Issuing and Responding to Proceedings Flashcards
What is the CPR guidance for which court to issue proceedings in for each court/type of case?
Claims less than or equal to £100k (£50k pi) should be issued in the County Court. Those over can choose High or County but High should only be used for complex claims or those with an outcome considered important to the general public.
Who is safeguarded under the Mental Capacity Act 2005 and why?
Children and mental patients as in law they are not considered able to make their own decisions
What is a Litigation Friend?
Someone who represents a protected party (child/mental health patient) in litigation and who should fairly and competently conduct proceedings without adverse interest
If a claimant is suing a partnership, who should their claim be brought against?
Against the partnership name to avoid naming and serving all partners.
If a claimant is suing a sole trader, who should their claim be brought against?
They can be sued either in their own name or their business name. If they are a claimant they must sue in their own name.
If a claimant is suing a company (LLB), who should their claim be brought against?
They must be sued under the correct company name (Ltd/Limited) so company searches are usually conducted first.
What determines the date proceedings are commenced?
The court sealing and issuing the claim form. The date this happens will be the date of commencement.
What three documents are needed to issue proceedings and which two extra documents are needed for p.i cases?
N9 claim form, particulars of claim and any relevant/required documents which should be annexed to the PoC. For p.i. medical report and schedule of losses is also needed.
What Part of CPR requires N1 claim form?
Part 7
What is required in the claim form part 1 - identification of court?
The relevant court if County Court (money only CCMCC), or if High Court the relevant division and District Registry should be stated (e.g. in the High Court of Justice Queens Bench Division Birmingham District Registry).
What is required in the claim form part 2 - for completion by the court?
The court will insert the claim number and issue date
What is required in the claim form part 3 - details of parties?
Full names of parties, claimant or def, home or business address. If an individual is representing a business, CPR requires the business name added followed by ‘a Firm’ with the suffix plc or ltd. If full addresses are not given the court will not seal.
What is required in the claim form part 4 - brief details of claim?
A statement of the nature of the claim and the remedy sought.
What is required in the claim form part 5 - value?
If the claim is for money the value must be stated. Exact for debt claims or approx for damages claims in these brackets; up to 10k, 10-25k, over 25k for allocation to tracks. For pi claims amount expected to recover should be stated. High Court claims must state that they expect to recover over £100k (£50k pi) and are all allocated to multi track.
Where are personal injury claims with reasonably expected recoverable damages under £10k allocated?
If under £1k to small claims track, if over £1k fast track
What is required in the claim form part 6 - preferred county court hearing centre?
If a CC money only claim is defended or needs a hearing it will go from CCMCC to the preferred court stated here by the claimant. If they do not state one, it will go to home CC of def. For High Court cases the claimant must specify the District Registry
What is required in the claim form part 7 - defendant’s details for service?
Name and address of defendant or their solicitors (if they are willing to accept service)
What is required in the claim form part 8 - financial summary of claim, parts a) to d)
a) amount claimed, b) court fee, c) legal representative’s costs which in specified claims are fixed under CPR Part 45, in non-specified TBA should be inserted, d) where costs can be itemised, the total costs should be provided so def knows what to pay
What is required in the claim form part 9 - Human Rights issues?
Any issues arising under HRA 1998
What is required in the claim form part 10 - particulars of claim?
Sums due, interest claimed, details of any verbal contracts etc. They can be drafted on a separate document and all relevant docs should be attached.
What is required in the claim form part 11 - prayer for relief?
Not necessary but customary, a summary of remedies sought
What is required in the claim form part 12 - statement of truth?
Required under CRP Part 22. Best practice for claimant to sign themselves that they believe contents of form to be true. If the claimant is a company a senior should sign and give position held. If a solicitor is signing on behalf of their client they are signing to say their client believes the contents to be true and must sign in their own name, not the firm’s
What is MCOL?
Money Claims Online, an alternative online method of issuing proceedings in the CC to make justice more affordable/accessible for claims up to £100k. The status can be checked and judgments enforced online.
What do the Claims Production Centre and the County Court Business Centre allow to be issued?
Claims in bulk, so they are used by claimants such as credit card companies.
How are RTA pi claims issued if they are under £25k?
They are pursued under the RTA Protocol
What is the timeframe for service of the claim form on a defendant after the date of issue?
Four months from the date of issue. If the PoC haven’t been served with the claim form they must be served within 14 days.
