TB - commencing proceedings Flashcards
1
Q
a client has a claim worth £45,000 - which court should it be commenced in?
A
the county court
any claim with a financial value of less than £100,000 must be commenced in the county court
2
Q
how long after a claim form has been issued by the court does it need to be served on the defendant?
A
the claimant has up to four months after the date the claim form was issued to serve it on the defendant
3
Q
can a party be added to proceedings as a claimant once a claim has been issued?
A
yes
provided the court has received the relevant application, an amended copy of the claim form and particulars of claim showing the name of the new party and the written and signed consent of the party to be added, that party can be added as claimant after the claim has been issued
4
Q
which of the following methods can’t be used to serve proceedings on an opponent?
post, text message or phone call
A
phone call - service by text message can only happen with the prior permission of the court and only in exceptional circumstances
service by post is most common
5
Q
what are the grounds that need to be proved to add a party to proceedings prior to the expiration of the limitation period?
A
the applicant must prove to the court that either it’s desirable to add that new party so that the court can resolve all the matters in dispute in the proceedings, or there’s an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it’s desirable to add the new party so that the court can resolve the issue
6
Q
what is a claim form?
A
the form used to start proceedings in england and wales - generally includes a brief summary of the claim
7
Q
what is meant by particulars of claim?
A
a separate document that’s served together with or after the claim form
sets out the material facts and legal cause of action being brought by the claimant
8
Q
in england and wales, which court should civil claims be issued in
A
county court or high court
9
Q
which court should claims worth £100,00 or less be commenced in
A
county court
10
Q
which court should personal injury claims worth £50,000 or less be commenced in
A
county court
11
Q
which court should claims worth £100,000 or more be commenced in
A
county court or high court
12
Q
if the value of the claim is more than £100,000 (or £50,000 for personal injury claims) and:
- the case has complex facts
- the outcome of the case has an element of public interest
which court would be more appropriate?
A
high court
13
Q
what is the primary driving factor behind the most appropriate court in which to issue proceedings?
A
the value of the claim
14
Q
what does the CPR regard how the value of a claim is calculated
CPR 16.3(6) sets out the value of a claim is its financial worth disregarding…
A
- interest accumulated
- legal costs in pursuing the claim
- costs involved in pursuing any counterclaim
- any amount that may be claimed for contributory negligence (eg where the claimant has contributed to their injuries by their own negligence)
15
Q
What is a counterclaim?
A
a claim made by the defendant to offset the claimants claim
16
Q
counterclaim example
A
a claimant makes a claim for breach of contract to the value of £25,000
D admits breaching the contract but argues the claimant also breached the contract, costing him £15,000
D would therefore make a counterclaim against the claimant, which would be considered by the court as part of the same action
17
Q
what are the three distinct divisions the HC is comprised of?
A
1) Kings Bench Division
2) Chancery Division
3) Family Division
18
Q
does the family division hear civil claims in the areas of contract or tort?
A
no
19
Q
what does the kings bench division hear?
A
contract and tort disputes that are complex and/or involve substantial sums of money
20
Q
the kings bench division also contains several specialist courts. what are they?
A
- the administrative court
- the admiralty court
- the commercial court
- the mercantile court
- the technology and construction court
21
Q
what kinds of cases does the chancery division typically hear?
A
wide range of civil cases
business or property disputes that are complex and/or involve substantial sums of money
22
Q
which specialist courts does the chancery division incorporate?
A
- the insolvency and companies court
- the intellectual property enterprise court
- the patents court
23
Q
which types of cases does the chancery division hear?
A
- land and property disputes
- mortgages
- trusts, admin of estates and probate matters
- bankruptcy
- partnerships and company matters
- intellectual property
24
Q
NOTE
A
for claims that are complex or high-value, and are therefore appropriate to be issued in the HC - you must be able to identify which division or specialist court the matter is likely to be allocated to for SQE
25
PRACTICE EXAMPLE
Grantham Construction Limited were contractually engaged as structural engineers two years ago by Bright Houses Limited to design, assess and inspect the building of a block of flats in Manchester city centre.
