Parties Flashcards
Can claims be brought against partnerships?
Yes - must be under the name that the partnership trades under at the time the cause of action accrued
This is unless inappropriate to do so
Can claims be bought against individuals who trade under another name
Yes - may be brought against an individual who trades under another name
Should the beneficiaries of a trust be added to a claim bought by or on behalf of them?
Do not need to be - can be done by trustees/administrators/executors
But order given in that litigation will be binding on the beneficiaries
What may the court order where a person who had an interest in a claim has died and has no personal rep?
It may order:
the claim to proceed without a rep
a person to be appointed as a rep
Who must a claim be bought against if the prospective defendant has died and there has been a grant of probate?
The personal reps
Who must a claim be bought against if the prospective defendant has died and there has not been a grant of probate?
“The estate of” the deceased
The claimant must also apply to court for someone to be appointed to represent the estate
Who must have a litigation friend?
A protected party
When will a child have a litigation friend?
Unless the court orders otherwise
What is a protected party?
Someone who lacks capacity under the Mental Health Act 2005
Who may make an application for a child to conduct litigation?
The child
Who must notice be given for an application by a child to conduct litigation without a litigation friend?
The child’s current litigation friend if they have one
Otherwise, can be without notice
Can the court reverse a decision to allow a child to conduct their own litigation?
yes - if it appears to the court desirable
What steps can be taken in litigation without a litigation friend for a child or protected party?
Issuing and serving a claim form
Applying for the appointment of a litigation friend
What effect does a step taken in litigation when there is no litigation friend but there should be?
It has no effect, unless the court orders otherwise
Who can be a litigation friend without a court order?
A deputy (appointed under Mental Health Act 2005) with the power to conduct proceedings if the proceedings are ones to which the deputy’s powers extend
What are the requirements for a litigation friend?
Must be able to fairly and competently conduct proceedings
Must have no interest adverse to the child or protected party
Where they are representing the claimant, they must undertake to pay costs, subject to any right to be repaid from the protected party or child’s assets
Can the litigation friend accept settlement or a compromise on behalf of a child or protected party?
No - it must be approved by the court. This includes settlements made pre-action
What is the procedure to get a settlement approved on behalf of a protected party or child, if the settlement is made pre-action?
Must be a part 8 application
Must include:
Draft consent order
Details of to what extent liability is admitted
age and occupation of the child or protected party
Copy of relevant medical, financial or expert evidence
If PI is included, details of the accident
A legal opinion on the merits of the settlement
What happens to money recovered by or on behalf of a protected party or child?
The court will consider whether the party is a protected beneficiary, and whether they are capable of managing the money.
If not, a fund will be established with the party as a protected beneficiary of that fund