Which part of CPR deals with address for service?
Part 6
What should be given for address for service when serving a solicitor authorised to accept service?
The solicitor’s office address
What should be given for address for service when serving an individual?
Their usual or last known address
What should be given for address for service when serving an individual under a business name?
Either the usual/last known address of the individual or the principal or last known place of the business
What should be given for address for service when serving an individual in their partnership name?
Either the usual/last known address of the individual or the principal or last known place of the business
What should be given for address for service when serving limited liability partnership (LLP) and companies registered in England & Wales?
The principal office of the LLP/company or any place of business of the LLP/company within the jurisdiction which has a real connection with the claim
What documents should be served on a defendant when issuing a claim?
Sealed claim form, particulars of claim and response pack.
What three documents make up the response pack and when would each be used?
Acknowledgment of service form - used if def needs extra 14 days for filing defence / admission form - if def does not dispute or wants to make an offer / defence and counterclaim form - if liability is denied or def has claim against claimant
What are the five methods of service set out in CPR Part 6?
First class post, DX, personal service, leaving docs in a specified place and fax/email.
How is personal service effected on individuals and companies and partnerships?
Individuals - docs left with defendant, usually by a process server. If they don’t take the docs they can be left at their feet / Companies - served on a senior / Partnerships - docs left at place of bus with either partner or manager
When are claim forms deemed served?
The second business day after the step required (posting, emailing etc.). If the claimant serves instead of the court they must file N215 (cert of service) within 21 days
When are documents (except claim form) deemed served if served by post or DX?
The second day after dispatch if this is a business day, if not then the next business day after then
When are documents (except claim form) deemed served if served by personal service, fax, email or being left at a specified place?
The next business day, or the same if served before 4.30 on a business day
What are the three steps a solicitor should take to issue and serve?
Draft all relevant court docs (claim form etc.), send docs to court for issue with fee and covering letter, send sufficient copies to court for each def and court file
What are the three steps the court will take to issue and serve?
Issue claim form with the issue date, seal and give claim no and open the court file / serve claim form and response pack by 1st class post (unless claimant is serving) / send notice of issue to claimant with issue date and deemed service date (if court served)
What are the three ways a defendant can respond to service of particulars of claim and what is the time limit for this?
They can either; file an admission under CPR Part 14, file a defence under Part 15 which can also make a counterclaim (Part 20) or file an acknowledgement of service under Part 10. This must be within 14 days
What must a defendant do if they admit the whole claim?
They must complete the admission form from the response pack and decide how to pay. If they pay in full within 14 days of service of CF their costs liability is limited. They can instead make an instalment offer by completing a form of their personal and financial circumstance and the claimant will decide if they accept.
What happens if a claimant accepts an instalment offer from a defendant admitting the whole claim, and what happens when they don’t?
If they accept, a judgment is entered into for the instalments offered. If they don’t accept, the court determines the rate of payment.
What must a defendant do if they admit part of the claim?
Complete an admission form stating their partial admission and denying the rest of the claim.
What happens if a claimant accepts a defendant admitting partial liability?
Their acceptance of partial liability will be in full and final settlement of the whole claim and a judgment is entered into. It can be for immediate or instalment payment.
How should a defendant respond if they are disputing a claim?
They must file a defence, they can use the form included in the response pack (N9B for specified amount, N9D for unspecified) which allows def to give reasons for dispute and any counterclaim. They may also draft a defence on a blank sheet allowing more detail.
What is a counterclaim?
Any claim by a defendant against a claimant. It can relate to very different issues to the original claim so can be tried separately.
What is a set off?
A type of counterclaim which will apply if a defendant has a separate existing claim against the claimant which can be balanced against the claim, providing a defence and absolving their responsibility. This claim can reduce or extinguish the liability.
How much extra time does filing an acknowledgment of service give a defendant to file their defence?
Extra 14 days, giving them 28 days total from service of PoC
What is the maximum extension parties can agree for service of a defence?
Further 28 days (from AoS) which gives the defendant a total of 56 days from service of PoC
When can MCOL be used by a defendant to respond to a claim and what are the response times?
It can only be used if the claim was made electronically and cannot be used if the defendant is admitting full liability (they must instead use N9A) Response times are the same as paper. The def doesn’t have to use MCOL.
What happens if an individual defends a money claim?
