4 Commencement of Proceedings

Question 1

r58.5: Commercial Court claim form

Answer 1

PD58 para 2.3: claim form for commercial court (N1(CC)) should be marked ‘Queens Bench Division, Commercial Court’ in top right-hand corner

r58. 5(2) and (3): statement of value not required for Commercial Court but claims for interest must be set out on claim form and PoC
- if no PoC with claim form, the form must state that acknowledgment of service is filed indicating intent to defend PoC will follow r58.5(1)(a)
r58. 5(1)(c): PoC not served with claim form must be served within 28 days of filing the acknowledgement of service

Question 2

r7.4(1): Particulars of Claim rules

Answer 2

(1) Particulars of claim must –
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.
(2) Particulars of claim must be served on the defendant no later than the latest time for serving a claim form. (see Rule 7.5)
(3) Where the claimant serves particulars of claim separately from the claim form in accordance with paragraph (1)(b), the claimant must, within 7 days of service on the defendant, file a copy of the particulars except where
(a) para 5.2(4) of Practice Direction 7C applies; or
(b) para 6.4 of Practice Direction 7E applies.

(Part 22 requires particulars of claim to be verified by a statement of truth)

Question 3

r2.3(1): definition of ‘designated money claim’

Answer 3

‘designated money claim’ means any claim which

(a) is started in a county court under Part 7;
(b) is only a claim for either or both a specified amount of money or an unspecified amount of money; and
(c) is not a claim for which special procedures are provided in these rules;

Question 4

PD7A para 4A.1: Where should designated money claim forms be sent

Answer 4

In all designated money claims, practice form N1 must be sent to: County Court Money Claims Centre, PO Box 527. M5 0BY. The claims will then be issued in Northampton County Court.

Question 5

r26.2A: designated money claim court allocation

Answer 5

(1) This rule applies where the claim is a designated money claim.
(2) If at any time a proper officer considers that the claim should be referred to a judge for directions, the proper officer may transfer the proceedings to the preferred court or the defendant’s home court as appropriate.
(3) Subject to paragraph (5), if the defendant is an individual and the claim is for a specified sum of money, the court will, at the relevant time, transfer the claim to the defendant’s home court (if two or more with at least one an individual, the court will transfer the claim to the home court of the defendant who first files his defence).
(4) Subject to paragraph (5), in any other claim to which this rule applies, the court will, at the relevant time, transfer the claim to the preferred court.
(5) If a defendant under paragraph (3) or a claimant under paragraph (4) has specified a court other than the preferred court on their directions questionnaire, the court will transfer the claim to that court.

Question 6

PD7E para 4: when can a money claim online be used

Answer 6

A claim may be started using Money Claim Online if it meets all the following conditions –

(1) the only remedy claimed is a specified amount of money –
(a) less than £100,000 (excluding any interest or costs claimed); and
(b) in sterling;

(2) the procedure under Part 7 is used;

(3) the claimant is not –
(a) a child or protected party; or
(b) funded by the Legal Services Commission;
(3A) the claimant’s address for service is within the United Kingdom;

(4) the claim is against –
(a) a single defendant; or
(b) two defendants, if the claim is for a single amount against each of them;

(5) the defendant is not –
(a) the Crown; or
(b) a person known to be a child or protected party; and

(6) the defendant’s address for service is within England and Wales.
(‘Protected party’ has the same meaning as in rule 21.1(2).)

Question 7

PD7E para 5.7: Deemed service of the claim form an a money claim online

Answer 7

The claim form will be deemed to be served on the fifth day after the claim was issued irrespective of whether that day is a business day or not. ‘Business day’ has the same meaning as in rule 6.2(b).

Question 8

PD7E para 7.1: How D files AoS, etc for money claim online

Answer 8

A defendant wishing to file –

(1) an acknowledgment of service of the claim form under Part 10;
(2) a part admission under rule 14.5;
(3) a defence under Part 15; or
(4) a counterclaim (to be filed together with a defence),

may, instead of filing a written form, do so by completing and sending the relevant online form at www.hmcourts-service.gov.uk/onlineservices/mcol.

Question 9

PD7E para 11: if no response/full admission to issued money claim online

Answer 9

If, in a claim started using Money Claim Online–
(1) the claimant wishes to apply for judgment in default in accordance with Part 12; or
(2) the defendant has filed or served an admission of the whole of the claim in accordance with rule 14.4,
the claimant may request judgment to be entered in default or on the admission (as the case may be) by completing and sending an online request form at www.hmcourts-service.gov.uk/onlineservices/mcol.

Question 10

PD7E para 12: If defendant responds to money claim online, where will it be transferred

Answer 10

Where the defendant is an individual and Northampton County Court is not their home court, the court will transfer the claim to the defendant’s home court –

(1) under rule 13.4, if the defendant applies to set aside or vary judgment;
(2) under rule 14.12, if there is to be a hearing for a judge to determine the time and rate of payment;
(3) under rule 26.2, if a defence is filed to all or part of the claim; or
(4) if either party makes an application which cannot be dealt with without a hearing.

Question 11

r8.1(2): when can C use Part 8 procedure

Answer 11

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

Question 12

r21.10(2): if settlement reached on behalf of/against a child/protected party and proceedings only to obtain approval of settlement, claim must …

Answer 12

Where –
(a) before proceedings in which a claim is made by or on behalf of, or against, a child or protected party (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and
(b) the sole purpose of proceedings is to obtain the approval of the court to a settlement or compromise of the claim,
the claim must –
(i) be made using the procedure set out in Part 8 (alternative procedure for claims); and
(ii) include a request to the court for approval of the settlement or compromise.

Question 13

PD8A para 9.4: Divisions for Part 8 claims

Answer 13

For applications that may or must be brought in the High Court, where no other rule or practice direction assigns the application to a Division of the court, the table specifies the Division to which the application is assigned. See table!

Question 14

r8.2: if Part 8 procedure, what must the claim form have

Answer 14

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.

(Part 22 provides for the claim form to be verified by a statement of truth)
(Rule 7.5 provides for service of the claim form)

Question 15

PD8A para 3.4 and 5: If Part 8 inappropriately used …

Answer 15

3. 4 Where it appears to a court officer that a claimant is using the Part 8 procedure inappropriately, he may refer the claim to a judge for the judge to consider the point.
4. 5 The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court will allocate the claim to a track and give such directions as it considers appropriate.

