Commencing and serving proceedings Flashcards
Relevant steps for each method of serving a claim form
personal service
first class post/dx
fax
electronic method
Method of service: Personal service / leaving the document at a relevant place – Relevant step: Leaving the claim form with the defendant
Method of service: First class post / DX – Relevant step: Posting the claim form /leaving it with DX service
Method of service: Fax – Relevant step: Completing the transmission
Method of service: Electronic method – Relevant step: Sending the email or other electronic transmission
High or County court
Does a specific enactment tell you to issue the claim in the High or County court ? -> if no, then consider:
Non PI claims up to £100,000 must be in County Court. Non PI claims over £100,000 can be in either court.
Personal Injury claims of less than £50,000 must be in County Court. Personal Injury claims £50,000 or more can be in either court.
If you can start proceedings in both, then consider if issuing in the High Court justified on the grounds of:
Financial value of the claim/amount in dispute
Complexity of facts/legal issues/remedies/procedures
Importance to the public
Note: the value of the claim is its financial claim ( VAT counts in as well), so disregard interest, costs, counterclaim, contributory negligence, deductions for social security benefits
When must a claim form be served? what are the consequences of not doing it within the time limit?
serve the claim form must be completed before 12.00 midnight on the calendar day four months after the date of issue of the claim form.
If the claim form is not served within this time, then the claim will fail automatically
Grounds for extension of time for sending the claim form after the deadline
a. it is the court that failed to serve the claim form; or
b. the claimant has taken all reasonable steps to comply; and
c. either way, the application has been made promptly.
Mistakenly serving the defendant’s insurers or solicitors when the rules required service on the defendant is unlikely to justify an extension in these circumstances.
When to serve particulars of claim?
If particulars of claim are not contained in or served with the claim form they must be served within 14 days of service of the claim form, and also within the period of validity of the claim form, ie within 4 months of issue
Deemed date of service of the claim form
A claim form is deemed served on the second business day after completion of the “relevant step”
‘Business day’ means any day except Saturdays, Sundays, bank holidays, Good Friday or Christmas day
Particulars of claim - when are they deemed served?
If particulars of claim are contained in the claim form, they are clearly part of the claim form and the rules on deemed service above apply
If particulars of claim are served separately from the claim form, ie served within 14 days after service of the claim form then the rules set out below which apply to documents other than the claim form will apply to those particulars of claim.
Deemed date of service of documents other than the claim form:
instant methods
Non-instant methods
Instant methods
(personal service, fax, email, delivering / leaving at a permitted address)
If done before 4.30pm on a business day: deemed served the same day.
Otherwise: deemed served the next business day
Not-instant methods
(Post / DX)
Deemed served second day after posting / giving to DX provider, if a business day.
Otherwise: deemed served the next business day
What happens if a statement of case does not have a statement of truth?
A party’s statement of case can be used as evidence in the proceedings only if verified by a statement of truth
If there is no statement of truth the court may strike out the defence and the solicitor may face proceedings for contempt of court if the document contains false information
What if there is false information in a document verified by a statement of truth?
Person can be held in contempt of court, or even imprisoned
What happens if a deficient statement of case is served?
Cost consequences
But errors such as formatting etc. -> the consequence is that the court may require the solicitor to amend the document to comply with formatting rules, possibly causing delays and additional costs
What must particulars of claim for personal injury contain?
Personal injury claims need to set out the claimant’s date of birth and injuries, and to include a schedule of past and future expenses and losses, and the report of any medical expert medical practitioner relied on by C
What must particulars of claim for a contract claim contain?
Attach the actual contract to the particulars
General rule on costs
General rule: The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party
BUT the court has a discretion to make a different order
Consequences of non-compliance with pre-action protocols
The court will decide whether non-compliance with a pre-action protocol (or the Practice Direction on Pre-Action Conduct) will merit adverse consequences. The most likely consequences will relate to costs and interest – increasing the amount of costs / interest to be paid / decreasing the amount to be received. The Practice Direction also states that the court may stay the proceedings until the relevant steps (which have not been complied with) are taken.
If the delay is minor -> unlikely there will be negative consequences
Practics direction vs pre-action protocols
Practice directions applies to all cases…but where a specific protocol applies, the provisions of that specific protocol override any conflicting provisions of the Practice Direction.
Cases in which non-compliance with pre-action protocol is justified
Where a limitation period is about to expire, in which case it may be necessary to issue proceedings (the crucial act that must be completed before the limitation date) before there is time to comply with the pre-action requirements. In those circumstances, the parties must comply to the extent possible, and ordinarily will need to apply for a stay of proceedings after issue in order that the pre-action procedure can be followed.
Where there is another reason for urgent proceedings or for the element of surprise. For example, a party can apply to court for a search order, which allows an ‘unannounced’ revisit to the opponent’s premises to search for documents. It is obtained when there is fear that the opponent will destroy documents rather than honour an obligation to provide them to the claimant / court. In such a case, it would defeat the purpose of the search order if a party was required to write to the other side about it before applying to court.
what if proceedings are not issued within the relevant limitation period?
If proceedings are not commenced within the relevant limitation period, the claimant will be barred from recovering damages, and, on this bases, the defendant will have a full defence
Limitation period in personal injury claims
When a party makes a claim that includes a claim for personal injuries, the claimant must bring the claim within 3 years of the latest of:
- The date when the cause or action accrued; or
- The date of knowledge of the personal injury
Limitation period for persons dependent on the deceased claiming for compensation
Persons dependent on the deceased can claim for compensation
Time limits are that:
- The claim cannot be brought if the person injured could no longer bring a claim (in most cases, you will need to apply the personal injury rules from before to ascertain this, from the injured person’s perspective)
- The claim cannot be brought after 3 years from the later of:
a. Date of death
n. The date of knowledge of the dependent
Date of knowledge - meaning for the purpose of limitation periods
Date of knowledge means knowing:
- That the injury was significant;
- That it was attributable (at lease in part) to the alleged wrongdoing;
- The identity of the defendant;
- If it us alleged that the wrongdoing was by someone other than the defendant, the identity of that person and the additional facts supporting bringing the claim against the defendant
Note: dates of knowledge include knowledge which the claimant might reasonably have been expected to acquire from an expert/facts observable/ascertainable by them
Limitation period - Extension of time - the court will look at:
The conduct of the parties
The reasons for the delay
The effect of such a late claim on the evidence
Limitation period - latent damage
Limitation period of negligence claims - the later of:
- Six years from when the cause of action accrued;
- Three years from when they had the requisite:
a. Knowledge; and
b. Right to bring a claim
Note: This is subject ot a long-stop limitation date of 15 years from the date of the latest negligent act/omission which caused all or part of the damage
Date of knowledge - the claimant needs to know the material facts about the damage in respect of which damages are claimed
Note: dates of knowledge include knowledge which the claimant might reasonably have been expected to acquire from an expert/facts observable/ascertainable by them
Limitation period for enforcing a judgment
An action to enforce a judgment cannot be brought after 6 years from when the judgment became enforceable, nor can interest be recovered after that period