Midway through the project, it became apparent that the building was at risk of structural failure .
Engineering experts were brought in to provide reports, some of which support the argument that structural failure is imminent and other which don't support it.
The parties have been locked in dispute ever since.
BHL now wishes to commence proceedings against GCL for breach of contract, with a claim value of approx £450,000.
which would be the correct court to consider this claim?
High Court
matter would be heard by the technology and construction court within kings bench division
due to the fact that it's valued at over £100,000 and is complex factually, given the disagreements in expert evidence
26
Who are proceedings issued by and when is this done?
issued by the court, once the claimant has filed the claim form, particulars of claim and any supporting evidence
27
how does the court issue the claim form?
by sealing the claim form (stops the limitation time running) and allocating a claim number to the case
once these steps have been taken, the claim form is regarded as being formally issued
28
once the claim form is issued, how long is it valid for?
four months
29
what happens after the claim form is issued?
the claimant or court must take a relevant step to serve the claim on the defendant within the four month period
the claim form must be served on all parties to the action within four months of the date of issue
30
the claim form is the doc used by a claimant to commence proceedings against a defendant. what is the claim form to be used in the majority of civil cases?
Form N1
31
What info does the N1 form ask for?
- claimant name and address
- defendant name and address
- brief details of claim
- claim value
- preferred county court hearing centre for hearing
- defendants address for service
- particulars of claim
- statement of truth
- claimants or their legal representatives address for correspondence
32
do the particulars of claim have to be included in the N1 or attached to the N1 in a separate doc?
either
33
what do the particulars of claim set out?
a detailed chronology of the facts of the case
specifies the legal elements of the claim that is being brought
evidence will accompany the particulars of claim, where appropriate, directed by the CPR
34
for SQE1 you may have to establish whether a claim form has been validly served. what would you need to know for this?1)
- how to serve the claim form
- where to serve the claim form
- when to serve the claim form
35
what are the two elements of how to validly serve the claim form?
1) the claimant must identify the appropriate method of service
2) the claimant must complete the relevant step
(ie what needs to be done by the claimant to validly serve the claim form for that patrticular method of service)
36
the permitted methods of service are set out in CPR 6.3
What are they?
- personal service
- first class post or doc exchange
- leaving the claim form at a specified place
- fax or other means of electronic communication
- any other method authorised by the court
37
the SQE may require you to identify whether a claim form has been validly served by a claimant...
once you have established which method of service the claimant has chosen, you can check whether they have completed the relevant step correctly to validly serve the claim form
38
what are the steps required for valid service through personal service?
a) if D is an individual - claim form should be left with them
b) if D is company or other corporation - claim form should be left with person holding a senior position
c) if D is partnership - claim form should be left with partner or person who, at the time of service, has the control or management of the partnership business at its principal place of business
39
method of service of claim form - personal service
effective personal service of the claim form depends on leaving it with the right person
40
method of service of claim form - first class post or document exchange
if sending by post, the claim form will only be considered validly served if sent by first class post or by document exchange (DX - private postal service used by solicitors that guarantees next day delivery)
41
what is required for valid first class post or DX?
posting, leaving with, delivering to or collection by the relevant service provider
42
method of service of claim form - leaving the claim form at a specified place
what is required for this to be valid
directly delivering the doc to location at which it's to be served
delivering to or leaving the document at the relevant place
43
method of service of claim form - fax or other means of electronic communication
provided the recipient has expressly confirmed that they're happy to accept service by fax or email, claim form can be sent via either of those means
44
what is required for valid service of fax or other means of electronic communication
1) completing the transmission of the tax
2) sending the email or other electronic transmission
45
method of service of claim form - any other method authorised by court
in certain exceptional circumstances, court can authorise service of the claim form by a diff method, such as posting or delivering it to someone who knows D or authorising service by text message
46
NOTE
once you have established how the claimant has served the claim form, move on to consider where the claim form has been served
47
NOTE
CPR 6.9 sets out the correct address for service, depending on the nature of D who is to be served
48
What is the appropriate place for service if D is an individual?
usual or last known residence
49
What is the appropriate place for service if D is an individual being sued in the name of a business?
