Parties Flashcards
When a claim is brought against trustees,executors or administrators in the at capacity do the beneficiaries of the trust also have to be added as parties to proceedings?
No beneficiaries do not have to be added to proceedings
but any judgment or order given or made in the claim is bing on the beneficiaries unless the court orders otherwise
When a person who has an interest in a claim has died and that person has no personal representative what can the court order?
(A) or (B)
(A) the claim to proceed in the absence of a person representing the estate fo the deceased
(B) a person to be appointed to present the estate of the deceased
Where a Defendant against whom a claim cold have been brought has died, who can the claim sue of grant of probate has been made? What should the C do if there is no grant of probate?
Grant of probate made = sue the deceased’s person representative
No grant of probate = claim must be brought against “the estate of X” and the C should apply for an order appoint a person to repent the estate fo the deceased in the claim
When the court makes an order when the D has died, who is the order binding on?
Judgment or order made or given is binding on the estate of the deceased
What is the definition of a child under CPR 21?
Person under 18
What is the definition of a protected party under CPR 21?
Means a party, or an intended party, who lacks capacity to conduct the proceedings
‘Lacks capacity’ = means lacks capacity with the meaning of the MentalCapacity Act 2005
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(1) A protected party ________ a litigation friend to conduct proceedings on his behalf.
(2) A child ______ a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3).
(3) The court may make an order permitting a child to ____________________________
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(1) must have
(2) must have
(3) conduct proceedings without a litigation friend.
A company or other corporation may be represented at trial by an employee if –
(a) the ____________________________________ to appear at trial on its behalf; and
(b) the court ____________________
(a) employee has been authorised by the company or corporation
(b) gives permission.
Who may make an application for an order permitting a child to conduct proceedings without a litigation friend?
(a) may be made by the child;
(b) if the child already has a litigation friend, must be made on notice to the litigation friend; and
(c) if the child has no litigation friend, may be made without notice.
If the court has made an order allowing a child to conduct litigation without a litigation friend can they change their mind?
It is subsequently appear to the court that it is desirable for a litigation fiend to conduct the proceedings on behalf of the child the court may appoint a person to be the child’s litigation friend
2) A person may not, without the permission of the court –
(a) make an application against a child or protected party before ________________; or
(b) take any step in proceedings except –
(i) issuing and serving ________; or
(ii) applying for the _____________________________ under rule 21.6,
until the child or protected party has a litigation friend.
(3) If during proceedings a party lacks capacity to continue to conduct proceedings, no party may take any ___________ in the proceedings without the ________ of the court until the protected party has a ______________
(4) Any step taken before a child or protected party has a litigation friend has ___________ unless the court orders otherwise.
(A) proceedings have started
(I) a claim form
(ii) appointment of a litigation friend
(3) further step / permission / litigation friend
(4) no effect
A person may act as a litigation friend if he—
(a) can _____ and __________ conduct proceedings on behalf of the child or protected party;
(b) has ________________ to that of the child or protected party; and
(c) where the child or protected party is a claimant,________________ any costs which the child or protected party ____________ to pay in relation to the proceedings, subject to any right he may have to be _______ from the assets of the child or protected party.
(A) fairly / competently
(B) no interest adverse
(C) undertakes to pay / may be ordered / repaid
Where a claim is made by or on behalf of / or against a child or protected party
when will a settlement be valid?
Only when it has been approved by the court
When a settlement has been reached in relation to a claim by or on behalf / against a child or protected party, before proceedings have begun and the sole purpose it to obtain approval of the settlement
What must the claim be?
Must include a request for the court to approve the settlement and must be made using the Pt 8 procedure
What happens to any money which the child/protected party is awarded?
Money will be paid into the court
Court likely to give directions for investment of the settlement monies
Claim for child/protected party
What must the court be satisfied of in order to approve the settlement when the claim involves future pecuniary loss?
Must be satisfied that parties have considered whether the damages should wholly or partly take the from of periodical payments
When the court’s approval is sought for settlement of a case concerning a child or protected party what needs to be filled with the court:
(1) ____ proposals
(2) _____ evidence
(3) ______ opinion
(4) _______ of loss
(5) Documentary _______
(6) ________ evidence
(7) ___________ approval
- Settlement
- Medical
- Counsel’s
- Schedule
- Evidence
- Financial
- Litigation friend’s
How many parties can be joined to proceedings?
Any number of claimants and defendants may be joined as parties to a claim
After the claimant and the defendant what will additional parties be referred to?
A designation that refers to the order of joining; i.e third party, forth party and so on
When can the court order for a party to be added or substituted to proceedings
(A) and (B)
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
What are the additional situations when the court can order a new party to be substituted for an existing party?
