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BTC- Civil Litigation > Topic 5- Commencing Proceedings > Flashcards

Topic 5- Commencing Proceedings Flashcards

1
Q

How are proceedings started in court?

A

When the court issues a claim form at the request of the claimant

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2
Q

How does a claimant start proceedings where there is more than one claim?

A

They can use a single claim form to start all claims

Each claim can then be disposed of in the same proceedings

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3
Q

What are particulars of claim?

A

This is the details of the claim that must be served in the claim form when the claimant first starts proceedings

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4
Q

How many days after service of claim form must the particulars of claim be served?

A

14 days after claim form service

(Must then also file within 7 days of service on the defendant)

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5
Q

When a claim form is issued, how long does the claimant have to serve it on the defendant?

A

4 months after date of issue

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6
Q

When a claim form is issued, how long does the CL have to serve it on the Def outside of the jurisdiction?

A

6 months after date of issue

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7
Q

Can the claimant extend the time for serving a claim form?

A

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

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8
Q

Part 7 Procedure

A

This is issuing and serving a claim form to start proceedings

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9
Q

How much does the claim have to be to start proceedings in the High Court?

A

£100,000

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10
Q

How much does a personal injury claim have to be to start proceedings in the High Court?

A

£50,000

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11
Q

What are the two courts a claim can usually be brought to?

A

County Court- under £100,000 (under £50,000 for PI)

High Court- over £100,000 (over £50,000 for PI)

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12
Q

When would a claim be started in the High Court?

A

The financial value of the claim

The complexity of the case

The public importance of the outcome

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13
Q

Where a claim is brought against an individual who carries on business under their business name, what should be written on the claim form?

A

The name of the business, not the individual

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14
Q

What are the four factors for extension of time to serve a claim form?

A

Circumstances relied on
Date of issue
Expiry date
Full explanation

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15
Q

Who may serve the claim form?

A

The court will serve the claim for unless the claimant notifies the court that they wish to serve it (personal service)

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16
Q

How is a claim form served personally?

A

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)

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17
Q

How does a claimant serve a claim form on a solicitor?

A

The defendant has given the business address of their solicitor to serve on

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18
Q

What address will the claim form be served on where the claimant does not know the address?

A

The usual or last known residence

Principal office of a corporation/last known place of business

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19
Q

Where should the claimant serve a claim form when they have no idea of their usual or last known residence?

A

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

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20
Q

Who should the claim form be served on when it is served against the Crown?

A

The Attorney General

Or, service on a government department

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21
Q

Can a contract determine service of the claim form?

A

Yes, if a contract gives the terms of serving a claim form, then the parties can use it

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22
Q

After posting a claim form, when will the claim form be deemed served?

A

ALWAYS on the second business day after sending via post or email

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23
Q

If a claim form is posted to a defendant on Monday, when it is deemed served?

A

It will be deemed served on Wednesday

TWO BUSINESS DAYS LATER

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24
Q

If a claim form is posted on a Friday, when is it deemed served?

A

It will be deemed served on Tuesday

TWO BUSINESS DAYS LATER

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25
Q

When can a defendant use an alternative method or an alternative place for serving a claim form?

A

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

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26
Q

How do you serve a claim form on a child or protected party?

A

The claim form must be served on a litigation friend

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27
Q

When is the deemed date of service for a document other than a claim form when served by first class post?

A

The second day after it was posted

28
Q

When is the deemed date of service for a document other than a claim form when served by document exchange?

A

The second day after it was posted

29
Q

When is the deemed date of service for a document other than a claim form when left at a permitted address?

A

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

30
Q

When is the deemed date of service for a document other than a claim form when served by fax or email?

A

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

31
Q

When is the deemed date of service for a document other than a claim form when personally served?

A

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

32
Q

If a particulars of claim is sent via email to the defendant on a Friday at 4:29, when is it deemed served?

A

On the Friday, same day

33
Q

Can a party be added or substituted in a claim form?

A

Yes, but only when the court determines

34
Q

What does the Court need to determine when adding a new party to a claim?

