SA6 - Commencing Proceedings

Question 1

If both the HC and CC have jurisdiction to deal with proceedings, where can proceedings be started?

Answer 1

The proceedings can be started in either.

Question 2

When may proceedings be started in the HC?

Answer 2

Proceedings (whether for damages or a specified sum) may not be started in the HC unless the value of the claim is more than £100,000. The exception to this is claims for damages for personal injury (including death). These claims can be started in the HC if the value of the claim is £50,000 or more.

Question 3

Which hearing centre can a CC claim be made at?

Answer 3

Any unless rules provide otherwise. Will be sent to the correct one if done wrongly.

Question 4

Which Part of the CPR are most civil proceedings brought under?

Answer 4

Part 7 - Factual dispute.

Question 5

When does time stop running for limitation?

Answer 5

When claim form is issued.

Question 6

When is a claim form issued?

Answer 6

Date entered on form by court.

Question 7

What if claim form arrives at court office earlier than date entered by court?

Answer 7

Claim ‘brought’ (and so time stops running for limitation) on the earlier date. Careful: this is just for limitation. The time for service runs from the date of issue (the date entered on the form by the court) whatever.

Question 8

Where should enquiries about claim form dates be directed?

Answer 8

To a court officer.

Question 9

Can you use a single claim form for multiple claims?

Answer 9

Yes. You may use a single claim form for all claims that can conveniently be disposed of in the same proceedings.

Question 10

Who should the claim be against if D is deceased?

Answer 10

‘The personal representatives of A.B. deceased’. Then, before the expiry of the period for service, C should apply to the court for the appointment of a person to represent the deceased’s estate.

Question 11

By when must the claim form be served?

Answer 11

[NB. The court can order otherwise]. If to be served within the jurisdiction, a claim form must be served by 12.00 midnight on the calendar day 4 months after being issued (this means the end of the day). 6 months if outside the jurisdiction.

Question 12

Personal service in proceedings against the Crown

Answer 12

Cannot take place.

Question 13

Personal service on a company or corporation

Answer 13

By leaving it with a person holding a senior position within the company or corporation.

Question 14

Personal service on an individual

Answer 14

Leave it with them.

Question 15

Personal service on a partnership (where partners being sued in the name of the firm)

Answer 15

Leave it with a partner (anywhere); or a person who, at the time of service, has the control or management of the partnership business (at its principal place of business).

Question 16

What kind of service is giving it the assistant

Answer 16

Can be service at the place of business.

Question 17

What kind of post is sufficient?

Answer 17

Only first class (next business day delivery).

Question 18

When may you serve by DX?

Answer 18

Only where the address at which the party is to be served includes a numbered box at DX, or if the writing paper of the party of solicitor includes a DX box number (unless they have indicated in writing that they are unwilling to accept).

Question 19

When may you serve by fax or other means of electronic communication?

Answer 19

Party to be served or solicitor must previously have indicated in writing that they are willing to accept service by fax or other electronic means; and fax number, email address or other electronic ID. Having fax number on writing paper is sufficient written indication, but must actually state it is to be used for service in the case of an email address. Any electronic ID set out in a statement of case or a response to a claim form is sufficient written indication. Other than in relation to fax, must ask party whether there are limits to their agreement (e.g. certain format or maximum size of attachments). No need to send a hard copy when delivered by electronic means.

Question 20

When is a claim form deemed served?

Answer 20

On the second business day after completion of the ‘relevant step’.

Question 21

‘Relevant step’ for first class post or any other method that provides for delivery on the next business day.

Answer 21

Posting or leaving with service provider.

Question 22

‘Relevant step’ for delivery of document to or leaving it at relevant place.

Answer 22

Delivery of document to or leaving it at relevant place.

Question 23

‘Relevant step’ for personal service.

Answer 23

Leaving it with individual/person in power.

Question 24

‘Relevant step’ for fax.

Answer 24

Transmission.

Question 25

‘Relevant step’ for electronic method other than fax

Answer 25

Sending the email/transmission.

Question 26

Who is to serve the claim form?

Answer 26

The court will serve the claim form, except where rule provides claimant must serve it or claimant notifies the court that they wish to serve it or court orders otherwise.

Question 27

What must C do when the court is to serve the claim form?

Answer 27

When court is to serve it, claimant must provide a copy for each D to be served.

Question 28

When will court stop trying to serve the claim form?

Answer 28

Court will not try and serve it again once they have sent a notification of outcome of postal service to C or a notification of non-service.

Question 29

What must C include on the claim form in relation to service?

Answer 29

C must include in the claim form an address at which D may be served. Must include a full postcode or EEA equivalent unless the court orders otherwise (but NB this doesn’t apply if the court makes an order specifying the place or method of service).

