Commencing And Serving Proceedings Flashcards
1
Q
Which part of the CPR concerns which court is to be used to start proceedings
A
CPR 7.1
PD 7A, paras 1, 2.1-2.5
2
Q
For a claim OTHER THAN PERSONAL INJURY, what is the amount required for it to start in the High Court?
A
More than £100,000
3
Q
For a claim OTHER THAN PERSONAL INJURY, what amount must the claim be to start in the county court?
A
Any value £100,000 or below
4
Q
For claims of PERSONAL INJURY, what amount must the claim be to start in the High Court?
A
£50,000 or more
5
Q
For claims of PERSONAL INJURY, what amount must the claim be for it to start in the county court?
A
Any value below £50,000
6
Q
What factors decide whether a claim will be brought in the High Court? (PD 7A, para 2.4)
A
1) the financial value of the claim and the amount in dispute, and/or
2) the complexity of the facts, legal issues, remedies or procedures involved; and/or
3) the importance of the outcome of the claim is to the public interest
7
Q
If the claim form is issued with “business and property courts”, which court does it belong to?
A
High Court
8
Q
If the claim form is issued with “business and property work”, which court is it issued to?
A
County Court
9
Q
how to start proceedings - CPR 7.1
A
proceedings are started when the court issues a claim form at the request of the claimant.
a claim form is issued on the date entered on the form by the court
10
Q
can a claimant use one claim form to start two or more proceedings?
A
Yes . CPR 7.3
A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings
11
Q
can a claimant extend the time to serve a claim form?
A
Yes. CPR 7.6
the general rule is that you can apply to the court to extend time to comply with the service of a claim form but must be made:
- within the time period of 4 months (6 months if outside jurisdiction); or
- where there has already been an extension, the application is made within that extended period
12
Q
can a claimant extend the period for service of a claim form outside the period of 4 months or a previous order?
A
Yes. CPR 7.6(3)
the court will do so only if:
- the court had failed to serve the claim form;
- the claimant had taken all reasonable steps to comply with service of the claim form; or
- in either case, the claimant has acted promptly in making the application
13
Q
an application to extend service of a claim form must….
A
be supported by evidence
14
Q
an application to extend service of a claim form may….
A
be made without notice
15
Q
application to extend service of a claim form - commentary 7.6.2
A
the better the reasons the more likely chance to the court will grant an extension, but it is not guaranteed.
waiting for something or someone may not amount to a good enough reason
16
Q
application to extend service of the claim form - white book commentary 7.6.3
A
most cases have turned on ‘reasonable steps’ by the claimant
difficulties in preparing the schedule of damages may be a good enough reason to extend time
court of appeal can extend time retrospectively
serving the claim form on the last day of the 4-month period can be seen as to not constitute a reasonable step
17
Q
title of proceedings
A
the claim form and every other statements of case should be headed with the title of proceedings, which should state:
- number of proceedings;
- the court division
- full name of each party
- each party’s status in the proceedings
18
Q
start of proceedings 7APD.5
A
proceedings start then the court issues the claim form at the request of the claimant
the date on which the claim form was received shall be recorded and stamped to that effect.
where there is a question regarding the date on which the claim form was received, it should be directed to the court office.
where a claim is Brough against the estate of a deceased individual, thew claimant must apply pot the court for the appointment of a representative for the deceased estate.
19
Q
Filing/serving the particulars of claim 7APD.6
A
where the claimant odes not serve the POC alongside the claim form then they must be served separately:
- either at the same time of the claim form; or
- 14 days after the service of the claim form provided that the service off the POC is also within that 4 month period (6 months if outside jurisdiction)
20
Q
if the claim form does not have the POC attached, what must the claim form say?
A
that the POC are to follow
21
Q
claim form and POC must contain what at the end?
A
statement of truth
22
Q
an application under 7.6 must comply with what other CPR?
A
CPR 23
23
Q
for an application under 7.6 (extension of service of claim form), what should the evidence state?
A
- all the circumstances relied on
- the date of the issue of the claim
- the expiry date of any rule 7.6 extension
- full explanation ion as to why the claim form has not been served.
24
Q
what does business day mean under CPR? (CPR 6.2)
A
means any day except from a Saturday, Sunday, a bank holiday, Good Friday or Christmas Day.
25
what are the methods of service under CPR 6.3?
- personal service
- first class post
- Document Exchange (DX)
- other service of delivery
- leaving it at a specified place
- fax
- email
- any method authorised by the court
26
who is to serve a claim form? (CPR 6.4)
the court will serve the claim form except where:
- rule or practice direction says otherwise
- clamant notifies the court they wish to serve it.
