WS1: Pre-action and starting a claim

Question 1

What are the aims of the Pre-Action protocols?

Answer 1

Force parties to have a cards on the table approach to resolving disputes

Parties should indicate how they intend to proceed early and with reasons

Hope that parties will be considered and not plough ahead in a mechanical manner

Question 2

What are the consequences of non-compliance with Pre-Action protocols?

Answer 2

• Court will decide if non-compliance merits adverse consequences e.g. re costs and interest
• Court can stay proceedings until relevant steps are taken
• Court can ask for explanation of non-compliance
• Parties are expected to comply with the ‘spirit of the protocols’ and the court are not concerned with trivial breaches

Question 3

When might non-compliance with protocols be acceptable?

Answer 3

Limitation period about to expire
Particular reason for urgency or the element of surprise e.g. risk of destroying documents

Question 4

What is the purpose of a claim form and a particulars of claim?

Answer 4

Letting a defendant know about a claim, and that proceedings are served.

Question 5

How is the value of any claim considered?

Answer 5

Consider what is at stake e.g. simple debt, likely value of unspecified damages.

Disregarding any of the following:
* Interest
* Costs
* Counterclaim
* CN
* Deduction of social security benefits

Question 6

In what instances might a court transfer a case up to the High Court?

Answer 6

Specialist judge needed, or particular facilities needed for certain parties

Question 7

What are the consequences of a mistaken decision to issue a claim in the High Court, when it should have been County?

Answer 7

Court can order the claimant to pay for any transfer costs, and has the discretion to reduce any costs awarded by up to 25%

Question 8

Which form is a Claim Form?

Answer 8

form n1

Question 9

What are the two early documents in a litigation claim?

Answer 9

Claim form and a particulars of claim

Question 10

What must you do to issue a claim at court?

Answer 10

Issue claim form, and make a copy of the completed form on file, once for each defendant, and one for the claimant, pay any fee

Question 11

What is the significance of the date of issue of the claim form in High Court?

Answer 11

Stops time running for limitation purposes and starts the clock for the time in which the claim form must be served

Question 12

What also happens from a case management perspective once a claim form has been issued?

Answer 12

Case gets a claim number
Stamped with a court seal
Creates a case management file

Question 13

How should a claim form be issued in County Court for money claims?

Answer 13

Issued by post, in Civil National Business Centre – manages claims until hearing and then transfers to a local county court.

Done by sending claim form to CNBC and paying fee

Question 14

How can claims which are not money only claims be issued at a County Court?

Answer 14

Sending in / going with the claim form and the fee

Can specify your preferred hearing court

Question 15

Who is eligible for the Money Claim online service? How does it work?

Answer 15

• Online HMCTS service – quick service for simple claims
• Up to £100k and only two defendants
• D may respond via online service
• If claim is defended  transferred to appropriate local CC hearing centre

Question 16

What might users who are going to issue a large amount of claims want to do?

Answer 16

Become registered users at the County Court Business Centre in Northampton

Question 17

What are the key features / information on a claim form?

Answer 17

Names of both parties

Brief summary of the claim

Value of the claim / remedy sought

Addresses

Are particulars of claim attached, or will they be following?

Statement of truth

Question 18

Who will effect service of a document?

Answer 18

The court, or the claimant’s lawyer

Question 19

What is the method of service if the court serves the claim form?

Answer 19

1st class post

Will be accompanied by a notice of issue, stating the deemed date of service.

Question 20

What is the procedure if the claimant’s solicitor wishes to serve the claim form?

Answer 20

Notify court that they wish to serve

Must file a certificate of service at court within 21 days of service

Question 21

By when must a certificate of service be filed by a claimant’s lawyer if a defendant has not acknowledged service in this time?
What should the certificate show?

Answer 21

within 21 days of service

details of date on which claim was delivered, method of delivery and address used.

Question 22

What can happen to a claimant if they used an invalid method of service?

Answer 22

Claimant may be unable to obtain judgment or enforce it

Question 23

What methods of service are there, and when will a defendant have to indicate that it will accept service that way in order for that method to be appropriate?

Answer 23

• Personally - can be an appropriate person for company
• Leaving document at permitted address – no need for someone to receive

1st class post

Document exchange – system which delivers next business day

Fax – D must indicate it will accept service via fax
Email – D must indicate it will accept
Method authorised by the court

Question 24

Where should a claim form be served if D gives a solicitors address? What if they do not give one?

