Syllabus Area 7 - Parties Flashcards
If there is a partnership, in what capacity do you sue?
You use their name partnership name at the time of the cause of action as who you sue against e.g Lloyds Cooper LLP.
If there is a partnership but they carry out business in a different name, what do you do?
You can sue under the other business name as long as undertaking business in this jurisdiction.
If suing personally, how do you address it?
Use full unabbreviated names.
What capacity do you sue a sole trader?
You use their full name then in brackets “trading as XXX”
What capacity do you sue a LLP?
You would use the LLP’s full name as it is limited liability e.g Lloyds Cooper LLP
What capacity do you sue a company?
You would use the full companies name + prefix e.g Coperative Ltd
Can you bring a claim about a trust?
Yes, you can bring a claim about a trust against a trustee, executor or administrator.
What about beneficiaires?
These are not to be put in claim because the claim will be binding against them.
How does a deceased person bring a claim against someone e.g partnership/company?
They can bring a claim against someone if they have an interest in the claim and either they will have a personal representative who will be appointed or the court sometimes allows for the claim to be heard in absence of the dead person.
How can a claim be brought against a trust or a deceased person?
If a grant of probate or administration has been made, it can be made against the personal representatives of the deceased OR if grant of probate NOT made, it can either be made against the “estate of the deceased” or court can appoint a representative of deceased.
What happens if claim is brought against child or PP?
Cannot act for themselves in proceedings because under MCA 2005 they are considered lacking mental capacity to control/manage money.
How do you refer to a proceedings with LF?
[Name] (a child) by [Name] as litigation friend
How do you refer to proceedings without LF?
[name] (child)
When should a litigation friend be appointed for child/PP?
Always unless court specifies so.
Can the court order no litigation friend?
Yes, there can be no LF. If one has not been appointed, it can be made by child. If there has been one appointed, it can be made on notice to LF or without notice on LF.
When does it become necessary for a LF to be appointed?
It becomes necessary if someone tries to order proceedings against child. Party cannot order proceedings or take any step in proceeding against child without permission from court except for the issuing/serving of claim form.
What happens if the DURING proceedings party lacks capacity?
Parties cannot take a further step in proceedings until a LF has been appointed unless court says otherwise.
Who can be a litigation friend without court order?
A deputy under MCA 2005 has power to conduct proceedings OR if there is no deputy, any one can be a litigation friend as long as they can carry out proceedings on behalf of PP/Child in a just/fair way, they do not have adverse interest in the person, they have capacity, and if PP/Child is a C then LF undertake payment of costs if ordered to by court.
What happens if monies are ordered for receipt of PP/Child?
No settlement/compromise/money can be accepted by PP/Child unless court says.
What happens if settlement is reached BEFORE proceedings commenced?
Proceedings should then be commenced under PART 8 with request for courts approval on settlement. Court may require certain documents e.g draft consent order, liability, medical/expert/financial evidence, evidence if LF approves.
What if settlement happens AFTER proceedings commenced?
Application for courts approval and documentary evidence.
What can be done with money recovered by Child?
It can be either 1) paid directly to child/PP by LF for immediate use, 2) it can be invested by the court.
What can be done with money if recovered by PP?
If it is PP, Court of Protection deal with their assets/money and administering the monies.
What if the amount of money for a child is small amount?
This will be invested in a building society until 18.
What happens in terms of interest in money recovered for a child?
Court recognises that the interest does not always match interest elsewhere. Court has power to invest elsewhere if it is a personal injury trust on behalf of child.
