UNIT 2 - Commencing and Responding to a Claim Flashcards
A claimant wants to issue proceedings for a breach of contract claim arising from the provision of goods that were not of satisfactory quality. This caused the claimant to suffer losses of £43,000 being the price of the goods and £52,000 loss of profits. The defendant is an individual who trades under a business name. The defendant has failed to respond to any correspondence from the claimant. When the contract was negotiated, the defendant instructed solicitors to act on their behalf.
Which statement describes the best way in which the claimant should issue proceedings?
A) In the High Court against the defendant in their individual and business names, with the address for service being that of the defendant.
B) In the High Court against the defendant in their business name only, with the address for service being that of the solicitors.
C) In the County Court against the defendant in their personal name only, with the address for service being that of the defendant.
D) In the County Court against the defendant in their business name only, with the address for service being that of the solicitors.
E) In the County Court against the defendant in their individual and business names, with the address for service being that of the defendant.
CORRECT ANSWER E - The claim must be issued in the County Court as the value of the losses claimed is £95,000, so less than £100,000 which is required for High Court proceedings. Both options A and B are wrong for this reason.
The defendant should be sued in their full unabbreviated name together with their full trading name. For this reason, options B, C and D are wrong. Options B and D are also wrong because the defendant has not confirmed that their lawyers are instructed to accept service of court proceedings on their behalf.
A claim form is served by first class post on Friday 2 April. The particulars of claim is delivered to a permitted address at 5pm on the following Thursday 8 April. The next day is Good Friday and the Monday 12 April is also a bank holiday, being Easter Monday.
Which of the following statements gives the correct days of deemed service?
A) The claim form is deemed served on Tuesday 6 April; the particulars of claim is deemed served on Tuesday 13 April.
B) The claim form is deemed served on Monday 5 April; the particulars of claim is deemed served on Thursday 8 April.
C) The claim form is deemed served on Tuesday 6 April; the particulars of claim is deemed served on Friday 9 April.
D) The claim form is deemed served on Tuesday 6 April; the particulars of claim is deemed served on Monday 12 April.
E) The claim form is deemed served on Monday 5 April; the particulars of claim is deemed served on Tuesday 13 April.
CORRECT ANSWER A - Under the rules, the claim form is deemed served on the second business day after the step required (here sending by first class post) has occurred. Monday 5 April is a business day, as is Tuesday 6 April so the claim form is deemed served on the Tuesday. However, different rules apply to other documents.
The particulars of claim was delivered to the permitted address at 5pm. Even though Thursday 8 April is a business day, it was delivered after the ‘cut-off’ time of 4.30pm, so this date is not the day of deemed service. Service will be effected on the next business day, which is Tuesday 13 April because both Friday and Monday are bank holidays. The other options are wrong because one or more of the dates given do not accurately describe the dates of deemed service.
A claimant commences a claim for breach of contract against a company (the defendant). Two years later, the company is sold to another company (the purchasing company), which takes over all the assets and liabilities. The claimant applies, within the limitation period, to substitute the company as a defendant with the purchasing company so that the claim may continue.
Which statement best describes the court’s powers in this situation?
A) Because the purchasing company has taken over the company’s liabilities, the claimant has the right to substitute the purchasing company as a new party.
B) The purchasing company must file their consent in writing with the court before they may be substituted as a defendant.
C) The court can substitute the purchasing company as a defendant as it is desirable to do so given that the company’s liabilities have passed to the purchasing company.
D) The court can substitute the purchasing company as a defendant because the claim cannot properly be carried on without the new party.
E) The court cannot substitute the purchasing company as a defendant
CORRECT ANSWER C - application was made within the limitation period and the statement correctly describes the legal test to substitute a party.
Option A is wrong because the claimant will require the court’s permission to substitute the purchasing company as a new party given that the claim form has been served (two years have passed). Option B is wrong as written consent is only required if the claimant is to be added or substituted as a new party, and here it is the defendant.