It is transferred to their home court
What are statements of case?
Formal documents which define what each party says about the case. Dealt with by CPR Part 16.
Give three reasons why statements of case are important?
Issues raised are the only ones court decides upon at trial / they determine what evidence is required / helps parties see strength of their case knowing what the allegations are so helps them decide if they should make settlement offers and on what terms
What six things make up statements of case?
Claim form, particulars of claim, defence, counterclaims, reply to defence/defence to counterclaim, further information in relation to these docs such as Part 18 request
Who should draft statements of case and why?
Solicitors, to keep costs proportionate. Counsel should only be instructed if a claim is complicated or unusual.
What must all particulars of claim include?
Concise statement of facts relied upon, including what gave rise to the dispute and the elements of the cause of action on which the claim is based and statement of truth
What four key things must particulars of claim include in breach of contract claims?
The existence of the contract (written should be attached, oral should be quoted within) / details of any express and implied terms relied upon / which terms were breached and how / details of causation and loss (money owed or claim for loss of profits etc.)
What must particulars of claim include in personal injury claims?
CPR Part 16 sets out specific details that must be included (such as dob of claimant). Details of remedies claimed and amount of damages claimed should be included also, as well as how to be paid.
Which three ways can interest be claimed in debt claims for specific sums?
Rate agreed in contract / in commercial contracts where interest not specified - 8% above BofE base rate under Late Payment of Commercial Debts (Interest) Act 1998 / in non-commercial it can be claimed under either s35a Senior Courts Act 1981 (high court) or s69 County Courts Act 1984 (county court)
How is interest calculated and pleaded?
As a lump sum for the period between the action arising and issue of proceedings, and then at a daily rate to make it easy to give a total
How is interest pleaded in claims or unspecified sums (damages)?
It cannot be calculated on an unspecified sum so interested is pleaded under either SCA 1981 (high court) or CCA 1984 (county court) for a rate which the court sees fit. this is usually 8% per annum
What can happen if there is a failure to include a statement of truth in the claim form or PoC?
An ‘unless order’ can be made, providing that unless a particular action is taken the claim will be struck out
What should be included in a defence?
What is denied, admitted and not admitted and a statement of truth
What should be included in a defence when dealing with allegations which are denied?
The reasons for denying the allegations and their version of events if this differs from the claimant’s.
What are allegations which are not admitted?
Those which the defendant wants the claimant to prove, usually because they don’t know if they’re true.
What happens to allegations which a defendant admits in their defence?
They are considered agreed by the parties so do not need to be proved and the court won’t decide on them
How should a defence be drafted?
As far as possible, it should mirror the sequence of the PoC to minimise risk of failing to respond to certain allegations, so it should deal with PoC point by point
What happens if an allegation from the PoC is not dealt with in the defence?
It is considered admitted under CPR Part 16
What 7 things make up a defence?
Court name / claim no / details of parties / document title / what is admitted, denied etc from PoC with law in support / statement of truth (Part 22)
When would a counterclaim arise?
If a defendant has a right of action against the claimant - if they had taken action first they would have commenced a claim against the claimant. They are only relevant if the defendant has suffered a loss due to the claimant.
What part of CPR governs counterclaims?
CPR Part 20
Does a claimant need to reply to a defence?
No, it is optional. A claimant will usually only reply to address matters raised in the defence which were not covered in the PoC
Does a claimant need to reply to a counterclaim?
Yes, they must file a defence to avoid a judgment being made
How should a request be made under CPR Part 18 if statements of case lack clarity?
Should be a written request and give a reasonable time for response. Only matters necessary and proportionate for preparing own case/answering case. If request and expected reply will be brief, a letter is used otherwise on a separate doc stating full case details.
What should be included in a response to a Part 18 request (esp. one which is drafted as a separate document)?
Court, case no, case title, titled as response to Part 18 request, requests with answers beneath, statement of truth
What happens if a Part 18 request is not responded to?
An application can be made for a court order, but only if it is a failure to respond to a written request
Why may a court strike out a claim under CPR Part 3
If a statement of case has no reasonable grounds for bringing or defending a claim (e.g. no facts, no sense, facts do not disclose legal claim/amount to a defence, defence is bare denial). Can also be used as punishment for non-compliance with a rule, PD or court order. This is to comply with the overriding objective to deal with cases expeditiously.