(eg sole trader)
usual or last known residence of individual, or principal or last known place of business
50
What is the appropriate place for service if D is an individual being sued in the name of a business name of a partnership?
usual or last known residence of the individual, or principal or last know place of business of the partnership
51
What is the appropriate place for service if D is a limited liability partnership?
principal office of the partnership, or any place of business of the partnership within the jurisdiction that has a real connection with the claim
52
What is the appropriate place for service if D is a corporation incorporated in england and wales?
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
53
What is the appropriate place for service if D is a company registered in england and wales (with ltd or limited after their name)?
principal office of the company, or any place of business of the company within the jurisdiction that has a real connection with the claim
54
EXAM WARNING
an sqe q could specify that D has instructed sols to accept service on their behalf
if this is the case, the claim form and associated docs should be served on D's sols at their principal or last known place of business, if a partnership, or registered office if a company
if q doesn't specify that D's sols are instructed to accept service, claim form and associated docs must be served on defendant
55
once you have established where the correct place for service is, what is the final step?
find out if the claim form has been served within the correct time limitations
56
What is meant by the CPR by 'days'?
clear days - the day on which the period began IS NOT included
57
if the day on which the period ends is a specific date (ie 15 july), is the final day counted as a clear day?
yes
58
if the day on which the period ends is by reference to an event (ie 14 days before the hearing), then is the date of the event regarded as a clear day?
no
59
where a period specified is five days or less - are saturdays, sundays and bank holidays counted?
no
60
once a claim has been issued, the claimant has four months within which to serve it on the defendant - this means four straight months
if a claim was issued on 14 May, when would it need to be served by?
midnight on 14 September
61
note - there's an exception with the particulars of claim, if it's drafted as a separate document to the claim form
the CPR allow for the particulars of claim to be served up to 14 days after the claim form, provided this doesn't fall outside the 4 month time period from the date on which the claim form was issued.
therefore using the example above, if claim was issued on 14 may and claimant wished to serve CF and POC separately, they would have to make sure that both docs were served by midnight on 14 September
62
What is the name of the concept the CPR use to determine the date on which the claim form was served, and why do they use it?
because on occasion, D may argue that they haven't actually received the claim form from the claimant
- deemed service
63
what is meant by deemed service?
when a document or application is legally treated by the CPR as having been served on a person, irrespective of whether it actually arrived
64
what day is a claim form deemed served?
on the second business day after the relevant step has taken place
65
What is a business day defined as in the CPR?
any day except saturday, sunday, a bank holiday, good friday or christmas day
66
do the rules on deemed service differ depending on the nature of the document to be served?
yes
67
EXAM WARNING
an sqe q may try to catch you out by asking you a q about when a doc other than a claim form is deemed served.
make sure you pay close attention to the nature of the doc before answering the question
right answer will depend on the method of service that has been adopted.
68
if the document (not claim form) is served by personal service, fax, email or by delivering the document to an address - what is the deemed date of service?
if served before 4:30 on a business day, deemed date of service is the same day
if served after 4:30 on business day or not on a business day, deemed date of service is next business day
69
if the document (not claim form) is served by first-class post or DX - what is the deemed date of service?
second day after it's posted, if it's a business day
(if a defence is sent by first-class post on wednesday, it will be deemed served on friday)
if the second day after the document is posted isn't a business day, the document will be deemed served the next business day
if a defence is sent by first class post on a friday, the second day after posting will be sunday, which isn't a business day - it will therefore be deemed served on monday
70
where the claimant serves the claim form, they must file a certificate of service with the court within how many days?
within 21 days of the date of service of the particulars of claim
71
PRACTICE EXAMPLE
Samantha sends a CF and POC to the court for issue. she indicates she wishes to serve the claim on D, Borthwaite Homes Limited, personally. She decides she will serve the claim by first class post, and sends the CF & POC to the registered address of BHL on afternoon of friday 12 May.