Option D is wrong as this provision relates to applications made outside the limitation period, which does not apply in this instance. Option E is wrong as the court does have the power to substitute the purchasing company as a defendant.
A claimant issues proceedings against a travel company for failing to repay the monies that he paid for his holiday, which was cancelled due to civil disorder in the country he was intending to visit. The claim form and the particulars of claim are deemed served on Tuesday 11 May.
Which of the following answers correctly describes the time limits imposed by the CPR?
A) The company must file a full defence within 14 days and in any event by Tuesday 25 May.
B) If the company files an acknowledgment of service within 14 days, they have until Tuesday 8 June to file a full defence.
C) If the company files an acknowledgement of service on Thursday 13 May, they have until Thursday 27 May to file a full defence.
D) If the company files an acknowledgment of service on Friday 14 May, the claimant may apply for default judgment 14 days thereafter.
E) If the company fails to respond to the proceedings, the first date on which the claimant could apply for default judgment is Tuesday 25 May.
CORRECT ANSWER B - The company has 14 days, so until Tuesday 25 May, to file either an acknowledgment of service or a full defence – hence, option A is wrong. If an acknowledgement of service is filed within 14 days, the deadline to file the defence is extended to 28 days from service of the particulars of claim, so until Tuesday 8 June (option B). The effect is not to ‘add’ 14 days to the date when the acknowledgment of service was filed and this is why option C is wrong. For the same reason, option D is wrong.
The claimant may apply for default judgment after 14 days if the defendant fails to respond at all. However, as the company has until close of business on Tuesday 25 May to do so, the first date on which an application for judgment in default could be made is Wednesday 26 May – explaining why option E is wrong.
A woman is the managing director of a company. She becomes aware that default judgment has been entered, correctly, for an outstanding invoice. The employee in the accounts department who is responsible has been extremely busy and confesses that he forgot to deal with the invoice. However, he explains to the woman that the reason for the non-payment was because there was a dispute about the quality of the consignment delivered under the contract.
Which of the following best describes the course of action which the woman should take?
A) The woman should write to the court on behalf of the company requesting more time to investigate and ask that judgment be set aside in the meantime.
B) The company should apply to the court requesting that the judgment be set aside under the mandatory ground.
C) The company should apply to the court requesting that the judgment be set aside on the discretionary ground that the defendant has a real prospect of successfully defending the claim.
D) The company should apply to the court and rely upon the discretionary ground that there is some other good reason why the judgment be set aside.
E) The woman should advise her fellow directors that if the company succeeds in the application, the claimant will be ordered to pay their costs.
CORRECT ANSWER C - the facts state there is a dispute about the quality of the consignment and so the company may succeed in their defence. Option A is not the best approach because a formal application must be made to the court to set the judgment aside and a letter will not suffice. Option B is wrong as the mandatory ground is irrelevant here – the company have not paid the invoice in full and default judgment was entered correctly, so not too early. Option D is not an appropriate way forward – pressure of work is not a sufficient ‘good reason’ to satisfy the court. Option E is wrong as the company may well be ordered to pay the costs of the application even if they succeed. This is because the company is at fault in failing to deal with the claim form in the first place.
A claimant has issued proceedings against a defendant and the trial date is approaching. The parties enter into negotiations and agree that the defendant will pay half of the outstanding invoice that is in dispute, and the claimant will supply additional materials at no extra cost. The claimant does not want other customers to be aware of this arrangement. Both parties are represented by solicitors.
Now the parties have agreed a resolution to their dispute, what answer describes the best way forward?
A) The claimant will agree to discontinue their claim.
B) The parties will record their agreement in an exchange of correspondence.
C) The parties will need to attend a court hearing to confirm their agreement.
D) The parties should sign a formal consent order to be sealed by the court.
E) The parties should sign a Tomlin order.