Question 30

Rule on service and solicitors

Answer 30

When D has given in writing the business address of a solicitor as the address at which D may be served with the claim form, or a solicitor has notified C in writing that they are instructed by D to accept service, the claim form MUST be served at the business address of that solicitor.

Question 31

Where may D be served?

Answer 31

Subject to the solicitor rule, D may be served with the claim form at an address where they reside or carry on business within the UK/EEA and which they have given for the purpose of being served.

Question 32

Where may a landlord be served?

Answer 32

Tenant v Landlord, may be served at address given by landlord under s.48 Landlord and Tenant Act for service of notices.

Question 33

If they don’t give an address, where should an individual be served (when they are being sued in their own name)?

Answer 33

Usual or last known residence

Question 34

If they don’t give an address, where should an individual be served if they are being sued in the name of a business?

Answer 34

Usual or last known residence of individual; or principal or last known place of business

Question 35

If they don’t give an address, where should an individual be served if they are being sued in the business name of a partnership?

Answer 35

Usual or last known residence of the individual; or principal or last known place of business of the partnership

Question 36

If they don’t give an address, where should an LLP be served?

Answer 36

Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.

Question 37

If they don’t give an address, where should a corporation (other than a company) incorporated in E/W be served?

Answer 37

Principal office of the corporation; or
any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.

Question 38

If they don’t give an address, where should a company registered in E/W be served?

Answer 38

Principal office of the company; or

any place of business of the company within the jurisdiction which has a real connection with the claim.

Question 39

If they don’t give an address, where should any other company or corporation be served?

Answer 39

Any place within the jurisdiction where the corporation carries on its activities; or
any place of business of the company within the jurisdiction.

Question 40

What happens if C has reason to believe the address of D is one where they no longer reside or carry out business?

Answer 40

They must take reasonable steps to ascertain the current address of place of business. If they cannot do this, they must consider whether there is an alternative place or method for service. If there is, they must make an application to the court (so the court can make an order for where to serve it). If they exhaust all of this, they may serve on D’s usual or last known address.

Question 41

Are parties free to contractually agree method for serving claim form?

Answer 41

Yes.

Question 42

What must a court order for alternative service specify?

Answer 42

Method or place of service
Date when deemed served
Period for Filing acknowledgement of service; Filing admission; or Filing defence.

Question 43

During which time period may C apply for an order extending period for service of claim form? When may the court grant an order outside this period?

Answer 43

Application (which may be made without notice and must be supported by evidence) must be made within the existing period for service. If they do so outside this period, court can make an order if the court failed to serve the claim form; or C has taken reasonable steps to comply but failed to do so; and in either case C has acted promptly in making the application.

NB. Court can allow an application to extend time prospectively without being satisfied that C has taken all reasonable steps to comply.

Question 44

What evidence should be given in support of an application to extend time for service?

Answer 44

Evidence should state all circumstances relied on, date of issue of claim, expiry date of any previous extension, and full explanation of why claim has not been served.

Question 45

Time limits for service of POC

Answer 45

Particulars of claim must be contained in or served with the claim form; or be served on D by C within 14 days after deemed service of the claim form. Within 7 days of service of particulars on D, C must file a copy. If particulars of claim are not with claim form, must include a statement that they are to follow. Particulars of claim must be served on D no later than the latest time for serving a claim form (i.e. the four month validity period). So you have four months to do both things.

Question 46

Who will serve documents (not claim form) and who decides on the method?

Answer 46

A party will serve a document that the party has prepared and the court will serve a document that the court has prepared. Unless the rules provide otherwise, or the court orders otherwise, or a party notifies the court that it wishes to serve a document. When the court is to serve a document, the court decides on the method.

Question 47

Service of documents on child or protected party

Answer 47

Service of document on child or protected party is done via litigation friend. Court may make an order otherwise e.g. to serve it directly on the child (application for such an order may be made without notice).

Question 48

Deemed service of documents via first class post or other method that provides for service on next business day

Answer 48

Second day after posted, collected, or left with relevant service provided that is a business day (if not, next business day; if not, next business day)

Question 49

Deemed service of documents via DX

Answer 49

Second day after left with service provider (provided a business day)

Question 50

Deemed service of documents via fax, other electronic method, and personal service

Answer 50

If completed on a business day before 4.30pm, on that day. Otherwise, next business day.

Question 51

When may C use Part 8 procedure (general and specific situations)?

Answer 51

C may use this procedure when he seeks court’s decision on a question which is unlikely to involve a substantial dispute of fact. May be used when claim is against a child or protected party, has been settled before commencement of proceedings, and the sole purpose is to obtain court’s approval. Claim for provisional damages that has been settled before commencement and sole purpose is to obtain consent judgment.

