Commencing Proceedings Flashcards
(20 cards)
When can a claim be heard in the County Court and when may it heard in the High Court?
1) If the value of the claim is £100,000 or less, it must be started in the County Court
2) If the value of the claim exceeds £100,000, it may be started in the High Court
3) Personal injury claims cannot be started in High Court unless claim value exceeds £50,000
- Claimant can choose whether to use High Court if it exceeds £100,000. They’d consider the value, complexity of the case and whether the outcome is important to public in deciding
Within the County Court, where do different types of claim have to go?
- All money only claims on paper (specified and unspecified) must be sent to Civil National Business Centre and will be transferred to CC if hearing required
- Online claims for specified sums up to £100k can be made via Money Claim Online
- All other CC claims – C can issue proceedings in any CC hearing centre
What documents need to be sent to court to be ‘issued,’ in order for proceedings to commence?
A claim form (form N1)
Particulars of claim (might be contained in claim form or separate document if complex)
Documents required to be annexed by CPR, such as a copy of a written contract
What is the purpose of the claim form?
Summarises the most important aspects of the claim and should contain enough details for the court and other parties to understand C’s case
How should the parties names and status be expressed in Part B of the claim form (details of the parties section)?
Individuals – full name and title
Sole traders – individual’s name and business name should also be used
Partnerships – should sue and be sued in the name of the firm
Companies – correct registered name and address must be stated; check accuracy with company search
How should the details of the claim be expressed in Part C of the claim form?
Concise statement of the nature of the claim and specify the remedy sought
Must discuss the factual and legal basis for the claim
How should the statement of value be expressed in Part D of the claim form?
1) For specified claims, the precise figure should be calculated including the interest accrued
2) For unspecified claims in the High Court, claimant need only put - ‘C expects to recover more than £100,000/£50k (personal injury)
3) For unspecified claims in the CC, C must state if they expect to recover:
- Not more than £10k
- More than £10k but not more than £25k
- More than £25k but not more than £100k
- More than £100k
- If they aren’t sure what to expect to recover, this must be stated
- These determine what ‘track’ the case is assigned to in the CC
4) In calculating the unspecified the above amounts, C should disregard:
- Possible awards of interest/costs
- Contributory negligence
- Counterclaims
How should the statement of truth be completed in Part K of the claim form?
1) Claim form must be verified by a statement of truth, which must be in the witness’ own language, signed and dated
- PoC, if served separately, must also be verified in this way
2) A legal representative can sign on C’s behalf, but must add that they are duly authorised to do so – they sign in their own name, not the name of the firm
Their signature will be taken by the court as their statement:
- (1) that the client on whose behalf they have signed had authorised them to do so,
- (2) that before signing they had explained to the client (through an interpreter where necessary) that in signing the statement of truth they would be confirming the client’s belief that the facts stated in the document were true, and
- (3) that before signing they had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts.
Who can make an application to add, substitute or remove a party?
An existing party or someone who wants to become a party - D cannot substitute themselves
No-one can be added or substituted as claimant unless their consent in writing has been filed at court
Will permission be required to add, substitute or remove a party?
- No - if claim form has been issued but not served
- Yes - if claim form has been served
On what grounds can an application to add, substitute or remove a party be made within the limitation period?
It is desirable:
- to add a new party to resolve all matters in dispute
- to remove a party
- to substitute a party where the existing party’s interest or liability has passed to them
Court may also order that an individual be added as a new party if there is an issue involving the prospective new party and an existing party (example - the woman and the man) which is connected to the matters in dispute in the proceedings (example - ownership of the horse) and it is desirable to add the individual as a new party so that the court can resolve that issue.
On what grounds can an application to add, substitute or remove a party be made outside the limitation period?
1) Party can only be added or substituted if limitation period was current when proceedings started; and
- The original party was named by mistake
- The original party has died/subject to bankruptcy order and their interest or liability has passed to the new party
- The claim cannot be properly be carried on without the new party
What is the deadline for serving the claim form after it is issued?
Must be served on the other parties within four calendar months
Claim form can only be served on solicitors if D has nominated them in writing.
Who is the person that service normally occurs on?
General rule is that service must occur on a party’s nominated solicitor, which must be done in writing
Firm of solicitors can indicate in writing that it is nominated to accept service of proceedings on behalf of a party
Where no solicitor is nominated, a managing partner in a partnership or a senior person in a company can be personally served
In what ways is service permitted under the CPR?
1) Personal service – can be handed to an individual D, partner or a senior person in a company or left at their feet
2) First class post or document exchange
3) Leaving the claim form at a specified place – claim form is delivered by hand to the address specified by the CPR
- Individual – usual or last known residence
- Sole trader – as above or principal or last known place of business
- Partnership – as above except place of partnership’s business
- LLP – principal office of the partnership
- Company – principal office of the company
4) Fax or other means of electronic communication – party to be served must have expressly confirmed in writing that they are willing to accept service in this way
- Inclusion of an email address on a solicitor’s letterhead is not sufficient indication they are willing to accept service by email
- Inclusion of a fax number on the letterhead, however, is sufficient indication that they will accept service by fax.
5) Any other method authorised by the court – court can sanction service by text or voicemail
When are claims forms deemed to be have been served?
For claim forms, they are deemed to have been served on the second business day after the step required has occurred.
Note:
- A ‘business day’ is any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day.
- The ‘step required’ is, for example, putting the claim form in the post
Thus, a claim form sent by post on Monday will usually be deemed served on Wednesday
When are all other documents relevant to proceedings deemed to have been served?
1) For all other documents, like defences, Part 36 offers and PoC (where served separately), the method of service determines the deemed service date:
2) Personal service, delivery to permitted address, fax and email
- If served before 4:30pm on a business day, on that day
- If not, on the next business day
3) First class post or document exchange (DX)
- The second day after it was posted if that day is a business day
- If not, on the next business day
- So, if posted Friday, the second day would be Sunday which is a non-business day, so it would be deemed served on Monday)
What is the broad deadline for serving the Particulars of Claim?
PoC may be served:
- either at the same time as the claim form; or
- within 14 days after service of the claim form (but no later than four months after the date of issue of the claim form)
Give an example scenario of the different service deadlines for Particulars of Claim
ULaws LLP are instructed by a client to issue proceedings. They issue a claim form marked ‘particulars of claim to follow’ on 5 March. The four-month deadline for serving the claim form expires at 12 midnight on 5 July.
(a) The solicitors decide to serve the claim form on 10 April. As soon as they do this, the (separate) clock starts ticking for service of the particulars of claim. This must be done within 14 days so by 24 April.
(b) In an alternative scenario, having issued the claim form, ULaw LLP have difficulties in tracing the defendant and are unable to serve the claim form until 27 June. In this instance, the solicitors only have until 5 July to serve the particulars of claim, so less than 14 days, because they are approaching the (long stop) deadline of four months
How is service out of England + Wales dealt with?
1) If a claim is to be served outside England and Wales, it must be served within six months of being issued
2) For any jurisdiction other than Scotland and NI, C must obtain permission to serve proceedings out of E+W, except where a contract contains an English jurisdiction clause
- No permission needed to serve in that case
- The claim form would need to be accompanied by a notice setting out the grounds on which C is entitled to serve it outside the jurisdiction, with evidence that E+W is the proper forum (Breach of contract occurred here or too much expense or delay going to foreign court are examples)
