Commencing Proceedings

Question 1

In which court should a claim for the value of less than £100,000 be commenced?

Answer 1

County Court.

Question 2

In which court should a claim for the value of more than £100,000 be commenced?

Answer 2

It can be commenced in the High Court but it does not have to be (note claims of £50,000 or more can be commenced in the high court if relating to personal injury).

Question 3

Why may a claimant choose to commence proceedings in the High Court (if they have the option to do so)?

Answer 3

The claim is complex either in relation to facts, legal issues or remedy procedures;

The outcome is important to the public in general.

Question 4

County Court claims: explain how money only claims proceedings are issued.

Answer 4

All money-only claims made on paper (both specified and unspecified) must be sent to county court money claims centre (CCMCC). If hearing is required, county court local to the defendant will be allocated.

Question 5

County Court: what claims do the County Court Business Centre deal with?

Answer 5

Online claims for specified amounts of money. Judgements can be obtained and enforced over the internet.

Question 6

Explain how proceedings are issued for claims not falling under remit of CCMCC and County Court Business Centre.

Answer 6

Proceedings can be issued in any county court hearing centre in England or Wales.

Question 7

Explain the divisions of the high court.

Answer 7

King’s Bench Division - primary actions in contract and tort;

Chancery Division - disputes over land, trusts, contentious inheritance matters, partnership claims and company law;

Family Division - family disputes (divorce and adoption issues).

Question 8

Explain the jurisdiction of the Commercial Court and Technology and Construction Court.

Answer 8

Commercial Court- complex cases arising out of business disputes (contracts, insurance, banking and finance);

Technology and Construction Court - claims re buildings, engineering and surveying.

Question 9

Which documents are issued when commencing proceedings?

Answer 9

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.

Question 10

List the 12 things which need to be on the claim form.

Answer 10

1) Details of solicitor’s fee account (so court fee can be paid);

2) Party details (accurate names and addresses - failure to do so may mean proceedings are struck. if D is dead then name of the executors/ administrators should be used);

3) Details of the relevant court the claimant wishes to commence proceedings in;

4) Brief details of claim and specify remedy being sought by C;

5) Statement of value (ie the value of the claim irrespective of whether it is specified or unspecified this needs to be filled out);

6) D’s name and address accurately displayed in box at bottom left of form;

7) Financial summary of the claim (for specified claims each figure should be given but for unspecified claims - estimate of what the C genuinely expects to recover should be stated; should also include the court fee payable which can be a maximum of 10k);

8) Preferred county court hearing centre venue;

9) Details of any witnesses;

10) Whether claim relates to Human Rights (under Human Rights Act 1998);

11) Particulars of the claim;

12) Statement of truth - annexed to the claim form;

Question 11

Who can sign a statement of truth on behalf of:
a) Partnerships;
b) Company’s

Answer 11

a) any of the partners in the partnership or a person having control or management of the business;

b) person holding a senior position - eg director, secretary, CEO, treasurer

Question 12

List the assumptions which are presumed if legal representative signs a statement of truth on client’s behalf.

Answer 12

a) Client authorised them to do so;

b) They’ve explained to the client that in signing the statement of truth the solicitor is confirming the client’s belief facts stated in document are true; and

c) Client was warned of possible consequences should it subsequently transpire client did not have an honest belief in the truth of those facts (where client may be prosecuted for contempt of court).

Question 13

In relation to a statement of value, what needs to be inserted for:

a) specified claims;
b) unspecified claims.

Answer 13

a) specified claims - the precise figure be sought by C (figure should be calculated inclusive of interest which has accrued);

b) Unspecified claims:
a) high court claims, state whether over value of £100,000 (or £50,000 for PI claims);

b) for county court claims - state whether the amount is under 10k, between 10 and 25k, or over 25k. Also acceptable to state they cannot estimate recoverable amount (when calculating this figure, interest costs, contributory negligence and counterclaims should be disregarded).

Question 14

Give the time limit for a claim form to be served on the defendant once a claim has been initiated.

Answer 14

Within 4 months of the claim from initially being commenced.

Question 15

Can a claim form be served on a firm of solicitors (ie instead of directly to the defendant)?

Answer 15

Yes provided the defendant has nominated them in writing.

Question 16

Under CPR 6.3, what are the permitted methods of service of a claim form?

Answer 16

a) personal service (ie in person);
b) first class post or document exchange;
c) leaving the claim form at a specified place;
d) fax or other means of electronic communication;
e) any other method authorised by the court.