- the court directs otherwise
27
where the court is to serve the claim form....
it is for the curt to decide which method of service shall be used.
28
where the court is to serve the claim form, it is for the claimant....
...to provide a copy for each defendant two be served as well as filing a copy for the court.
29
personal service should be the method used to serve a claim form where.....
it is specified by a CPR, Practice Direction, enactment or court order
30
where a claim form may be served personally, what are the exceptions?
- if the service is on a solicitor in the UK
- any proceedings against the crown
31
a claim form may be served personally on...
- an individual by leaving it with that individual
- a company or corporation when leaving it with a someone of a senior position in that company or corporation
- a partnership, by leaving it with a partner or someone who at the time of service is on a position with the management of that partnership.
32
where to serve the claim form? (CPR 6.6)
served within the jurisdiction
the claimant must serve with the full address on the claim form of where the defendant is to be served. (this does not apply where there is a service by alternative method or place (CPR 6.15))
33
service on a solicitor in the UK jurisdiction CPR 6.7
- defendant has given the address of the solicitor
- soliton acting on the behalf of the defendant has notified C
-
34
service of the claim form at the address provided by the defendant where they may be served.
this does not apply where the solicitors act as the the ones to be served and where there are any other parts, provisions, practice directions, enactments or court orders to order otherwise.
- it may be an address which he defendant resides or carries out a business and for which he defendant has given the address to be served
- where it is a claim for the tenant against a landlord, C may use address under section 48 Landlord and Tenant Act 1987
35
what must the claimant do if the defendant has not provided na address to serve the claim form?
the claimant must take all reasonable steps to ascertain the address of the defendant's current residence or place of business.
36
what does the claimant do if they have found the address of the defendant to serve the claim form
the claim form must be served at that address
37
what does the claimant do if they cannot ascertain the current address of the defendant to serve the claim form?
the claimant must consider whether there is:
- an alternative place; or
- an alternative method
which will effect service
if there is such a place or method, then the claimant must make an application under CPR 6.15
38
what happens if the claimant can't find the defendants current address, nor an alternative when they have undertaken the reasonable steps required to ascertain it?
they have to serve on the last known address of residence or business.
39
where the defendant is an individual and C cannot find current or alternative address, where do they serve the claim form?
usual or last known address of residence.
40
where the defendant is an individual being sued in the name of a business and C cannot find current or alternative address, where do they serve the claim form?
usual or last known address of residence; or principle or last known place of business
41
where the defendant is an individual being sued in business name of a partnership and C cannot find current or alternative address, where do they serve the claim form?
usual or last known place of residence; or principle or last known place of business of the partnership
42
where the defendant is a limited liability partnership and C cannot find current or alternative address, where do they serve the claim form?
principle office of the partnership or any other known place of business of the partnership within the jurisdiction which has a connection to the claim overall.
43
where the defendant is a corporation (other then a company) incorporated in England and Wales and C cannot find current or alternative address, where do they serve the claim form?
principle office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection to the claim.
44
where the defendant is a company registered inbound England and Wales and C cannot find current or alternative address, where do they serve the claim form?
Principle office of the company; or any place of business of the company within the jurisdiction and which has a real connection to the claim
45
where the defendant is a any other company or corporation and C cannot find current or alternative address, where do they serve the claim form?
any company within the jurisdiction where the defendant carries on its activities; or any place of business of the company within the jurisdiction.
46
service of the clam form by contractually agreed method CPR 6.11
where it is specified within the contract that a claim form is to be served, it is to be done so if the claim is in relation to that contract.
47
when is a claim form deemed to be served?
deemed served on the second business day after the completion of the relevant step under CPR 7.5
48
what must C do if they wish to serve the claim form at an alternative place or alternative method?
they must apply to the court and get permission to do so - CPR 6.15
49
what must the application, to use alternative method or place to serve a claim form, contain?
- must be supported with evidence
- may be made without notice
the order must specify:
- method or place of service
- date on which the claim form is deemed served
- the period for filing an acknowledgement of service, Admission or Defence
50
when may service be made by document exchange
- where the address at which the party is to be served includes a numbered box at a DX, or
- the writing paper of the party or of the solicitor sets out a DX box number, and
- the party or solicitor has not outlined they will not accept DX method
51
how is service effected by post, other delivery method or by DX
the service which provides delivery for next business day is effected by:
- placing document in the box
- leaving or delivering to the relevant service provider
- having the document collected by the service provider
52
for service by fax or other electronic means, the party or solicitor myst have previously indicated in writing to the party serving...
that the to be served is willing to accept service by that means, and provide the fax number, email address or other number to facilitate that.