Question 16

r8.5(1)/(2)/(7): what must C serve with a Part 8 claim form

Answer 16

(1) The claimant must file any written evidence on which he intends to rely when he files his claim form.
(2) The claimant’s evidence must be served on the defendant with the claim form.
(7) 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.

Question 17

PD8A para 7.2: type of evidence for Part 8 claim

Answer 17

Evidence will normally be in the form of a witness statement or an affidavit but a claimant may rely on the matters set out in his claim form provided that it has been verified by a statement of truth.

Question 18

r8.3(1): in response to a Part 8 claim form, what must D do

Answer 18

(1) The defendant must –
(a) file an acknowledgment of service in the relevant practice form not more than 14 days after service of the claim form; and
(b) serve the acknowledgment of service on the claimant and any other party.

Question 19

r8.5(5)/(6): in response to an AoS, etc, what may C do

Answer 19

(5) The claimant may, within 14 days of service of the defendant’s evidence on him, file further written evidence in reply.
(6) If he does so, he must also, within the same time limit, serve a copy of his evidence on the other parties.

Question 20

r8.9(c)/PD8A para 8.2: which track are Part 8 claims allocated to

Answer 20

8.9(c) the claim shall be treated as allocated to the multi-track and therefore Part 26 does not apply.

PD8A para 8.2: Case management directions may include the specific allocation of a case to a track.

Question 21

PD8A para 6.1-4: case management of a Part 8 claim

Answer 21

6. 1 The court may give directions immediately a Part 8 claim form is issued either on the application of a party or on its own initiative. The directions may include fixing a hearing date where –
   (1) there is no dispute, such as in child and protected party settlements; or
   (2) where there may be a dispute, but a hearing date could conveniently be given.
7. 2 Where the court does not fix a hearing date when the claim form is issued, it will give directions for the disposal of the claim as soon as practicable after the defendant has acknowledged service of the claim form or, as the case may be, after the period for acknowledging service has expired.
8. 3 Certain applications may not require a hearing.
9. 4 The court may convene a directions hearing before giving directions.

Question 22

8.5(3)/(4): If D wants to rely on additional evidence in a Part 8 claim what must he do

Answer 22

(3) A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.
(4) If he does so, he must also, at the same time, serve a copy of his evidence on the other parties.

Question 23

IA 1986 s122(1): grounds for making winding up petition

Answer 23

(1) A company may be wound up by the court if—
(a) the company has by special resolution resolved that the company be wound up by the court,
(b) being a public company which was registered as such on its original incorporation, the company has not been issued with a trading certificate under section 761 of the Companies Act 2006 (requirement as to minimum share capital) and more than a year has expired since it was so registered,
(c) it is an old public company, within the meaning of the Schedule 3 to the Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009,
(d) the company does not commence its business within a year from its incorporation or suspends its business for a whole year;
(e) except in the case of a private company limited by shares or by guarantee, the number of members is reduced below 2,
(f) the company is unable to pay its debts,
(fa) at the time at which a moratorium for the company under section 1A comes to an end, no voluntary arrangement approved under Part I has effect in relation to the company
(g) the court is of the opinion that it is just and equitable that the company should be wound up.

Question 24

IA 1986 s117(1) and (2): which court(s) have jurisdiction in relation to winding up petitions

Answer 24

(1) The High Court has jurisdiction to wind up any company registered in England and Wales.
(2) Where the amount of a company’s share capital paid up or credited as paid up does not exceed £120,000, then (subject to this section) the county court of the district in which the company’s registered office is situated has concurrent jurisdiction with the High Court to wind up the company.

Question 25

IR 1986 r4.8(2)-(4): how should a winding up petition be served

Answer 25

(2) ...the petition shall be served at the company's registered office, that is to say— (a) the place which is specified, in the company's statement delivered under section 10 of the Companies Act as the intended situation of its registered office on incorporation, or (b) if notice has been given by the company to the registrar of companies under section 287 of that Act (change of registered office), the place specified in that notice or, as the case may be, in the last such notice. (3) Service of the petition at the registered office may be effected in any of the following ways— (a) it may be handed to a person who there and then acknowledges himself to be, or to the best of the server's knowledge, information and belief is, a director or other officer, or employee, of the company; or (b) it may be handed to a person who there and then acknowledges himself to be authorised to accept service of documents on the company's behalf; or (c) in the absence of any such person as is mentioned in sub-paragraph (a) or (b), it may be deposited at or about the registered office in such a way that it is likely to come to the notice of a person attending at the office.

Question 26

IR 1986 r4.8(4)-(7): if winding up petition not able to be served, what is the process

Answer 26

(4) If for any reason service at the registered office is not practicable, or the company has no registered office, or it is an unregistered company, the petition may be served at the company's last known principal place of business in England and Wales, or at some place in England and Wales at which it has carried on business, by handing it to such a person as is mentioned in paragraph (3)(a) or (b) above. (5) In the case of an oversea company, service may be effected in any manner provided for by section 695 of the Companies Act. (6) If for any reason it is impracticable to effect service as provided by paragraphs (2) to (5), the petition may be served in such other manner as the court may direct. (7) Application for leave of the court under paragraph (6) may be made ex parte, on affidavit stating what steps have been taken to comply with paragraphs (2) to (5), and the reasons why it is impracticable to effect service as there provided.

Question 27

IR 1986 r4.16: winding up petition notice of appearance

Answer 27

(1) [[FORM 4.9]] Every person who intends to appear on the hearing of the petition shall give to the petitioner notice of his intention in accordance with this Rule. (2) The notice shall specify— (a) the name and address of the person giving it, and any telephone number and reference which may be required for communication with him or with any other person (to be also specified in the notice) authorised to speak or act on his behalf; (b) whether his intention is to support or oppose the petition; and (c) the amount and nature of his debt. (3) The notice shall be sent to the petitioner at the address shown for him in the court records, or in the advertisement of the petition required by Rule 4.11; or it may be sent to his solicitor. (4) The notice shall be sent so as to reach the addressee not later than 16.00 hours on the business day before that which is appointed for the hearing (or, where the hearing has been adjourned, for the adjourned hearing). (5) A person failing to comply with this Rule may appear on the hearing of the petition only with the leave of the court.