CORRECT ANSWER E - Option A does not apply in these circumstances. A notice of discontinuance would be served by the claimant where, for example, they conclude that they are unlikely to succeed at trial and so decide to cut their losses and bring the litigation to a halt. Option B is wrong because proceedings have been issued and, thus, recording the terms of the settlement in correspondence would not be sufficient. Option C is wrong as there is no need for a court hearing to confirm the agreement – it may be ratified in the absence of the parties.
Although the agreement could be confirmed in either a consent order (option D) or a Tomlin order (option E), the latter is the best way forward as the claimant does not want other customers to be aware that they have supplied the defendant with additional materials at no extra cost. If a Tomlin order is used, this term could be kept confidential by placing it in the schedule to the agreement or in a separate document.
Which of the following concerning starting court proceedings is correct?
A) Proceedings are started when the claim form is served on the defendant.
B) A claim form is issued on the date entered on the form by the court.
C) No proceedings may be started in the High Court unless the value of the claim is more than £100,000.
D) Any claim may be started in the High Court if by reason of (1) the financial value of the claim and the amount in dispute, and/or (2) the complexity of the facts, legal issues, remedies or procedures involved, and/or (3) the importance of the outcome of the claim to the public in general, the claimant believes that the claim ought to be dealt with by a High Court judge.
E) If a claimant has two or more different causes of action against a defendant, a claim form must be issued for each separate cause of action.
CORRECT ANSWER B - A claim form is issued on the date entered on the form by the court.
A is wrong as proceedings are started when the court issues a claim form at the request of the claimant.
C is wrong. It is correct that proceedings may not be started in the High Court in non-personal injury claims for damages or proceedings for a specified sum of money unless the value of the claim is more than £100,000. However, proceedings which include a claim for damages in respect of personal injuries may be started in the High Court if the value of the claim is more than £50,000.
D is wrong. Proceedings, whether for damages or for a specified sum of money, may be started in the High Court or County Court where the value of the claim is more than £100,000 or £50,000 in respect of personal injury claims. It is only where a claimant has such a choice that the three factors listed may justify the claimant opting for the High Court. For clarity, here are the CPR provisions [in PD 7A] :
2.1 Proceedings (whether for damages or for a specified sum) may only be started in the High Court if the value of the claim is more than £100,000.
2.2 Proceedings which include a claim for damages in respect of personal injuries may only be started in the High Court if the value of the claim is £50,000 or more (paragraph 9 of the High Court and County Courts Jurisdiction Order 1991 (S.I. 1991/724 as amended) describes how the value of a claim is to be determined).
2.3 A claim must be issued in the High Court or the County Court if an enactment so requires.
2.4 Subject to paragraphs 2.1 and 2.2 above, a claim should be started in the High Court if by reason of
(1) the financial value of the claim and the amount in dispute, and/or
(2) the complexity of the facts, legal issues, remedies or procedures involved,
and/or
(3) the importance of the outcome of the claim to the public in general,
the claimant believes that the claim ought to be dealt with by a High Court judge.
E is wrong. By way of information, note that CPR rule 7.3 provides that a claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.
Which of the following concerning court proceedings is correct?
A) A claim form is received by the court on the first of the month and issued on the tenth of that month. The claim is ‘brought’ for the purposes of the Limitation Act 1980 on the tenth.
B) It is not possible to start proceedings against the estate of a deceased defendant until probate or letters of administration have been granted.
C) A damages claim may be started electronically using Money Claim Online.
D) All personal injury claims for damages which are to be started in the County Court must be issued out of the Civil National Business Centre.
E) A sole trader must be sued using only the business name of the sole trader.
CORRECT ANSWER D - In fact, the Civil National Business Centre (formerly the County Court Money Claims Centre) has jurisdiction to deal with all money-only claims, including both specified (debt) and unspecified (damages) claims. Note that a claim for a remedy other than money would include an injunction or specific performance.
A is wrong. Where the claim form is received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 on that earlier date. The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court. By way of information, note that these provisions can be found in CPR PD 7A paragraphs 6.1 and 6.2.