Question 17

Briefly explain the method of personal service (permitted by CPR 6.3)

Answer 17

1) Individuals - served on an individual by simply handing it to them (if receipt is refused it may be left near/ with them);

2) Partnerships - form can be left with any partner/ any person who has control or management of the business, at its principal place of business;

3) Companies - personal service is effected on a company by leaving docs with a person who holds senior position (eg director, secretary etc)

Question 18

Briefly explain the method of first class post or document exchange (permitted by CPR 6.3) as a method of service.

Answer 18

Only first class post satisfies the requirement.

DX can also be used provided the number is on the letter heading (and it has not be expressly excluded as a method by the parties).

Question 19

What is necessary for service of a claim form (under CPR 6.3) to be effected by fax or electronic means?

Answer 19

The party/ their solicitor must have expressly confirmed this is an acceptable means of service.

Question 20

What does and does not constitute agreement to be served a claim form by electronic means?

Answer 20

1) Email address or fax number on parties letterhead is not enough;

2) Fax number on solicitor’s letterhead is sufficient indication for service by fax (but not email address which must be expressly confirmed).

Question 21

Explain the concept of deemed service (CPR 6.14) in relation to claim forms.

Answer 21

Non-rebuttable presumption that the claim form is deemed to have been served on second business day after the step required has occurred.

Eg claim form sent on Monday will be deemed to have arrived on Wednesday (provided both are business days).

Question 22

Define business day for the purposes of the CPR rules.

Answer 22

Any day except Saturday, Sunday, Christmas Day, Good Friday or a bank holiday.

Question 23

Explain the concept of deemed service relating to documents (eg a particulars of claim) other than a claim form (CPR 6.26).

Answer 23

1) For personal service (delivering the document to the permitted address and fax and email) if served before 4:30pm - deemed served on that day. If not - deemed served on the next business day.

2) First class post/ DX - deemed served the second day after it was posted provided that day is a business day. If not - deemed served next business day.

Question 24

Can the particulars of a claim be sent separately to the claim form?

Answer 24

Yes but no later than 14 days after the issue of the claim form (unless this 14 days goes past the 4 month deadline for issuing the claim form itself, in which case they will only have until that 4 month deadline was set to expire).

Question 25

When bringing a claim against a sole trader operating under a business name, what name do you put on the form relating to the defendant?

Answer 25

Both the defendant’s full name and their trading name as well as the defendant’s address.

Question 26

1) What information should go in the ‘financial summary of claim’ box?

2) What information should go in the ‘statement of value box for:
a) county court claims;
b) high court claims?

Answer 26

1) An estimate of the amount the client genuinely expects to recover.

2) Statement of value box should contain threshold of the damages expected as follows:

a) Under £10,000, Between £10,000 and £25,000 or over £25,000 (as applicable) (for county court claims);
b) Over £100,000 (for high court claims)/ over 50k for PI claims.

Question 27

True or False: When a claim form has already been served the claimant must seek permission to apply to add a new D/ substitute the D.

Answer 27

True.

Question 28

When MUST permission be sought to add/change or remove a party to a claim?

Answer 28

If the claim form has already been served.

Question 29

Once permission has been obtained (if necessary), applications to substitute made outside the limitation period will be allowed if certain criteria are met. What is this criteria?

Answer 29

1) If the limitation period was current when the proceedings were started; and

2) Either one of:

• original parties was named by mistake;
• original party died/ is subject to bankruptcy order, or their interest/ liability has passed to the new party; or
• the claim cannot properly be carried in without the new party.

Question 30

Where a Tomlin order is being entered into, what must be included in the order itself?

Answer 30

The term stating each party can apply to the court if the other party does not comply with the settlement terms. The settlement terms themselves can be set out either in a schedule to the order (which is not necessarily confidential) or a separate document not contained in the order (which is ideal if the terms are to be kept confidential).

Question 31

How should Tomlin order be structured to keep settlement terms completely confidential?

Answer 31

Refer to settlement being contained in separate document to the order , and that the parties are it is enforceable by court.

Settlement should be kept separate, as if in attached schedule it’s not necessarily confidential.

Question 32

When does the defence need permission to file a counter claim?

Answer 32

If the counter claim is filed after they file their defence.

No permission needed if counter claim is filed at simultaneous to defence.

Question 33

True or False: where a solicitor signs the statement of truth on behalf of their client, they must sign it in the name of their firm/ employer?

Answer 33

False.

The solicitor must sign the statement of truth in their own name.