has samantha validly served the CF and POC, if so, when will the court regard the docs as deemed served?
first samantha has picked a valid method of service in sending docs by first class post.
the relevant step for that method of service is posting the doc, which she has done
the address to which she has sent the docs is compliant with CPR 6.9, being the registered address of the company.
she has therefore effected valid service of the CF and POC.
deemed service - claim form - date of deemed service is the second business day after the relevant step is taken
in this case the posting of the docs on friday 12 may - the second day after the doc is posted is sunday 14 may, which isn't a business day
the CF and POC will therefore be deemed served on monday 15 may
72
why might there be need to add (joinder), remove or substitute a party to proceedings?
because a party has died, the incorrect defendant had been identified, or it transpires that an additional is potentially liable in the action and therefore needs to be added
it can also be the case that a party re-evaluates their claim and needs to add to or amend their cause of action
this can be as a result of commencing proceedings without legal advice and subsequently receiving advice that they have pleaded an incorrect cause of action
73
who can make an application to add, remove or substitute a party?
an application can be made by an existing party or by a person who wishes to become a party
74
is the court entitled to add a party on its own initiative?
yes
75
Which docs need to be filed with the court to add, remove or substitute a party?
- the application notice
- an amended copy of the CF and POC
- in the case where a claimant is being added, the signed written consent of that new claimant must be files with the court or they will not grant the application
76
what do the grounds of the application to add, remove or substitute a party depend on?
whether the application is made inside or outside the limitation period
77
if the application to add, remove or sub a party is made inside the limitation period, what are the requirements that the applicant needs to meet?
- it's desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings
- there's an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it's desirbale to add the new party so that the court can resolve that issues
78
EXAM WARNING
note the use of the word 'desirable' in the test - if an sqe q asks about substituting a party within the limitation period, make sure you select the option that makes specific reference to the amendment being 'desirable'
79
if the application is made outside the limitation period (but the original claim was made inside the limitation period) - what is the criteria the applicant needs to meet?
- the new party is to be substituted for a party who was named in the claim form in mistake for the new party
- the claim can't properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant
or
- the original party has died or had a bankruptcy order made against them, and their interest or liability has passed to the new party
80
what needs to happen if the court grants the application to add, remove or sub a party?
a copy of the order must be served in every party to the proceedings and on any other person affected by the order
81
if asked about amending a statement of case (particulars of claim or defence), to reflect a change of cause of action, remember the following rules
- if the doc hasn't been served in any other party to the proceedings, then permission of the court isn't required
- if the doc has been served, the party making the application to amend will either need
the written consent of all other parties to the action to amend the doc
or
permission of the court
82
where the claim form is to be served outside the jurisdiction (outside england and wales), it must be served within how many months of the date of issue?
six months
83
do different rules exist for where service of the claim form needs to take place in a country within the EU or outside the EU?
yes
84
within the EU
provided the english courts have jurisdiction over the claim, and the claim was issued after 1 Jan 2021 (post eu withdrawal), does permission from the court to serve a claim form and docs in an eu country need to be sought prior to service taking place or after?
Priro
85
within the eu
if the claim was issued before 1 Jan 2021, would permission of the court be needed to serve the document in the eu state?
no
85
outside the eu
is permission of the court needed to serve the claim form and associated docs in a country outside the eu?
yes
86
outside the eu
when the court grants permission, they will automatically extend the time period for service to how many months after the claim form was issued?
six months
87
methods of service outside the jurisdiction
once permission to serve outside the jurisdiction has been obtained from the court, service itself needs to be carried out in accordance with the procedures under the law of the country concerned. the claimant should provide...
the claimant should provide the claim form, other documentation is provided to the authorities in england and wales, who then submit that to the authorities in the country in which the defendant is to be served. the foreign authorities will then serve the document and provide a certificate of service
88
how dies the court issue the claim
by sealing the claim form and allocating a claim number to the case
89
once a claim has been issued, how long does the claimant have to serve it on the defendant?
four months