Answer 24

Must be served at the solicitor’s office

Otherwise, can be served at a residential or business address

Question 25

In what time frame must a claim form be served?

Answer 25

Before midnight, on the calendar day, four months after the date of issue if within jurisdiction, or six months if outside jurisdiction.

Question 26

Practically, how is a claim form served?

Answer 26

By taking the 'relevant step'

Question 27

Serving a claim form: If method of service is personal / leaving document at the relevant place, what is the relevant step?

Answer 27

Leaving claim form with the defendant

Question 28

Serving a claim form: If method of service is first class post or DX, what is the relevant step?

Answer 28

Posting form or leaving it with DX

Question 29

Serving a claim form: If method of service is fax, what is the relevant step?

Answer 29

Completing transmission

Question 30

Serving a claim form: If method of service is electronic, what is the relevant step?

Answer 30

Sending email or other electronic communication

Question 31

Once a claim form has been deemed served, what impact does this have?

Answer 31

Stops the limitation period on service, and starts the period of validity of a claim form.

Question 32

When can the claimant apply to court for an extension of the time to serve a claim form, if outside the four month deadline?

Answer 32

If made outside the deadline of four months, the court will only grant an extension if the court failed to serve the form, the claimant has taken all reasonable steps to comply and an application has been made prompty

Question 33

What will not be a good reason for failure to serve claim form within time limits?

Answer 33

Mistaken service to insurers or solicitors instead of the defendant

Question 34

What should be served alongside particulars of claim if they are contained in / served alongside the claim form?

Answer 34

Response pack Will contain a form for admission, form for defending, and a form for acknowledging service

Question 35

When must the particulars of claim be served, if they are not included in with the claim form?

Answer 35

Within 14 days of service of the claim form Within 4 month period of validity of form also

Question 36

Once the particulars of service have been served, what must the claimant do?

Answer 36

File a copy at court within 7 days of service

Question 37

When is a claim form deemed 'served'?

Answer 37

Second business day after completion of the relevant step

Question 38

What is the DDS of documents that are not the claim form, and have been served by an instant method?

Answer 38

Pre-4:30pm: Deemed to have been served the same day if a business day If not a business day, the next business day Post-4:30pm, deemed swerved the next business day

Question 39

What is the DDS of documents that are not the claim form, and have been served by a non instant method?

Answer 39

If a business day, deemed served the second day after posting or given to a DX provider If a non-business day, seemed served the next business day

Question 40

What are the consequences of signing a statement of truth if you do not have an honest belief in the document's truth?

Answer 40

Contempt of court

Question 41

On a claim form for a claim for money, what should be indicated?

Answer 41

Statement of amount expected to be claimed - can be specific or within a range Can say 'I cannot say how much I expect to recover'

Question 42

What must be included on a claim form if the claimant elects the High Court?

Answer 42

A jurisdictional endorsement

Question 43

When calculating the value of a claim for the purposes of a claim form, what is expressly excluded?

Answer 43

Interest, costs, counterclaims, set off, CN, state benefits

Question 44

What should a particulars of claim include?

Answer 44

* Concise statement of the facts on which the claimant relies * Cover essential elements of claimant’s cause of action * Background facts * Show loosely duty / breach / causation / loss

Question 45

What, if they are relevant to a case, must be specifically included in a particulars of claim?

Answer 45

Any claim for aggravated / exemplary damages PI claims: schedule of past and future expenses, details of injuries Land claim: identify land / if it is residential or not Any written / oral / agreement by conduct details Any human rights relied upon Convictions, any unsoundness of mind

Question 46

What must a claimant do if it is seeking to calculate interest on an amount owed?

Answer 46

Include details - can calculate the amount or claim the interest more generally Contractual right and statutory right Should include the exact calculation if you are making a specified claim.

Question 47

On what basis does a claimant have a statutory right to interest?

Answer 47

S35A Senior Courts Act, S69 County Courts Act

Question 48

When must interest always be awarded, unless there are special reasons not to do so?

Answer 48

in personal injury claims if damages are over £200

Question 49

If there is no particular pre-action protocol, what should parties do before starting proceedings? In what time limits should any correspondence be replied to?

Answer 49

Parties should exchange correspondence and information Such steps will usually include a defendant responding to the initial letter of claim within a reasonable time 14 days in a straightforward case and no more than three months in a very complex one.