Question 52

‘Policing’ the use of Part 8 claims

Answer 52

Court officer can refer to judge when they think Part 8 procedure is being used inappropriately. Court may at any stage order the claim to continue as if C had not used the Part 8 procedure.

When D contends that the Part 8 procedure should not be used because there is a substantial dispute of fact, and use of Part 8 is not required or permitted by a rule or PD, D must state his reason when he filed his acknowledgement of service.

Question 53

What must claim form state when Part 8 procedure is used?

Answer 53

That Part 8 applies; the question which C wants the court to decide and the remedy they are seeking and its legal basis; if anyone claims/is sued in a representative capacity and what this is; statement of truth.

Question 54

Acknowledgement of Part 8 claim form and consequences for failing to file in time

Answer 54

D must file an acknowledgement of service no more than 14 days after service of the claim form, which they must serve on C and any other party. This must state whether D contests the claim and whether D seeks a different remedy from that set out and what it is.

NB. D does not need to file a defence in relation to a Part 8 claim.

If D fails to file an acknowledgement of service within this period, D may attend the hearing but may not take part unless the court gives permission.

Question 55

Filing of evidence in relation to Part 8 claim, including application for extension of time limits. Consequences if evidence not served as required.

Answer 55

C must file and serve any written evidence on which he intends to rely when he files the claim form (important difference between Part 7 and 8).

D must file and serve any written evidence when he files his acknowledgement of service.

C may, within 14 days of the service of D’s evidence on him, file further written evidence in reply and, within the same time limit, serve copies on other parties.

Can only rely on matters set out in claim form if verified with a statement of truth.

Can apply to the court for an extension of the time limit to file and serve evidence or for permission to file and serve additional evidence. The parties can agree in writing on an extension, which must be filed by D at the same time as he files the acknowledgement of service. However, must not extend time to more than 28 days after service of D’s evidence on C.

If evidence is not served as required, it may only be relied on at a hearing if the court gives permission.

The court may require or permit a party to give oral evidence at the hearing, and may give directions requiring attendance for cross-examination of a party who has given written evidence.

Question 56

When court receives acknowledgement of service and any written evidence it will

Answer 56

Give directions as to the future management of the case.

Question 57

When will a judgment or order of the County Court for the payment of a sum of money which it is sought to enforce wholly or partially by execution against goods be enforced by the HC?

Answer 57

Where the sum is £5000 or more. When it’s less than £600 it will be enforced by the CC (but this doesn’t apply to certain sums recovered under the Employment Tribunals Act). Any other case (i.e. between these amounts can be enforced in either).

Question 58

Where will a judgment or order of CC for payment of sum of money in proceedings arising out of an agreement regulated by the Consumer Credit Act 1974 be enforced?

Answer 58

Only in CC.

Question 59

Where there is a discretion, which criteria are applied to determine here a claim starts?

Answer 59

Financial value and amount in dispute; complexity of facts, legal issues, remedies, and procedures; importance of outcome of claim to public in general.

Question 60

Generally the claim form must be served…

Answer 60

Within the jurisdiction

Question 61

Cases where there was a prospective application to extend time for service which was not allowed.

Answer 61

The reason given was that one of the two defendants had not replied to the letter of claim. Another case where an accountant’s report with regard to quantum had arrived late, and so Counsel’s drafting of the particulars of claim had been delayed. These might have been acceptable reasons in relation to an extension of time to serve the POC, but they were not acceptable in relation to the claim form.

Question 62

Relevance of incompetence or oversight of the claimant to prospective application to extend time for service

Answer 62

Case law says that incompetence or oversight of the claimant or awaiting some other development in the case might not amount to a good reason.

Case where C was awaiting a development (arbitral decision) only partly relevant to the case against the defendants. Moreover, the extension deprived the defendants of a potential limitation defence when the claimant had only issued the claim shortly before the end of the limitation period, having failed to comply with the pre-action protocol.

An incompetent junior employee is unlikely to be a good reason.

Question 63

Case law on the retrospective extension of time for serving claim form

Answer 63

Case where D had admitted liability and then made an interim payment, but C’s solicitors offered no good reason for serving out of time. Could not be extended retrospectively.

Case where C served the claim for on D where solicitors had been nominated (i.e. an error; must serve it on solicitors). C realised the mistake and could have faxed it to the solicitors within the four month period for service; had not taken “reasonable steps”.

Question 64

Are business days objective or subjective?

Answer 64

Objective

Question 65

What impact does mediation have on service?

Answer 65

Mediation does not stay proceedings for the purpose of service.