Parties To Proceedings

Question 1

claims by and against partnerships in the jurisdiction

Answer 1

if a claim is being brought against a partnership, claims must be brought against the name under which a partnership carried on business at the time the cause of action accrued unless it is inappropriate to do so.

Question 2

when would it be deemed inappropriate to bring a claim against a partnership name?

Answer 2

Examples of where it may be inappropriate could include partnerships where there have been multiple changes of the name of the partnership or multiple mergers so that it is clearer to identify the partners by their individual names.

Question 3

when may the claim may new be brought against the business name as if it were the name of the partnership

Answer 3

• claim is brought against an individual;
• that individual carries on a business within the jurisdiction; and
• that business is carried on in a name other than that individual’s own name

Question 4

representation of beneficiaries by trustees etc.

Answer 4

a claim may be brought by or against trustees, executors or administrators in that capacity without adding as parties any persons who have beneficial interest in the trust or estate

any judgment or order is binding on the beneficiaries unless the court orders otherwise.

Question 5

where the person who has had an interest in a clam has died and there is no representative of that person, the court may order…

Answer 5

either:
- the claim to proceed in the absence of a person representing the estate of the deceased; or
- a person to be appointed to represent the estate of the deceased

Question 6

where a defendant whom a claim could have been brought against has died and a grant of probate or administration has been made…

Answer 6

the claim must be brought against the persons who are the personal representatives of the deceased

Question 7

where a defendant whom a claim could have been brought against has died and a grant of probate or administration has not been made…

Answer 7

the claim must be brought against “the estate of” the deceased; and
the claimant must apply to the court for san order to appoint someone to be the representative of the deceased estate in the claim.

Question 8

before making a claim against a deceased estate, the court…

Answer 8

…MAY direct notice of the application to be given to any other person with an interest in that claim

Question 9

once judgement is passed in regards to a deceased estate, that judgment is….

Answer 9

…binding on that deceased estate.

Question 10

a claim will be treated as a claim brought against “the estate of” where…

Answer 10

either the claim has:
- been brought against the personal representatives of that estate but no grant of probate or administration has been made; or
- the person against whom the claim was brought was dead when the claim was started.

Question 11

requirement for a litigation friend for proceedings by or against a child or protected party - CPR 21.2

Answer 11

A protected party must have a litigation friend in order to conduct proceedings on their behalf.

where as

a Child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order otherwise.

Question 12

an application to allow a child to conduct proceedings without a litigation friend….

Answer 12

• may be made by the child;
• if the child already has a litigation friend then they must make notice to the litigation friend; and
• if the child has no litigation friend, it may be made without notice.

Question 13

what happens if the court has ordered to allow the child to conduct proceedings without a litigation friend but subsequently thinks that they should have a litigation friend?

Answer 13

the court may appoint someone to be a litigation friend.

Question 14

at what stages in the proceedings does a litigation friend become necessary?

Answer 14

does not apply when the court has made an order to allow a child to proceedings without a litigation friend

where during the proceedings a party lacks capacity in some way shape or form.

Question 15

what are the limits of what a party can do until the protected party has a litigation friend?

Answer 15

unless with permission from the court:
- they can’t make an application against that protected party until proceedings have started
- they cannot take any step in proceedings except filing the claim form or applying for appointment of a litigation friend

any step taken without the permission from the court or the appointment of a litigation friend will have no effect.

Question 16

a deputy appointed by the court of protection under the mental health act 2005 with power to conduct proceedings on the behalf of the protected party….

Answer 16

…is entitled to be the litigation friend of the protected party in any proceedings to which their power extends.

Question 17

if no one has been ordered by the court or appointed as a litigation friend, then a person may be a litigation friend if they —

Answer 17

• can fairly and competently conduct proceedings on the behalf of the child or protected party;
• has no interest adverse to that of the child or protected party; and
• where the protected party is a claimant, undertakes to pay any costs which the protected party may be ordered to pay in the proceedings

Question 18

what is needed for a settlement, compromise or payment to be made where a claim is made against or on the behalf of a child or protected party?

