Unit 5 Commencement Flashcards
What methods of service of a claim form are allowed?
a. personal service;
b. first class post, document exchange or other service which provides for delivery on the next business day;
c. leaving it at a place specified;
d. fax or other means of electronic communication; or
e. any method authorised by the court.
Who SERVES the claim form?
(1) The court will serve the claim form except where—
a. a rule or practice direction provides that the claimant must serve it;
b. the claimant notifies the court that the claimant wishes to serve it; or
c. the court orders or directs otherwise.
(2) Where the court is to serve the claim form, it is for the court to decide which method of service is to be used.
(3) Where the court is to serve the claim form, the claimant must, in addition to filing a copy for the court, provide a copy for each defendant to be served.
Who’s responsibility is it to ensure the defendant’s address for service is known and included?
The drafting of the claim form is the responsibility of the claimant and it is the claimant who must ensure that the address at which the defendant may be served is included in it. In those cases where the claim form is to be served by the court the sense of this requirement is obvious. In those cases where it is to be served by the claimant it has practical utility (e.g. by ensuring congruence between the claim form and the certificate of service filed by the claimant).
The place of service of:
Individual
Usual or last known residence.
The place of service of:
Individual being sued in the name of a business
Usual or last known residence of the individual; or principal or last known place of business.
The place of service of:
Individual being sued in the name of a partnership
Usual or last known residence of the individual; or principal or last known place of business of the partnership.
The place of service of:
Limited Liability Partnership
Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.
The place of service of: Corporation (other than a company) incorporated in England and Wales
Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
The place of service of: Company registered in England and Wales
Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.
The place of service of: Any other company or corporation
Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.
What is deemed service?
A claim form served within the United Kingdom in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under rule 7.5(1).
Relevant step under 7.5(1) for deemed service of CLAIM FORM if served by: First class post, document exchange or other service which provides for delivery on the next business day
Posting, leaving with, delivering to or collection by the relevant service provider
DEEMED SERVICE IS ON THE SECOND BUSINESS DAY AFTER COMPLETING THIS STEP.
Relevant step under 7.5(1) for deemed service of CLAIM FORM if served by:
Delivery of the document to or leaving it at the relevant place
Delivering to or leaving the document at the relevant place.
DEEMED SERVICE IS ON THE SECOND BUSINESS DAY AFTER COMPLETING THIS STEP.
Relevant step under 7.5(1) for deemed service of CLAIM FORM if served by:
Personal Service
Completing the relevant step required by rule 6.5(3). The step required by r.6.5(3), in the case of personal service on an individual, is that of “leaving it with that individual”; the steps required in the case of such service on a company or a partnership are also stipulated in that provision.
DEEMED SERVICE IS ON THE SECOND BUSINESS DAY AFTER COMPLETING THIS STEP.
Relevant step under 7.5(1) for deemed service of CLAIM FORM if served by:
Fax
Completing the transmission of the fax.
DEEMED SERVICE IS ON THE SECOND BUSINESS DAY AFTER COMPLETING THIS STEP.
Relevant step under 7.5(1) for deemed service of CLAIM FORM if served by:
Other Electronic Method
Sending the email or other electronic transmission.
DEEMED SERVICE IS ON THE SECOND BUSINESS DAY AFTER COMPLETING THIS STEP.
What is the deemed date of service OF POC for: First class post (or other service which provides for delivery on the next business day)
The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.
What is the deemed date of service OF POC for: Document exchange
The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.
What is the deemed date of service OF POC for: Delivering the document to or leaving it at a permitted address
If it is delivered to or left at the permitted address on a business day before 4.30p.m., on that day; or in any other case, on the next business day after that day.
What is the deemed date of service OF POC for: Fax
If the transmission of the fax is completed on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was transmitted.
What is the deemed date of service OF POC for: Other electronic method
If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent.
What is the deemed date of service for OF POC: Personal service
If the document is served personally before 4.30p.m. on a business day, on that day; or in any other case, on the next business day after that day.
Can the claimant be granted an extension of time for service of the claim form?
Yes if application is made to the court within the time period that they wish to extend. A claimant who is granted an extension of time for service of the claim form without notice to the defendant needs to be aware that the order may be set aside subsequently on an application by the defendant.
What can the court consider in deciding whether a claimant made all reasonable steps to serve a claim form?
In determining whether a claimant has taken “all reasonable steps to serve the claim form” the court is limited to taking into account steps taken during the four month period allowed by r.7.5, and steps taken after that time are irrelevant, and a claimant who leaves their effort to effect proper service on a defendant whose address they do not have, until the day before the expiry of the four month period, did not comply with the rule. However, it is the whole of the four month period that must be taken into consideration: Hallam Estates Ltd v Baker [2012] where the Master was found to have erred in confining his consideration only to the end of that period and in ruling that the expiration of the limitation period was merely to be considered only as potentially raising prejudice.
When may a claimant use the Part 8 Procedure?
- 1(2)A claimant may use the Part 8 procedure where—
a. he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact; or
b. paragraph (6) applies.
(6) A rule or practice direction may, in relation to a specified type of proceedings—
a. require or permit the use of the Part 8 procedure; and
b. disapply or modify any of the rules set out in this Part as they apply to those proceedings.
