Parties to proceedings

Question 1

What name is used when bringing a claim against an individual?

Answer 1

Their full unabbreviated name and title e.g. Mr Stephen James Smith

Question 2

What name is used when bringing a claim against a sole trader?

Answer 2

Individual and trading name e.g. John Flagstone (trading as John’s Cafe)

Question 3

What name is used when bringing a claim against a partnership?

Answer 3

The name of the business used at time the cause of action accrued unless inappropriate e.g. multiple name changes/mergers

Question 4

If a claim is being brought against a partnership, will the claim be against the partnership as an entity itself?

Answer 4

No because a partnership is not a separate entity - claims brought will be brought in or against name of partnership

The firm name is shorthand for listing partners individually

Question 5

How should a partnership’s name and the partners names be set out?

Answer 5

Either
* X (a firm); or
* X (a firm) and (1) Person A (2) Person B

e.g. Flagstones (a firm) and/or (1) Fred Flagstone (2) Nisha Kato

Question 6

If a partership dissolves before proceedings are issued, who will a claim be made against?

Answer 6

The former partners in the name of the dissolved firm

Question 7

What name is used when bringing a claim against an LLP or company?

Answer 7

The full registered name plus suffix e.g. Flagstones LLP / Rockstone Limited

As they are a separate legal entity

Question 8

When can a company be represented at trial by an employee?

Answer 8

Where company authorises the employee and court gives permission

Question 9

When bringing a claim against trusts, who can it be brought against and must Bs be parties to the claim? Will an order made in claim be binding on Bs?

Answer 9

• Can be brought by/against Ts, executors or administrators
• Not necessary to add Bs of trust or estate as parties to claim
• Any order made is binding on Bs

Question 10

Where a person had an interest in a claim but has died and is w/o PRs, what can the court order re representation of the deceased?

Answer 10

• Claim proceeds in absence of person representing estate of deceased; or
• A person is appointed to represent the estate of deceased

Question 11

If a person has died and there is a claim against them, who will it be made against and what does this depend on? What happens if no grant has been made?

Answer 11

• If grant of probate/administration made = claim brought against PRs
• If no grant made = claim brought against estate of deceased and C must apply for an order appointing a person to represent the estate of deceased in claim

Question 12

Who is legally incapable of pursuing claims on their own behalf?

Answer 12

Minors and protected parties

Question 13

What is a ‘protected party’ in terms of someone who is legally incapable of pursuing claims on their own behalf?

Answer 13

Lack capacity to conduct proceedings within MCA - by reason of impairment/disturbance of brain/mind, party is unable to make decision in question at time it needs to be made

Question 14

To not be a protected party, what must legal advisors be satisfied of and what questions should they ask?

Answer 14

• Must be satisfied a party is capable of understanding (with assistance) issues on which party’s content/decision is likely to be necessary during proceedings
• Ask: can person recognise problem they encounter? Can they explain with sufficient clarity the problem to those from whom they seek advice? Can the person understand/evaluate advice received from appropriate source? Can the person understand effects of choosing one course of action over another?

In practice, the legal advisors must satisfy themselves that the party has the requisite capacity to bring/defend proceedings (assessment from GP, advice from psychiatrist, personal evidence from family and friends)

Question 15

What is a litigation friend and what do they do?

Answer 15

• A relative or person appointed by court to act on party’s behalf
• Represents children and protected parties in civil proceedings (whether commencing/defending)

Question 16

What are the criteria of a person acting as a litigation friend?

With or without a court order

Answer 16

• Can fairly and competently conduct proceedings on behalf of child/PP
• Have no adverse interest to child/PP
• Undertake to pay any costs which child/PP might be ordered to pay

Question 17

How is a litigation friend appointed without a court order and when is this done?

Answer 17

By serving a certificate of suitability demonstrating LF satisfies criteria…

• When claim made (if C)
• At first step in proceedings (if D)

If a court order is required, a specific procedure must be followed (CPR 21.6). Alternatively, for a protected party, the Court of Protection may appoint someone to conduct proceedings on the protected party’s behalf under CPR 21.4(2).

Question 18

Can the court order the child to conduct proceedings without a litigation friend?

Answer 18

Yes

Question 19

What is the rule for service on children/PP?

Answer 19

Any document due to be served on child/PP must be served on litigation friend

Question 20

How will a child/PP be referred to in the title to proceedings on documents?

Answer 20

For both - the name of child/PP and then litigation friend

• Child = Alice Brown (a child, suing by Kate Brown her mother and litigation friend)
• PP = Adam Black (a protected party by Clara Dunn his litigation friend