53
for the purposes of serving by fax, email or other electronic means, what indicates in writing a parties acceptance of that means?
- a fax number set out on the writing paper of the solicitor acting on the behalf of the party.
- an email address on the writing paper of the solicitor acting on the behalf of that party and a statement saying the party is to use that email for the service
- a fax number, email address, or other electronic communication number set out on a statement of case or a response to a claim filed at court.
54
what must the party check with the other if they are to serve documents through electronic means?
that there are no limitations to doing this method, ie format of the electronic documents and the maximum size of the documents that may be received.
55
what does the party serving via electronic means need not do?
provided a hard copy
56
how do you serve documents personally to a company or corporation
has to be delivered to a person of senior authority
registered company/corporation: director, treasurer, secretary, chief executive, or other officer of the company or corporation
unregistered company: in addition to all above, the mayor, chairman, president, town clerk or ant other officer of official position.
57
service by the court will be posted....
...first class
58
when must C serve the POC?
either:
- at the same time as the claim form
- within 14 days of serving the claim form
all of which must be done in the 4 month period of serving the claim form
59
after service of the POC, what must C do?
file a copy to the court within 7 days if not done already.
60
step required for using first class post, DX or any other next day deliver, as a method of service
this step is done by posting, leaving with, delivering to or collecting by the relevant service provider.
61
step required for personal service for leaving document at relevant place
delivering or leaving at relevant place
62
when faxing documents are deemed served
completing the transmission of the fax
63
deemed served by any other electronic method
sending the email or any other electronic transmission
64
when does a party serve statements of case and documents? CPR 6.21
A party will serve a document which that party has prepared, except when a rule or practice direction states the court will serve the document or the court orders otherwise.
65
when does the court serve statements of case and documents? CPR 6.21
The court will serve a document which it has prepared except where a rule or practice direction provides that a party must serve the document or the party on whose behalf the document is to be served notifies the court that the party wishes to serve it or the court orders otherwise.
Where the court is to serve a document, it is for the court to decide which method of service is to be used.
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.
66
service on children and protected parties - CPR 6.25
- An application for an order appointing a litigation friend must be served.
- 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.
- 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, where an application for this may be made without notice.
67
when will a document other than a claim form be deemed served when it is posted first class or any other next business day delivery?
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.
68
when will a document other than a claim form be deemed served by DX?
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.
69
when will a document other than a claim form be deemed served when delivering the document or leaving it at a permitted address?
if it is delivered to or left at the permitted address on a business day before 4:30p.m on that day; or in any other case, on the next business day after that day
70
when will a document other than a claim form be deemed served when faxing?
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 that day on which it was transmitted.
71
when will a document other than a claim form be deemed served when emailing or any other electronic method?
if the email or any other electronic method 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 that day on which it was sent
72
when will a document other than a claim form be deemed served when personally serving it?
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.
73
when applying for an alternative method of service or place to serve a document, it is the same method as....
...when altering the method or place for serving a claim form under CPR 6.15
74
where the document is posted by first class post on a Monday (business day) then it will be deemed to be served.....
....on the following Wednesday (business day)
75
where a document is left in a numbered box at the DX on a Friday (business day) it will be deemed to be served......
....on the following Monday (a business day)
76
where the document is sent by fax and the transmission is completed by 4:30p.m. on a Saturday, then it will be deemed to be served.....
on the following Monday (business day)
77
where the document is served personally on a Sunday by 4:30p.m. it is deemed to be served.....
....on the next day, Monday (a business day)
78
where the document is delivered to a permitted address after 4:30p.m. on the Thursday (a business day) before Good Friday, then it will be deemed to be served.....
...the following Tuesday (as the Monday is a bank holiday)
79
where a document is posted by first class on a bank holiday Monday, then it will be deemed to be served...
...on the following Wednesday (a business day)
80
what is a part 8 claim?
as claim which uses the procedure to ask the court to decide on a question which is unlikely to require a substantial dispute of fact.
81
when may a claimant use part 8 procedure?
- seeks courts decision on a question which is unlikely to require a substantial dispute of fact
- or where a rule or practice direction requires the claimant to do so.
82
where may the part 8 claim be heard?
in the county court unless a rule or practice direction requires otherwise.
