Parties Flashcards
What are examples of legal personalities that if incorrectly stated can invalidate a claim?
partnerships, sole traders, LLPs, companies, trusts, deceased persons.
What litigants cannot conduct proceedings on their own?
Children and protected parties (i.e. those who lack capacity). They need litigation friends.
How should partnerships be sued?
Partnerships MUST be sued under the name they had AT THE TIME of the cause of action accrued.
When can you sue a person instead of their business?
If a business is not incorporated or listed it has no legal personality so you can only sue the person themselves. (suing John Smith’s ABC)
How do you issue a claim against a trust?
A claim may be brought against trustees/executors or administrators without bringing a claim against beneficiaries of the estate.
How do you issue a claim against the dead?
If probate or administration has not been made, sue “the estate of John Smith” and apply for representative appointment. If there’s a Rep, sue them: “sue Jane Smith”.
What is a litigation friend?
Someone responsible for conducting legal proceedings on behalf of a protected party.
What are the 3 requirements of a litigation friend?
They must (1) fairly and competently conduct legal proceedings (2) can’t have adverse interests to their party (3) and must pay any costs party ordered to pay.
When are litigation friends brought in?
Litigation friends are formally appointed after issuing a claim form. If anything else happens before LF, it is invalid.
CPR PD 7A?
Gives procedure to follow when claims are brought by or against partnerships in EW.
How should claims by or against EW partnerships be constructed?
Per PD 7A.7 , where 2 or more partners of a business at the time of cause of action are involved in a claim, the partnership should be referred to by its name in which it operated when it has one.
How should claims against individuals who carry on business be brought?
Per PD 7A.9, a claim against an individual who carries a business may be brought against the name of the business in lieu of the individual.
Who may be a Litigation Friend without a court order?
A deputy appointed by the Court of Protection OR anyone who has (1) no adverse interests to the child that (2) can fairly and competently conduct proceedings (3) and pay any costs ordered.
What actions can be taken in claims of children etc without court permission?
Nothing. All settlements, compromises, payments etc. must get court approval
What procedure is used to secure court approval of a compromise etc. of a child’s claim?
Part 8 procedure + a request for court approval
What documents must be included in a part 8 application for court approval of a compromise in cases with children etc?
details of child; copy of any evidence; legal opinion on merits of the compromise; details of admitted liability; consent of litigation friend; Draft Consent Order.
How many documents must be included with a Part 8 application?
8 documents must accompany a Part 8 application.
What should be done if a claim involving children etc. includes damages for future losses?
Parties should consider whether damages should wholly or partly comprise periodical payments.
What governs control of money recovered by or from protected parties?
CPR 21.11: Control of money recovered by or on behalf of a child or protected party
What is a potential outcome of the court applying CPR 21.11?
The court may rule that the money should be wholly or partly paid into court and invested.
What happens to money recovered by a child that will likely never gain capacity upon turning 18?
Where a child is likely to never be able to manage and control money the funds will be administered as a “Protected Beneficiary’s Fund”