Can a claimant obtain default judgement using part 8 proceedings?
Where the claimant uses the Part 8 procedure he may not obtain default judgment under Part 12.
What should a claim form for the part 8 procedure contain?
Where the claimant uses the Part 8 procedure the claim form must state—
a. that this Part applies;
b.
i. the question which the claimant wants the court to decide; or
ii. the remedy which the claimant is seeking and the legal basis for the claim to that remedy;
c. if the claim is being made under an enactment, what that enactment is;
d. if the claimant is claiming in a representative capacity, what that capacity is; and
e. if the defendant is sued in a representative capacity, what that capacity is.
What is the consequences of not filing an acknowledgement of service of a part 8 claim?
- 4(1)This rule applies where—
a. the defendant has failed to file an acknowledgment of service; and
b. the time period for doing so has expired.
(2) The defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission. - 4.1: It is at this stage that, in practice, a defendant must either respond to the claim, for example if a different remedy to the remedy claimed is sought they should set this out with particulars, or seek to dispute the court’s jurisdiction (a directions hearing will then be listed) or object to the use of the Pt 8 procedure, for example, on the ground that a substantial dispute of fact needs to be considered by the court in the particular claim (again a directions hearing will be listed).
Filing and serving written evidence under Part 8
- The claimant must file any written evidence on which he intends to rely when he files his claim form.
- The claimant’s evidence must be served on the defendant with the claim form.
- A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.
- If he does so, he must also, at the same time, serve a copy of his evidence on the other parties.
- The claimant may, within 14 days of service of the defendant’s evidence on him, file further written evidence in reply.
- If he does so, he must also, within the same time limit, serve a copy of his evidence on the other parties.
- The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth.
Do the parties rely on written or oral evidence at a Part 8 hearing?
- No written evidence may be relied on at the hearing of the claim unless—
a. it has been served in accordance with rule 8.5; or
b. the court gives permission. - The court may require or permit a party to give oral evidence at the hearing.
- The court may give directions requiring the attendance for cross-examination of a witness who has given written evidence.
What is the procedure where the defendant objects to the use of the Part 8 procedure?
Where the defendant contends that the Part 8 procedure should not be used because (a) there is a substantial dispute of fact; and (b) the use of the Part 8 procedure is not required or permitted by a rule or practice direction, he must state his reasons when he files his acknowledgment of service.
When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case
What modifications to the general rules does the Part8 procedure make?
Where the Part 8 procedure is followed—
a. provision is made in this Part for the matters which must be stated in the claim form and the defendant is not required to file a defence and therefore—
i. Part 16 (statements of case) does not apply;
ii. Part 15 (defence and reply) does not apply;
iii. any time limit in these Rules which prevents the parties from taking a step before a defence is filed does not apply;
iv. the requirement under rule 7.8 to serve on the defendant a form for defending the claim does not apply;
b. the claimant may not obtain judgment by request on an admission and therefore—
i. rules 14.4 to 14.7 do not apply; and
ii. the requirement under rule 7.8 to serve on the defendant a form for admitting the claim does not apply; and
c. the claim shall be treated as allocated to the multi-track and therefore Part 26 does not apply.
Does the claimant need permission to serve a document by fax?
Yes, from the other party.
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving—
a. that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
b. the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1)—
a. a fax number set out on the writing paper of the solicitor acting for the party to be served;
b. an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
c. a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.
Deemed service day if posted on a Monday?
Where the document is posted (by first class post) on a Monday (a business day), the day of deemed service is the following Wednesday (a business day).
Deemed service day if left in a numbered box on a Friday?
Where the document is left in a numbered box at the DX on a Friday (a business day), the day of deemed service is the following Monday (a business day).
Deemed service day if sent by fax before 4:30 on a Saturday?
Where the document is sent by fax on a Saturday and the transmission of that fax is completed by 4.30p.m. on that day, the day of deemed service is the following Monday (a business day).
Deemed service day if personally served before 4:30pm on a Sunday?
Where the document is served personally before 4.30p.m. on a Sunday, the day of deemed service is the next day (Monday, a business day).
Deemed day of service if the document is delivered to the permitted address after 4:30pm on Easter Thursday?
Where the document is delivered to a permitted address after 4.30p.m. on the Thursday (a business day) before Good Friday, the day of deemed service is the following Tuesday (a business day) as the Monday is a bank holiday.
Deemed day of service if the document is posted by first class post on a bank holiday Monday?
Where the document is posted (by first class post) on a bank holiday Monday, the day of deemed service is the following Wednesday (a business day).
Generally, what is the minimum value for claims to be started in the High Court?
Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than £100,000.
For PI what is the minimum value for claims that can be started in the High Court?
Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £50,000 or more.
A claim should be started in the high court if by reason of…
- the financial value of the claim and the amount in dispute, and/or
- the complexity of the facts, legal issues, remedies or procedures involved, and/or
- 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.
Who enforces judgments made by the county court?
(1) a judgment or order of a county court for the payment of a sum of money which it is sought to enforce wholly or partially by execution against goods—
a. shall be enforced only in the High Court where the sum which it is sought to enforce is £5,000 or more;
b. shall be enforced only in the County Court where the sum which it is sought to enforce is less than £600.
c. in any other case may be enforced in either the High Court or the County Court.