Answer 18

the courts approval

Question 19

where before proceedings there has been an agreement for settlement, compromise or payment in a claim against or on the behalf of a child or protected party, and the sole purpose of the proceedings is to gain approval from the court, the claim must —

Answer 19

• be using the part 8 procedure; and
• include a request to the court for the approval of settlement, compromise or payment

Question 20

where money is recovered by or on the behalf of or for the benefit of a child or protected party, how will it be dealt with?

Answer 20

in accordance with directions given by the court under rule CPR 21.11

Question 21

where money is paid into court and accepted by or on the behalf of a child or protected party, how will the money be dealt with?

Answer 21

in accordance with directions given by the court under rule CPR 21.11

Question 22

for settlement, compromise or payment made in a child or protected party case, what may the directions from the court state?

Answer 22

may state that the money is to be partly or wholly paid into the court and invested or otherwise dealt with.

Question 23

what will the court consider when making directions concerning money which has been settled in a child or protected party case?

Answer 23

whether the child or protected party is a protected beneficiary

Question 24

where a settlement or compromise has been made by or on the behalf of a child or protected party BEFORE THE ISSUE OF PROCEEDINGS, what must the claim include?

Answer 24

• details of the settlement/compromise
• details of whether and to what extent the defendant admits liability
• the age and occupation of the child/protected party
• litigation friend’s approval of settlement/compromise
• copy of financial advise relating to settlement/compromise
• further details if claim concerns personal injury

Question 25

where a settlement or compromise has been made by or on the behalf of a child or protected party BEFORE THE ISSUE OF PROCEEDINGS, what must the claim include as well when it is a personal injury?

Answer 25

as well as all the details in any other claim, the personal injury details include:
- details and circumstances of the accident
- medical, quantum and opinion reports made
- schedule of any past or future expenses relating to the losses
- where liability is concerned, details of any criminal proceedings or prosecutions brought

Question 26

where a settlement or compromise has been made by or on the behalf of a child or protected party BEFORE THE ISSUE OF PROCEEDINGS, what must be done regards to opinions made by counsel or solicitors?

Answer 26

• an opinion must be obtained
• a copy of the opinion and instructions to obtain the opinion must be supplied to the court

Question 27

where a settlement or compromise has been made by or on the behalf of a child or protected party, the court must be satisfied that the parties have considered….

Answer 27

whether damages should be wholly or partly take the form of periodical payments

Question 28

where a settlement or compromise has been made by or on the behalf of a child or protected party BEFORE THE ISSUE OF PROCEEDINGS, and the settlement includes periodical payments, the claim must —

Answer 28

• set out the terms of the payment compromise; and
• have attached a draft consent order

Question 29

where a settlement or compromise has been made by or on the behalf of a child or protected party, the application for approval will normally be heard by—

Answer 29

• a Master or District Judge in proceedings involving a child; and
• a Master or Designated Circuit Judge or their nominee in proceedings involving a protected party.

Question 30

where a settlement or compromise has been made by or on the behalf of a child or protected party AFTER THE ISSUE OF PROCEEDINGS in a personal injury claim, an application…

Answer 30

…must be made for the consent of the court.

Question 31

where a settlement or compromise has been made by or on the behalf of a child or protected party AFTER THE ISSUE OF PROCEEDINGS in a personal injury claim and includes provision for periodical payments, the application must—

Answer 31

• set out the terms of the payment compromise; and
• have attached a draft consent order

Question 32

where a settlement or compromise has been made by or on the behalf of a child or protected party AFTER THE ISSUE OF PROCEEDINGS, the court must be supplied with —

Answer 32

• an opinion on the merits of the settlement/compromise by counsel or solicitor unless its a clear case;
• a copy of financial evidence; and
• documentary evidence to the material referred to in the opinion.