Syllabus Area 6 - Commencing Proceedings Flashcards
Where do you start proceedings in a court?
If it is county court, it is less than £50,000 for personal injury and it is less than £100,000 for non-pi claims. If it can be in EITHER court, it is over £50,000 for personal injury and over £100,000 for non-PI. If it is High Court, it must be over £50,000 for personal injury and £100,000 for non-PI PLUS reasoning a) financial, b) complexity of case, c) public importance, d) whether C believes that it should be in High Court for some reason.
What happens if it goes to the wrong court?
It can be transferred but it may be a fee involved - if matter continues in High Court there is a 25% discretionary sanction
What must be disregarded when working out which court?
Costs such as contributory negligence, social benefits, cost, interest, counterclaim.
How are proceedings started?
Proceedings are started by an issuing of a claim form by the court - C must notify the court of wanting to bring a claim. Date entered on claim form by court office - earliest date is one which counts. Court creates a file for matter, court fee is paid and copies are given to all parties.
What happens if it is a money claim?
The claim goes to the Civil National Business Centre where the matter is monitored until a hearing date is made then it is transferred to a local court.
What is money claim form online used for?
It can be used for claims which are under £100,000 and it is dealt with online.
What happens if there are two or more claims needed?
The same claim form can be used as long as it is similar in nature to be disposed of in the same proceedings.
Does there need to be a statement of truth?
Yes, if contains falsities, contempt of court.
How is service of claim form considered as valid?
Must be a method recognised by the CPR unless the court states otherwise otherwise claimants may not be able to obtain judgment.
What are the time limits of serving a claim form?
4 months within the date of issue.
How can an extension be acquired for serving a claim form?
An application must be brought with good reason within 4 months validity of the issuing of claim form.
What must be proved for an extension of service of claim form to be granted?
Must be: a) the courts fault, b) C took all reasonable steps and c) the application was made promptly.
What are the accepted methods of service of a claim form?
Post/DX, fax/email, personal service, leaving at permitted address.
What are accepted methods for companies/LLP’s?
Under Companies Act 2006 may serve any method.
Who serves the claim form?
The court serves the claim form unless where a rule/PD/enactment specifies otherwise. This will be usually done through first class post - court will notify C about service. If C does not want court to serve, solicitor must file a certificate of service within 21 days.
What happens with personal service?
This means physically giving someone the claim form. Unless specified otherwise, claim form must be served personally unless served on court/solicitor.
What are the general provisions of serving a claim form?
Must be served within jurisdiction with C providing the full address of D, usually the last known residence where resides/business.
What happens with service on a solicitor?
This is allowed as long as it is in writing notifying the accept on C’s behalf.
What happens with service on D at an address where he may be served?
Can be at the address where D usually resides/business. If it is a claim against landlord, it can be served at the address the landlord gives.
What happens where a D does not give permitted address?
It will be the last known address for D or real connection with. Can apply for “alternative method” but must prove that all reasonable steps have been taken to ascertain his address.
What happens with service which is agreed contractually?
May be found in a clause in a contract and must be served within this way. If it is outside jurisdiction in accordance with contract, can be served if permission granted.
When is service deemed done?
The 2nd business day after completing the relevant step.
What is included in the application for “alternative method”?
Must be made without notice, good reasoning given, evidence to support. Additionally, where service was, th date deemed served, period for filing AOS/admission/defence.
hat happens when service is via DX?
May take place when address includes numbered box or solicitor fillsout DX or have not indicated unwillingness to accept DX.
How is service effected by post, alternative service or DX?
Placing in box, posting, delivering document by provider or yourself.
What happens when service is via fax/other electronic means?
Must have indicated in writing to accept via this. Limitations must be asked e.g format/size of file. If electronic copy is provided, hard copy not needed.
What are the sufficient indications of receiving via fax/email?
Sufficient indications include on statement of case or on paper.
What happens with personal service on company or corporation?
This must be left with someone in a senior position e.g town clerk, mayor, CEO, director, manager.
What are the methods of service of other docs?
Same as claim form - first class post, DX, email/fax, personal service, delivering at permitted address. If it is a company, any permitted means under Companies Act 2006.
Who is to serve the documents?
This must be the party to proceedings unless rule/PD specifies otherwise. A copy must be served on all parties.
What happens with personal service of other docs?
Same as claim form - must be served personally unless on crown/solicitor.
What happens with service on child/protected party?
Must be served on litigation friend for child/PP. Court can order document to be served on child/PP.
What is considered deemed service of other docs?
First class post/DX - second business day after posting. Fax/email - before 4:30pm (same day), if not, next business day. Personal service/permitted address - before 4:30pm (same day), if not, next business day.
What happens with alternative method of other documents?
Same as claim form - Application may be made without notice, but with good reason, evidence. Application must specify where service, date CF deemed served, period for filing AOS/Defence/Admission.
What happens with service via DX of other docs?
Same as claim form - May take place where address is included numbered box for DX or solicitor sets out box OR not been indicated unwilling to accept.
How is service effected by post, alternative service provider or DX with other docs?
Same as claim form - posting, leaving at address, personally serving.
What happens with fax or electronic means service?
Same as claim form - make sure indicated in writing that this is allowed - indications will be on paper/statement of case - must consider limitations e.g size/format. If electronic copy given, no hard copy needed.
What happens with service by court?
Same as claim form - First class post.
How long do you have to service particulars of claim?
Within 14 days of serving claim form.
What are the deemed service of documents other than claim form?
Instantaneous methods - before 4:30pm (same day), if not next business day after posting.
What are the main differences between service of claim form V other docs?
When they are deemed served, who can serve and time length of serving.
