SGS Slides Flashcards
What are the new Civil Procedure Rules?
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
Dealing with a case justly and at proportionate cost includes, so far as is practicable
(ECP) EQUAL - CHEAP - PROPORTIONATE
- a) ensuring that the parties are on an equal footing;
- (b) saving expense;
- (c) dealing with the case in ways which are proportionate –
- VALUE (i) to the amount of money involved;
- IMPORTANCE (ii) to the importance of the case;
- COMPLEXITY (iii) to the complexity of the issues; and
- RICH MAN POOR MAN (iv) to the financial position of each party;
- QUICK AND FAIR (d) ensuring that it is dealt with expeditiously and fairly;
- COURT RESOURCES (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
- COMPLIANCE (f) enforcing compliance with rules, practice directions and orders.
The court must seek to give effect to the overriding objective when it does what?
The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.
Is the OO just something for the court to concern itself with?
No
1.3
The parties are required to help the court to further the overriding objective.
The court must further the overriding objective by actively managing cases, which includes…
By active case management
- SORTING THE WHEAT FROM CHAFF QUICKLY IN AN ORDERLY WAY
- Early Identification of the issues
- Prompt decisions on which issues need full investigation
- Disposing summarily of the others
- Deciding the order of resolving issues
-
CO-OPERATION, SETTLEMENT AND REDOC
- Encouraging parties to co-operate
- Encouraging parties to use ADR and facilitating its use
- Helping parties to settle whole or part of case
-
HOUSEKEEPING AND LOGISTICS
- Fixing timetables and controlling the progress of the case
- Cost benefit analysis of taking particular step
- Dealing with as many matters as possible on same occasion
- Dealing with matters in the absence of the parties
- Using technology
- Giving directions so trial proceeds quickly and efficiently
Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than £….
Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than £100,000.
Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £……….. or more.
2.2 Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £50,000 or more.
Can statute determine whether a certain claim is to be issued in the HC or CC?
A claim must be issued in the High Court or the County Court if an enactment so requires.
For which reasons may a claim be started in the HC even if it does not meet the monetary value thresholdds
money, complexity and public interest
(1) the financial value of the claim and the amount in dispute, and/or
(2) the complexity of the facts, legal issues, remedies or procedures involved, and/or
(3) the importance of the outcome of the claim to the public in general,
the claimant believes that the claim ought to be dealt with by a High Court judge.
A claim in the County Court under Part 7 may be made at which hearing centre?
(1) A claim in the County Court under Part 7 may be made at any County Court hearing centre, unless any enactment, rule or practice direction provides otherwise.
What happens if a claim which is required to be made at a particular County Court hearing centre is made at the wrong hearing centre?
(2) If a claim which is required to be made at a particular County Court hearing centre is made at the wrong hearing centre, a court officer will send the claim to the correct hearing centre before it is issued.
Where may a claim relating to Chancery business be dealt with?
A claim relating to Chancery business may, subject to any enactment, rule or practice direction, be dealt with in the High Court or in the County Court.
How should a Chancery claim form be marked?
The claim form should, if issued in the High Court, be marked in the top right hand corner ‘Chancery Division’ and, if issued in the County Court, be marked ‘Chancery Business’.
Proceedings in which both the HC and CC have jursidiction may be commenced where?
Either in the HC or CC
A claim for money in which the CC has jurisdiction may be commenced in the HC when?
if over value £100K
What is the threshold for a personal injuries claim having to be commenced in the High court?
5.—(1) Proceedings in which county courts have jurisdiction and which include a claim for damages in respect of personal injuries shall be commenced in a county court, unless the value of the action is £50,000 or more.
What type of claim is excepted from category where the threshold for a personal injuries claim having to be commenced in the High court applies?
clinical negligence
When calculating how much the claimant expects to recover, the claimant must disregard what?
INTEREST, COSTS, CONTRIB, CCLAIM, SETOFF, BENEFITS
(i) interest;
(ii) costs;
(b) that the court may make a finding of contributory negligence;
(c) that the defendant may make a counterclaim or that the defence may include a set-off; or
(d) that the defendant may be liable to pay an amount of money which the court awards to the claimant to the Secretary of State for Social Security under section 6 of the Social Security (Recovery of Benefits) Act 1997 1.
What are the relevant paragraph titles in PD PAC?
OPSESSCL
Objectives of pre-action conduct and protocols
Proportionality
Steps before issuing a claim at court
Experts
Settlement and ADR
Stocktake and list of issues
Compliance with this practice direction and the protocols
Limitation
PD-PACP applies to which category of disputes?
This Practice Direction applies to disputes where no pre-action protocol approved by the Master of the Rolls applies.
What are the Objectives of pre-action conduct and protocols?
ESI-UNDECSETTREDOCEFFCASH
- Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.
How should the PD-PACP NOT be used
- A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party.
What happens to a party who incurs undreasonable costs in complying with the PDPACP?
Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.
The costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate (CPR 44.3(5)).
Where parties incur disproportionate costs in complying with any pre-action protocol or this Practice Direction, those costs will not be recoverable as part of the costs of the proceedings.
What Steps should be taken before issuing a claim at court
Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings.
Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate.
The steps will usually include—
LETTER BEFORE CLAIM (a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
RESPONSE (b) the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
DISCLOSURE OF KEY DOCUMENTS (c) the parties disclosing key documents relevant to the issues in dispute.
the claimant’s letter to the defendant with concise details of the claim should do what?
- basis on which the claim is made
- a summary of the facts
- what the claimant wants from the defendant
- if money, how the amount is calculated
The defendant’s reply to a letter before action should be done how quickly?
the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one
Defendant’s reply to a letter before action should include what?
- confirmation as to whether the claim is accepted and
- if it is not accepted, the reasons why,
- together with an explanation as to which facts and parts of the claim are disputed
- whether the defendant is making a counterclaim
- details of any counterclaim; and
What disclosure should be made at the PD PAC stage?
(c) the parties disclosing key documents relevant to the issues in dispute.
What consideration should be given to experts at the PD-PAC stage?
- court must give permission before expert evidence can be relied upon (see CPR 35.4(1))
- court may limit the fees recoverable
- disputes can be resolved without expert advice or evidence
- If it is necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.
What consideration should be given to ADR at the PDPAC stage?
- Litigation last resort
- should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.
- should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started.
- Part 36 offers may be made before proceedings are issued.
What modes of ADR are open to the parties at the PDPAC stage?
- Parties may negotiate to settle a dispute or may use a form of ADR including—
(a) mediation, a third party facilitating a resolution;
(b) arbitration, a third party deciding the dispute;
(c) early neutral evaluation, a third party giving an informed opinion on the dispute; and
(d) Ombudsmen schemes.
What is the consequence of not considering ADR at PD PAC stage?
- If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered.
- A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.
What should the parties do if the steps of the PD PAC have not enabled them to settle the dispute?
- Where a dispute has not been resolved after the parties have followed a pre-action protocol or this Practice Direction, they should review their respective positions.
They should consider the papers and the evidence to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings.
How will non-compliance with the PD-PAC be taken into account by the court once proceedings have been issued?
- If a dispute proceeds to litigation, the court will
- EXPECTS COMPLIANCE expect the parties to have complied with a relevant pre-action protocol or this Practice Direction.
- CASE MANAGMENT, COSTS take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)).
- DE MINIMIS, URGENCY consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction).
When may the court may decide that there has been a failure of compliance?
The court may decide that there has been a failure of compliance when a party has—
INSUFFICIENT INFO (a) not provided sufficient information to enable the objectives in paragraph 3 to be met;
TIME LIMITS (b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or
ADR REFUSAL (c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
What may a court order where there has been non-compliance with a pre-action protocol?
Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that
RELIEF FROM COMPLIANCE (a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction;
STAY (b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction;
SANCTIONS (c) sanctions are to be applied.
What sorts of sanctions may be applied for non-compliance with the pre-action protocols?
The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—
COSTS (a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;
INDEMNITY COSTS (b) an order that the party at fault pay those costs on an indemnity basis;
DEPRIVATION OF INTEREST FOR YOU (c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;
INTEREST AT A HIGHER RATE AGAINST YOU (d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.
If proceedings are started to comply with limitation before pre-action has been complied with, what step should the parties take?
If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.
the protocols currently in force
PI, CLINICAL NEG, DISEASE AND ILLNESSS, LOW VALUE PI RTA, LOW VALUE PI EMPLOYERS AND PUBLIC LIABILITY
CONSTRUCTION AND ENGINEERING
DEFAMATION
PROFESSIONAL NEGLIGENCE
JR
HOUSING DISREPAIR, POSSESSION CLAIMS (SOCIAL LANDLORDS), POSSESSION CLAIMS (MORTGAGE LANDLORDS), DILAPIDATION OF COMMERCIAL PROPERTY
When are proceedings started?
(1) Proceedings are started when the court issues a claim form at the request of the claimant.
A claim form is issued on which date?
(2) A claim form is issued on the date entered on the form by the court.
How many claim can be strated with one claim form?
A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings
At what point (and how) are claim forms to be served on the D?
- In the claim form
- With the claim form
- Served on the defendant by the claimant within 14 days after service of the claim form.
- No later than the latest time for serving a claim form.
What step must accompany the service of particulars of claim?
(3) Where the claimant serves particulars of claim, then unless a copy of the particulars has already been filed, the claimant must, within 7 days of service on the defendant, file a copy of the particulars except where –
Where the claim form is served within the jurisdiction, the claimant must complete the step required by the table in Rule 7.5 in relation to the particular method of service chosen, before…. what time?
Where the claim form is served within the jurisdiction, the claimant must complete the step required by the table in Rule 7.5 in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.
What is the step required where the method of service of the claim form is first class post, document exchange or other service which provides for delivery on the next business day?
Posting, leaving with, delivering to or collection by the relevant service provider
What is the step required where the method of service of the claim form is delivery of the document to or leaving it at the relevant place?
Delivering to or leaving the document at the relevant place
What is the step required where the method of service of the claim form is Personal service under rule 6.5?
Completing the relevant step required by rule 6.5(3)
When can a claim form be served personally?
- (1) Where required by another Part, any other enactment, a practice direction or a court order, a claim form must be served personally.
- (2) In other cases, a claim form may be served personally except –
- (a) where rule 6.7 applies (Service on a solicitor or European Lawyer within the United Kingdom or in any other EEA state); or
- (b) in any proceedings against the Crown.
How is personal service of a claim form effected on an individual?
by leaving it with that individual
How is personal service of a claim form effected on a company or other corporation?
by leaving it with a person holding a senior position within the company or corporation
How is personal service of a claim form effected on a partnership (where partners are being sued in the name of their firm)?
by leaving it with –
(i) a partner; or
(ii) a person who, at the time of service, has the control or management of the partnership business at its principal place of business.
What is the step required where the method of service of the claim form is fax?
Completing the transmission of the fax
What is the step required where the method of service of the claim form is another electronic method?
Sending the e-mail or other electronic transmission
Where the claim form is to be served out of the jurisdiction, the claim form must be served within how many months of what date?
(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.
Can the time for the extension of the claim form be extended?
(1) The claimant may apply for an order extending the period for compliance with rule 7.5.
an application to extend the time for compliance with rule 7.5 (time for serving claim form) must be made within what period of time?
an application to extend the time for compliance with rule 7.5 (time for serving claim form) must be made –
(a) within the period specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 (or by an order made under this rule, the court may make such an order only if…
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.
An application for an order extending the time for compliance with rule 7.5 must be supported by what?
Evidence
When making an application for an order extending the time for compliance with rule 7.5, need notice be given?
No
The claim form and every other statement of case, must be headed with what?
The claim form and every other statement of case, must be headed with the title of the proceedings.
The title of proceedings should state what?
(1) the number of proceedings,
(2) the court or Division in which they are proceeding,
(3) the full name of each party,
(4) each party’s status in the proceedings (i.e. claimant/defendant).
Where there is more than one claimant and/or more than one defendant, the parties should be described in the title as follows…
Where there is more than one claimant and/or more than one defendant, the parties should be described in the title as follows:
AB
CD
EF Claimants
and
GH
IJ
KL Defendants
When are proceedings started?
5.1 Proceedings are started when the court issues a claim form at the request of the claimant
Where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, on what date is the claim ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute?
Where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.
How is the date on which the claim form was received by the court recorded?
