Unit 14 - Pt 36, Infants and Parties

Question 1

Practice Direction 7A makes provision for

Answer 1

Procedures to follow when claims are brought by or against a partnership within the jurisdiction.

Question 2

Paragraph 5A PD7 applies to claims brought by or against two persons or more who…

Answer 2

Were partners and carried on that partnership business within the jurisdiction at the time when the cause of action accrued.

Question 3

TRUE or FALSE. FOr the purposes of 7APD5, partners includes persons claiming to be entitled as partners and persons alleged to be partners.

Answer 3

TRUE.

Question 4

Must claims in/against partnerships be made in/against the name of that partnership at the time after the cause of action accrued?

Answer 4

No - at the time the cause of action accrued.

Question 5

What does 7APD.5C apply?

What does it do?

Answer 5

WHere a claim is brought against an individual who carries on a business within the jurisdiction and that business is carried on in a name other than that individual’s own name.

It stipulates that the claim may be brought against the business name as if it were the name of a partnership.

Question 6

When a claim is brought against a trustee, executor or administrator in that capacity, must the beneficiaries be added as parties?

Answer 6

No.

Question 7

Are claims against trustees binding on the beneficiaries?

Answer 7

Yes, unless court orders otherwise in proceedings.

Question 8

Where a person with an interest in a claim dies and has no personal representative, can the court order the claim to proceed in the absence of a representor?

Answer 8

Yes.

Question 9

Where a person with an interest in a claim dies and has no personal representative, can the court order a person to be appointed to represent their estate?

Answer 9

Yes.

Question 10

When D against whom a claim could have been made dies and a grant or probate or administration has been made, who must a claim be broguht against?

Answer 10

The personal representatives of the deceased.

Question 11

When D against whom a claim could have been made dies and no grant of probate/administration has ben made:

Who is the claim brought against?

What must C appy to the court for?

Answer 11

The estate of the deceased;

An order appointing a person to represent the estate of the deceased in the claim.

Question 12

When is a claim treated as having been brought against the estate of the deceased?

Answer 12

a) the claim is brought against the “personal representatives” of the deceased but a grant of probate or administration has not been made; or
(b) the person against whom the claim was brought was dead when the claim was started.

Question 13

When does CPR 21 not apply to cases where one party in proceedings is a child?

Answer 13

Proceedings under Part 75;

Enforcement of specified debts by taking control of goods;

Applications in relation to enforcement of specified debts by taking control of goods.

Question 14

Must protected parties have litigation friends to conduct proceedings on their behalf?

Answer 14

Yes.

Question 15

When can the court make an order permitting a child to conduct proceedings without a litigation friend?

Can the court re-instate a litigation friend at a later point?

Answer 15

The child can apply.

if there is a litigation friend already, notice is required.

Yes, if it subsequently appears to the court that it is desirable for a litigation friend to conduct the proceedings on behalf of the child.

Question 16

What can a party not do in the absence of a litigation friend, without permission of the court?

Answer 16

Make an application against a child or protected party before proceedings have started; or

Take any steps except issuign/serving CF or applying for appointment of litigation friend.

Question 17

What happens if a party lacks capacity to continue to conduct proceedings?

Answer 17

No further steps can be taken without court permission until they get a litigation friend.

Question 18

Who can be a litigation friend?

Answer 18

Someone appointed by the court;

A deputy appointed by the Court of Protection;

Otherwise, someone who can fairly and competently conduct proceedings on behalf of the child or protected party, who has no adverse interests and (where claimant) undertakes to pay any costs which the child/PP may be ordered to pay.

Question 19

Can settlements, compromises or payments in claims involving children/PP be made without approval of the court?

Answer 19

No.

Question 20

Where settlement is reached in child/PP proceedings, and the sole purpose of the proceedings is to get court approval, how must the claim be made?

Answer 20

Part 8 procedure

Include a request for approval.

Question 21

What directions can the court give re mone recovered/accepted on behalf of a child/PP?

Answer 21

The money shall wholly or partly be paid into court and invested or otherwise dealt with.

Question 22

Where a claim concerning child/PP comes to court purely for approval, what additional things must be included in a claim?

What about for personal injury claims arising from accidents?

Answer 22

terms of the settlement or compromise or have attached to it a draft consent order in Practice Form N292;

(2) details of whether and to what extent the defendant admits liability; 
(3) the age and occupation (if any) of the child or protected party; 
(4) the litigation friend’s approval of the proposed settlement or compromise, 
(5) a copy of any financial advice relating to the proposed settlement; and 

PI: (6)in a personal injury case arising from an accident—

    (a) details of the circumstances of the accident, 
    (b) medical and quantum reports and joint statements material to the opinion required by paragraph 5.2, 
    (c) where appropriate, a schedule of any past and future expenses and losses claimed and any other relevant information relating to the personal injury as set out in Practice Direction 16 (Statements of Case), and 
    (d) where considerations of liability are raised—  
        (i) any evidence or reports in any criminal proceedings or in an inquest, and 
        (ii) details of any prosecution brought.

Question 23

TRUE or FALSE. Where a Pt 36 offer (or acceptances/withdrawals) are served on a party who is legally represented, the document must be served on the represented party?

Answer 23

FALSE. Serve on the legal representative.

Question 24

A company or other corporation may be represented at trial by an employee if -

Answer 24

a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and
(b) the court gives permission.

Question 25

Can a child accept an offer without needing a court hearing?

Answer 25

Yes but it wouldn’t be valid.

Question 26

Does a child need a litigation friend to be appointed if they just want to accept an offer?

Answer 26

Yes, unless court makes order allowing conduct of proceedings without a litigation friend.

Question 27

Can you make a Part 36 offer to a claimant on the condition that they pay their own costs?

Answer 27

No - Part 36 includes promise to pay costs,.

Calderbank letter is the alternative.