Parties to proceedings Flashcards
How is a claim brought against a partnership?
The name of the partnership (a firm)
E.g.,
Flagstones (a firm)
Where a partnership has a name, the claim must be brought against that name
Why is a claim brought against the name of the partnership (firm)?
This is a shorthand for putting all the partners’ names who are jointly and severally liable
How are sole traders add as party to claim?
Both the individual and trading name is used when describing a party to a claim
E.g.,
John Flagstone (trading as John’s Cafe)
How is a claim brought against an LLP?
LLPs have separate legal personalities. For registered LLP, the claim is brought against the full registered name, including the suffix LLP:
Flagstones LLP
How is a claim brought against a company?
For a company, the full registered name, including the suffix (plc / limited)
Rockstone Limited
When can a company be represented at trial by an employee?
If the employee has been authorised to do so by the company and the court gives permission
How is a claim brought against a trust
A claim can be brought by or against trustees, executors or administrators. It is not necessary to add the beneficiaries as parties to the claim
Any order made in the claim is binding on beneficiaries
How is a claim brought against a deceased person?
Where a person who had an interest in a claim has died and that person has no personal representative the court may order CPR 19.8(1):
* 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.
What happens if a defendant against whom a claim could have been brought has died?
- If there is a grant of probate or administration - claim is brought against the personal representatives
- If there is not a grant of probate/administration - the claim is brought against the estate and the claimant must apply to court for an order appointing a person to represent the estate of the deceased
How are children and protected parties represented in civil proceedings?
By a litigation friend, whether they are commencing or defending proceedings
Any document served on child or protected party must be served on the litigation friend
Example of child
Alice Brown (a child, suing by Kate Brown her mother and litigation friend)
What is the position for when more than one party is entitled to the remedy?
All person jointly entitled to the remedy must be parties to proceedings. If any person does not agree (cannot be added as claimant without consent), they must be made a defence as they are jointly entitled to the remedy claimed
Example: Two brothers jointly own a piece of freehold land which is leased to a clay pigeon shooting club. The lease to the club provides for both brothers to have an equal share of the rental income. Over a period of months, the club has failed to pay its rent. The elder brother now wishes to issue proceedings against the club for unpaid rental. The younger brother does not wish to become involved in the litigation and will not agree to be a claimant. The elder brother instructs his solicitor.
- Younger brother must be joined as a defendant as he is jointly entitled to the remedy claimed
If a claimant makes a successful challenge for an interim payment, against whom wll the court make an order?
Against the defendant (the person/body against whom the damages and interim payment are being sought)
- Whilst there may be an insurance company or third party funder who ultimately pays out the award on D’s behalf, the award is always made against the defendant as the party to the proceedings