Question 28

IR1986 r4.11: Advertisement of appearance in winding up petition

Answer 28

(1) [[FORM 4.6]] Unless the court otherwise directs, the petition shall be advertised once in the Gazette. (2) The advertisement must be made to appear— (a) if the petitioner is the company itself, not less than 7 business days before the day appointed for the hearing, and (b) otherwise, not less than 7 business days after service of the petition on the company, nor less than 7 business days before the day so appointed. (3) The court may, if compliance with paragraph (2) is not reasonably practicable, direct that advertisement of the petition be made to appear in a specified London morning newspaper, or other newspaper, instead of in the Gazette. (4) The advertisement of the petition must state— (a) the name of the company and the address of its registered office, or— (i) in the case of an unregistered company, the address of its principal place of business; (ii) in the case of an oversea company, the address at which service of the petition was effected; (b) the name and address of the petitioner; (c) where the petitioner is the company itself, the address of its registered office or, in the case of an unregistered company, of its principal place of business; (d) the date on which the petition was presented; (e) the venue fixed for the hearing of the petition; (f) the name and address of the petitioner's solicitor (if any); and (g) that any person intending to appear at the hearing (whether to support or oppose the petition) must give notice of his intention in accordance with Rule 4.16. (5) If the petition is not duly advertised in accordance with this Rule, the court may dismiss it.

Question 29

IR 1986 r4.17: list of appearances in winding up petition

Answer 29

(1) [[FORM 4.10]] The petitioner shall prepare for the court a list of the persons (if any) who have given notice under Rule 4.16, specifying their names and addresses and (if known to him) their respective solicitors. (2) Against the name of each creditor in the list it shall be stated whether his intention is to support the petition, or to oppose it. (3) On the day appointed for the hearing of the petition, a copy of the list shall be handed to the court before the commencement of the hearing. (4) If any leave is given under Rule 4.16(5), the petitioner shall add to the list the same particulars in respect of the person to whom leave has been given.

Question 30

IR 1986 r4.14: certificate of compliance in winding up petitions

Answer 30

(1) [[FORM 4.7]] The petitioner or his solicitor shall, at least 5 days before the hearing of the petition, file in court a certificate of compliance with the Rules relating to service and advertisement. (2) The certificate shall show— (a)the date of presentation of the petition, (b)the date fixed for the hearing, and (c)the date or dates on which the petition was served and advertised in compliance with the Rules. A copy of the advertisement of the petition shall be filed in court with the certificate. (3) Non-compliance with this Rule is a ground on which the court may, if it thinks fit, dismiss the petition.

Question 31

r 6.2(a)-(c): Part 6 definitions: - bank holiday - business day - claim

Answer 31

(a) ‘bank holiday’ means a bank holiday under the Banking and Financial Dealings Act 19711 in the part of the United Kingdom where service is to take place; (b) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day; (c) ‘claim’ includes petition and any application made before action or to commence proceedings and ‘claim form’, ‘claimant’ and ‘defendant’ are to be construed accordingly;

Question 32

r6.1: when does Part 6 apply

Answer 32

This Part applies to the service of documents, except where – (a) another Part, any other enactment or a practice direction makes different provision; or (b) the court orders otherwise.

