Topic 3: Service, Counterclaims and Limitation Periods Flashcards
opic 3: Service, Counterclaims and Limitation Periods
opic 3: Service, Counterclaims and Limitation Periods
Personal Service
Must be personal service for an originating process:
- Must be served personally on person
- if Dft files unconditional NOTD, the claim is taken to be served on the Dft on the day notice is filed
To serve personally, you must hand a document to the person and if they do not accept, you can put it down next to them.
Personal Service: Corporations and Young people
For corporations, you can leave it or post it to the company or deliver to the company director.
For young people, you must serve to a litigation guardian.
Ordinary Service
- Leave with someone/adult living at the relevant address
- leave at address where it will come to their attention
- posting
- electronic means if allowed
Service for Business
Leaving it at a person’s place of business with someone who appears to have control and management of that business at that place.
Service to partnership
- Serve to 1 or more partners
- A person at the principal place of business of the partnership who appears to have control of the management or business
- Partnership registered office
Service to Solicitor
Can serve a solicitor in any court for any document
Must make note on the copy of the document that they accepted service from the party serving.
Informal Service
Where it is not served as required under the rules but the court is satisfied it came to the person for service.
e.g. leaving documents with neighbour to give to Dft.
Service under contract
A contract may stipulate the method of service required e.g. post, phone, email, fax.
Substituted Service
Prior to service, you can make an application to the court seeking an order allowing them to serve in another way.
Time for service
You cannot serve on christmas or good friday.
If served after 4pm e.g. Served 4:01pm Tuesday. Service won’t be affected until Wednesday.
Computation of time
28 days to file a defence.
“within”: if within 5 days then the time is counted from the event date. e.g. Event occurs on Monday, so the count starts from Tuesday being day 1.
“clear”: Do not count event date. Must be 5 clear days done by the 6th date.
Proof of service
You must put before the court an affidavit of service, including the date, time, place, who, when, where.
Service outside of jurisdiction
To serve outside of jurisdiction you must use SEPA and attach form 1 allowing that.
Notice of Intention to Defend
NOTD is an opportunity for the Dft to respond to a claim and statement of claim served to them. The court will not proceed without it.
The Dft has 28 days from after the date of service.
Where the Dft does not file and serve a NOTD, the Pft can seek a default judgement.
You may serve a NOTD anytime before judgement even if you are in default.
Requirements for NOTD
- Must be in approved form
- Have the dft’s defence attached
- must be signed and dated
Unconditional NOTD
Standard NOTD
Conditional NOTD
Means the Dft believes there is a fault e.g. in the claim or jurisdiction. Must be filed within 14 days seeking an order in respect to the issue.
It becomes unconditional if you fail to make application or are unsuccessful. Within 7 day of unconditional, they must serve a defence.
Service of NOTD
Must serve a sealed copy to the Pft address on the day on which it was filed or as soon as practicable.
Reply to defence
The Pft must reply to the defence within 14 days after the day of service or answer to counterclaim.
Counterclaims
In the proceeding, the Dft may make a counterclaim against the Pft instead of bringing a separate proceeding.
Must be in approved form, included in the same document and served within same time as the defence.
Dft may plead a counterclaim by serving an answer to the counterclaim.
If the initial claim is settled, then the counterclaim continues.
Counterclaim service
An answer to a counterclaim must be filed and served within 14 days after the counterclaim was served, or if the Dft to the counterclaim is not part of the original proceedings, 28 days after the day of service.
Originating applications
Originating applications must be filed and served on each respondent at least 3 business days before or on the day set for hearing application.
Service for an affidavit in support of the application must be filed within 3 business days before of on the hearing date of application and court may give leave for it not served.
Notice of address for service
A respondent may not filed a NOTD, but they may file a Notice of Address for Service served in the approved form. Nothing happens if you don’t.
Limitation Periods
The purpose of limitation periods is to set a time litigation must be commended and provide an end of threat or litigation.
If the time frame is expired, the action is not extinguished but prevents the Pft from any relief. However, where the expiration is not raised by the Dft, you can continue.
If expired, you must plead your defence.
If you admit to liability, time stops and now its suing on quantum.
Calculation and commencement of time
Time starts when cause of action occurs where all necessary elements of cause of action are present.