5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.
An enquiry as to the date on which the claim form was received by the court should be directed to whom?
5.3 An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.
What steps should be taken by parties proposing to start a claim which is approaching the expiry of the limitation period?
- recognise the potential importance of establishing the date the claim form was received by the court and
- should themselves make arrangements to record the date.
Where it is sought to start proceedings against the estate of a deceased defendant where probate or letters of administration have not been granted, what steps should the claimant take?
5.5 Where it is sought to start proceedings against the estate of a deceased defendant where probate or letters of administration have not been granted, the claimant should issue the claim against ‘the personal representatives of A.B. deceased’. The claimant should then, before the expiry of the period for service of the claim form, apply to the court for the appointment of a person to represent the estate of the deceased.
If not included in the claim form, how may POC be served?
…separately:
(1) either at the same time as the claim form, or
(2) within 14 days after service of the claim form provided that the service of the particulars of claim is within 4 months after the date of issue of the claim form
(or 6 months where the claim form is to be served out of the jurisdiction).
If the particulars of claim are not included in or have not been served with the claim form, what must the claim form contain ?
6.2 If the particulars of claim are not included in or have not been served with the claim form, the claim form must contain a statement that particulars of claim will follow4.
What is the wording of a statement of truth?
‘[I believe][the claimant believes] that the facts stated in [this claim form] [these particulars of claim] are true.’
What is the consequence of making a false statement of truth?
(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
What does the Claim form and Particulars of Claim have to have at the end of it?
requires the claim form and, where they are not included in the claim form, the particulars of claim, to be verified by a statement of truth.
Evidence in support of an application by evidence under r 7.6 for an extension of time for serving a claim form should state what?
The evidence should state:
(1) all the circumstances relied on,
(2) the date of issue of the claim,
(3) the expiry date of any rule 7.6 extension, and
(4) a full explanation as to why the claim has not been served.
For Part 6 purposes, ‘bank holiday’ means….
a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where service is to take place;
For part 6 purposess, ‘business day’ means…
(b) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;
(1) A claim form may (subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties) be served by any of the following methods –
(a) personal service in accordance with rule 6.5;
(b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;
(c) leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;
(d) fax or other means of electronic communication in accordance with Practice Direction 6A; or
(e) any method authorised by the court under rule 6.15.
How may a company be served the claim form?
(2) A company may be served –
(a) by any method permitted under Part 6; or
(b) by any of the methods of service permitted under the Companies Act 2006.
A limited liability partnership may be served the claim form how?
(3) A limited liability partnership may be served –
(a) by any method permitted under Part 6; or
(b) by any of the methods of service permitted under the Companies Act 20063 as applied with modification by regulations made under the Limited Liability Partnerships Act 20004.
Who is to serve the claim form?
(1) Subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties, the court will serve the claim form except where –
a) a rule or practice direction provides that the claimant must serve it;
(b) the claimant notifies the court that the claimant wishes to serve it; or
(c) the court orders or directs otherwise.
Where the court is to serve the claim form, who is to decide which method of service is to be used?
(2) Where the court is to serve the claim form, it is for the court to decide which method of service is to be used.
Where the court is to serve the claim form, the claimant must, in addition to filing a copy for the court, provide what to the court?
Where the court is to serve the claim form, the claimant must, in addition to filing a copy for the court, provide a copy for each defendant to be served.
Where the court is serving the claim form, at what point is the court no longer required to try to serve the claim form?
Where the court has sent –
(a) a notification of outcome of postal service to the claimant in accordance with rule 6.18; or
(b) a notification of non-service by a bailiff in accordance with rule 6.19,
the court will not try to serve the claim form again.
In what cases must personal service be effected?
(1) Where required by another Part, any other enactment, a practice direction or a court order, a claim form must be served personally.
Where may a claim from not be served personally?
(a) where rule 6.7 applies; or
(b) in any proceedings against the Crown.
Must a claim form be served inside the jurisdiction?
(1) The claim form must be served within the jurisdiction except where rule 6.7(2), 6.7(3) (Service on a solicitor or European Lawyer within the United Kingdom or in any other EEA state) or 6.11 (Service of the claim form by contractually agreed method) applies or as provided by Section IV (IV SERVICE OF THE CLAIM FORM AND OTHER DOCUMENTS OUT OF THE JURISDICTION) of this Part.
Must the claim form contain the defendant’s address?
(2) The claimant must include in the claim form an address at which the defendant may be served. That address must include a full postcode or its equivalent in any EEA state (if applicable), unless the court orders otherwise.
((does not apply where an order made by the court under rule 6.15 (service by an alternative method or at an alternative place) specifies the place or method of service of the claim form.)
When must the claim form be served at the business address of that solicitor?
Subject to rule 6.5(1) ( personal service mandated by rule or enactment), where –
(a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or
(b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction,
the claim form must be served at the business address of that solicitor.
When must the claim form be served on a Solicitor in Scotland or Northern Ireland or EEA state other than the United Kingdom?
Subject to rule 6.5(1) and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision, where –
(a) the defendant has given in writing the business address in Scotland or Northern Ireland of a solicitor as an address at which the defendant may be served with the claim form;
(aa) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within Scotland or Northern Ireland;
(b) the defendant has given in writing the business address within any other EEA state of a solicitor as an address at which the defendant may be served with the claim form; or
(c) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within any other EEA state,
the claim form must be served at the business address of that solicitor.
When must the claim form be served at the business address of a European Lawyer?
Subject to rule 6.5(1) and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision, where –
(a) the defendant has given in writing the business address of a European Lawyer in any EEA state as an address at which the defendant may be served with the claim form; or
(b) a European Lawyer in any EEA state has notified the claimant in writing that the European Lawyer is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address of the European Lawyer,
the claim form must be served at the business address of that European Lawyer.
(‘European Lawyer’ has the meaning set out in rule 6.2(e).)
Service of the claim form where before service the defendant gives an address at which the defendant may be served
(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings; or
(b) in any claim by a tenant against a landlord, the claim form may be served at an address given by the landlord under section 48 of the Landlord and Tenant Act 19875.
* *Subject to rules 6.5(1) (mandated personal service) and 6.7 (Service on a solicitor or European Lawyer within the United Kingdom or in any other EEA state) and the provisions of Section IV of this Part (service in foreign jurisdiction), and except where any other rule or practice direction makes different provision*
Which CPR rule deals with “Service of the claim form where the defendant does not give an address at which the defendant may be served”
6.9
In what circumstances does the rule about service of the claim form where the defendant does not give an address at which the defendant may be served apply?
- The following rules do not apply:
(a) rule 6.5(1) (personal service);
(b) rule 6.7 (service of claim form on solicitor or European Lawyer); and
(c) rule 6.8 (defendant gives address at which the defendant may be served),
do not apply
and
- the claimant does not wish to effect personal service under rule 6.5(2).
Place of service of the claim form where the defendant (an individual) does not give an address at which the defendant may be served
Usual or last known residence.
Place of service of the claim form where the defendant (an individual being sued in the name of a business) does not give an address at which the defendant may be served
Usual or last known residence of the individual; or
principal or last known place of business.
Place of Service of the claim form where the defendant (an Individual being sued in the business name of a partnership) does not give an address at which the defendant may be served
Usual or last known residence of the individual; or
principal or last known place of business of the partnership.
Place of Service of the claim form where the defendant (an LLP) does not give an address at which the defendant may be served
Principal office of the partnership; or
any place of business of the partnership within the jurisdiction which has a real connection with the claim.
Place of Service of the claim form where the defendant (a Corporation (other than a company) incorporated in England and Wales) does not give an address at which the defendant may be served
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.
Service of the claim form where the defendant (a Company registered in England and Wales) does not give an address at which the defendant may be served
Principal office of the company; or
any place of business of the company within the jurisdiction which has a real connection with the claim.
Place of Service of the claim form where the defendant (Any other company or corporation) does not give an address at which the defendant may be served
Any place within the jurisdiction where the corporation carries on its activities; or
any place of business of the company within the jurisdiction.
What is a claimant to do where he has reason to believe that the address of an individual being sued in his own name, the name of a company or in the business name of a partnership is an address at which the defendant no longer resides or carries on business?
take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).
Having taken reasonable steps to ascertain the address of the defendant’s current residence in the case of an individual (Individual, Individual being sued in the name of a business, Individual being sued in the business name of a partners) who the Claimant has reason to believe no longer resides or carries on business at an address, what should the Claimant do??
ascertains the defendant’s current address, the claim form must be served at that address; or
unable to ascertain the defendant’s current address, the claimant must consider whether there is –
(i) an alternative place where; or
(ii) an alternative method by which,
service may be effected.
If there is either of the above two, the claimant must make an application under rule 6.15.
If unable to ascertain an individual’s current address or an alternative address or an alternative method of service, what should the Claimant do?
Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –
(a) cannot ascertain the defendant’s current residence or place of business; and
(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).
How is service effective where method of Service of the claim form is contractually agreed?
Where –
(a) a contract contains a term providing that, in the event of a claim being started in relation to the contract, the claim form may be served by a method or at a place specified in the contract; and
(b) a claim solely in respect of that contract is started,
the claim form may, subject to paragraph (2), be served on the defendant by the method or at the place specified in the contract.
Service of the claim form by contractually agreed method outside the jurisdiction - rules to be observed
(2) Where in accordance with the contract the claim form is to be served out of the jurisdiction, it may be served –
(a) if permission to serve it out of the jurisdiction has been granted under rule 6.36; or
(b) without permission under rule 6.32 or 6.33.
Where the defendant is a child who is not also a protected party, the claim form must be served on who?
(a) one of the child’s parents or guardians; or
(b) if there is no parent or guardian, an adult with whom the child resides or in whose care the child is.
Where the defendant is a protected party, the claim form must be served on who?
Where the defendant is a protected party, the claim form must be served on –
(a) one of the following persons with authority in relation to the protected party as –
(i) the attorney under a registered enduring power of attorney;
(ii) the donee of a lasting power of attorney; or
(iii) the deputy appointed by the Court of Protection; or
(b) if there is no such person, an adult with whom the protected party resides or in whose care the protected party is.
A reference in Section 6.13 to (Service of the claim form on children and protected parties) “a defendant or a party to be served” includes who?
the person to be served with the claim form on behalf of a child or protected party
Can a claim form under the section on “Service of the claim form on children and protected parties” be served on a person other than the people mentioned in subsections (1) and (2)
(4) The court may make an order permitting a claim form to be served on a child or protected party, or on a person other than the person specified in paragraph (1) or (2).
Can an application for a claim form under the section on “Service of the claim form on children and protected parties” be served on a person other than the people mentioned in subsections (1) and (2) be made without notice?
yes
Is a claim form sent or given to someone other than the person specified in paragraph (1) or (2) of 6.13 (Service of the claim form on children and protected parties) properly served?
The court may order that, although a claim form has been sent or given to someone other than the person specified in paragraph (1) or (2), it is to be treated as if it had been properly served.
In what circumstances may a court may make an order permitting service by an alternative method or at an alternative place.
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
Can order permitting service by an alternative method or at an alternative place work retroactively in relation to steps already taken?
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.
Must an application for alternative service or at an alt. address be made with notice?
no
An application for alternative service or at an alt. address be supported by what?
evidence
- (4) An order for alt.service or service at an alternative address must specify –
- (4) An order under this rule must specify –
- (a) the method or place of service;
- (b) the date on which the claim form is deemed served; and
- (c) the period for –
- (i) filing an acknowledgment of service;
- (ii) filing an admission; or
- (iii) filing a defence.
Can a court to dispense with service of the claim form?
Power of court to dispense with service of the claim form
6.16(1) The court may dispense with service of a claim form in exceptional circumstances.
When may an application for an order to dispense with service be made?
(2) An application for an order to dispense with service may be made at any time and –
…
(b) may be made without notice.
An application for an order to dispense with service must be supported by…
(a) must be supported by evidence; and
a document (other than the claim form) may be served by which methods?
a document may be served by any of the following methods –
(a) personal service, in accordance with rule 6.22;
(b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;
(c) leaving it at a place specified in rule 6.23;
(d) fax or other means of electronic communication in accordance with Practice Direction 6A; or
(e) any method authorised by the court under rule 6.27.
How may a document non-claim form be served on a Company?