Question 33

``` r7.5(1): Steps for service of claim form Method: First class post, document exchange or other service which provides for delivery on the next business day ```

Answer 33

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form. Posting, leaving with, delivering to or collection by the relevant service provider

Question 34

r6.3(1): How may a claim form be served

Answer 34

(1) A claim form may (subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties) be served by any of the following methods – (a) personal service in accordance with rule 6.5; (b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A; (c) leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10; (d) fax or other means of electronic communication in accordance with Practice Direction 6A; or (e) any method authorised by the court under rule 6.15.

Question 35

r6.5: rules for personal service

Answer 35

(1) Where required by another Part, any other enactment, a practice direction or a court order, a claim form must be served personally. (2) In other cases, a claim form may be served personally except – (a) where rule 6.7 applies; or (b) in any proceedings against the Crown. (Part 54 contains provisions about judicial review claims and Part 66 contains provisions about Crown proceedings.) (3) A claim form is served personally on – (a) an individual by leaving it with that individual; (b) a company or other corporation by leaving it with a person holding a senior position within the company or corporation; or (c) 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.

Question 36

r6.7: Service of claim form on a solicitor/European lawyer

Answer 36

(1) Solicitor within the jurisdiction: Subject to rule 6.5(1), 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. (2) Solicitor in Scotland or Northern Ireland or EEA state other than the United Kingdom: Subject to rule 6.5(1) and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision, ... same as solicitor in (1) (3) European Lawyer in any EEA state: Subject to rule 6.5(1) and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision, ... same as solicitor in (1)

Question 37

PD6A para 2.1: service by DX

Answer 37

2. 1 Service by document exchange (DX) may take place only where – (1) the address at which the party is to be served includes a numbered box at a DX, or (2) the writing paper of the party who is to be served or of the solicitor acting for that party sets out a DX box number, and (3) the party or the solicitor acting for that party has not indicated in writing that they are unwilling to accept service by DX.

Question 38

r6.15: Service of claim form by alternative method or at alternative place

Answer 38

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place. (2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service. (3) An application for an order under this rule – (a) must be supported by evidence; and (b) may be made without notice. (4) An order under this rule must specify – (a) the method or place of service; (b) the date on which the claim form is deemed served; and (c) the period for – (i) filing an acknowledgment of service; (ii) filing an admission; or (iii) filing a defence.

Question 39

r6.11: Service of claim form by contractually agreed method

Answer 39

(1) Where – (a) a contract contains a term providing that, in the event of a claim being started in relation to the contract, the claim form may be served by a method or at a place specified in the contract; and (b) a claim solely in respect of that contract is started, the claim form may, subject to paragraph (2), be served on the defendant by the method or at the place specified in the contract. (2) Where in accordance with the contract the claim form is to be served out of the jurisdiction, it may be served – (a) if permission to serve it out of the jurisdiction has been granted under rule 6.36; or (b) without permission under rule 6.32 or 6.33.

Question 40

r6.12: service of claim form on D's agent

Answer 40

(1) The court may, on application, permit a claim form relating to a contract to be served on the defendant’s agent where – (a) the defendant is out of the jurisdiction; (b) the contract to which the claim relates was entered into within the jurisdiction with or through the defendant's agent; and (c) at the time of the application either the agent’s authority has not been terminated or the agent is still in business relations with the defendant. (2) An application under this rule – (a) must be supported by evidence setting out – (i) details of the contract and that it was entered into within the jurisdiction or through an agent who is within the jurisdiction; (ii) that the principal for whom the agent is acting was, at the time the contract was entered into and is at the time of the application, out of the jurisdiction; and (iii) why service out of the jurisdiction cannot be effected; and (b) may be made without notice. (3) An order under this rule must state the period within which the defendant must respond to the particulars of claim. (4) Where the court makes an order under this rule (a) a copy of the application notice and the order must be served with the claim form on the agent; and (b) unless the court orders otherwise, the claimant must send to the defendant a copy of the application notice, the order and the claim form. (5) This rule does not exclude the court’s power under rule 6.15 (service by an alternative method or at an alternative place).

Question 41

r6.13: service of claim form on children/protected parties

Answer 41

(1) Where the defendant is a child who is not also a protected party, the claim form must be served on (a) one of the child’s parents or guardians; or (b) if there is no parent or guardian, an adult with whom the child resides or in whose care the child is. (2) Where the defendant is a protected party, the claim form must be served on – (a) one of the following persons with authority in relation to the protected party as – (i) the attorney under a registered enduring power of attorney; (ii) the donee of a lasting power of attorney; or (iii) the deputy appointed by the Court of Protection; or (b) if there is no such person, an adult with whom the protected party resides or in whose care the protected party is. (3) Any reference in this Section to a defendant or a party to be served includes the person to be served with the claim form on behalf of a child or protected party under paragraph (1) or (2). (4) The court may make an order permitting a claim form to be served on a child or protected party, or on a person other than the person specified in paragraph (1) or (2). (5) An application for an order under paragraph (4) may be made without notice. (6) The court may order that, although a claim form has been sent or given to someone other than the person specified in paragraph (1) or (2), it is to be treated as if it had been properly served. (7) This rule does not apply where the court has made an order under rule 21.2(3) allowing a child to conduct proceedings without a litigation friend.

Question 42

r6.6: where to serve claim form

Answer 42

(1) The claim form must be served within the jurisdiction except where rule 6.7(2), 6.7(3) or 6.11 applies or as provided by Section IV of this Part. (2) The claimant must include in the claim form an address at which the defendant may be served. That address must include a full postcode or its equivalent in any EEA state (if applicable), unless the court orders otherwise. (3) Paragraph (2) does not apply where an order made by the court under rule 6.15 (service by an alternative method or at an alternative place) specifies the place or method of service of the claim form. (for protected party, served on person with authority regarding party, failing which, adult with whom party resides or in whose care he is)

Question 43

r6.8: Service of claim form when D specifies address to be used

Answer 43

Subject to rules 6.5(1) and 6.7 and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision – (a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings; or (b) in any claim by a tenant against a landlord, the claim form may be served at an address given by the landlord under section 48 of the Landlord and Tenant Act 19875.

Question 44

r6.9: Service of claim form if D does not give an address and he is an individual

Answer 44

(1) This rule applies where – rule 6.5(1), rule 6.7 and rule 6.8, do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at his ... usual or last known residence.

Question 45

r6.10: Service of claim form to the Crown

Answer 45

In proceedings against the Crown – (a) service on the Attorney General must be effected on the Treasury Solicitor; and (b) service on a government department must be effected on the solicitor acting for that department.

Question 46

r6.9: Service of claim form if D does not give an address and he is an individual being sued in the name of a business

Answer 46

(1) This rule applies where – rule 6.5(1), rule 6.7 and rule 6.8, do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at his ... Usual or last known residence of the individual; or principal or last known place of business.

Question 47

r6.9: Service of claim form if D does not give an address and he is an Individual being sued in the business name of a partnership

Answer 47

(1) This rule applies where – rule 6.5(1), rule 6.7 and rule 6.8, do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at his ... Usual or last known residence of the individual; or principal or last known place of business of the partnership.

Question 48

r6.9: Service of claim form if D does not give an address and he is a Limited liability partnership

Answer 48

(1) This rule applies where – rule 6.5(1), rule 6.7 and rule 6.8, do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at his ... Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.

Question 49

r6.9: Service of claim form if D does not give an address and he is a Corporation (other than a company) incorporated in England and Wales

Answer 49

(1) This rule applies where – rule 6.5(1), rule 6.7 and rule 6.8, do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at his ... 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.

Question 50

r6.9: Service of claim form if D does not give an address and he is a Company registered in England and Wales

Answer 50

(1) This rule applies where – rule 6.5(1), rule 6.7 and rule 6.8, do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at his ... Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.

Question 51

r6.9: Service of claim form if D does not give an address and he is Any other company or corporation

Answer 51

(1) This rule applies where – rule 6.5(1), rule 6.7 and rule 6.8, do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at his ... Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.

Question 52

r6.9(3)-(6): If D's address is not correct, C must ...

Answer 52

(3) Where a claimant has reason to believe that the address of the defendant ... is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business ... (4) Where, having taken the reasonable steps required by paragraph (3), the claimant – (a) ascertains the defendant’s current address, the claim form must be served at that address; or (b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is – (i) an alternative place where; or (ii) an alternative method by which, service may be effected. (5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15. (6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant – (a) cannot ascertain the defendant’s current residence or place of business; and (b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).

Question 53

r6.14: deemed service of claim form

Answer 53

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).

Question 54

r7.5(1): Steps for service of claim form | Method: Delivery of the document to or leaving it at the relevant place

Answer 54

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form. Delivering to or leaving the document at the relevant place

Question 55

r7.5(1): Steps for service of claim form | Method: Personal service under rule 6.5

Answer 55

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form. Completing the relevant step required by rule 6.5(3)

Question 56

r7.5(1): Steps for service of claim form | Method: Fax

Answer 56

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form. Completing the transmission of the fax

Question 57

r7.5(1): Steps for service of claim form | Method: Other electronic method

Answer 57

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form. Sending the e-mail or other electronic transmission

Question 58

r7.5(2): If claim formed served outside jurisdiction

Answer 58

(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.

Question 59

r7.6: extension of time to serve claim form

Answer 59

(1) The claimant may apply for an order extending the period for compliance with rule 7.5. (2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made – (a) within the period specified by rule 7.5; or (b) where an order has been made under this rule, within the period for service specified by that order. (3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if (a) the court has failed to serve the claim form; or (b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and (c) in either case, the claimant has acted promptly in making the application. (4) An application for an order extending the time for compliance with rule 7.5 – (a) must be supported by evidence; and (b) may be made without notice.

Question 60

PD6A para 3.1: service effected by post, DX or alternative service provider

Answer 60

Service by post, DX or other service which provides for delivery on the next business day is effected by – (1) placing the document in a post box; (2) leaving the document with or delivering the document to the relevant service provider; or (3) having the document collected by the relevant service provider.

Question 61

PD6A para 4.1-4.3: service effected by fax or other electronic means

Answer 61

4. 1 Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means – (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. 4. 2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received). 4. 3 Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy.

Question 62

PD6A para 6.1-6.2: service effected on company/corporation

Answer 62

6. 1 Personal service on a registered company or corporation in accordance with rule 6.5(3) is effected by leaving a document with a person holding a senior position. 6. 2 Each of the following persons is a person holding a senior position – (1) in respect of a registered company or corporation, a director, the treasurer, the secretary of the company or corporation, the chief executive, a manager or other officer of the company or corporation; and (2) in respect of a corporation which is not a registered company, in addition to any of the persons set out in sub-paragraph (1), the mayor, the chairman, the president, a town clerk or similar officer of the corporation.

Question 63

PD6A para 7.1: certificate of service

Answer 63

7.1 Where, pursuant to rule 6.17(2), the claimant files a certificate of service, the claimant is not required to and should not file – (1) a further copy of the claim form with the certificate of service; and (2) a further copy of – (a) the particulars of claim (where not included in the claim form); or (b) any document attached to the particulars of claim, with the certificate of service where that document has already been filed with the court.

Question 64

PD6A para 8.1: service by the court

Answer 64

8.1 Where the court serves a document in accordance with rule 6.4 or 6.21(2), the method will normally be first class post.

Question 65

PD6A para 9.1-2: application for alternative service/location

Answer 65

9. 1 Where an application for an order under rule 6.15 is made before the document is served, 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. 9. 2 Where the application for an order is made after the applicant has taken steps to bring the document to the attention of the person to be served by an alternative method or at an alternative place, the application must be supported by evidence stating – (1) the reason why the order is sought; (2) what alternative method or alternative place was used; (3) when the alternative method or place was used; and (4) why the applicant believes that the document is likely to have reached the person to be served by the alternative method or at the alternative place.

Question 66

PD6A para 9.3: examples of alternative service applications

Answer 66

9. 3 Examples – (1) an application to serve by posting or delivering to an address of a person who knows the other party must be supported by evidence that if posted or delivered to that address, the document is likely to be brought to the attention of the other party; (2) 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; and (3) an application to serve by e-mail to a company (where paragraph 4.1 does not apply) must be supported by evidence that the e-mail address to which the document will be sent is one which is likely to come to the attention of a person holding a senior position in that company.

Question 67

r6.3(2)/(3): how may a claim form be served on a company/LLP

Answer 67

(2) A company may be served – (a) by any method permitted under this Part; or (b) by any of the methods of service permitted under the Companies Act 2006. (3) A limited liability partnership may be served – (a) by any method permitted under this Part; or (b) by any of the methods of service permitted under the Companies Act 2006 as applied with modification by regulations made under the Limited Liability Partnerships Act 2000.

Question 68

r3.10: rectifying errors of procedure

Answer 68

Where there has been an error of procedure such as a failure to comply with a rule or practice direction – (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error.

Question 69

r6.23(5) and (6): Accepting service by fax/other electronic means

Answer 69

(5) Where, in accordance with Practice Direction 6A, a party indicates or is deemed to have indicated that they will accept service by fax, the fax number given by that party must be at the address for service. (6) Where a party indicates in accordance with Practice Direction 6A that they will accept service by electronic means other than fax, the e-mail address or electronic identification given by that party will be deemed to be at the address for service.

Question 70