B is wrong. If proceedings are to be started against the estate of a deceased defendant where probate or letters of administration have not been granted, the claimant should issue the claim against ‘the personal representatives of A.B. deceased’. The claimant should then, before the expiry of the period for service of the claim form, apply to the court for the appointment of a person to represent the estate of the deceased. By way of information, note that these provisions can be found in CPR PD 7A paragraph 6.5.
C is wrong. Money Claim Online deals with claims for specified sums of money (debt claims) for amounts of up to £100,000. These are made by issuing a claim form electronically via HM Courts and Tribunals Service website (by way of information see PD 7C - Money Claim Online).
E is wrong. Where a claim is brought against an individual and that that individual carries on a business under a business name, the defendant may be named as the individual or by using their business name. By way of information, note that these provisions can be found in CPR PD 7A paragraphs 9.1 and 9.2.
Which of the following concerning drafting the claim form is correct?
A) A claim for damages that is to be issued in the County Court must include a statement of value as to whether the claimant expects to recover more or less than £25,000.
B) The claim form must contain a concise statement of the nature of the claim and specify the remedy which the claimant seeks.
C) The claim form must be headed with the title of the proceedings which is limited to the full name of each party.
D) The claim form or, where they are not included in the claim form, the particulars of claim, must be verified by a statement of truth.
E) Where the claimant does not include the particulars of claim in the claim form, they may be served separately (1) either at the same time as the claim form, or (2) within 28 days after service of the claim form provided that the service of the particulars of claim is within 6 months after the date of issue of the claim form.
CORRECT ANSWER B - The brief details of claim on the front page of the claim form must (a) contain a concise statement of the nature of the claim and (b) specify the remedy which the claimant seeks. By way of information, note that these provisions can be found in CPR rule 16.2(1)(a) and (b).
A is wrong. In a County Court damages claim, the statement of value must state whether the claimant expects to recover (i) not more than £10,000; (ii) more than £10,000 but not more than £25,000; or (iii) more than £25,000 but not more than £100,000; or (iv) more than £100,000. By way of information see CPR rule 16.3(2)(b).
C is wrong. The claim form (and every other statement of case), must be headed with the title of the proceedings. The title should state: (1) the number of proceedings, (2) the court or Division in which they are proceeding, (3) the full name of each party and (4) each party’s status in the proceedings (i.e. claimant/defendant). By way of information, note that these provisions can be found in CPR PD 7A paragraph 4.1.
D is wrong. The claim form and, where they are not included in the claim form, the particulars of claim, must be verified by a statement of truth.
E is wrong. Where the claimant does not include the particulars of claim in the claim form, they may be served separately (1) either at the same time as the claim form, or (2) within 14 days after service of the claim form provided that the service of the particulars of claim is within 4 months after the date of issue of the claim form or 6 months where the claim form is to be served out of the jurisdiction. By way of information, note that these provisions can be found in CPR rule 7.4(1) and (2).
Which of the following concerning service of a claim form is correct?
A) A claim form is served personally by handing it to the defendant who is an individual litigant in person. The claim form is deemed to be served that day.
B) A woman issues a claim form against a sole trader who provided his services to her negligently. The sole trader does not have solicitors acting for him. The claim form can be properly served by sending it in the post second class to the man’s last known place of business.
C) Unless the court gives its permission, a claim form cannot be served by posting or delivering it to the address of a person who knows the defendant and who is likely to bring it to the defendant’s attention.
D) Where a defendant provides the claimant in writing with a solicitor’s business address within the jurisdiction at which the defendant may be served with the claim form, the claimant may validly serve the claim form either on the defendant or that solicitor
E) A claim form is served personally on a company or other corporation by leaving it with a person who, at the time of service, has the control or management of the company or corporation at its principal place of business.