A

Is it desirable to add the new party? or
Is there an issue involving the new party and an existing party

35
Q

What does the Court need to determine when substituting a party to a claim?

A

The court may order for a person to be removed when it is not desirable for that person to be a party to proceedings

36
Q

When will the parties not need the Court’s permission to add or sub parties?

A

Before the claim form has been served

37
Q

What special provisions/reasons are there for when a party is added or substituted?

A

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

38
Q

Where a claim is brought by or against trustees of an estate, who is the court judgment binding on?

A

It is binding on the beneficiaries

39
Q

What is a counterclaim?

A

Where the defendant in a claim decides to take out a claim against the claimant (counterclaim)

40
Q

What is an additional claim against a person for contribution?

A

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

41
Q

Can a defendant make a counterclaim without the court’s permission?

A

Yes, only if the defendant files the counterclaim with the defence

They need permission if not with the defence

42
Q

Can a defendant make a counterclaim against a person other than the claimant?

A

Yes, but must apply for a court order for that person to be added as an additional party

43
Q

What is the time limit for the defendant to serve an additional claim on the claimant?

A

Within 14 days of issue of additional claim

44
Q

When will the court determine whether the additional claim should be separate from the original claim?

A

Must look at the connection between the claim

Defendant must be seeking something substantially similar

45
Q

What should additional parties in additional proceedings be called?

A

Usually the Third Party or Fourth Party, whatever the order they joined the proceedings were

46
Q

What is the key requirement for a protected party or child in proceedings?

A

They must have a litigation friend to conduct proceedings on their behalf

47
Q

Can a party make proceedings against a child or protected party before they have an LF?

A

No, the child or PP must have a litigation friend before issuing and serving a claim form

48
Q

Who may be a litigation friend?

A

Usually the parent or guardian of the child/PP, but can be anyone as long as they fit the requirements

49
Q

What are the requirements for a litigation friend?

A

Must be able fairly and competently conduct proceedings on behalf of the child

Have no adverse interests

Undertake to pay any costs of proceedings

50
Q

Where will the money be paid to if the claimant is a child or PP?

A

It will be put in a fund until the child reaches full age

51
Q

If the defendant believes there may be a second party at fault in a claim, what can the defendant do?

A

They can file and serve a contribution notice on the second party claiming contribution from them

52
Q

If a claim fails, but the defendant has already issued an additional claim against another party, can that additional claim continue?

A

Yes, that claim against the additional party can continue

53
Q

Does discontinuing a claim affect a counterclaim?

A

No, it is treated as a separate claim

54
Q

If the defendant believes that a breach was perpetrated by another party, what should they do?

A

The defendant should apply to the court for an order to add the party in as a defendant to the proceedings

55
Q

When can a claimant add another party to the claim?

A

Only with the written consent of the other party, and then giving their consent to the court

56
Q

What is Part 8 procedure?

A

This is where a party seeks a court’s decision on a question

They will then issue a Part 8 order

57
Q

What must a Part 8 claim form state?

A

The question the claimant is wanting to decide

The remedy the claimant is seeking

58
Q

Can a defendant issue a Part 8?

A

No, it is only for claimants wanting the court to decide on a question

59
Q

What is the time limit for a defendant to acknowledge service?

A

14 days after service of a claim form

60
Q

What must be included in the acknowledgment of service by the defendant?

A

Whether D wishes to contest the claim

If D seeks a different remedy

61
Q

What is the consequence of the defendant failing to fill out an acknowledgment of service?

A

The defendant may have to attend a hearing to state why they failed

62
Q

What must be included in a claim form?

A

They must file the written evidence they rely on

They must also serve this on the defendant

63
Q

How can a defendant object to a Part 8 procedure?

A

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

64
Q

When should a defendant make an additional claim without the court’s permission?

A

They should issue an additional claim at the same time as they serve their defence to the claim

65
Q

If an additional claim has been made, but the original claim has already been settled, what will happen to the additional claim?

A

The additional claim will continue

66
Q

When will a party not need court permission to add or substitute a party in a claim?

A

If the claim for has not been served

BTC- Civil Litigation (18 decks)

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