``` r6.26: Deemed service for document other than claim form Method: First class post (or other service which provides for delivery on the next business day) ```

Answer 70

A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on 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.

Question 71

r6.26: Deemed service for document other than claim form | Method: Document exchange

Answer 71

A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on 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.

Question 72

r6.26: Deemed service for document other than claim form | Method: Delivering the document to or leaving it at a permitted address

Answer 72

A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on 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.

Question 73

r6.26: Deemed service for document other than claim form | Method: Fax

Answer 73

A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on 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.

Question 74

r6.26: Deemed service for document other than claim form | Method: Other electronic method

Answer 74

A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on 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.

Question 75

r6.26: Deemed service for document other than claim form | Method: Personal service

Answer 75

A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on 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.

Question 76

r6.4: Who serves claim form

Answer 76

(1) Subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties, 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. (4) Where the court has sent – (a) a notification of outcome of postal service to the claimant in accordance with rule 6.18; or (b) a notification of non-service by a bailiff in accordance with rule 6.19, the court will not try to serve the claim form again.

Question 77

r6.16: dispensing with service of claim form

Answer 77

(1) The court may dispense with service of a claim form in exceptional circumstances. (2) An application for an order to dispense with service may be made at any time and – (a) must be supported by evidence; and (b) may be made without notice.

Question 78

r6.21: who serves documents that are not the claim form

Answer 78

1) Subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties, a party to proceedings will serve a document which that party has prepared except where – (a) a rule or practice direction provides that the court will serve the document; or (b) the court orders otherwise. (2) The court will serve a document which it has prepared except where – (a) a rule or practice direction provides that a party must serve the document; (b) the party on whose behalf the document is to be served notifies the court that the party wishes to serve it; or (c) the court orders otherwise. (3) Where the court is to serve a document, it is for the court to decide which method of service is to be used. (4) Where the court is to serve a document prepared by a party, that party must provide a copy for the court and for each party to be served.

Question 79

r6.22: personal service of document other than claim form

Answer 79

(1) Where required by another Part, any other enactment, a practice direction or a court order, a document must be served personally. (2) In other cases, a document may be served personally except – (a) where the party to be served has given an address for service under rule 6.23; or (b) in any proceedings by or against the Crown. (3) A document may be served personally as if the document were a claim form in accordance with rule 6.5(3).

Question 80

r6.20: methods of service for documents other than claim form

Answer 80

(paraphrased) | available methods of service are same as for claim forms

Question 81

r6.23(1)-(4)/(8): Address to be given for service of documents other than claim form

Answer 81

(1) A party to proceedings must give an address at which that party may be served with documents relating to those proceedings. The address must include a full postcode or its equivalent in any EEA state (if applicable) unless the court orders otherwise. (2) Except where any other rule or practice direction makes different provision, a party’s address for service must be – (a) the business address either within the United Kingdom or any other EEA state of a solicitor acting for the party to be served; or (b) the business address in any EEA state of a European Lawyer nominated to accept service of documents; or (c) where there is no solicitor acting for the party or no European Lawyer nominated to accept service of documents – (i) an address within the United Kingdom at which the party resides or carries on business; or (ii) an address within any other EEA state at which the party resides or carries on business. (3) Where none of sub-paragraphs (2)(a), (b) or (c) applies, the party must give an address for service within the United Kingdom. (4) Subject to the provisions of Section IV of this Part (where applicable), any document to be served in proceedings must be sent or transmitted to, or left at, the party’s address for service under paragraph (2) or (3) unless it is to be served personally or the court orders otherwise. (8) This rule does not apply where an order made by the court under rule 6.27 (service by an alternative method or at an alternative place) specifies where a document may be served.

