Unit 2 Commencing and responding to a claim Flashcards
Civil courts - which court?
Dealt with either by the County Court or the High Court.
In some cases can select.
Most important element is amount in dispute:
* If the value of the case exceeds £100,000, (50,000 for personally injury) it may be commenced in the High Court.
* Lower amount County Court.
High Court may also be used if there are other factors:
* the claim is complex either in relation to the facts, the legal issues, the remedy or the procedures; or
* the outcome is important to the public in general.
Even if a claim is issued in the High Court, the judge may decide to transfer the matter to the County Court at a later date.
Civil courts - County court
Straightforward. 100k or less (PI 50k).
Can be specified or unspecified claims.
No single county court. Hearing centres across the country.
Civil courts - High court
3 divisions:
(a) The King’s Bench Division, which has a workload consisting primarily of actions in contract and tort.
(b) The Chancery Division, which is used for disputes arising over land, trusts, contentious inheritance matters, partnership claims and company law.
(c) The Family Division, where family disputes such as defended divorces and adoption are resolved.
Courts across country.
Civil courts - The Business and Property Courts
Umbrella term for a number of specialist courts.
- The Commercial Court
Deals with complex cases arising out of business disputes over contracts, insurance, banking and finance - The Technology and Construction Court,
Handles claims about buildings, engineering and surveying.
Civil courts - Issuing proceedings
Proceedings commence when the claimant or their solicitor send a claim form and other relevant documents to the appropriate court.
Docs are:
* a claim form (form N1);
* particulars of claim (which may be drafted as part of the claim form or sent separately); and
* documents that are required to be annexed by the CPR such as a copy of any contract.
Most dealt with online.
For limitation purposes claim is brought when claim form is received in court office not when issued by court.
Civil courts - Issuing proceedings - Completing the claim form
Summary not a full recitation of all the evidence.
- Heading (A)
Relevant court - Details of the parties (B)
- Brief details of claim (C)
- Statement of value (D)
If specified exact figure including interest.
Unspecified:
High court e.g. ‘The Claimant expects to recover more than £100,000’.
County Court must state whether they expect to receive:
∘ not more than £10,000; or
∘ more than £10,000 but not more than £25,000; or
∘ more than £25,000; or - they cannot say how much they expect to recover.
Disregard - CN, counterclaims, possible awards of costs or interest. - Defendant’s name and address for service (E)
-Financial summary of the claim (F) - Preferred County Court hearing centre (G)
- Witnesses (H)
Whether they or witness are vulnerable/require adjustments. - Human rights (l)
- Particulars of claim (J)
-Statement of truth (K)
Either party or their legal representative must sign. - Address for service (J)
Civil courts - Issuing proceedings - Adding, removing or substituting the parties
- Who can make application?
Existing party or person who wants to become party.
No one can be added or subbed as C unless consent in writing filed at court. - Is permission required?
Yes unless claim form has not been served. - Grounds?
-App made within limitation period
It is desirable to add a party to resolve dispute, remove party, sub party where the existing party’s interest or liability has passed to them. - App made outside limitation period
Only added or subbed if limitation period current when proceedings started AND
original party named by mistake, original party died/bankruptcy order/interest or liability passed to new party OR the claim cannot be carried on without the new party.
Civil courts - Issuing proceedings - Service of the claim form - Methods of service
Permitted methods of service:
(a) personal service;
(b) first class post or document exchange;
(c) leaving the claim form at a specified place;
(d) fax or other means of electronic communication; or
(e) any other method authorised by the court.
Civil courts - Issuing proceedings - Service of the claim form - where to serve
If D not given an address then usual or last known residence.
Civil courts - Issuing proceedings - Service of the claim form - when to serve
Once a claim form has been issued, the claimant has 4 calendar months in which to serve it on the defendant.
Whether or not the time limit is met depends upon the method of service used; so the period ends on the date:
* personal service was effected or delivery was made at the relevant place; or
* the letter was posted or left with the DX provider; or
* the transmission of the fax was completed or the email was sent.
Civil courts - Issuing proceedings - Service of the claim form - deemed service
Indisputable presumption that the claim form is deemed to have been served on the second business day after the step required has occurred.
* A ‘business day’ is any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day.
* The ‘step required’ is, for example, putting the claim form in the post.
- Personal service, delivering to permitted address, fax and email
If before 4:30 on a business day, on that day.
If not day after.
*First class post or DX
The second day after it was posted if business day.
If not on the next business day.
Civil courts - Issuing proceedings - Service of the particulars of claim
- either at the same time as the claim form; or
- within 14 days after service of the claim form (but no later than four months after the date of issue of the claim form).
Civil courts - Issuing proceedings - Service out of the jurisdiction
Document must be served on the other parties within six months of being issued.
Scotland and Wales no permission required to service proceedings.
Other countries need permission (unless contract contains English jurisdiction clause)
Time limit for responding to the claim will be extended.
