Topic 5- Commencing Proceedings Flashcards
How are proceedings started in court?
When the court issues a claim form at the request of the claimant
How does a claimant start proceedings where there is more than one claim?
They can use a single claim form to start all claims
Each claim can then be disposed of in the same proceedings
What are particulars of claim?
This is the details of the claim that must be served in the claim form when the claimant first starts proceedings
How many days after service of claim form must the particulars of claim be served?
14 days after claim form service
(Must then also file within 7 days of service on the defendant)
When a claim form is issued, how long does the claimant have to serve it on the defendant?
4 months after date of issue
When a claim form is issued, how long does the CL have to serve it on the Def outside of the jurisdiction?
6 months after date of issue
Can the claimant extend the time for serving a claim form?
Yes, the CL can apply to the court for an order to extend the time to serve the claim form
The court must consider if-
- The court has failed to serve the claim form
- The claimant has taken all reasonable steps of service but is unable to do so
- The claimant has acted promptly
The discretionary power of the court must be exercised in accordance with the overriding objective
Part 7 Procedure
This is issuing and serving a claim form to start proceedings
How much does the claim have to be to start proceedings in the High Court?
£100,000
How much does a personal injury claim have to be to start proceedings in the High Court?
£50,000
What are the two courts a claim can usually be brought to?
County Court- under £100,000 (under £50,000 for PI)
High Court- over £100,000 (over £50,000 for PI)
When would a claim be started in the High Court?
The financial value of the claim
The complexity of the case
The public importance of the outcome
Where a claim is brought against an individual who carries on business under their business name, what should be written on the claim form?
The name of the business, not the individual
What are the four factors for extension of time to serve a claim form?
Circumstances relied on
Date of issue
Expiry date
Full explanation
Who may serve the claim form?
The court will serve the claim for unless the claimant notifies the court that they wish to serve it (personal service)
How is a claim form served personally?
By leaving it with the individual
By leaving it with a person holding a senior position within a company
By leaving it with a partner (on a partnership company)
How does a claimant serve a claim form on a solicitor?
The defendant has given the business address of their solicitor to serve on
What address will the claim form be served on where the claimant does not know the address?
The usual or last known residence
Principal office of a corporation/last known place of business
Where should the claimant serve a claim form when they have no idea of their usual or last known residence?
If they have taken all the reasonable steps to ascertain the address, then they must consider any alternative places or methods to serve the claim form
eg, could serve over social media
Who should the claim form be served on when it is served against the Crown?
The Attorney General
Or, service on a government department
Can a contract determine service of the claim form?
Yes, if a contract gives the terms of serving a claim form, then the parties can use it
After posting a claim form, when will the claim form be deemed served?
ALWAYS on the second business day after sending via post or email
If a claim form is posted to a defendant on Monday, when it is deemed served?
It will be deemed served on Wednesday
TWO BUSINESS DAYS LATER
If a claim form is posted on a Friday, when is it deemed served?
It will be deemed served on Tuesday
TWO BUSINESS DAYS LATER
When can a defendant use an alternative method or an alternative place for serving a claim form?
When they have taken all the reasonable steps to ascertain the residence of the defendant
Must give evidence and notice to the court when making a request
How do you serve a claim form on a child or protected party?
The claim form must be served on a litigation friend
When is the deemed date of service for a document other than a claim form when served by first class post?
The second day after it was posted
When is the deemed date of service for a document other than a claim form when served by document exchange?
The second day after it was posted
When is the deemed date of service for a document other than a claim form when left at a permitted address?
If it was left on a business day before 4:30pm, then it will be deemed served on that day
If after 4:30pm, the next business day
When is the deemed date of service for a document other than a claim form when served by fax or email?
If it was emailed on a business day before 4:30pm, then it is deemed served on that day
If not, then the next business day
When is the deemed date of service for a document other than a claim form when personally served?
If it was personally served on a business day before 4:30pm, then it is deemed served on that day
If not, then the next business day
If a particulars of claim is sent via email to the defendant on a Friday at 4:29, when is it deemed served?
On the Friday, same day
Can a party be added or substituted in a claim form?
Yes, but only when the court determines
What does the Court need to determine when adding a new party to a claim?
Is it desirable to add the new party? or
Is there an issue involving the new party and an existing party
What does the Court need to determine when substituting a party to a claim?
The court may order for a person to be removed when it is not desirable for that person to be a party to proceedings
When will the parties not need the Court’s permission to add or sub parties?
Before the claim form has been served
What special provisions/reasons are there for when a party is added or substituted?
Where there was a mistake on the claim form naming another party
Where the claim cannot be properly carried out unless the new party is added or subbed
The original party has died or bankrupt, so must pass on to a new party
Where a claim is brought by or against trustees of an estate, who is the court judgment binding on?
It is binding on the beneficiaries
What is a counterclaim?
Where the defendant in a claim decides to take out a claim against the claimant (counterclaim)
What is an additional claim against a person for contribution?
Where the defendant in a claim may make a contribution claim against another party in order for them to “contribute” to the damages or costs
Can a defendant make a counterclaim without the court’s permission?
Yes, only if the defendant files the counterclaim with the defence
They need permission if not with the defence
Can a defendant make a counterclaim against a person other than the claimant?
Yes, but must apply for a court order for that person to be added as an additional party
What is the time limit for the defendant to serve an additional claim on the claimant?
Within 14 days of issue of additional claim
When will the court determine whether the additional claim should be separate from the original claim?
Must look at the connection between the claim
Defendant must be seeking something substantially similar
What should additional parties in additional proceedings be called?
Usually the Third Party or Fourth Party, whatever the order they joined the proceedings were
What is the key requirement for a protected party or child in proceedings?