(2) A company may be served –
(a) by any method permitted under this Part; or
(b) by any of the methods of service permitted under the Companies Act 2006.
A non-claim form document may be served on an LLP how?
3) A limited liability partnership may be served –
(a) by any method permitted under this Part; or
(b) by any of the methods of service permitted under the Companies Act 2006 as applied with modification by regulations made under the Limited Liability Partnerships Act 2000.
Who will serve a document which a party has prepared ?
a party to proceedings will serve a document which that party has prepared except where –
(a) a rule or practice direction provides that the court will serve the document; or
(b) the court orders otherwise.
Who will serve a document prepared by the court?
(2) The court will serve a document which it has prepared except where –
(a) a rule or practice direction provides that a party must serve the document;
(b) the party on whose behalf the document is to be served notifies the court that the party wishes to serve it; or
(c) the court orders otherwise.
Where the court is to serve a document, which method of service is to be used?
(3) Where the court is to serve a document, it is for the court to decide which method of service is to be used.
Where the court is to serve a document prepared by a party what must that party provide?
(4) Where the court is to serve a document prepared by a party, that party must provide a copy for the court and for each party to be served.
May service of a document be effected personally?
- Personal service
- 6.22
- (1) Where required by another Part, any other enactment, a practice direction or a court order, a document must be served personally.
- (2) In other cases, a document may be served personally except –
- (a) where the party to be served has given an address for service under rule 6.23; or
- (b) in any proceedings by or against the Crown.
- (3) A document may be served personally as if the document were a claim form in accordance with rule 6.5(3).
An application for an order appointing a litigation friend where a child or protected party has no litigation friend must be served in accordance with which rule?
(1) An application for an order appointing a litigation friend where a child or protected party has no litigation friend must be served in accordance with rule 21.8(1) and (2).
A document which would otherwise be served on a child or a protected party must be served on who?
(2) Any other document which would otherwise be served on a child or a protected party must be served on the litigation friend conducting the proceedings on behalf of the child or protected party.
May a document be served on a child or protected party or on some person other than the one specified in 21.8?
(3) The court may make an order permitting a document to be served on the child or protected party or on some person other than the person specified in rule 21.8 or paragraph (2).
Does an order permitting a document to be served on the child or protected party or on some person other than the person specified in rule 21.8 need to be made on notice?
no
If a document has been sent or given to someone other than the person specified in rule 21.8 or paragraph 6.25(2) (Service on children and protected parties), has proper service been effected?
The court may order that, although a document has been sent or given to someone other than the person specified in rule 21.8 or paragraph (2), the document is to be treated as if it had been properly served.
A document, other than a claim form, served by First class post (or other service which provides for delivery on the next business day) within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on…
The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or
if not, the next business day after that day.
A document, other than a claim form, served by DX within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table –
The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or
if not, the next business day after that day.
6.26 A document, other than a claim form, served by Delivering the document to or leaving it at a permitted address within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on …
If it is delivered to or left at the permitted address on a business day before 4.30p.m., on that day; or
in any other case, on the next business day after that day.
A document, other than a claim form, served by FAX within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on ….
If the transmission of the fax is completed on a business day before 4.30p.m., on that day; or
in any other case, on the next business day after the day on which it was transmitted.
A document, other than a claim form, served (by some Other electronic method) within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on…
If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or
in any other case, on the next business day after the day on which it was sent.
6.26 A document, other than a claim form, served personally within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table –
If the document is served personally before 4.30p.m. on a business day, on that day; or
in any other case, on the next business day after that day.
Does Service of the claim form by an alternative method or at an alternative place apply to documents or only claim forms?
Rule 6.15 (Service of the claim form by an alternative method or at an alternative place) applies to any document in the proceedings as it applies to a claim form and reference to the defendant in that rule is modified accordingly.
May the court dispense with service of a document?
Power to dispense with service
- 28
(1) The court may dispense with service of any document which is to be served in the proceedings.
(2) An application for an order to dispense with service must be supported by evidence and may be made without notice.
- An application for an order to dispense with service of a document must be supported by what?
(2) An application for an order to dispense with service must be supported by evidence and may be made without notice.
Must an application to dispense with service of a document be made with notice?
An application for an order to dispense with service must be supported by evidence and may be made without notice.
Service by document exchange (DX) may take place on what condition?
Service by document exchange (DX) may take place only where –
(1) the address at which the party is to be served includes a numbered box at a DX, or
(2) the writing paper of the party who is to be served or of the solicitor acting for that party sets out a DX box number, and
(3) the party or the solicitor acting for that party has not indicated in writing that they are unwilling to accept service by DX.
Service by post, DX or other service which provides for delivery on the next business day is effected by doing what?
Service by post, DX or other service which provides for delivery on the next business day is effected by –
(1) placing the document in a post box;
(2) leaving the document with or delivering the document to the relevant service provider; or
(3) having the document collected by the relevant service provider.
What is the conditions to be met before a document is to be able to be served by fax or other electronic means?
where a document is to be served by fax or other electronic means –
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.
4. 2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient’s agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).
Where a document is served by electronic means, need the party serving the document send or deliver a hard copy?
4.3 Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy.
Personal service on a registered company or corporation in accordance with rule 6.5(3) is effected how?
Personal service on a registered company or corporation in accordance with rule 6.5(3) is effected by leaving a document with a person holding a senior position.
Personal service is effected on a registered company or corporation in accordance with rule 6.5(3), a person in a senior position is?
Each of the following persons is a person holding a senior position –
(1) in respect of a registered company or corporation, a director, the treasurer, the secretary of the company or corporation, the chief executive, a manager or other officer of the company or corporation; and
(2) in respect of a corporation which is not a registered company, in addition to any of the persons set out in sub-paragraph (1), the mayor, the chairman, the president, a town clerk or similar officer of the corporation.
Where the court serves a document in accordance with rule 6.4 or 6.21(2), the method will normally be what?
8.1 Where the court serves a document in accordance with rule 6.4 or 6.21(2), the method will normally be first class post.
Where an Application for an order for service by an alternative method or at an alternative place is made before the document is served, the application must be supported by evidence stating what?
(1) the reason why an order is sought;
(2) what alternative method or place is proposed, and
(3) why the applicant believes that the document is likely to reach the person to be served by the method or at the place proposed.
Where the application for an order for service by an alternative method or at an alternative place is made after the applicant has taken steps to bring the document to the attention of the person to be served by an alternative method or at an alternative place, the application must be supported by evidence stating what?
(1) the reason why the order is sought;
(2) what alternative method or alternative place was used;
(3) when the alternative method or place was used; and
(4) why the applicant believes that the document is likely to have reached the person to be served by the alternative method or at the alternative place.
an application to serve by posting or delivering to an address of a person who knows the other party must be supported by evidence of what?
evidence that if posted or delivered to that address, the document is likely to be brought to the attention of the other party;
an application to serve by sending a SMS text message or leaving a voicemail message at a particular telephone number saying where the document is must be accompanied by evidence that …
that the person serving the document has taken, or will take, appropriate steps to ensure that the party being served is using that telephone number and is likely to receive the message; and
an application to serve by e-mail to a company (where paragraph 4.1 does not apply) must be supported by evidence that …
the e-mail address to which the document will be sent is one which is likely to come to the attention of a person holding a senior position in that company.
Where the document is posted (by first class post) on a Monday (a business day), the day of deemed service is…
the following Wednesday (a business day).
Where the document is left in a numbered box at the DX on a Friday (a business day), the day of deemed service is
the following Monday (a business day).
Where the document is sent by fax on a Saturday and the transmission of that fax is completed by 4.30p.m. on that day, the day of deemed service is
the following Monday (a business day).
Where the document is served personally before 4.30p.m. on a Sunday, the day of deemed service is
ext day (Monday, a business day).
Where the document is delivered to a permitted address after 4.30p.m. on the Thursday (a business day) before Good Friday, the day of deemed service is
the following Tuesday (a business day) as the Monday is a bank holiday.
Where the document is posted (by first class post) on a bank holiday Monday, the day of deemed service is
Where the document is posted (by first class post) on a bank holiday Monday, the day of deemed service is
When starting a claim against trustees do you have to add the beneficiaries?
Representation of beneficiaries by trustees etc.
- 7A
(1) A claim may be brought by or against trustees, executors or administrators in that capacity without adding as parties any persons who have a beneficial interest in the trust or estate (‘the beneficiaries’).
(2) Any judgment or order given or made in the claim is binding on the beneficiaries unless the court orders otherwise in the same or other proceedings.
Is a judgement against beneficiaries binding on trustees?
Representation of beneficiaries by trustees etc.
- 7A
(1) A claim may be brought by or against trustees, executors or administrators in that capacity without adding as parties any persons who have a beneficial interest in the trust or estate (‘the beneficiaries’).
(2) Any judgment or order given or made in the claim is binding on the beneficiaries 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 the court may order what?
(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 defendant against whom a claim could have been brought has died and a grant of probate or administration has been made, the claim must be brought against who?
the persons who are the personal representatives of the deceased;
Where a defendant against whom a claim could have been brought has died and a grant of probate or administration has not been made, the claim must be brought against who?
(i) the claim must be brought against ‘the estate of’ the deceased; and
(ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.
A claim shall be treated as having been brought against ‘the estate of’ the deceased in accordance with paragraph (2)(b)(i) (where a defendant against whom a claim could have been brought has died and a grant of probate or administration has not been made) where.. ?
(a) the claim is brought against the ‘personal representatives’ of the deceased but a grant of probate or administration has not been made; or
(b) the person against whom the claim was brought was dead when the claim was started.
Can a company or other corporation may be represented at trial by an employee?
A company or other corporation may be represented at trial by an employee if –
(a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and
(b) the court gives permission.
Where that partnership has a name, claims must be brought in or against which name?
Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.
Practice direction in respect of Claims by and against partnerships within the jurisdiction and Persons carrying on business in another name
- Claims by and against partnerships within the jurisdiction
- 5A & 5B apply to claims that are brought by or against two or more persons who –(1) were partners; and (2) carried on that partnership business within the jurisdiction, at the time when the cause of action accrued.
- ‘partners’ includes persons claiming to be entitled as partners and persons alleged to be partners.
- Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.
- Partnership membership statements
- ‘partnership membership statement’ is a written statement of the names and last known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued, being the date specified for this purpose in accordance with paragraph 5B.3.
- If the partners are requested to provide a copy of a partnership membership statement by any party to a claim, the partners must do so within 14 days of receipt of the request.
- In that request the party seeking a copy of a partnership membership statement must specify the date when the relevant cause of action accrued.
- Persons carrying on business in another name
- This paragraph applies where – (1) a claim is brought against an individual; (2) that individual carries on a business within the jurisdiction (even if not personally within the jurisdiction); and (3) that business is carried on in a name other than that individual’s own name (‘the business name’).
- The claim may be brought against the business name as if it were the name of a partnership.
claimants had put an address for service for the defendant both in and out of the jurisdiction on the claim form - had failed to take elementary steps to discover that he had in fact been residing in the jurisdiction for 3 years – given or refused?
refused
Will the court grant an application to extend time for serving the claim form without being satisfied that the claimant has taken all reasonable steps to comply with r.7.5?
the court can allow an application to extend time prospectively under r.7.6(2) (Extension of time for serving a claim form) without being satisfied that the claimant has taken all reasonable steps to comply with r.7.5 as is required in a retrospective application
one of the two defendants had not replied to the letter of claim - good reason to extend time for serving the claim form prosectively?
NO
accountant’s report with regard to quantum had arrived late, and Counsel’s drafting of the particulars of claim had been delayed - good reason for extending time to serve claim form prospectively?
no
Can an extension of time for service of the claim form without notice to the defendant be set aside ?
A claimant who is granted an extension of time for service of the claim form without notice to the defendant needs to be aware that the order may be set aside subsequently on an application by the defendant.
What do you have to show if you are making successive applications to extend time for serving the claim form?
In addition, the judge stated that, where successive applications are made, the onus is on the applicant to ensure that on each application all relevant material is drawn to the court’s attention, including whether, and if so how many, earlier extensions have been granted and the evidence upon which they were based.
Is an application to extend time for service by 3 months acceptable?
an application by the claimant for a three month extension of time to serve the claim form had been correctly granted when the claimant needed to excavate premises to investigate a water leak and obtain expert advice to attribute liability for the defect between the defendants and other potentially liable parties, particularly when the defendants had been slow to disclose plans and documents.