Question 82

r6.23(5)/(6): Address to be given for service of documents other than claim form, if electronic/fax

Answer 82

(5) Where, in accordance with Practice Direction 6A, a party indicates or is deemed to have indicated that they will accept service by fax, the fax number given by that party must be at the address for service. (6) Where a party indicates in accordance with Practice Direction 6A that they will accept service by electronic means other than fax, the e-mail address or electronic identification given by that party will be deemed to be at the address for service.

Question 83

r6.23(7): Address to be given for service of documents other than claim form, if for Crown

Answer 83

(7) In proceedings by or against the Crown, service of any document in the proceedings on the Crown must be effected in the same manner prescribed in rule 6.10 as if the document were a claim form.

Question 84

r6.24: change of address for service

Answer 84

Where the address for service of a party changes, that party must give notice in writing of the change as soon as it has taken place to the court and every other party.

Question 85

r6.25: Service of documents other than claim form on children and protected parties

Answer 85

(1) An application for an order appointing a litigation friend where a child or protected party has no litigation friend must be served in accordance with rule 21.8(1) and (2). (2) Any other document which would otherwise be served on a child or a protected party must be served on the litigation friend conducting the proceedings on behalf of the child or protected party. (3) The court may make an order permitting a document to be served on the child or protected party or on some person other than the person specified in rule 21.8 or paragraph (2). (4) An application for an order under paragraph (3) may be made without notice. (5) The court may order that, although a document has been sent or given to someone other than the person specified in rule 21.8 or paragraph (2), the document is to be treated as if it had been properly served. (6) This rule does not apply where the court has made an order under rule 21.2(3) allowing a child to conduct proceedings without a litigation friend.

Question 86

r6.27: Service of documents other than claim form by an alternative method or at an alternative place

Answer 86

Rule 6.15 applies to any document in the proceedings as it applies to a claim form and reference to the defendant in that rule is modified accordingly.

Question 87

r6.28: dispense with service of documents other than claim form

Answer 87

(1) The court may dispense with service of any document which is to be served in the proceedings. (2) An application for an order to dispense with service must be supported by evidence and may be made without notice.

Question 88

r.2.8: Defining timings

Answer 88

(1) This rule shows how to calculate any period of time for doing any act which is specified – (a) by these Rules; (b) by a practice direction; or (c) by a judgment or order of the court. (2) A period of time expressed as a number of days shall be computed as clear days. (3) In this rule ‘clear days’ means that in computing the number of days – (a) the day on which the period begins; and (b) if the end of the period is defined by reference to an event, the day on which that event occurs are not included. (4) Where the specified period – (a) is 5 days or less; and (b) includes – (i) a Saturday or Sunday; or (ii) a Bank Holiday, Christmas Day or Good Friday, that day does not count. (5) Subject to the provisions of Practice Direction 5C, when the period specified – (a) by these Rules or a practice direction; or (b) by any judgment or court order, for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open.

Question 89

r6.17(1) and (2): Notice and requirement certificate of service of claim form

Answer 89

(1) Where the court serves a claim form, the court will send to the claimant a notice which will include the date on which the claim form is deemed served under rule 6.14. (2) Where the claimant serves the claim form, the claimant – (a) must file a certificate of service within 21 days of service of the particulars of claim, unless all the defendants to the proceedings have filed acknowledgments of service within that time; and (b) may not obtain judgment in default under Part 12 unless a certificate of service has been filed.

Question 90

r6.17(3): certificate of service must state

Answer 90

(3) The certificate of service must state – (a) where rule 6.7, 6.8, 6.9 or 6.10 applies, the category of address at which the claimant believes the claim form has been served; and (b) details of (based on method) 1. date of personal service (Personal Service) 2. Date of posting, or leaving with, delivering to or collection by the relevant service provider. (First class post, document exchange or other service which provides for delivery on the next business day) 3. Date when the document was delivered to or left at the permitted place. (Delivery of document to or leaving it at a permitted place) 4. Date of completion of the transmission (Fax) 5. Date of sending the e-mail or other electronic transmission (other electronic method) 6. As required by the court (Alternative method or place) r6.29: Where a rule, practice direction or court order requires a certificate of service, the certificate must state the same details for documents other than the claim form

Question 91

r3.1(1) and (2): Court's general powers of management

Answer 91

(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have. (2) Except where these Rules provide otherwise, the court may – (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired); (b) adjourn or bring forward a hearing; (c) require a party or a party’s legal representative to attend the court; (d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication; (e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings; (f) stay the whole or part of any proceedings or judgment either generally or until a specified date or event; (g) consolidate proceedings; (h) try two or more claims on the same occasion; (i) direct a separate trial of any issue; (j) decide the order in which issues are to be tried; (k) exclude an issue from consideration; (l) dismiss or give judgment on a claim after a decision on a preliminary issue; (ll) order any party to file and exchange a costs budget; (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

Question 92

r2.3(1): definition of 'filing'

Answer 92

‘filing’, in relation to a document, means delivering it, by post or otherwise, to the court office;

Question 93

PD5B para 3.1-3.3A: Emailing the court documents

Answer 93

3. 1 Subject to paragraph 3.2, a party to a claim in a specified court may send a specified document to the court by e-mail. 3. 2 Subject to paragraph 3.2A, a party must not use e-mail to take any step in a claim for which a fee is payable. 3. 2A A party may make an application using e-mail in the Preston Combined Court, where he is permitted to do so by PREMA (Preston E-mail Application Service) User Guide and Protocols. 3.3 Subject to paragraph 3.3A and paragraph 15.1A of Practice Direction 52, if – (a) a fee is payable on the filing of a particular document; and (b) a party purports to file that document by e-mail, the court shall treat the document as not having been filed. 3.3A A party may file by email an application notice in the Preston Combined Court where permitted to do so by PREMA (Preston E-mail Application Service) User Guide and Protocols.

Question 94

r2.11: Variation of timing

Answer 94

Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.

Question 95

r23.9: service of application made without notice

Answer 95

(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice. (2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person – (a) against whom the order was made; and (b) against whom the order was sought. (3) The order must contain a statement of the right to make an application to set aside or vary the order under rule 23.10.