CORRECT ANSWER C- The court can consider an application to serve proceedings by a method not specified in Part 6 of the CPR provided there is a good reason for doing so. The application must be supported by evidence stating (1) the reason why an order is sought; (2) what alternative method or place is proposed, and (3) why the applicant believes that the document is likely to reach the person to be served by the method or at the place proposed. For example, an application to serve by sending a SMS text message or leaving a voicemail message at a particular telephone number saying where the document is must be accompanied by evidence that the person serving the document has taken, or will take, appropriate steps to ensure that the party being served is using that telephone number and is likely to receive the message.
A is wrong. Regardless of the method of service used to serve a claim form, it is always deemed to be served the second business day after completion of the relevant step.
B is wrong. First class post is required for service under the Civil Procedure Rules. By way of information, it is only a company that may be served by second class post because that is permitted under the Companies Act 2006 (although, in practice, first class post would normally be used).
D is wrong. Where (a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or (b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction, the claim form must be served at the business address of that solicitor.
E is wrong. A claim form is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation. You should note in addition that a claim form is served personally on (a) an individual by leaving it with that individual and (b) a partnership (where partners are being sued in the name of their firm) by leaving it with (i) a partner; or (ii) a person who, at the time of service, has the control or management of the partnership business at its principal place of business.
A defence is served by fax transmission that was completed at 11am on Good Friday 10 April. Monday 13 April is also a Bank Holiday, being Easter Monday.
On which of the following dates is the defence deemed to be served?
A) 10 April
B) 11 April
C) 12 April
D) 13 April
E) 14 April
CORRECT ANSWER E - making all the other dates wrong. If the transmission of the fax is completed on a business day before 4.30pm, the defence is deemed to be served on that day; however, in all other cases, service is deemed to occur on the next business day after the day on which it was transmitted. So, whilst the transmission of the faxed defence is completed before 4.30pm it occurs on Good Friday and therefore does not take place on a business day. Saturday, Sunday and the Bank Holiday, Easter Monday are not business days. That means the date of deemed service is Tuesday 14 April being the first business day after the day on which the faxed defence was transmitted. By way of information, note that these provisions can be found in CPR rule 6.26. The definition of a ‘business day’ can be found in CPR rule 6.2(b).
Which of the following concerning responding to service of proceedings is correct?
A) The general rule is that the period for filing an acknowledgment of service is (a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and (b) in any other case, 14 days after service of the claim form.
B) If a defendant fails to file an acknowledgment of service within the prescribed period, the claimant may obtain default judgment.
C) A defendant who wishes to dispute the court’s jurisdiction to try the claim must make no response to service of the proceedings other than apply to the court for an order declaring that it has no such jurisdiction.
D) The general rule is that the period for filing a defence is 28 days after service of the particulars of claim.
E) The defendant and the claimant cannot agree to extend the prescribed period for filing the defence.
CORRECT ANSWER A - The general rule is that the period for filing an acknowledgment of service where the defendant is served with a claim form which states that particulars of claim are to follow, is 14 days after service of the particulars of claim; and in any other case, 14 days after service of the claim form. By way of information, this is provided for in CPR rule 10.3(1).
B is wrong. If a defendant fails to file an acknowledgment of service and/or a defence within the prescribed time limits, then the claimant may obtain default judgment.
C is wrong. A defendant who wishes to dispute the court’s jurisdiction to try the claim must file an acknowledgment of service and then apply to the court for an order declaring that it has no such jurisdiction. By way of information, CPR rule 11 provides the following detail:
“(1) A defendant who wishes to –
(a) dispute the court’s jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.
(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.
(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.
(4) An application under this rule must –
(a) be made within 14 days after filing an acknowledgment of service; and
(b) be supported by evidence.
(5) If the defendant –
(a) files an acknowledgment of service; and
(b) does not make such an application within the period specified in paragraph (4),
he is to be treated as having accepted that the court has jurisdiction to try the claim.”
D is wrong. The general rule is that the period for filing a defence is (a) 14 days after service of the particulars of claim; or (b) if the defendant files an acknowledgment of service in time, 28 days after service of the particulars of claim.
