CH. 1 Part B: - Overview of a C.L. Claim Flashcards Preview

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Flashcards in CH. 1 Part B: - Overview of a C.L. Claim Deck (44)
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1

Where can the pre-action protocols be found and what do they set out?

The pre-action protocols set out the best practice that should be adopted by the parties before the court is involved in a dispute. They can be found in Section C of the White Book.

2

What is the aim of the pre-action protocols? And do they achieve this?

The aim is:
- to encourage the parties to resolving the dispute without court action
- to encourage settlement
- to enable proceedings to run efficiently, and to the court's timetable. They achieve this by enabling the parties to obtain information they reasonably need to settle the matter at the earliest possible opportunity.

3

What are the consequences of non-compliance with a pre-action protocol?

The most likely consequences will relate to costs and interest. The Practice Direction on Pre-Action Conduct also states that the court may stay the proceedings until the relevant steps (which have not been complied with) are taken.

4

List the 3 basic steps for pre-action behaviour (not covered by a specific pre-action protocol).

1. Claimant must write to the other party giving details of the claim, within a reasonable period.
2. Recipient must respond in writing to accept or reject the claim.
3. If the claim is rejected, in all or part, the parties should disclose key documents, negotiate appropriately, then make proposals for settlement.

5

What happens when proceedings are started?

Under CPR 7 a claim form is issued by the court at the request of the claimant.

6

What rule sets out what the claim form must contain?

CPR 16.2.

7

What is the claim form and who is it completed by?

The claim form contains, in brief, the claimant’s case (a clear concise statement of what the claimant wants). It is part of a set of documents called statements of case and is completed by the claimant.

8

When must the claim form be served?

Within 4 months of the date it was issued at court.

9

What is the 'deemed date of service'?

The date the court considers a document to be served, irrespective of the date it was actually received by the defendant.

10

What is the 'particulars of claim' and what rule is relevant?

The particulars of claim is the statement of case which contains full details of the claimant’s claim and their story. CPR 16.

11

What are the 3 ways of dealing with the 'particulars of claim'?

1. it may be included on the claim form;
2. it may be prepared as a separate document and served with the claim form; or
3. it may be prepared as a separate document and served within 14 days of deemed service1 of the claim form, so long as such service is effected within four months from the date of issue of the claim form.

12

When the particulars of claim is served, what must it be accompanied by?

notes for the respondent (usually the defendant) and the response pack (including an acknowledgment of service, an admission form and a defence and counterclaim form.

13

If the defendant receives the claim form without the particulars of claim, do they have to respond within a certain time period?

no (save in the Commercial Court) they do not need to respond until the particulars of claim is served.

14

When the particulars of claim is served on the defendant, it must respond how quickly?

Within 14 days of the deemed date of service.

15

Once a particulars of claim is served what options does the defendant have?

The defendant has three options:
1. file an acknowledgment of service;
2. file or serve an admission; or
3. file a defence.

16

When, who by, and under what rule is an 'Acknowledgement of Service' filed?

Under CPR 10, A defendant may file an acknowledgment of service with the court if it wishes to defend the claim but, for various reasons, has been unable to file a defence within 14 days of deemed service of the particulars of claim, or if it wishes to dispute the court’s jurisdiction.

17

Who by, and under what rule is an 'Admission' filed? What is it?

Under CPR 14, the defendant may serve notice in writing to admit the truth of all or part of the claim to bring it to an end.

18

When is an 'Admission' filed?

Within 14 days of deemed service of the particulars of claim (if it is served separately from the claim form). Otherwise it must be done within 14 days of deemed service of the claim form.

19

What happens if the defendant wishes to defend the whole or part of a claim? And under which rules?

Under CPR 15 and 16, the defendant must file a defence with the court, known as the 'defendant's statement of case'.

20

What must a defence include?

The defendant must state:
1. which allegations it denies;
2. which allegations it is unable to admit or deny, but of which it requires proof; and
3. which allegations it admits.

21

What is the time limit to file a defence? Can an extension be granted?

Within 14 days of deemed service of the particulars of claim, or, if the defendant files an acknowledgment of service, within 28 days of deemed service of the particulars of claim. The defendant and claimant may agree an extension of time for filing the defence of up to 28 days.

22

'Judgement on default/.
What is it? When is it obtained? and under which rule?

This is judgment on the claimant’s claim without the need to proceed any further with the litigation process.
It is obtained when the defendant has not filed an acknowledgment of service or filed a defence and the time for doing so has expired.
CPR 12.

23

Under what rule can a counterclaim be made? Is the court's permission required?

CPR 20.
If the defendant files a counterclaim at the same time as its defence, court permission is not required. Any other time, permission must be sought.

24

What happens after a counterclaim is filed?

The claimant must file and serve a defence to the counterclaim within 14 days of deemed service of the counterclaim, failing which, the defendant may obtain judgment in default on the counterclaim.

25

Under what rule, and why might a reply be filed?

Under CPR 15, If a claimant wishes to allege facts in answer to a defence which were not included in the particulars of claim, they may file a reply.

26

Under what rule, and how might a party seek further information?

Under CPR 18, If a party requires clarification of a statement of case, it should make a reasonable written request to the other party.

27

What is an 'interim application' and when can it be made, under which rule?

CPR 23-25, an application to the court to make an order which binds the parties. It can be made before or during the course of an action.

28

Give 2 examples of an 'interim application'?

An application for an extension of time for taking a particular step in the action or, to amend a statement of case.

29

What is 'allocation' and under which rule, and when does it occur?

Under CPR 26, once the defence has been filed, a defended claim will be allocated to either to the small claims track, the fast track or the multi-track and a notice of proposed allocation will be served on the parties.
Allocation will depend on monetary value & complexity of the claim.

30

What will a 'notice of proposed allocation' specify?

Any matters to be complied with and the time limit for compliance. It will further require the parties to file a completed directions questionnaire and serve this on the other parties.