Question 96

r23.10: application to set aside or vary order made without notice

Answer 96

(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied. (2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

Question 97

r21.1(2): definitions related to protected parties

Answer 97

(2) In this Part – ‘the 2005 Act’ means the Mental Capacity Act 2005; ‘child’ means a person under 18; ‘lacks capacity’ means lacks capacity within the meaning of the 2005 Act; ‘protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings; ‘protected beneficiary’ means a protected party who lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings.

Question 98

r21.2: Litigation friend

Answer 98

(1) A protected party must have a litigation friend to conduct proceedings on his behalf. (2) A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3). (3) The court may make an order permitting a child to conduct proceedings without a litigation friend. (4) An application for an order under paragraph (3) – (a) may be made by the child; (b) if the child already has a litigation friend, must be made on notice to the litigation friend; and (c) if the child has no litigation friend, may be made without notice. (5) Where – (a) the court has made an order under paragraph (3); and (b) it subsequently appears to the court that it is desirable for a litigation friend to conduct the proceedings on behalf of the child, the court may appoint a person to be the child's litigation friend.

Question 99

r21.4: who may become litigation friend

Answer 99

(1) This rule does not apply if the court has appointed a person to be a litigation friend. (2) A deputy appointed by the Court of Protection under the 2005 Act with power to conduct proceedings on the protected party’s behalf is entitled to be the litigation friend of the protected party in any proceedings to which his power extends. (3) If nobody has been appointed by the court or, in the case of a protected party, has been appointed as a deputy as set out in paragraph (2), a person may act as a litigation friend if he – (a) can fairly and competently conduct proceedings on behalf of the child or protected party; (b) has no interest adverse to that of the child or protected party; and (c) where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.

Question 100

r21.5: becoming litigation friend without court order

Answer 100

(1) If the court has not appointed a litigation friend, a person who wishes to act as a litigation friend must follow the procedure set out in this rule. (2) A deputy appointed by the Court of Protection under the 2005 Act with power to conduct proceedings on the protected party’s behalf must file an official copy(GL) of the order of the Court of Protection which confers his power to act either – (a) where the deputy is to act as a litigation friend for a claimant, at the time the claim is made; or (b) where the deputy is to act as a litigation friend for a defendant, at the time when he first takes a step in the proceedings on behalf of the defendant. (3) Any other person must file a certificate of suitability stating that he satisfies the conditions specified in rule 21.4(3) either – (a) where the person is to act as a litigation friend for a claimant, at the time when the claim is made; or (b) where the person is to act as a litigation friend for a defendant, at the time when he first takes a step in the proceedings on behalf of the defendant. (4) The litigation friend must – (a) serve the certificate of suitability on every person on whom, in accordance with rule 6.13 (service on a parent, guardian etc.), the claim form should be served; and (b) file a certificate of service when filing the certificate of suitability.

Question 101

r21.6: becoming litigation friend with court order

Answer 101

(1) The court may make an order appointing a litigation friend. (2) An application for an order appointing a litigation friend may be made by – (a) a person who wishes to be the litigation friend; or (b) a party. (3) Where – (a) a person makes a claim against a child or protected party; (b) the child or protected party has no litigation friend; (c) the court has not made an order under rule 21.2(3) (order that a child can conduct proceedings without a litigation friend); and (d) either – (i) someone who is not entitled to be a litigation friend files a defence; or (ii) the claimant wishes to take some step in the proceedings, the claimant must apply to the court for an order appointing a litigation friend for the child or protected party. (4) An application for an order appointing a litigation friend must be supported by evidence. (5) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions in rule 21.4(3).

Question 102

r21.3: stage when litigation friend becomes necessary

Answer 102

(1) This rule does not apply where the court has made an order under rule 21.2(3). (2) A person may not, without the permission of the court – (a) make an application against a child or protected party before proceedings have started; or (b) take any step in proceedings except – (i) issuing and serving a claim form; or (ii) applying for the appointment of a litigation friend under rule 21.6, until the child or protected party has a litigation friend. (3) If during proceedings a party lacks capacity to continue to conduct proceedings, no party may take any further step in the proceedings without the permission of the court until the protected party has a litigation friend. (4) Any step taken before a child or protected party has a litigation friend has no effect unless the court orders otherwise.

Question 103

r21.9: if litigation friend appointment ceases

Answer 103

(1) When a child who is not a protected party reaches the age of 18, the litigation friend’s appointment ceases. (2) Where a protected party regains or acquires capacity to conduct the proceedings, the litigation friend’s appointment continues until it is ended by court order. (3) An application for an order under paragraph (2) may be made by – (a) the former protected party; (b) the litigation friend; or (c) a party. (4) The child or protected party in respect of whom the appointment to act has ceased must serve notice on the other parties – (a) stating that the appointment of his litigation friend to act has ceased; (b) giving his address for service; and (c) stating whether or not he intends to carry on the proceedings. (5) If the child or protected party does not serve the notice required by paragraph (4) within 28 days after the day on which the appointment of the litigation friend ceases the court may, on application, strike out any claim brought by or defence raised by the child or protected party. (6) The liability of a litigation friend for costs continues until – (a) the person in respect of whom his appointment to act has ceased serves the notice referred to in paragraph (4); or (b) the litigation friend serves notice on the parties that his appointment to act has ceased.

Question 104

PD21 para 6.3: settlement with periodic payments for protected parties

Answer 104

Where the settlement includes provision for periodical payments, an application under paragraph 6.1 must (1) set out the terms of the settlement or compromise; or (2) have attached to it a draft consent order, which must satisfy the requirements of rules 41.8 and 41.9 as appropriate.

Question 105

r21.11: Control of money recovered by or on behalf of a child or protected party

Answer 105

(1) Where in any proceedings – (a) money is recovered by or on behalf of or for the benefit of a child or protected party; or (b) money paid into court is accepted by or on behalf of a child or protected party, the money will be dealt with in accordance with directions given by the court under this rule and not otherwise. (2) Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with. (3) Where money is recovered by or on behalf of a protected party or money paid into court is accepted by or on behalf of a protected party, before giving directions in accordance with this rule, the court will first consider whether the protected party is a protected beneficiary.

Question 106

r19.7A: Claim brought by/against trustees

Answer 106

(1) A claim may be brought by or against trustees, executors or administrators in that capacity without adding as parties any persons who have a beneficial interest in the trust or estate (‘the beneficiaries’). (2) Any judgment or order given or made in the claim is binding on the beneficiaries unless the court orders otherwise in the same or other proceedings.