Does a reason connected with funding amounted to good reason to extend the time for serving the claim form?
Does a reason connected with funding amounted to good reason?
Cecil v Byatt
Before the four month period expired the court granted an extension of six months for service in a high value contract claim on the basis that the claimant needed time to secure funding for the claim. Within that period, during which limitation expired, the claimant applied for and was granted a further six month extension. Both applications were made ex parte. After a CFA with ATE insurance were agreed, the claim form was served 11 months after issue.
The Court of Appeal, overruling the judge, upheld the defendant’s application to set aside the extension
What should the claimants have done in Cecil v Bayat?
….the claimant should have served the claim form in the period of its initial validity and then, if they were not in a financial position to proceed with the claim immediately, applied inter partes for a stay, or an extension of the time for procedural steps to be taken.
Is difficulty in effecting service a good reason to refuse to set aside an order to extend the time for service?
The court found difficulty in effecting service a good reason to refuse to set aside an order to extend the time for service of a claim form on a defendant in Russia, where the process of service under the Hague Convention was indicated by the Foreign Service Section at the Royal Courts of Justice as likely to take eighteen months to two years, even though the extension might deprive the defendant of a limitation defence.
Is an indication of the defendants that they would avoid personal service a good reason for an extension of the time to serve the claim form?
No
the claimant served the claim form on the defendant when solicitors had been nominated. The claimant realised the mistake and could have faxed the claim form to the defendant’s solicitors within the four month period for service. Did he get an extension?
No
the claimant faxed the claim form to the defendant’s insurers on the last day of the four month period. Did he get an extension?
No
claim form was sent to the defendant by DX. The defendant was not a member of the DX. An application to extend time for service retrospectively was granted or refused?
Refused
lodging the claim form with the Queen’s Bench Masters for onward transmission to consular services to arrange service out of the jurisdiction - fail or succed?
did not fall within CPR r.7.6(3)(a) as the court was not serving the claim form, only acting as a conduit.
in determining whether a claimant has taken “all reasonable steps to serve the claim form” the court is limited to taking into account steps taken during which period?
the four month period allowed by r.7.5, and steps taken after that time are irrelevant,
What does Part 21 do?
(a) contains special provisions which apply in proceedings involving children and protected parties;
(b) sets out how a person becomes a litigation friend; and
Part 21 doesn’t apply to what?
(i) proceedings under Part 75;
(ii) enforcement of specified debts by taking control of goods; or
(iii) applications in relation to enforcement of specified debts by taking control of goods,
where one of the parties to the proceedings is a child.
(b) ‘child’ means a person under _
18
‘lacks capacity’ means
‘lacks capacity’ means lacks capacity within the meaning of the 2005 Act;
‘the 2005 Act’ means
(a) ‘the 2005 Act’ means the Mental Capacity Act 2005;
“protected party” means what
(d) ‘protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings;
“‘protected beneficiary’ means
(e) ‘protected beneficiary’ means a protected party who lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings.
Must a protected party have a litigation friend?
(1) A protected party must have a litigation friend to conduct proceedings on his behalf.
Must a child have a litigation friend?
(2) A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3).
May a child conduct litigation without a litigation friend?
(3) The court may make an order permitting a child to conduct proceedings without a litigation friend.
(An application for an order permitting a child to conduct proceedings without a litigation friend may be made by who?
(4) An application for an order under paragraph (3) –
(a) may be made by the child;
(b) if the child already has a litigation friend, must be made on notice to the litigation friend; and
(c) if the child has no litigation friend, may be made without notice.
(An application for an order permitting a child to conduct proceedings without a litigation friend may be made with or without notice?
(b) if the child already has a litigation friend, must be made on notice to the litigation friend; and
(c) if the child has no litigation friend, may be made without notice.
Is a court that allows a child to conduct litigation without a litigation friend able to change its mind?
(5) Where –
(a) the court has made an order under paragraph (3); and
(b) it subsequently appears to the court that it is desirable for a litigation friend to conduct the proceedings on behalf of the child,
the court may appoint a person to be the child’s litigation friend.
May a settlement, compromise or payment (including any voluntary interim payment) or acceptance of money paid into court be valid without the approval of the court?
Compromise etc. by or on behalf of a child or protected party
- 10
(1) Where a claim is made –
(a) by or on behalf of a child or protected party; or
(b) against a child or protected party,
no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.
What in a claim is made –
(a) by or on behalf of a child or protected party; or
(b) against a child or protected party
needs the approval of the court
Compromise etc. by or on behalf of a child or protected party
- 10
(1) Where a claim is made –
(a) by or on behalf of a child or protected party; or
(b) against a child or protected party,
no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.
(2) Where –
(a) before proceedings in which a claim is made by or on behalf of, or against, a child or protected party (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and
(b) the sole purpose of proceedings is to obtain the approval of the court to a settlement or compromise of the claim,
the claim must –
(i) be made using the procedure set out in Part 8 (alternative procedure for claims); and
(ii) include a request to the court for approval of the settlement or compromise.
(1) Where in any proceedings –
(a) money is recovered by or on behalf of or for the benefit of a child or protected party; or
(b) money paid into court is accepted by or on behalf of a child or protected party,
the money will be dealt with how?
(1) Where in any proceedings –
(a) money is recovered by or on behalf of or for the benefit of a child or protected party; or
(b) money paid into court is accepted by or on behalf of a child or protected party,
the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.
In which proceedings relating to children will money be dealt with in accordance with directions given by the court under this rule and not otherwise?
- 11
(1) Where in any proceedings –
(a) money is recovered by or on behalf of or for the benefit of a child or protected party; or
(b) money paid into court is accepted by or on behalf of a child or protected party,
the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.
What directions may be made in respect of money paid under rule 21 to child litigant
(2) Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with.
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 in accordance with this rule, the court will consider what first?
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 in accordance with this rule, the court will first consider whether the protected party is a protected beneficiary.
5.1 Where a claim by or on behalf of a child or protected party has been dealt with by agreement before the issue of proceedings and only the approval of the court to the agreement is sought, the claim must, in addition to containing the details of the claim and satisfying the requirements of rule 21.10(2), include the following –
Settlement or compromise by or on behalf of a child or protected party before the issue of proceedings
….
- (1) subject to paragraph 5.3, the terms of the settlement or compromise or have attached to it a draft consent order in Practice Form N292;
- (2) details of whether and to what extent the defendant admits liability;
- (3) the age and occupation (if any) of the child or protected party;
- (4) the litigation friend’s approval of the proposed settlement or compromise,
- (5) a copy of any financial advice relating to the proposed settlement; and
- (6) in a personal injury case arising from an accident –
- (a) details of the circumstances of the accident,
- (b) medical and quantum reports and joint statements material to the opinion required by paragraph 5.2,
- (c) where appropriate, a schedule of any past and future expenses and losses claimed and any other relevant information relating to the personal injury as set out in Practice Direction 16 (statements of case), and
- (d) where considerations of liability are raised –
- (i) any evidence or reports in any criminal proceedings or in an inquest, and
- (ii) details of any prosecution brought.
5.1 Where a claim by or on behalf of a child or protected party has been dealt with by agreement before the issue of proceedings and only the approval of the court to the agreement is sought, the claim must, in addition to containing the details of the claim and satisfying the requirements of rule 21.10(2), include the following (where it is a personal injury case of an accident)–
- (6) in a personal injury case arising from an accident –
- (a) details of the circumstances of the accident,
- (b) medical and quantum reports and joint statements material to the opinion required by paragraph 5.2,
- (c) where appropriate, a schedule of any past and future expenses and losses claimed and any other relevant information relating to the personal injury as set out in Practice Direction 16 (statements of case), and
- (d) where considerations of liability are raised –
- (i) any evidence or reports in any criminal proceedings or in an inquest, and
- (ii) details of any prosecution brought.
An opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party must… requirements.
(1) An opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party must, except in very clear cases, be obtained.
(2) A copy of the opinion and, unless the instructions on which it was given are sufficiently set out in it, a copy of the instructions, must be supplied to the court.
5.3 Where in any personal injury case a claim for damages for future pecuniary loss is settled, the provisions in paragraphs 5.4 and 5.5 must in addition be complied with… which are..
- The court must be satisfied that the parties have considered whether the damages should wholly or partly take the form of periodical payments.
- Where the settlement includes provision for periodical payments, the claim must –
- (1) set out the terms of the settlement or compromise; or
- (2) have attached to it a draft consent order,
- which must satisfy the requirements of rules 41.8 and 41.9 as appropriate.
Applications for the approval of a settlement or compromise will normally be heard by –…
- 6 Applications for the approval of a settlement or compromise will normally be heard by –
(1) a Master or a district judge in proceedings involving a child; and
(2) a Master, designated civil judge or his nominee in proceedings involving a protected party.
Where in any personal injury case a claim for damages for future pecuniary loss, by or on behalf of a child or protected party, is dealt with by agreement after proceedings have been issued, what must be done?
Where in any personal injury case a claim for damages for future pecuniary loss, by or on behalf of a child or protected party, is dealt with by agreement after proceedings have been issued, an application must be made for the court’s approval of the agreement.
In a Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued, The court must be satisfied that the parties have considered what?
In a Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued, The court must be satisfied that the parties have considered whether the damages should wholly or partly take the form of periodical payments.
Where the Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued includes provision for periodical payments, an application under paragraph 6.1 must what?
(1) set out the terms of the settlement or compromise; or
(2) have attached to it a draft consent order,
which must satisfy the requirements of rules 41.8 and 41.9 as appropriate.
In a Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued, The court must be supplied with what?
(1) an opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party, except in very clear cases; and
(2) a copy of any financial advice; and
(3) documentary evidence material to the opinion referred to at paragraph 6.4(1).
Who will hear appilcations for the Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued?
Applications for the approval of a settlement or compromise, except at the trial, will normally be heard by –
a Master or a district judge in proceedings involving a child; and
a Master, designated civil judge or his nominee in proceedings involving a protected party.
When may a Claimant use Part 8 procedure?
(2) A claimant may use the Part 8 procedure where –
(a) he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact; or
(b) paragraph (6) applies.
* (6) A rule or practice direction may, in relation to a specified type of proceedings –*
* (a) require or permit the use of the Part 8 procedure; and*
* (b) disapply or modify any of the rules set out in this Part as they apply to those proceedings.*
* (Rule 8.9 provides for other modifications to the general rules where the Part 8 procedure is being used)*
* (Part 78 provides procedures for European orders for payment and for the European small claims procedure. It also provides procedures for applications for mediation settlement enforcement orders in relation to certain cross-border disputes.)*
In the County Court, a claim under the Part 8 procedure may be made where?
In the County Court, a claim under the Part 8 procedure may be made at any County Court hearing centre unless an enactment, rule or practice direction provides otherwise.
Paragraph (In the County Court, a claim under the Part 8 procedure may be made at any County Court hearing centre unless an enactment, rule or practice direction provides otherwise) does not apply if what?
In the County Court, a claim under the Part 8 procedure may be made at any County Court hearing centre unless an enactment, rule or practice direction provides otherwise.
Can you get default judgment when using part 8?
no
Where the claimant uses the Part 8 procedure the claim form must state what?
- (a) that this Part applies;
- (b)
- (i) the question which the claimant wants the court to decide; or
- (ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy;
- (c) if the claim is being made under an enactment, what that enactment is;
- (d) if the claimant is claiming in a representative capacity, what that capacity is; and
- (e) if the defendant is sued in a representative capacity, what that capacity is.
In Part 8 claims, the claimant must file any written evidence on which he intends to rely … when?
In Part 8 claims, the claimant must file any written evidence on which he intends to rely when he files his claim form.
In Part 8 Claims, The claimant’s evidence must be served on the defendant… when?
with the claim form.
A Part 8 defendant who wishes to rely on written evidence must file it when ?
A Part 8 defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.
A Part 8 defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service. (If he does so, he must also, at the same time, do what?
(3) A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.
(4) If he does so, he must also, at the same time, serve a copy of his evidence on the other parties.
7 rules in relation to Part 8 - Filing and serving written evidence
(1) The claimant must file any written evidence on which he intends to rely when he files his claim form.
(2) The claimant’s evidence must be served on the defendant with the claim form.
(3) A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.
(4) If he does so, he must also, at the same time, serve a copy of his evidence on the other parties.