E is wrong. The defendant and the claimant may agree that the prescribed period for filing a defence may be extended by up to 28 days. Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing. By way of information, this is provided for in CPR rule 15.5.
Which of the following about setting aside a default judgment is correct?
A) The court may, at its discretion, set aside a default judgment where the whole of the claim was satisfied before judgment was entered.
B) The court may, at its discretion, set aside a default judgment where the claimant can show that the defendant has no reasonable prospect of successfully defending the claim.
C) The court must set aside the default judgment if the defendant can prove that they were away on holiday at the time the proceedings were served as well as when default judgment was entered.
D) The court may, at its discretion, set aside a default judgment if (a) the defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why the judgment should be set aside.
E) In considering whether or not to set aside a default judgment, the court will ignore the length of time that it takes the defendant to make the application.
CORRECT ANSWER D - There are two grounds under which the court may set aside a default judgment as a matter of its discretion, namely, either the defendant has a real prospect of successfully defending the claim and/or it appears to the court that there is some other good reason why the judgment should be set aside. By way of information, this is provided for in CPR rule 13.3(1)(a) and (b).
A is wrong. The court must (it is a mandatory ground) set aside the default judgment if the whole of the claim was satisfied before judgment was entered. By way of information, this is provided for in CPR rule 13.2(c).
B is wrong. First, it is the defendant’s application, so the burden is on the defendant to show that the ground for setting aside the default judgment is established. Second, the ground is that the defendant has a real (not just reasonable) prospect of successfully defending the claim.
C is wrong. If the defendant can prove that they were away on holiday at the time the proceedings were served and default judgment entered, then the court may set aside the default judgment as matter of its discretion on the ground that there is some other good reason why the judgment should be set aside.
E is wrong. In considering whether to set aside a default judgment, the matters to which the court must have regard include whether the defendant made the application promptly. By way of information, this is provided for in CPR rule 13.3(2). Additionally, the court will treat the application as relief from a sanction and apply the principles in the well-known case of Denton v White [2014] - you will consider this topic in Unit 4.
TRUE OR FALSE: a claimant who discontinues their claim is automatically liable to pay the defendant’s costs on the indemnity basis.
FALSE - Unless the court orders otherwise, a claimant who discontinues their claim against a defendant is liable for the costs which that defendant incurred before the date on which notice of discontinuance was served on that defendant. The costs will be payable automatically on the standard basis unless the defendant makes a successful application to the court for an order for payment on the indemnity basis. By way of information, discontinuance is dealt with in CPR Part 38.
Which of the following about a Tomlin Order is correct?
A) A Tomlin Order can only be used to settle a claim for money.
B) Terms which the parties wish to keep confidential must be set out in a separate document.
C) Only terms which are within the powers of the court to order may be included.
D) Where one party is to pay another’s costs and/or the parties want the amount of those costs to be assessed by the court, this provision must go in the order.
E) If a party breaches of any of the agreed terms, the stay of proceedings is automatically lifted.
CORRECT ANSWER D - Where one party is to pay another’s costs and/or the parties want the amount of those costs to be assessed by the court, this provision must go in the order as that gives the court power to deal with the issue of costs.
A is wrong. A Tomlin Order can be used to settle claims for money, such as debts or damages, as well as non-monetary remedies, such as injunctions.
B is wrong. Terms which the parties wish to keep confidential may be set out in a schedule to the Tomlin Order or in a separate document. In order to ensure absolute confidentiality, a separate document is often used and the schedule can simply include words such as “the parties having agreed to the terms set out in an agreement dated [date], copies of which are held by the parties’ solicitors”.
C is wrong. One of the advantages of using a Tomlin Order is that terms which are outside the powers of the court to order may be included.
E is wrong. A Tomlin Order stays the claim on agreed terms, but a party must apply to the court for the stay to be lifted if the court is to be asked to enforce any of the terms of settlement.
