 request
  5. Requests set out in sep numbered paras
  6. State date for response
125
Q

What must the response to a part 18 request for further info be?

A
  1. in writing, dated, signed by party/their sol
  2. set out same info as the request then give details of response
  3. Served on all other parties
  4. Filed with court
  5. Verified with statement of truth
126
Q

Which claims will be allocated to which track?

A

*Small Claims: Up to £10k
* Fast track: £10k- £25k
*Intermediate track: £25k- £100k
*Multi track: over 100k

SQE 1 (46 decks)

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