(5) The claimant may, within 14 days of service of the defendant’s evidence on him, file further written evidence in reply.
(6) If he does so, he must also, within the same time limit, serve a copy of his evidence on the other parties.
(7) The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth.
Part 8 - Filing and serving written evidence - short form
- Claimant files written evidence when he files his claim form
- Claimant serves it on D with the claim form
- Defendant files when filing acknowledgment of service (serving a copy on all other parties at the same time)
- Claimant can file further written evidence within 14 days (serving a copy on all other parties at the same time)
Part 8 - The claimant may rely on the matters set out in his claim form as evidence under this rule if… what?
The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth.
At a Part 8 hearing, (1) No written evidence may be relied on at the hearing of the claim unless –
(a) it has been served in accordance with rule 8.5 (Filing and serving written evidence); or
(b) the court gives permission.
May a court allow oral evidence at a Part 8 hearing?
(2) The court may require or permit a party to give oral evidence at the hearing.
Can a witness who has given written evidence in Part 8 proceedings be cross-examined?
(3) The court may give directions requiring the attendance for cross-examination of a witness who has given written evidence.
Why might a defendant object to the Part 8 procedure being used?
(a) there is a substantial dispute of fact; and
(b) the use of the Part 8 procedure is not required or permitted by a rule or practice direction,
What must a Part 8 defendant do when he has an objection to the Part 8 procedure being used?
he must state his reasons when he files his acknowledgment of service.
What will the court do when it receives the acknowledgment of service and any written evidence and the D objects to the Part 8 procedure being used?
(2) When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case.
Which track are Part 8 claims automatically allocated to?
Multi-track
The types of claim for which the Part 8 procedure may be used include –
(1) a claim by or against a child or protected party, as defined in rule 21.1(2), which has been settled before the commencement of proceedings and the sole purpose of the claim is to obtain the approval of the court to the settlement; or
(2) a claim for provisional damages which has been settled before the commencement of proceedings and the sole purpose of the claim is to obtain a consent judgment.
May Part 8 be used for a claim by or against a child or protected party, as defined in rule 21.1(2), which has been settled before the commencement of proceedings and the sole purpose of the claim is to obtain the approval of the court to the settlement; or
yes
May part 8 be used for a claim for provisional damages which has been settled before the commencement of proceedings and the sole purpose of the claim is to obtain a consent judgment.
Yes
Is part 8 to be used where statute decrees a claim should be brought by originating summons, originating motion or originating application.?
The Part 8 procedure must also be used for any claim or application in relation to which an Act, rule or practice direction provides that the claim or application is brought by originating summons, originating motion or originating application.
What may the court officer do where it appears to a court officer that a claimant is using the Part 8 procedure inappropriately?
Where it appears to a court officer that a claimant is using the Part 8 procedure inappropriately, he may refer the claim to a judge for the judge to consider the point.
Can the court at any stage order the claim to continue as if the claimant had not used the Part 8 procedure?
The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court will allocate the claim to a track and give such directions as it considers appropriate.
PArt 8 evidence will normally be in what form?
7.2 Evidence will normally be in the form of a witness statement or an affidavit but a claimant may rely on the matters set out in his claim form provided that it has been verified by a statement of truth.
Under Part 8 may a party apply to extend the time for serving evidence?
A party may apply to the court for an extension of time to serve and file evidence under rule 8.5 or for permission to serve and file additional evidence under rule 8.6(1).
May the parties agree to extend the time for serving and filing evidence under Part 8?
(1) The parties may, subject to the following provisions, agree in writing on an extension of time for serving and filing evidence under rule 8.5(3) or rule 8.5(5).
Formalities of an agreement extending time for a defendant to file evidence under Prat 8?
(2) An agreement extending time for a defendant to file evidence under rule 8.5(3)-
(a) must be filed by the defendant at the same time as he files his acknowledgement of service; and
(b) must not extend time by more than 14 days after the defendant files his acknowledgement of service.
An agreement extending time for a claimant to file evidence in reply under rule 8.5(5) must not what?
An agreement extending time for a claimant to file evidence in reply under rule 8.5(5) must not extend time to more than 28 days after service of the defendant’s evidence on the claimant.
Does Part 16 apply where the claimant uses the procedure set out in Part 8 (alternative procedure for claims)?
This Part does not apply where the claimant uses the procedure set out in Part 8 (alternative procedure for claims).
(1) The claim form must –
(a) contain
(a) contain a concise statement of the nature of the claim;
The claim form must specify
(b) specify the remedy which the claimant seeks;
The claim form must where the claimant is making a claim for money, contain…
(c) where the claimant is making a claim for money, contain a statement of value in accordance with rule 16.3;
The claim form must where the claimant’s only claim is for a specified sum, contain….
(cc) where the claimant’s only claim is for a specified sum, contain a statement of the interest accrued on that sum; and
The claim form must contain such other matters as may be set out in a ________________.
(1) The claim form must –(d) contain such other matters as may be set out in a practice direction.
In civil proceedings against the Crown, as defined in rule 66.1(2), the claim form must also contain
(a) the names of the government departments and officers of the Crown concerned; and
(b) brief details of the circumstances in which it is alleged that the liability of the Crown arose.
If the particulars of claim specified in rule 16.4 (Contents of the particulars of claim) are not contained in, or are not served with the claim form, the claimant must….
If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow.
(3) If the claimant is claiming in a representative capacity, the claim form must state what?
(3) If the claimant is claiming in a representative capacity, the claim form must state what that capacity is.
(4) If the defendant is sued in a representative capacity, the claim form must state….
(4) If the defendant is sued in a representative capacity, the claim form must state what that capacity is.
Does a remedy have to be specified in the claim form for it to be granted?
(5) The court may grant any remedy to which the claimant is entitled even if that remedy is not specified in the claim form.
where the claimant is making a claim for money.
(2) The claimant must, in the claim form, state…
(a) the amount of money claimed;
(b) that the claimant expects to recover –
(i) not more than £10,000;
(ii) more than £10,000 but not more than £25,000; or
(iii) more than £25,000; or
(c) that the claimant cannot say how much is likely to be recovered.
In a claim for personal injuries, the claimant must also state in the claim form whether the amount which the claimant expects to recover as general damages for pain, suffering and loss of amenity is
(a) not more than £1,000; or
(b) more than £1,000.
(4) In a claim which includes a claim by a tenant of residential premises against a landlord where the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises, the claimant must also state in the claim form –
(a) whether the estimated costs of those repairs or other work is –
(i) not more than £1,000; or
(ii) more than £1,000; and
(b) whether the value of any other claim for damages is –
(i) not more than £1,000; or
(ii) more than £1,000.
If the claim form is to be issued in the High Court it must, and rule applies, it is to state
(a) state that the claimant expects to recover more than £100,000;
(b) state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment;
(c) if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or
(d) state that the claim is to be in one of the specialist High Court lists and state which list.
(1) Particulars of claim must include –
(a) a concise statement of the facts on which the claimant relies;
(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);
(c) if the claimant is seeking aggravated damages(GL) or exemplary damages a statement to that effect and his grounds for claiming them;
(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and
(e) such other matters as may be set out in a practice direction.
If the claimant is seeking interest he must include what in the particulars of claim
- (2) If the claimant is seeking interest he must –
- (a) state whether he is doing so –
- (i) under the terms of a contract;
- (ii) under an enactment and if so which; or
- (iii) on some other basis and if so what that basis is; and
- (b) if the claim is for a specified amount of money, state –
- (i) the percentage rate at which interest is claimed;
- (ii) the date from which it is claimed;
- (iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
- (iv) the total amount of interest claimed to the date of calculation; and
- (v) the daily rate at which interest accrues after that date.
- (a) state whether he is doing so –
(1) In his defence, the defendant must state –
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
(c) which allegations he admits.
Where the defendant denies an allegation he must state what?
(a) he must state his reasons for doing so; and
(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.
A defendant who –
(a) fails to deal with an allegation; but
(b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,
shall be taken to .
require that allegation to be proved
(4) Where the claim includes a money claim, a defendant shall be taken to…
require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.
a defendant who fails to deal with an allegation shall be taken to
admit that allegation.
If the defendant disputes the claimant’s statement of value under rule 16.3 he must –
(a) state why he disputes it; and
(b) if he is able, give his own statement of the value of the claim.
(7) If the defendant is defending in a representative capacity, he must state
what that capacity is.
What is a defence of set off?
Where a defendant –
(a) contends he is entitled to money from the claimant; and
(b) relies on this as a defence to the whole or part of the claim,
the contention may be included in the defence and set off against the claim, whether or not it is also a Part 20 claim.
Is a claimant who does not file a reply to the defence taken to admit the matters raised in the defence?
A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.
A claimant who –
(a) files a reply to a defence; but
(b) fails to deal with a matter raised in the defence, shall be taken to…
require that matter to be proved.
May a court dispense with statements of case?
If a claim form has been –
(a) issued in accordance with rule 7.2; and
(b) served in accordance with rule 7.5,
the court may make an order that the claim will continue without any other statement of case.
Where special provisions about statements of case are made by the rules and practice directions applying to particular types of proceedings, the provisions of Part 16 and of this practice direction PD16 apply how?
1.2 Where special provisions about statements of case are made by the rules and practice directions applying to particular types of proceedings, the provisions of Part 16 and of this practice direction apply only to the extent that they are not inconsistent with those rules and practice directions.
What should a statement of case of over 25 pages include?
1.4 If exceptionally a statement of case exceeds 25 pages (excluding schedules) an appropriate short summary must also be filed and served.
Do you have to have your own address on the claim form if your address for service is that of your soliciotr?
The claim form must include an address at which the claimant resides or carries on business. This paragraph applies even though the claimant’s address for service is the business address of his solicitor.
Should a claim form include the address of the defendant even if the defendant has given the address of a soliciotr
yes
If the claim form does not show a full address, including postcode, at which the claimant(s) and defendant(s) reside or carry on business, the claim form will be issued but …
If the claim form does not show a full address, including postcode, at which the claimant(s) and defendant(s) reside or carry on business, the claim form will be issued but will be retained by the court and will not be served until the claimant has supplied a full address, including postcode, or the court has dispensed with the requirement to do so. The court will notify the claimant.
“full name” for the purposes of the title of proceedings includes (a) in the case of an individual
, his full unabbreviated name and title by which he is known;
“full name” for the purposes of the title of proceedings includes (a) in the case of an individual carrying on business in a name other than his own name,
the full unabbreviated name of the individual, together with the title by which he is known, and the full trading name (for example, John Smith ‘trading as’ or ‘T/as’ ‘JS Autos’);
2.6 The claim form must be headed with the title of the proceedings, including the full name of each party (c) in the case of a partnership (other than a limited liability partnership (LLP)) – meaning
(i) where partners are being sued in the name of the partnership, the full name by which the partnership is known, together with the words ‘(A Firm)’; or
(ii) where partners are being sued as individuals, the full unabbreviated name of each partner and the title by which he is known;
2.6 The claim form must be headed with the title of the proceedings, including the full name of each party, meaning in the case of a company or limited liability partnership registered in England and Wales
, the full registered name, including suffix (plc, limited, LLP, etc), if any;
2.6 The claim form must be headed with the title of the proceedings, including the full name of each party (e) in the case of any other company or corporation,
the full name by which it is known, including suffix where appropriate.
Particulars of claim served separately from the claim form must also contain:
Particulars of claim served separately from the claim form must also contain:
(1) the name of the court in which the claim is proceeding,
(2) the claim number,
(3) the title of the proceedings, and
(4) the claimant’s address for service.
Personal injury claims
4.1 The particulars of claim must contain:
Personal injury claims
- 1 The particulars of claim must contain:
(1) the claimant’s date of birth, and
(2) brief details of the claimant’s personal injuries. - 2 The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims.
- 3 Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.
What kind of medical report has to be obtained in a soft tissue injury claim?
In a soft tissue injury claim, the claimant may not proceed unless the medical report is a fixed cost medical report.
Where the claimant files more than one medical report, the first report obtained must be …
Where the claimant files more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal (website at: www.medco.org.uk) and any further report from an expert in any of the following disciplines must also be a fixed cost medical report:
Where the claimant files more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal (website at: www.medco.org.uk) and any further report from an expert in which disciplines must also be a fixed cost medical report?