Question 107

r19.2: Change of parties

Answer 107

(1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.5 (special provisions about changing parties after the end of a relevant limitation period). (2) The court may order a person to be added as a new party if – (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue. (3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings. (4) The court may order a new party to be substituted for an existing one if – (a) the existing party’s interest or liability has passed to the new party; and (b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.

Question 108

r19.8: Death of a party

Answer 108

(1) Where a person who had an interest in a claim has died and that person has no personal representative the court may order – (a) the claim to proceed in the absence of a person representing the estate of the deceased; or (b) a person to be appointed to represent the estate of the deceased. (2) Where a defendant against whom a claim could have been brought has died and – (a) a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased; (b) a grant of probate or administration has not been made – (i) the claim must be brought against ‘the estate of’ the deceased; and (ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim. (3) A claim shall be treated as having been brought against ‘the estate of’ the deceased in accordance with paragraph (2)(b)(i) where – (a) the claim is brought against the ‘personal representatives’ of the deceased but a grant of probate or administration has not been made; or (b) the person against whom the claim was brought was dead when the claim was started. (4) Before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim. (5) Where an order has been made under paragraphs (1) or (2)(b)(ii) any judgment or order made or given in the claim is binding on the estate of the deceased.

Question 109

PD7A para 5A: Claims against partnerships

Answer 109

5A.1 Paragraphs 5A and 5B apply to claims that are brought by or against two or more persons who (1) were partners; and (2) carried on that partnership business within the jurisdiction, at the time when the cause of action accrued. 5A.2 For the purposes of this paragraph, ‘partners’includes persons claiming to be entitled as partners and persons alleged to be partners. 5A.3 Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.

Question 110

PD10 para 4.4: AoS by partnership

Answer 110

Where a claim is brought against a partnership – (1) service must be acknowledged in the name of the partnership on behalf of all persons who were partners at the time when the cause of action accrued; and (2) the acknowledgment of service may be signed by any of those partners, or by any person authorised by any of those partners to sign it.

Question 111

PD7A paras 5B.1 to 5B.3: Partnership membership statements

Answer 111

5B.1 In this paragraph a ‘partnership membership statement’ is a written statement of the names and last known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued, being the date specified for this purpose in accordance with paragraph 5B.3. 5B.2 If the partners are requested to provide a copy of a partnership membership statement by any party to a claim, the partners must do so within 14 days of receipt of the request. 5B.3 In that request the party seeking a copy of a partnership membership statement must specify the date when the relevant cause of action accrued.

Question 112

PD70 para 6A.1-4

Answer 112

6A.1 A judgment or order made against a partnership may be enforced against any property of the partnership within the jurisdiction. 6A.2 Subject to paragraph 6A.3, a judgment or order made against a partnership may be enforced against any person who is not a limited partner and who – (1) acknowledged service of the claim form as a partner; (2) having been served as a partner with the claim form, failed to acknowledge service of it; (3) admitted in his statement of case that he is or was a partner at a material time; or (4) was found by the court to have been a partner at a material time. 6A.3 A judgment or order made against a partnership may not be enforced against a limited partner or a member of the partnership who was ordinarily resident outside the jurisdiction when the claim form was issued unless that partner or member– (1) acknowledged service of the claim form as a partner; (2) was served within the jurisdiction with the claim form as a partner; or (3) was served out of the jurisdiction with the claim form, as a partner, with the permission of the court given under Section IV of Part 6. 6A.4 A judgment creditor wishing to enforce a judgment or order against a person in circumstances not set out in paragraphs 6A.2 or 6A.3 must apply to the court for permission to enforce the judgment or order.

Question 113

PD39A para 5.2: If company represented at hearing by an employee, written statement should contain ...

Answer 113

Where a party is a company or other corporation and is to be represented at a hearing by an employee the written statement should contain the following additional information: (1) The full name of the company or corporation as stated in its certificate of registration. (2) The registered number of the company or corporation. (3) The position or office in the company or corporation held by the representative. (4) The date on which and manner in which the representative was authorised to act for the company or corporation, e.g. ________ 19____: written authority from managing director; or ________ 19____: Board resolution dated ________ 19____ .

Question 114

PD64B para 4.4: Defendant if charitable trust

Answer 114

In the case of a charitable trust the Attorney-General is always the appropriate defendant, and almost always the only one.

Question 115

r55.6: service of claims against trespassers

Answer 115

Where, in a possession claim against trespassers, the claim has been issued against ‘persons unknown’, the claim form, particulars of claim and any witness statements must be served on those persons by – (a) (i) attaching copies of the claim form, particulars of claim and any witness statements to the main door or some other part of the land so that they are clearly visible; and (ii) if practicable, inserting copies of those documents in a sealed transparent envelope addressed to ‘the occupiers’ through the letter box; or (b) placing stakes in the land in places where they are clearly visible and attaching to each stake copies of the claim form, particulars of claim and any witness statements in a sealed transparent envelope addressed to ‘the occupiers’.

Question 116

PD3A para 7.9: application to set aside grant of permission

Answer 116

A person may apply to set aside the grant of permission if: (1) the permission allowed the litigant to bring or continue proceedings against that person or to make any application against him, and (2) the permission was granted other than at a hearing of which that person was given notice under paragraph 7.

Question 117

r3.11: civil restraint orders

Answer 117

A practice direction may set out – (a) the circumstances in which the court has the power to make a civil restraint order against a party to proceedings; (b) the procedure where a party applies for a civil restraint order against another party; and (c) the consequences of the court making a civil restraint order.

Question 118

3.3(7): if court strikes out/dismisses case by its own initiative and considers it without merit, it must ...

Answer 118

If the court of its own initiative strikes out a statement of case or dismisses an application, (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit – (a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 119

3.4(6): if court strikes out C's statement of case and considers the claim is without merit, it must ...

Answer 119

If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit – (a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 120

23.12: if court dismisses application and considers it without merit, it must ...

Answer 120

If the court dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the application is totally without merit – (a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 121

52.10(5) and (6): if appeal refused and court considers appeal is without merit, it must ...

Answer 121

(5) If the appeal court – (a) refuses an application for permission to appeal; (b) strikes out an appellant’s notice; or (c) dismisses an appeal, and it considers that the application, the appellant’s notice or the appeal is totally without merit, the provisions of paragraph (6) must be complied with. (6) Where paragraph (5) applies– (a) the court’s order must record the fact that it considers the application, the appellant’s notice or the appeal to be totally without merit; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.