83
what are the three main differenced between a part 8 procedure and part 7 procedure?
- defence is not required
- c may not obtain summary judgment
- part 8 is treated as if it was on the multi-track
84
what happens if the part 8 procedure is found to be inappropriate once started?
the court may order the claim to continue as if it was a part 7 claim, allowing the court to give any directions it deems appropriate.
85
where the claimant uses the part 8 procedure, the claim form must state the following:
- that part 8 is to apply
- the question which the clamant wants to the court to decide or the remedy the claimant is seeking and on what basis
- the enactment it is being made under, if any
- if the claimant is claiming representative capacity, what capacity that is
- if the defendant is sued in a representative capacity, what that capacity is
86
what must the defendant do when they are served with a part 8 claim form?
they must file acknowledgment of service.
this must be done in the relevant practice form no later than 14 days after the service of the claim form
they must serve the AOS on the claimant and any other party
87
when the defendant files an AOS for a part 8 claim, what must the AOS state?
the AOS must state:
- whether the defendant contests the claim; and
- if the defendant seeks a different remedy outlined in the claim form, what that remedy is
88
what are the consequences of the defendant not filing an AOS in a part 8 claim?
where the defendant has failed to file an AOS and there time perish has expired, the defendant can still attend the hearing but they may not be Abel to take part unless the court gives permission otherwise.
89
for a part 8 claim, what must the claimant do if they wish to rely on evidence?
they must file any written evidence they intend to rely on when they file the claim form which must be served on the defendant
90
for a part 8 claim, what if the claimant wishes to use further evidence but has already filed evidence with the claim form.
they may file further evidence in the reply and this must be done no later than 14 days after the defendant has served an AOS. In doing so, must serve a copy on all other parties
91
for a part 8 claim, what if the defendant wishes to rely on written evidence?
they just file it with the AOS at the same time and must serve it on all the parties involved. this must be done within the 14 day window allowed for AOS.
92
for a part 8 claim, the claimant may wish to rely on matters set out in the claim form as evidence if....
...the claim form is verified by a statement of truth
93
which rule deals with the filing and serving of evidence in a part 8 claim?
CPR 8.5
94
for a part 8 claim, what are the general rules of evidence?
no written evidence may be relied upon unless:
- it complies with CPR 8.5; or
- the court gives permission
95
do part 8 claim hearings allow oral evidence?
Yes.
the court may give directions for a witness to be cross examined on the written evidence submitted.
96
can the defendant contend the use of a Part 8 procedure?
yes.
the defendant list state their reasons when filing the AOS. they mist state that:
- there is a substantial dispute of fact; and
- the use of the part 8 procedure is not permitted due to relevant rules or practice direction
97
what happens when a defendant makes a contention of the use of part 8 procedure?
the court will look at this contention when they receive the AOS and written evidence. it is then where the court may require and produce directions as to the management of the case and may even even order parties to carry on the claim as if it was a part 7 claim.
98
what modifications are made to the general rules of a claim (part 7 claims) when the part 8 procedure is used?
the defence is not required so:
- CPR 16 does not apply
- CPR 15 does not apply
- any time limits for defence statements dont apply
- requirement under CPR 7.8 does not apply
the claimant may not obtain judgment based on admission so:
- CPR 14.4-14.7 dont apply
- CPR 7.8 doesn't apply
Part 8 claim is treated as if it was on the multi-track so CPR 26 does not apply
99
types of claims which may use the part 8 procedure
- a settled claim against a child or protected party before commencement of proceedings and the court is required to approve the settlement
- a settled claim of provisional damages which has been done before commencement of proceedings and court permission is sought
100
can a court officer intervene with the use of a part 8 procedure
Yes.
if it appears to a court officer that part 8 is being used inappropriately, they can refer it to a judge and the judge can then consider that point
101
when must a part 8 claim procedure be used?
Any claim or application in relation to which an Act, rule or practice direction provides that the claim or application is brought by originating summons - These are listed in Section B 8APD
102
what options are available for a party to get an extension to file and serve evidence in a part 8 claim?
- may apply to the court; or
- may ask for permission from the other party
103
what are the conditions when a defendant is asking for an extension for filing and serving evidence by the other party?
- must be in writing
- must be filed by the defendant when they file an AOS; and
must not extend time more than 14 days after the defendant files their AOS
104
an agreement for a claimant to file evidence in reply must not....
...extend time more than 28 days after the service of the defendant's evidence on the claimant.