(a) Consultant Orthopaedic Surgeon;
(b) Consultant in Accident and Emergency Medicine;
(c) General Practitioner registered with the General Medical Council;
(d) Physiotherapist registered with the Health and Care Professions Council.
In a provisional damages claim the claimant must state in his particulars of claim:
In a provisional damages claim the claimant must state in his particulars of claim:
(1) that he is seeking an award of provisional damages under either section 32A of the Senior Courts Act 1981 or section 51 of the County Courts Act 1984,
(2) that there is a chance that at some future time the claimant will develop some serious disease or suffer some serious deterioration in his physical or mental condition, and
(3) specify the disease or type of deterioration in respect of which an application may be made at a future date.
In a fatal accident claim the claimant must state in his particulars of claim:
In a fatal accident claim the claimant must state in his particulars of claim:
(1) that it is brought under the Fatal Accidents Act 1976,
(2) the dependants on whose behalf the claim is made,
(3) the date of birth of each dependant, and
(4) details of the nature of the dependency claim.
May a fatal accident claim include a claim for damages for bereavement.?
5.2 A fatal accident claim may include a claim for damages for bereavement.
5.3 In a fatal accident claim the claimant may also bring a claim under … on behalf of the estate of the ,,,
5.3 In a fatal accident claim the claimant may also bring a claim under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased.
Where the claim is for the delivery of goods let under a hire-purchase agreement or conditional sale agreement to a person other than a company or other corporation, the claimant must state in the particulars of claim:
(1) the date of the agreement,
(2) the parties to the agreement,
(3) the number or other identification of the agreement,
(4) where the claimant was not one of the original parties to the agreement, the means by which the rights and duties of the creditor passed to him,
(5) whether the agreement is a regulated agreement, and if it is not a regulated agreement, the reason why,
(6) the place where the agreement was signed by the defendant,
(7) the goods claimed,
(8) the total price of the goods,
(9) the paid-up sum,
(10) the unpaid balance of the total price,
(11) whether a default notice or a notice under section 76(1) or 98(1) of the Consumer Credit Act 1974 has been served on the defendant, and if it has, the date and method of service,
(12) the date when the right to demand delivery of the goods accrued,
(13) the amount (if any) claimed as an alternative to the delivery of goods, and
(14) the amount (if any) claimed in addition to –
(a) the delivery of the goods, or
(b) any claim under (13) above,
with the grounds of each claim.
6.2 Where the claim is not for the delivery of goods, the claimant must state in his particulars of claim:
- 2 Where the claim is not for the delivery of goods, the claimant must state in his particulars of claim:
(1) the matters set out in paragraph 6.1(1) to (6) above,
(2) the goods let under the agreement,
(3) the amount of the total price,
(4) the paid-up sum,
(5) the amount (if any) claimed as being due and unpaid in respect of any instalment or instalments of the total price, and
(6) the nature and amount of any other claim and how it arises.
Where a claim is made for an injunction or declaration in respect of or relating to any land or the possession, occupation, use or enjoyment of any land the particulars of claim must:
(1) state whether or not the injunction or declaration relates to residential premises, and
(2) identify the land (by reference to a plan where necessary).
Where a claim is brought to enforce a right to recover possession of goods the particulars of claim must contain a statement showing the…
Where a claim is brought to enforce a right to recover possession of goods the particulars of claim must contain a statement showing the value of the goods.
Where a claim is based upon a written agreement…. include
Where a claim is based upon a written agreement:
(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and
(2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).
Where a claim is brought to enforce a right to recover possession of goods the particulars of claim must contain…
Where a claim is brought to enforce a right to recover possession of goods the particulars of claim must contain a statement showing the value of the goods.
7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out ,,,,
7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.
7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify …
7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.
7.6 In a claim issued in the High Court relating to a Consumer Credit Agreement, the particulars of claim must contain….
7.6 In a claim issued in the High Court relating to a Consumer Credit Agreement, the particulars of claim must contain a statement that the action is not one to which section 141 of the Consumer Credit Act 1974 applies.
A claimant who wishes to rely on evidence:
(1) under section 11 of the Civil Evidence Act 1968 of a conviction of an offence, or
(2) under section 12 of the above-mentioned Act of a finding or adjudication of adultery or paternity,
must include in his particulars of claim…
A claimant who wishes to rely on evidence:
(1) under section 11 of the Civil Evidence Act 1968 of a conviction of an offence, or
(2) under section 12 of the above-mentioned Act of a finding or adjudication of adultery or paternity,
must include in his particulars of claim a statement to that effect and give the following details:
(1) the type of conviction, finding or adjudication and its date,
(2) the court or Court-Martial which made the conviction, finding or adjudication, and
(3) the issue in the claim to which it relates.
The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:
The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:
(1) any allegation of fraud,
(2) the fact of any illegality,
(3) details of any misrepresentation,
(4) details of all breaches of trust,
(5) notice or knowledge of a fact,
(6) details of unsoundness of mind or undue influence,
(7) details of wilful default, and
(8) any facts relating to mitigation of loss or damage.
In clinical negligence claims, the words ‘__________ _________’ should be inserted at the top of every statement of case.
In clinical negligence claims, the words ‘clinical negligence’ should be inserted at the top of every statement of case.
Where the defendant is an individual, and the claim form does not contain an address at which he resides or carries on business, or contains an incorrect address, the defendant must…….
Where the defendant is an individual, and the claim form does not contain an address at which he resides or carries on business, or contains an incorrect address, the defendant must provide such an address in the defence.
Where a defendant to a claim or counterclaim is an individual, he must provide his ….in the acknowledgment of service, admission, defence, defence and counterclaim, reply or other response.
Where a defendant to a claim or counterclaim is an individual, he must provide his date of birth (if known) in the acknowledgment of service, admission, defence, defence and counterclaim, reply or other response.
Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:
(1) state in his defence whether he –
…
Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:
(1) state in his defence whether he –
(a) agrees,
(b) disputes, or
(c) neither agrees nor disputes but has no knowledge of,
the matters contained in the medical report,
Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:
(2) where he disputes any part of the medical report…
(2) where he disputes any part of the medical report, give in his defence his reasons for doing so, and
Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:
(3) where he has obtained his own medical report…
Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:
(3) where he has obtained his own medical report on which he intends to rely, attach it to his defence.
Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating…
Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating:
(1) which of those items he –
(a) agrees,
(b) disputes, or
(c) neither agrees nor disputes but has no knowledge of, and
(2) where any items are disputed, supplying alternative figures where appropriate.
14 A party who wishes to rely on a finding of the Office of Fair Trading as provided by section 58 of the Competition Act 1998 must include in his statement of case…
14 A party who wishes to rely on a finding of the Office of Fair Trading as provided by section 58 of the Competition Act 1998 must include in his statement of case a statement to that effect and identify the Office’s finding on which he seeks to rely.
A party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act –
- A party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act –
- (1) must state that fact in his statement of case; and
- (2) must in his statement of case –
- (a) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement;
- (b) specify the relief sought;
- (c) state if the relief sought includes–
- (i) a declaration of incompatibility in accordance with section 4 of that Act, or
- (ii) damages in respect of a judicial act to which section 9(3) of that Act applies;
- (d) where the relief sought includes a declaration of incompatibility in accordance with section 4 of that Act, give precise details of the legislative provision alleged to be incompatible and details of the alleged incompatibility;
- (e) where the claim is founded on a finding of unlawfulness by another court or tribunal, give details of the finding; and
- (f) where the claim is founded on a judicial act which is alleged to have infringed a Convention right of the party as provided by section 9 of the Human Rights Act 1998, the judicial act complained of and the court or tribunal which is alleged to have made it.
A party who seeks to amend his statement of case to include the matters referred to in paragraph 15.1 must…
A party who seeks to amend his statement of case to include the matters referred to in paragraph 15.1 must, unless the court orders otherwise, do so as soon as possible.
A defendant may file an acknowledgment of service if –
A defendant may file an acknowledgment of service if –
(a) he is unable to file a defence within the period specified in rule 15.4; or
(b) he wishes to dispute the court’s jurisdiction.
If –
(a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3; and
(b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14,
the claimant may….
If –
(a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3; and
(b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14,
the claimant may obtain default judgment if Part 12 allows it.
The general rule is that the period for filing an acknowledgment of service is …
The general rule is that the period for filing an acknowledgment of service is –
(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and
(b) in any other case, 14 days after service of the claim form.
The general rule that the period for filing an acknowledgment of service is – is subject to the following rules –
The general rule that the period for filing an acknowledgment of service is – is subject to the following rules –
(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);
(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and
(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).
Where a defendant to a claim serves a counterclaim under Part 20, the defence and counterclaim should normally…
Where a defendant to a claim serves a counterclaim under Part 20, the defence and counterclaim should normally form one document with the counterclaim following on from the defence.
Where a claimant serves a reply and a defence to counterclaim, the reply and defence to counterclaim should…
Where a claimant serves a reply and a defence to counterclaim, the reply and defence to counterclaim should normally form one document with the defence to counterclaim following on from the reply.
Rule 15.8(a) provides what?
Rule 15.8(a) provides that a claimant must file any reply with his directions questionnaire. Where the date by which he must file his directions questionnaire is later than the date by which he must file his defence to counterclaim (because the time for filing the directions questionnaire under rule 26.3(6) is more than 14 days (small claims track) or more than 28 days (fast track and multi-track) after the date on which it is deemed to be served), the court will normally order that the defence to counterclaim must be filed by the same date as the reply. Where the court does not make such an order the reply and defence to counterclaim may form separate documents.
Rule 15.8(a) provides that a claimant must file any reply with his directions questionnaire. Where the date by which he must file his directions questionnaire is later than the date by which he must file his defence to counterclaim (because the time for filing the directions questionnaire under rule 26.3(6) is more than 14 days (small claims track) or more than 28 days (fast track and multi-track) after the date on which it is deemed to be served), the court will ….
Rule 15.8(a) provides that a claimant must file any reply with his directions questionnaire. Where the date by which he must file his directions questionnaire is later than the date by which he must file his defence to counterclaim (because the time for filing the directions questionnaire under rule 26.3(6) is more than 14 days (small claims track) or more than 28 days (fast track and multi-track) after the date on which it is deemed to be served), the court will normally order that the defence to counterclaim must be filed by the same date as the reply. Where the court does not make such an order the reply and defence to counterclaim may form separate documents.
In these Rules, ‘default judgment’ means …
In these Rules, ‘default judgment’ means judgment without trial where a defendant –
(a) has failed to file an acknowledgment of service; or
(b) has failed to file a defence.
A claimant may not obtain a default judgment in which claim?
A claimant may not obtain a default judgment –
(a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 19741;
(b) where he uses the procedure set out in Part 8 (alternative procedure for claims); or
(c) in any other case where a practice direction provides that the claimant may not obtain default judgment.
The claimant may obtain judgment in default of an acknowledgment of service only if
The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.
…
and, in either case, the relevant time limit for doing so has expired.
Judgment in default of defence may be obtained only…
Judgment in default of defence may be obtained only –
(a) where an acknowledgement of service has been filed but a defence has not been filed;
(b) in a counterclaim made under rule 20.4, where a defence has not been filed,
and, in either case, the relevant time limit for doing so has expired.
- The claimant may not obtain a default judgment if –
- The claimant may not obtain a default judgment if –
- (a) the defendant has applied –
- (i) to have the claimant’s statement of case struck out under rule 3.4; or
- (ii) for summary judgment under Part 24,
- and, in either case, that application has not been disposed of;
- (b) the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment;
- (c)
- (i) the claimant is seeking judgment on a claim for money; and
- (ii) the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all of the money claimed) together with a request for time to pay; or
- (d) notice has been given under rule 82.21 of a person’s intention to make an application for a declaration under section 6 of the Justice and Security Act 2013 in relation to the proceedings, and that application has not been disposed of.
- (a) the defendant has applied –
Subject to paragraph (2), a claimant may obtain a default judgment by …
Subject to paragraph (2), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for –
(a) a specified amount of money;
(b) an amount of money to be decided by the court;
(c) delivery of goods where the claim form gives the defendant the alternative of paying their value; or
(d) any combination of these remedies.
(1) Subject to paragraph (2) (The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for –
(1) Subject to paragraph (2), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for –
(a) a specified amount of money;
(b) an amount of money to be decided by the court;
(c) delivery of goods where the claim form gives the defendant the alternative of paying their value; or
(d) any combination of these remedies.
