SA7 Parties Flashcards
If a claim is brought against trustees/executors/administrators in their capacities as such, must the beneficiaries be added as parties?
No
Is a judgment/order made in the claim against trustees/executors/administrators in their capacities as such binding on the beneficiaries?
Yes, unless the court orders otherwise in the same or other proceedings.
Where a person who had an interest in a claim has died and that person has no personal representative, what two things can the court order?
a) the claim to proceed in the absence of a person representing the estate of the deceased; or
b) a person to be appointed to represent the estate of the deceased.
Where a D against whom a claim could have been brought has died and a grant of probate or administration has been made, who must the claim be brought against?
The persons who are the personal representatives of the deceased;
Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.
Where a D against whom a claim could have been brought has died and a grant of probate or administration has NOT been made, who must the claim be brought against?
“The estate of” the deceased (i.e. the personal representatives of the deceased but a grant of probate or administration has not been made); and
C must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.
Where a claim is being brought against partnerships within the jurisdiction, what name must the claim be brought against?
Unless it is inappropriate to do so, the name under which that partnership carried on business at the time the cause of action accrued.
Where a claim is being brought against an individual within the jurisdiction operating under a different name, what name may the claim be brought against?
The claim may be brought against the business name as if it were the name of a partnership (i.e. t/a name).
What is the function of a litigation friend?
To conduct proceedings on a child/mentally incapacitated person on their behalf.
In which circumstances can a child conduct proceedings without a litigation friend?
When the court makes an order permitting it.
At what stage in proceedings is a litigation friend necessary?
A person may not, without the court’s permission—
(a) make an application against a child or protected party before proceedings have started; or
(b) take any step in proceedings except—
(i) issuing and serving a claim form; or
(ii) applying for the appointment of a litigation friend under rule 21.6, until the child or protected party has a litigation friend.
Any step taken before a child or protected party has a litigation friend has no effect unless the court orders otherwise.
Who may be a litigation friend without a court order?
A deputy appointed by the Court of Protection under the 2005 Act with power to conduct proceedings on the protected party’s behalf.
If no deputy has been appointed, a person who:
a) can fairly and competently conduct proceedings on behalf of the child or protected party;
b) have no interest adverse to that of the child or protected party; and
c) where the child or protected party is a claimant, undertake to pay any costs that the claimant is ordered to pay, subject to any right to be repaid from the assets of the child or protected party.
What is required to make a settlement/payment into the court valid in a claim with a child/protected party?
The court’s approval (should be sought via Part 8 procedure).
What must the documents supporting any application or request for approval of settlement etc. (in a case with a child/protected party) include?
a) a draft consent order setting out the proposed settlement terms;
b) details of whether or to what extent liability is admitted;
c) the age and occupation (if any) of the child or protected party;
d) confirmation that the litigation friend approves the settlement;
e) a copy of any relevant medical, financial or other expert evidence or advice;
f) in a personal injury claim arising from an accident, details of the accident and of claimed loss and damage;
g) any documents relevant to considerations of liability; and
h) a legal opinion on the merits of the settlement, except in very clear cases, together with any relevant instructions unless they are sufficiently set out in the opinion.
Where money is recovered by or on behalf of a protected party or money paid into court is accepted by or on behalf of a protected party, before giving directions under CPR 21.11, what will the court first consider?
Whether the protected party is a protected beneficiary.
Where a child lacks capacity to manage and control any money recovered by or on behalf of the child, and is likely to remain so on reaching full age, the fund will be administered as a protected beneficiary’s fund.