(A) and (B)
(a) the existing party’s interest or liability has passed to the new party; and
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.
(1) Where a claimant claims a remedy to which some other person is ___________ with him, all persons jointly entitled to the remedy ____ ____ unless the court orders otherwise.
(2) If any person __________ to be a claimant, he must be made a ________, unless the court orders otherwise.
(1) Jointly entitled / must be parties
(2) does not agree / defendant
When can a party be removed, added or substituted without the courts permission.
Only when the claim form has not been served
If claim form has been served, court’s permission is required
When the court’s permission is required to remove, add or substitute (i.e once the claim form has been served) who can make an application to the court?
(a) an existing party; or
(b) a person who wishes to become a party.
An application to substitute a party where an existing party’s interest or liability has past
(A) may be made ______ ______; and
(B) must be _________ __ _______.
(A) without notice
(B) supported by evidence
When can a claimant be substituted or added?
Only when the claimant has given their consent in writing; and that consent has been filed with the court
Who must an order for the removal, addition or substitution of a party be served on?
All parties to the proceedings; and
Any other person affect by the order
What is a counterclaim?
A claim by the defendant against the claimant which made within the existing claim rather than by the bringing of a separate action - a cross- claim
What is a contribution?
Any person liable in respect of any damage … may recover contribution from any other person in respect of the same damage
How will the amount of the contribution be assessed?
Amount found by the court to be just and equitable having regard to the extend of that person’s responsibility for the damage in question
What is an indemnity?
When a defendant argues that another defendant/third party should pay everything
Has to make good the whole of the loss
(2) A defendant may make a counterclaim against a claimant—
(A) ____ the court’s permission if he files it with his ____; or
(b) At any ____ ____ with the court’s ________
(A) without / defence
(B) other time / permission
What must a defendant do if they want to counterclaim against a person other than the claimant?
Must apply to the court for an order that that person be added as an additional party
How can a defendant who has filed an acknowledgement of service or a defence make an additional claim for contribution or indemnity against a person who is already a party to proceedings.
Defendant would need to:
file a notice containing a statement of the nature and grounds of his additional claim; and
Serving the notice on that party
(3) A defendant may make an additional claim –
(a) ______ the court’s _________ if the additional claim is issued _______ or at the same time as he files his ______;
(b) at any other time with the court’s _________.
(A) without / permission / before / defence
(B) permission
(1) Where an additional claim may be made without the court’s permission, any claim form must –
(a) in the case of a counterclaim against an additional party only, be served on ________________when a copy of the defence is served;
(b) in the case of any other additional claim, be served on the person ___________ it is made within ______ after the date on which the additional claim is issued by the court.
(2) Paragraph (1) does not apply to a claim for contribution or indemnity made in accordance with rule 20.6.
(3) Where the court gives permission to make an additional claim it will at the same time give _________ as to its service.
(A) every other party
(B) against whom / 14 days
(3) directions
When the court is considering whether to permit or dismiss an additional claim or require an additional claim to be dealt with separately from the current claim
What matters will the court have regard to?
(3)
- Connection between addition claim and current claim
- If the remedy is substantially the same
- If the additional claimant wants the court to decide any question concerning a person who is not already a party or an existing party in a different capacity
A person on whom an ______ _____ is served become a ______ to proceedings if they are not a _____ already.
Additional claim
Party / party
Name the 5 part 20 claims
- Counterclaim by D against C only
- Counterclaim by D against C and a new party
- Claim by D for contribution or indemnity against an existing party
- Claim by D for contribution or indemnity against an new party
- New claim by any person defending pt 20 proceedings
When a D wants to counterclaim against C and another, what do they need to do?
Need to apply for the other person to added as additional party
What is an additional claim from also called?
A third party notice
When the D wants to claim an contribution/indemnity against a third party, is permission required?
If filed with the D’s defence = Court’s permission not required
If filed after the defence = Court’s permission is required
A sues B, B seeks an indemnity from C in relation to A’s claim as well as an additional claim against C.
If the C’s claim against B is struck out what happens to the additional claim and the claim for an indemnity?
Indemnity claim = Claim will fall - nothing for the 3rd party (C) to contribute to
Additional claim = Claim will continue
Party A sues party B, B then issues an additional claim against party C, C raises a counterclaim against B.
What happens to C’s counterclaim if B discontinues their additional claim against C.
Counterclaim will continue to stand, discontinuing a claim does not affect the counterclaim
A sues B. B believes that they have a complete defence. B claims the breach was perpetrated by C and had nothing to do with them.
How should B respond to the proceedings?
Where a defence is a simple denial of wrongdoing an additional claim is not necessary, just needs to file a defence
Only the Claimant (A) can join another defendant (C)