The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment –
The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment –
(a) on a claim which consists of or includes a claim for any other remedy; or
(b) where rule 12.9 or rule 12.10 so provides,
and where the defendant is an individual, the claimant must provide the defendant’s date of birth (if known) in Part C of the application notice.
Where a claimant –
(a) claims any other remedy in his claim form in addition to those specified in paragraph (1); but
(b) abandons that claim in his request for judgment,
he may …
Where a claimant –
(a) claims any other remedy in his claim form in addition to those specified in paragraph (1); but
(b) abandons that claim in his request for judgment,
he may still obtain a default judgment by filing a request under paragraph (1).
(4) In civil proceedings against the Crown, as defined in rule 66.1(2), a request for a default judgment must be considered by _________ who must in particular be satisfied that ______
(4) In civil proceedings against the Crown, as defined in rule 66.1(2), a request for a default judgment must be considered by a Master or district judge, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown in accordance with section 18 of the Crown Proceedings Act 1947 and rule 6.10.
Where the claim (for Def Judg) is for a specified sum of money, the claimant may specify in a request filed under rule 12.4(1) –
Where the claim is for a specified sum of money, the claimant may specify in a request filed under rule 12.4(1) –
(a) the date by which the whole of the judgment debt is to be paid; or
(b) the times and rate at which it is to be paid by instalments.
Except where paragraph (4 - Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value) applies, a default judgment on a claim for a specified amount of money obtained on the filing of a request, will be judgment for ….
Except where paragraph (4) applies, a default judgment on a claim for a specified amount of money obtained on the filing of a request, will be judgment for the amount of the claim (less any payments made) and costs –
(a) to be paid by the date or at the rate specified in the request for judgment; or
(b) if none is specified, immediately.
(3) Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for…
(3) Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for an amount to be decided by the court and costs.
(4) Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be judgment requiring the defendant to –
(4) Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be judgment requiring the defendant to –
(a) deliver the goods or (if he does not do so) pay the value of the goods as decided by the court (less any payments made); and
(b) pay costs.
(5) The claimant’s right to enter judgment requiring the defendant to deliver goods is subject …
(5) The claimant’s right to enter judgment requiring the defendant to deliver goods is subject to rule 40.14 (judgment in favour of certain part owners relating to the detention of goods).
If a claimant files a request for judgment in the County Court which includes an amount of money to be decided by the court in accordance with rules 12.4 and 12.5, the claim will be sent to …
If a claimant files a request for judgment in the County Court which includes an amount of money to be decided by the court in accordance with rules 12.4 and 12.5, the claim will be sent to the preferred hearing centre.
(2) If a claim is sent to a preferred hearing centre pursuant to paragraph (1), any further correspondence should be sent to, and any further requests should be made at…
(2) If a claim is sent to a preferred hearing centre pursuant to paragraph (1), any further correspondence should be sent to, and any further requests should be made at, the hearing centre to which the claim was sent.
A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if
A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if –
(a) the particulars of claim include the details required by rule 16.4;
(b) where interest is claimed under section 35A of the Supreme Court Act 19812 or section 69 of the County Courts Act 19843, the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
(c) the claimant’s request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated in the claim form to the date of the request for judgment.
In any case where paragraph (1 - A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment) does not apply, judgment will be for …
In any case where paragraph (1 - A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment) does not apply, judgment will be for an amount of interest to be decided by the court.
A claimant may obtain a default judgment on request under this Part on a claim for money or a claim for delivery of goods against one of two or more defendants, and do what?
A claimant may obtain a default judgment on request under this Part on a claim for money or a claim for delivery of goods against one of two or more defendants, and proceed with his claim against the other defendants.
Where a claimant applies for a default judgment against one of two or more defendants what may the court do according to whether the claim can be dealt with separately from the claim against the other defendants ?
Where a claimant applies for a default judgment against one of two or more defendants –
(a) if the claim can be dealt with separately from the claim against the other defendants –
(i) the court may enter a default judgment against that defendant; and
(ii) the claimant may continue the proceedings against the other defendants;
(b) if the claim cannot be dealt with separately from the claim against the other defendants –
(i) the court will not enter default judgment against that defendant; and
(ii) the court must deal with the application at the same time as it disposes of the claim against the other defendants.
(3) A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless –
(3) A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless –
(a) he has obtained a judgment for possession or delivery (whether or not obtained under this Part) against all the defendants to the claim; or
(b) the court gives permission.
In Default Judgment claimant must make an application in accordance with Part 23 where –
The claimant must make an application in accordance with Part 23 where –
(a) the claim is –
(i) a claim against a child or protected party; or
(ii) a claim in tort by one spouse or civil partner against the other.
(b) the claimant wishes to obtain a default judgment where the defendant has failed to file an acknowledgment of service –
(i) against a defendant who has been served with the claim out of the jurisdiction under rule 6.32(1), 6.33(1), 6.33(2) or 6.33(2B); (service where permission of the court is not required under the Civil Jurisdiction and Judgments Act 19824);
(ii) against a defendant domiciled in Scotland or Northern Ireland or in any other Convention territory or Member State;
(iii) against a State;
(iv) against a diplomatic agent who enjoys immunity from civil jurisdiction by virtue of the Diplomatic Privileges Act 19645; or
(v) against persons or organisations who enjoy immunity from civil jurisdiction pursuant to the provisions of the International Organisations Acts 1968 and 19816.
A default judgment is judgment without a trial where a defendant has failed to file either…
A default judgment is judgment without a trial where a defendant has failed to file either:
(1) an acknowledgment of service, or
(2) a defence.
A claimant may not obtain a default judgment under Part 12 (notwithstanding that no acknowledgment of service or defence has been filed) if:
(1) the procedure set out in Part 8 (Alternative Procedure for Claims) is being used, or
(2) the claim is for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974, or
Other rules and practice directions provide that default judgment under Part 12 cannot be obtained in particular types of proceedings. Examples are..
Other rules and practice directions provide that default judgment under Part 12 cannot be obtained in particular types of proceedings. Examples are:
(1) admiralty proceedings;
(2) arbitration proceedings;
(3) contentious probate proceedings;
(4) claims for provisional damages;
(5) possession claims.
A default judgment on:…
can only be obtained if an application for default judgment is made and cannot be obtained by filing a request.
A default judgment on:
(1) the claims referred to in rules 12.9(1)(b) and 12.10, and
(2) claims other than those described in rule 12.4(1),
can only be obtained if an application for default judgment is made and cannot be obtained by filing a request.
The following are some of the types of claim which require an application for a default judgment:
The following are some of the types of claim which require an application for a default judgment:
(1) against children and protected parties1,
(2) for costs (other than fixed costs) only2,
(3) by one spouse or civil partner against the other3 on a claim in tort4,
(4) for delivery up of goods where the defendant will not be allowed the alternative of paying their value; and
(5) Omitted.
(6) against persons or organisations who enjoy immunity from civil jurisdiction under the provisions of the International Organisations Acts 1968 and 1981.
Both on a request and on an application for default judgment the court must be satisfied that:
Both on a request and on an application for default judgment the court must be satisfied that:
(1) the particulars of claim have been served on the defendant (a certificate of service on the court file will be sufficient evidence),
(2) either the defendant has not filed an acknowledgment of service or has not filed a defence and that in either case the relevant period for doing so has expired,
(3) the defendant has not satisfied the claim, and
(4) the defendant has not returned an admission to the claimant under rule 14.4 or filed an admission with the court under rule 14.6.
On an application for Default Judgment against a child or protected party which requirements apply
On an application against a child or protected party5:
(1) a litigation friend6 to act on behalf of the child or protected party must be appointed by the court before judgment can be obtained, and
(2) the claimant must satisfy the court by evidence that he is entitled to the judgment claimed.
On an application where the defendant was served with the claim either:
(1) outside the jurisdiction7 without leave under the Civil Jurisdiction and Judgments Act 1982, the 2005 Hague Convention, the Lugano Convention or the Judgments Regulation, or
(2) within the jurisdiction but when domiciled8 in Scotland or Northern Ireland or in any other Convention territory9 or Member State,
and the defendant has not acknowledged service, the evidence must establish that:
(a) the claim is one that the court has power to hear and decide,
(b) no other court has exclusive jurisdiction under the Act, the 2005 Hague Convention, the Lugano Convention or Judgments Regulation to hear and decide the claim, and
(c) the claim has been properly served in accordance with Article 20 of Schedule 1 to the Act, Article 9(c) of the 2005 Hague Convention, Article 26 of the Lugano Convention, paragraph 15 of Schedule 4 to the Act, or Article 26 of the Judgments Regulation.
On an application for Default Judgment against a state…the evidence must…
- 4 On an application against a State10 the evidence must:
(1) set out the grounds of the application,
(2) establish the facts proving that the State is excepted from the immunity conferred by section 1 of the State Immunity Act 1978,
(3) establish that the claim was sent through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State or, where the State has agreed to another form of service, that the claim was served in the manner agreed; and
(4) establish that the time for acknowledging service (which is extended to two months by section 12(2) of the Act when the claim is sent through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State) has expired.
On an application for DJ against a state or a child or a protected party, evidence in support must be..
4.5 Evidence in support of an application referred to in paragraphs 4.3 and 4.4 above must be by affidavit.
4.6 On an application for judgment for delivery up of goods where the defendant will not be given the alternative of paying their value, the evidence must…
4.6 On an application for judgment for delivery up of goods where the defendant will not be given the alternative of paying their value, the evidence must identify the goods and state where the claimant believes the goods to be situated and why their specific delivery up is sought.
Where default judgment is given on a claim for a sum of money expressed in a foreign currency, the judgment should be for …
Where default judgment is given on a claim for a sum of money expressed in a foreign currency, the judgment should be for the amount of the foreign currency with the addition of ‘or the Sterling equivalent at the time of payment’.
The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–
The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–
(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;
(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or
(c) the whole of the claim was satisfied before judgment was entered.
What are the transfer rules as they apply to default judgment
- sending CC money claims to the claimant’s preferred hearing centre where the claim is undefended and the court needs to assess the amount payable or the rate of payment
- sending CC claims for specified sums of money to the defendant’s home court where the defendant is an individual. This happens when all parties have filed their directions questionnairs, or when a stay to attempt mediation has expired, or if an application is made to set aside DJ
- transferring high court claims for specified sums of moneyto the defendant’s home court if a defence is filed or if an application is made to set aside default judgment
In which circumstances is an abandoned claim restored when the default judgment is set aside?
Where –
(a) the claimant claimed a remedy in addition to one specified in rule 12.4(1) (claims in respect of which the claimant may obtain default judgment by filing a request);
(b) the claimant abandoned his claim for that remedy in order to obtain default judgment on request in accordance with rule 12.4(3); and
(c) that default judgment is set aside(GL) under this Part,
the abandoned claim is restored when the default judgment is set aside.
An applicant for setting aside default judgment must show what?
the defendant must show that they have “a real prospect of successfully defending the claim”
the only significant difference between the provisions of CPR 24.2 and 13.3(1), is
the only significant difference between the provisions of CPR 24.2 and 13.3(1), is that under the former the overall burden of proof rests upon the claimant to establish that there are grounds for his belief that the respondent has no real prospect of success whereas, under the latter, the burden rests upon the defendant to satisfy the court that there is good reason why a judgment regularly obtained should be set aside
Is the power to set aside default judgment conditional?
The discretionary power to set aside is unconditional.
The purpose of the power to set aside default judgment is what?
The purpose of the power is to avoid injustice.
The major consideration on an application to set aside DJ is what?
The major consideration on an application to set aside is whether the defendant has shown a real prospect of successfully defending the claim or some other good reason why judgment should be set aside or they should be allowed to defend the claim.
Is the fact that defendant had no notice of the claim until service of the claim form relevant in an application to set aside default judgment?
In El Diwany v Hansen [2011] EWHC 2077 (QB), July 29, 2011, unrep. (Sharp J.) a foreign defendant in a defamation claim filed an acknowledgment of service which was defective because it did not contain an address for service (rr.6.23 & 10.5) and the claimant entered default judgment under r.12.3. In determining the defendant’s application to set aside the judgment under r.13.3, the judge found and had regard to (amongst other things) the fact that defendant had no notice of the claim until service of the claim form.
