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?
Beneficiaries do NOT need to be added - any judgement made is already binding on beneficiaries unless court states so.
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 probate GRANTED?
If grant of probate or administration is made, a claim must be brought against personal representatives of the 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?
PP/Child must have a LF to conduct proceedings on their behalf unless court order specifies.
Can the court order no litigation friend?
Yes, there can be no LF by the child applying to court - this can be made without notice. If there has been one appointed, it must be made on notice to LF.
When does it become necessary for a LF to be appointed?
It becomes necessary if someone without permission of court 1) makes application against child/PP before proceedings started, 2) take any step in proceedings except issuing/serving CF, 3) apply for the appointment of LF for the other party until the child/PP has one.
What happens if the DURING proceedings party lacks capacity?
Parties cannot take a further step in proceedings/conduct 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 1) just/fair way, 2) no adverse interest in the person, 3) they have capacity, and 4) 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 during proceedings?
Proceedings should then be commenced under PART 8 to request for courts approval on settlement.
What if settlement happens AFTER proceedings commenced?
An application must be made to the court for its approval: merits of settlement, copy of financial advice, documentary evidence.
What can be done with money recovered by Child (not PP)?
Directions provided by court as to how. 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.
What happens if a party who has interest in a claim dies?
Court may order that claim can proceed in absence of person representing estate of deceased OR appoint person to represent estate.
What happens party who has interest in claim dies but probate NOT granted?
If grant or probate not been made, claim must be against “estate of” the deceased and C must apply to court to appoint a representative of deceased
What is needed for Part 8 claim for settlement?
File certain documents so that the settlement can be approved - e.g draft consent order, details of liability, if LF approves, copies of medical/financial/expert evidence, liability.
What to be included in claim if settlement on behalf of child BEFORE proceedings?
Only by approval of court - claim must contain: details of claim & how it satifies P8, terms of settlement, to what extent D admits liability, age/occupation of PP/child, LF approval, copy of financial advice.
What to be included in claim if settlement on behalf of child BEFORE proceedings? - PERSONAL INJURY
Details of circumstances of accident, medical/quantum reports, schedule of pasy/future expenses, evidence of criminal prosecutions, merits of settlement, copy of opinion and instructions of counsel
If there is pecuniary loss for a personal injury claim, what must be evidenced?
That parties have considered whether damage should wholly or partly take form of periodical payments
Who can represent a company/corporation at trial?
Company/corporation at trial may be represented by employee if authorised to appear/court gives permission
Who bears costs if child/PP is a Claimant?
LF will bear costs if child/PP is C.
