The Basics

Question 1

What is the Overriding Objective of the Civil Procedure Rules?

Answer 1

To enable the Court to handle cases justly and at proportionate cost.

It is on the Court and the Parties to carry out this objective, but the prerogative chiefly lies with the former.

Question 2

Does the Loser pay the Winner’s costs?

Answer 2

Yes, although usually only a portion of them, and even that is ultimately at the Court’s discretion.

CPR 44.2.

Things like proportionality, reasonableness, the Parties’ conduct, and the extent of success will influence how much the Court will order.

Question 3

What is Pre-Action Protocols (“PAPs”)?

Answer 3

Conduct guidelines Parties should follow prior to litigation, designed to encourage an exchange of information that facilitates out-of-court resolution.

Noncompliance may merit adverse consequences, most often concerning costs, money awarded or money payable, but also stays of proceedings.

Question 4

When claiming against a Partnership, why would it be wise to also name the Partners’ personally in the Claim Form?

Answer 4

It allows you to seek enforcement against the Partners’ personal assets.

CPR 7.2A and 7A PD 5A.

By way of example: Flagstones (a firm) & (1) Fred Flagtone and (2) Nisha Rouble.

This does not apply to LLPs.

If the Partnership dissolves before proceedings are issued, the claim is made against the former Partners in the name of the dissolved firm.

Question 5

When can a Company be represented by an Employee in a Trial?

Answer 5

• The employee has been authorised to do so by the Company; and
• The Court gives permission.

Question 6

How should one Title a claim against a Trust or Deceased Person?

Answer 6

• Directly, whether against the Trustees, Executors, Administrators, or the Deceased.
• You need not add any beneficiaries or the estate as parties to the claim.

CPR 19.12(3).

Question 7

What happens if a Person with an Interest in a Claim dies and they have no Personal Representative?

Answer 7

The Court may order:

• The Claim to proceed nonetheless; or
• A person to be appointed to represent the Estate.

CPR 19.12(1).

Question 8

What happens if a Defendant against whom a Claim could have been brought dies?

Answer 8

• If a Grant of Probate or Administration has been made, the Claim must be brought against their Personal Representative.
• If such a Grant has not been made:
  • The Claim must be brought against the Deceased’s Estate; and
  • The Claimant must apply for an Order to appoint a person to represent the Estate.

CPR 19.12(2).

Question 9

How is Incapacity evaluated by a Legal Advisor?

Answer 9

By asking whether the person can:

• Recognise the problem they encounter;
• Explain with sufficient clarity the problem to those from whom they seek appropriate advice;
• Understand and evaluate the advice received from an appropriate source; and
• Understand the effects of making one choice over another and give effect to their chosen course through instruction.

Martin Masterman-Lister [2002] EWCA Civ 1889.

This is critical because those lacking capacity cannot bring a claim on their own behalf and require a Litigation Friend under CPR 21.2.

Question 10

Who may be a Litigation Friend?

Answer 10

Someone who:

• Can fairly and competently conduct proceedings on the Incapable Party’s behalf;
• Has no adverse interest to that of the Incapable Party; and
• Undertakes to pay any costs that the Incapable Party may be ordered to pay;
  • Subject to any right he may have to be repaid from the Incapable Party’s assets.

CPR 21.4(3).

Usually, appointments are made by serving of a Certificate of Suitability showing that the Litigation Friend satisfies these criteria.

Question 11

When arriving at a Settlement with an Incapable Party, what else is Necessary for Validity?

Answer 11

• Court Approval.
• Even if Settlement is reached before Proceedings start, the Parties should File under CPR 8 and request Court Approval.

CPR 21.10(1)-(4).