Berezhovsky v Russian Television and Radio Broadcasting Co (Default judgment - Some other good reason)
In Berezhovsky v Russian Television and Radio Broadcasting Co [2009] EWHC 1733 (QB), Eady J. held, in a defamation claim, that the court’s discretion to set aside judgment under CPR r.13.3 was a broad one, which may be exercised if there was considered to be “some other good reason” why a defendant should be allowed to defend the claim. Where an allegation was a serious one, involving the suggestion that someone had been granted asylum on a false basis and in light of evidence obtained by threats and by drugging a relevant witness, it was plainly desirable (and indeed in the public interest) that the allegation should be given as full and fair a hearing as the circumstances permitted. Although the defendant had not acted promptly in his attempt to set aside the judgment, that may have been attributable to a genuine perception on his part that he needed to remain in hiding. It was also important to note that the primary object of most libel actions was to achieve vindication of the relevant claimant’s reputation. If the claimant relied purely on a judgment obtained in default, it would be easy for those ill disposed towards them, for whatever reason, to undermine the effectiveness of that vindication. It was in the interests of both sides that a proposed plea of justification should properly be addressed.
Can the failure to serve a response pack constitute “some other good reason” for the court to exercise its discretion to set judgment aside?
The failure to serve a response pack could potentially constitute “some other good reason” for the court to exercise its discretion to set judgment aside
Might setting aside of default judgment be granted even where there has been considerable delay?
However, in certain cases the court may conclude that judgment may be set aside even where there has been excessive delay; see Barons Bridging Finance PLC v Nnadiekwe QBD (Comm) September 6, 2012, unrep., where HHJ Mackie QC allowed a defendant to set aside a judgment entered several years earlier, on the basis that: (i) There were very serious conflicts of evidence between the parties, and the defendant alleged that she was the victim of fraud; (ii) the case had not lain buried since judgment was entered, it had continued for some time. Given the importance of the issue and the facts, justice required that the judgment be set aside.
Should the discretionary power to set aside default judgment be used to punish?
a judge’s discretionary power was not to be exercised to punish a party for incompetence, but to further the overriding objective.
Nolan v Devonport [2006] EWHC 2025 (QB), unrep.: a debtor who did nothing until the creditor sought to enforce the judgment, then applied to set aside, was…
Nolanv Devonport [2006] EWHC 2025 (QB), unrep.: a debtor who did nothing until the creditor sought to enforce the judgment, then applied to set aside, was refused permission to set aside, it being held that the debtor’s conduct amounted to an abuse of process.
If a defendant has not acted promptly they would be well advised to address the reason for this in…
An application to set aside must be supported by evidence (see r.13.4(3)). If a defendant has not acted promptly they would be well advised to address the reason for this in their witness statement or affidavit having regard to r.13.3(2).
In Harrison v Hockey [2007] All E.R. (D.) 336 (Mar), Mann J. refused the defendant’s application to set aside judgment after a trial in his absence on the basis of his inability to attend the hearing….
In Harrison v Hockey [2007] All E.R. (D.) 336 (Mar), Mann J. refused the defendant’s application to set aside judgment after a trial in his absence on the basis of his inability to attend the hearing. It was held that four and half months was too great a delay in making the application.
Investments v Fidler [2006] EWHC 2857 where the judge concluded that a delay of _ days in making an application under CPR Pt 13 was “very much at the outer limit of what could possibly be acceptable”
Investments v Fidler [2006] EWHC 2857, (see Note at 13.3.2 above) where the judge concluded that a delay of 59 days in making an application under CPR Pt 13 was “very much at the outer limit of what could possibly be acceptable”
Can a defendant rely on the default of his representatives as a reason for not acting promptly in filing an application to set aside default judgment?
In Mullock v Price [2009] EWCA Civ 1222, October 15, 2009, CA, unrep.. it was held that Pt 13.3, unlike an application for relief from sanction under Pt 3.9, did not permit a defendant to rely on the default of his representatives (in that case his insurance brokers rather than his legal representatives) as a reason for not acting promptly. It was said that the explicit language of Pt 13.3 imposed the duty to act promptly upon the defendant personally.
Can an affected third party apply to have default judgment set aside?
Under r.40.9 a person who is not a party but who is “directly affected” by a judgment or order may apply to have it set aside. It would seem that this rule applies to default judgments; see further para.40.9.1 below.
In contrast, in Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm) the court adopted a generous interpretation of Rule 3.10, and held that…
In contrast, in Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm) the court adopted a generous interpretation of Rule 3.10, and held that electronic service of particulars of claim 5 days late and failing to comply with Practice Direction 6A governing service by electronic means could be treated as valid by CPR 3.10 and refused to set aside a default judgment on the basis of invalid service of the particulars of claim.
The court’s general powers of management - Except where these Rules provide otherwise, the court may –
Except where these Rules provide otherwise, the court may –
(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired);
(b) adjourn or bring forward a hearing;
(c) require a party or a party’s legal representative to attend the court;
(d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;
(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
(f) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event;
(g) consolidate proceedings;
(h) try two or more claims on the same occasion;
(i) direct a separate trial of any issue;
(j) decide the order in which issues are to be tried;
(k) exclude an issue from consideration;
(l) dismiss or give judgment on a claim after a decision on a preliminary issue;
(ll) order any party to file and exchange a costs budget;
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.
When the court makes an order, it may…. make it subject to conditions… inlcuding..
When the court makes an order, it may –
(a) make it subject to conditions, including a condition to pay a sum of money into court; and
(b) specify the consequence of failure to comply with the order or a condition.
Where the court gives directions it will take into account whether or not a party has complied with …
Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol
The court may order a party to pay a sum of money into court if …
The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.
When ordering a party to pay a sum of money into court the court must have regard to –
(a) the amount in dispute; and
(b) the costs which the parties have incurred or which they may incur.
Where a party pays money into court following an order under paragraph (3) or (5), the money shall be…
Where a party pays money into court following an order under paragraph (3) or (5), the money shall be security for any sum payable by that party to any other party in the proceedings.
(7) A power of the court under these Rules to make a (case managment) order includes a power to …
(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.
How might the court monitor compliance with directions.
The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court.
Where the court proposes to make an order of its own initiative it may give … person… ?
Where the court proposes to make an order of its own initiative –
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.
Where the court proposes – (a) to make an order of its own initiative; and (b) to hold a hearing to decide whether to make the order, it must…
Where the court proposes –
(a) to make an order of its own initiative; and
(b) to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.
May the court make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations?
(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.
…
(5)
(a) a party affected by the order may apply to have it set aside(GL), varied or stayed(GL); and
(b) the order must contain a statement of the right to make such an application.
(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations a party affected by the order apply to have it set aside, varied or stayed must make the application–
(a) within such period as may be specified by the court; or
(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.
(7) If the court of its own initiative strikes out a statement of case or dismisses an application, (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit – the court must
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.
Where there has been an error of procedure such as a failure to comply with a rule or practice direction…
Where there has been an error of procedure such as a failure to comply with a rule or practice direction –
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
How many tracks are there and what are they?
(2) There are three tracks –
(a) the small claims track;
(b) the fast track; and
(c) the multi-track.
If a defendant files a defence a court officer will ..
If a defendant files a defence –
(a) a court officer will –
(i) provisionally decide the track which appears to be most suitable for the claim; and
(ii) serve on each party a notice of proposed allocation
the notice of proposed allocation will..
(i) specify any matter to be complied with by the date specified in the notice;
(ii) require the parties to file a completed directions questionnaire and serve copies on all other parties;
(iii) state the address of the court or the court office to which the directions questionnaire must be returned;
(iv) inform the parties how to obtain the directions questionnaire; and
(v) if a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposed directions by the date specified in the notice.
How does an unrep’d party get the directions questionnaire?
The court will always serve on any unrepresented party the appropriate directions questionnaire.
Where there are two or more defendants and at least one of them files a defence, the court will serve the a notice under paragraph (1 - propsed allocation)–
(a) when all the defendants have filed a defence; or
(b) when the period for the filing of the last defence has expired,
Whichever is sooner
If a notice is served under rule 26.3(1) [notice of proposed allocation] each party must..
If a notice is served under rule 26.3(1) –
(a) each party must file, and serve on all other parties, the documents required by the notice by no later than the date specified in it; and
(b) the date specified will be –
(i) if the notice relates to the small claims track, at least 14 days; or
(ii) if the notice relates to the fast track or multi-track, at least 28 days, after the date when it is deemed to be served on the party in question.
The date for complying with a notice served under rule 26.3(1) - may it be varied by agreement between the parties?
The date for complying with a notice served under rule 26.3(1) may not be varied by agreement between the parties.
The time when the court serves a directions questionnaire under this rule may be varied by a practice direction in respect of claims issued by the Production Centre - true or false
true
If a claim is a claim to which rule 26.2A applies and a party does not comply with the notice served under rule 26.3(1) by the date specified and
(a) the court serves a further notice on that party, requiring them to comply within 7 days; and
(b) that party fails to comply with the notice served under subparagraph (a) so the party’s statement of case will be struck out without further order of the court, will a party who was in default will be be entitled to an order for the costs of any application to set aside or vary that order or of attending any case management conference …?
a party who was in default will not normally be entitled to an order for the costs of any application to set aside or vary that order nor of attending any case management conference and will, unless the court thinks it unjust to do so, be ordered to pay the costs that the default caused to any other party.
Can a party may, when filing the completed directions questionnaire, get the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means.?
A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed(GL) while the parties try to settle the case by alternative dispute resolution(GL) or other means.
If the parties request a stay to try and use ADR how long will it be stayed for?
(2) If all parties request a stay the proceedings will be stayed for one month and the court will notify the parties accordingly.
Can a court impose a stay for ADR of its own motion?
(2A) If the court otherwise considers that such a stay would be appropriate, the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it considers appropriate.
May a court extend a stay for ADR?
(3) The court may extend the stay until such date or for such specified period as it considers appropriate.
What must a claimant do if a settlement is reached after a stay for ADR is given?
tell the court
(4) Where the court stays the proceedings under this rule, who must tell the court if a settlement is reached?
(4) Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached.
(If the claimant does not tell the court by the end of the period of the stay (for ADR) that a settlement has been reached, the court will do what?
(5) If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached, the court will give such directions as to the management of the case as it considers appropriate.
Referral to the Mediation Service applys to which claims?
) This rule applies to claims started in the County Court which would normally be allocated to the small claims track pursuant to rule 26.6.
Referral to the Mediation Service does not apply to—
(a) road traffic accident, personal injury or housing disrepair claims; or
(b) any claim in which any party to the proceedings does not agree to referral to the Mediation Service.
‘the Mediation Service’ means
(3) In this rule, ‘the Mediation Service’ means the Small Claims Mediation Service operated by Her Majesty’s Courts and Tribunals Service.
Where all parties indicate on their directions questionnaire that they agree to mediation, the claim will be referred to…
Where all parties indicate on their directions questionnaire that they agree to mediation, the claim will be referred to the Mediation Service.
(5) If a claim to which this rule applies is settled, the proceedings will automatically be stayed with permission to apply for—
(a) judgment for the unpaid balance of the outstanding sum of the settlement agreement; or
(b) the claim to be restored for hearing of the full amount claimed,
unless …
(5) If a claim to which this rule applies is settled, the proceedings will automatically be stayed with permission to apply for—
(a) judgment for the unpaid balance of the outstanding sum of the settlement agreement; or
(b) the claim to be restored for hearing of the full amount claimed,
unless the parties have agreed that the claim is to be discontinued or dismissed.
(5) If a claim to which this rule (26.4 Stay to allow for settlement of the case) applies is settled, the proceedings will automatically be stayed with permission to apply for—
(a) __________; or
(b) _______
unless the parties have agreed that the claim is to be discontinued or dismissed.
(5) If a claim to which this rule applies is settled, the proceedings will automatically be stayed with permission to apply for—
(a) judgment for the unpaid balance of the outstanding sum of the settlement agreement; or
(b) the claim to be restored for hearing of the full amount claimed,
unless the parties have agreed that the claim is to be discontinued or dismissed.
The court will allocate the claim to a track when ________ unless ________
The court will allocate the claim to a track –
(a) when all parties have filed their directions questionnaires; or
(b) when giving directions pursuant to rule 26.3(8),
unless it has stayed the proceedings under rule 26.4.