Responding to a Claim - options
Once the defendant has been served with both the claim form and the particulars of claim…
(a) to file an admission (Part 14);
(b) to file an acknowledgment of service (Part 10); or
(c) to file a defence (Part 15).
(d) ignore claim but claimant will be able to apply for judgment in default.
Responding to a Claim - Admissions - specified claims
2 types of admission forms – one for specified (debt) claims and the other for unspecified claims (where damages are sought).
- Admission of entire claim
Must provide details of their income and expenditure and make an offer of payment, either in full or by way of instalments. Upon receipt of the form, the claimant may then file a request for judgment. If the claimant rejects the defendant’s payment terms, the judge will decide the appropriate rate of payment, usually in the absence of a court hearing. - Admission of part of the claim
Claimant has 14 days to decide on their next course of action:
(a) to accept the part admission in full satisfaction of the claim and request that judgment be entered by the court for that amount;
(b) to accept the part admission but not the defendant’s proposals for payment in which case the court will decide on their suitability; or
(c) to reject the offer entirely and proceed with their claim as a defended action.
This decision is likely to be based, primarily, on the defendant’s ability to pay.
Responding to a Claim - Admissions - unspecified claims
Court will serve a notice on the claimant asking whether or not they accept the figure in satisfaction of the claim.
If the offer is accepted, the claimant may enter judgment for the amount offered and, if the defendant has asked for time to pay, judge will decide the appropriate rate of payment, usually in the absence of a court hearing.
If the claimant does not accept the offer or the defendant makes no offer, the claimant will enter judgment for damages to be assessed at a disposal hearing.
Responding to a Claim - Acknowledgment of service
Defendant may be sure they want to defend the claim but are not yet in a position to draft a full defence.
Filing the acknowledgment of service form buys the defendant time.
Instead of having 14 days from service of the particulars of claim to file their defence, they now have 28 days.
Responding to a Claim - The defence
The response pack contains forms that the defendant can use. Or get sol to prep separate doc.
Once the defence has been filed, a copy must be served on all other parties. The court will be responsible for this unless the defendant’s solicitor has indicated otherwise.
As part of defence D may wish to pursue their own claim against C (counterclaim).
With agreement from the other parties, this can be extended by a maximum of 28 days. The effect is that the defendant has a total of 56 days from the date of service of the particulars of claim. Any further extension would need the court’s permission.
Responding to a Claim - Default judgment
Claimant obtains a judgment without there being any consideration of the facts involved.
To prevent evasion of liability by doing nothing.
Responding to a Claim - Default judgment - procedure
Must make request.
To succeed, they must satisfy the court that:
* the particulars of claim have been served upon the defendant; and
* the defendant has not filed an acknowledgement of service form or a defence within the relevant time period.
Limited circumstances where C cannot get default judgment:
- pending application by the defendant for summary judgment or to have the claimant’s statement of case struck out.
When applying for a specified sum, the claimant must:
* indicate the date payment was due;
* calculate an up- to- date total for the interest claimed; and
* state a daily rate at which interest accrues.
Payment will usually be required within 14 days.
If unspecified have to come back to court to decide damages payable (disposal hearing).
Responding to a Claim - Default judgment - setting aside
D applies.
2 grounds:
- The mandatory ground
Court is obliged to set aside a default judgment if it was wrongly entered.
E.g. judgment has been entered too early, before the time for filing an acknowledgment of service or a defence (whichever is applicable) expired; or because the claim has already been paid in full. - The discretionary ground
Can set aside where the defendant: - has a real prospect of successfully defending the claim; or
- there is some other good reason why the defendant should be allowed to defend the claim e.g. ill or away on holiday.
Responding to a Claim - Default judgment - setting aside - orders
3 possible orders the judge can make:
(a) the defendant succeeds and the judgment is set aside, allowing them to continue to defend the action;
(b) the claimant wins and the judgment remains in place, so they may proceed to enforcement; or
(c) a conditional order is made - the judgment is set aside on condition the defendant pays monies into court.
Used in situations where the court is concerned the defence is being pursued as a delaying tactic where the defendant does not have the money to pay.
Responding to a Claim - Default judgment - setting aside - orders - costs
- If the application is granted on a mandatory ground - C liable for costs.
- Where the defendant establishes the discretionary ground of a good reason for the default, as neither side is at fault, costs are usually in the case.
- Where the defendant only establishes the discretionary ground of a defence with a real prospect of success at trial, the defendant is at fault in failing (initially) to deal with the proceedings. As a consequence, they normally have to pay the claimant’s costs.
- If the application fails, the defendant will pay the claimant’s costs of the application.
Responding to a Claim - Discontinuance
A claimant may decide not to pursue their claim, even though no settlement has been reached.
Can do this at any time during the proceedings.
Permission not usually needed. Needed where the court has granted an interim injunction.
If more than one C, all Cs need to consent in writing or court gives permission.
If more than one D, can discount the claim against any or all.
Must file and serve notice.