They must have a litigation friend to conduct proceedings on their behalf
Can a party make proceedings against a child or protected party before they have an LF?
No, the child or PP must have a litigation friend before issuing and serving a claim form
Who may be a litigation friend?
Usually the parent or guardian of the child/PP, but can be anyone as long as they fit the requirements
What are the requirements for a litigation friend?
Must be able fairly and competently conduct proceedings on behalf of the child
Have no adverse interests
Undertake to pay any costs of proceedings
Where will the money be paid to if the claimant is a child or PP?
It will be put in a fund until the child reaches full age
If the defendant believes there may be a second party at fault in a claim, what can the defendant do?
They can file and serve a contribution notice on the second party claiming contribution from them
If a claim fails, but the defendant has already issued an additional claim against another party, can that additional claim continue?
Yes, that claim against the additional party can continue
Does discontinuing a claim affect a counterclaim?
No, it is treated as a separate claim
If the defendant believes that a breach was perpetrated by another party, what should they do?
The defendant should apply to the court for an order to add the party in as a defendant to the proceedings
When can a claimant add another party to the claim as a claimant?
Only with the written consent of the other party, and then giving their consent to the court
What is Part 8 procedure?
This is where a party seeks a court’s decision on a question which is unlikely to involve a substantial dispute of fact
They will then issue a Part 8 order
What must a Part 8 claim form state?
The question the claimant is wanting to decide
The remedy the claimant is seeking
Can a defendant issue a Part 8?
No, it is only for claimants wanting the court to decide on a question
What is the time limit for a defendant to acknowledge service?
14 days after service of a claim form
What must be included in the acknowledgment of service by the defendant?
Whether D wishes to contest the claim
If D seeks a different remedy
What is the consequence of the defendant failing to fill out an acknowledgment of service?
The defendant may have to attend a hearing to state why they failed
What must be included in a claim form?
They must file the written evidence they rely on
They must also serve this on the defendant
How can a defendant object to a Part 8 procedure?
Where there is a substantial dispute of fact, or where they believe it is not required, then D must state the reasons when he files the acknowledgement of service
When should a defendant make an additional claim without the court’s permission?
They should issue an additional claim at the same time as they serve their defence to the claim
If an additional claim has been made, but the original claim has already been settled, what will happen to the additional claim?
The additional claim will continue
When will a party not need court permission to add or substitute a party in a claim?
If the claim for has not been served
If persons are jointly entitled to a remedy, what happens if one person does not agree to be a claimant?
They must be made a defendant
Do all persons jointly entitled to a remedy have to be a party in the claim?
Yes
If one refuses, they must be made a defendant
Does a 17 year old require a litigation friend?
No, the court may say that it is not required
Where there is a personal injury claim on behalf of a child, how will the settlement be approved?
Must be made by making an application to the court for approval of the settlement
How many days after a party files their defence, may they file an additional claim for contribution?
Within 28 days
When is a claim form deemed issued?
On the date entered on the form by the court
This is even if the date is wrong
What is the latest time for serving a particulars of claim?
No later than the latest time for serving a claim form
When may the claimant extend the time for serving the claim form?
When they have taken all reasonable steps to comply
They have acted promptly to do so
(The application must be supported by evidence, made without notice)
Is starting proceedings in High Court due to value a must or a may?
A may
Why would a claim be started in the High Court?
Due to the financial value of the claim
The complexity of the facts, or legal issues
The important of the outcome of the claim to the public
Can a claim form be served personally against the Crown?
No
How does a party serve a claim form personally on a company?
By leaving it with a person holding a senior position within the company
If a solicitor acting for the defendant has notified the claimant that they may accept service of the claim form, does this mean the claim form must be served on the solicitors?
YES
When may a claimant use an alternative place or method to serve a claim form?
Once they have taken reasonable steps to ascertain the address of the defendant
Must make an application supported by evidence (no notice required)
In proceedings against the Crown, where should the claim form be served?
On the Attorney-General or government department
If an existing party’s liability or interest has passed to a new party, what will the court do?
They will likely order the new party to be substituted for the existing one
Can a non-party add themselves to proceedings?
Yes, if the claim form has already been served, the non-party can make an application
Supported by evidence (no notice required)
What do you need to add or substitute a person as a claimant?
The written consent of the new claimant must be filed
When a party decides to add a new party by amendment, who is responsible for the costs?
The party
If the limitation period has expired, can the court still add or sub a party?
Yes, but only if the limitation period was current when the proceedings were started
AND
The addition or substitution was necessary
When will the addition or substitution of a party be deemed necessary?
If a party was named in claim form by mistake
If the claim cannot properly be carried on unless a new party is added or subbed
If the original party has died or gone bankrupt, and their interest has passed to a new party
Where a party with no personal representative has died, what will the court do?
They may order for the claim to proceed
OR
Appoint a personal representative of the deceased’s estate
If a defendant wishes to counterclaim against a non-party, what must they do?
They must apply to the court for an order that the person is joined as an additional party
May be made without notice
Does a protected party need a litigation friend?
YES - they must have a litigation friend
If a defendant has failed to file an acknowledgement of service of a Part 8 claim form, can they still attend the hearing?
Yes, but cannot take part unless the court gives permission
Which track will Part 8 claims usually be allocated to?
The multi-track
Should a money claim for £80,000 be started in the County Court?
Yes, it must
Should a money claim for £70,000 with a specific performance be started in the County Court?
Not necessarily
There are various factors that need to be looked at before allocation, such as complexity- as it includes specific performance, it cannot be immediately allocated to the County Court purely based on its monetary value
