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Civil Litigation > Commencing Proceedings (Syllabus 6) > Flashcards

Commencing Proceedings (Syllabus 6) Flashcards

1
Q

How are proceedings started?

A

proceedings are started when the court issues a claim form at the request of the claimant

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2
Q

What is the date that a claim form is issued?

A

a claim form is issued on the date entered on the form by the court

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3
Q

Can a claimant use one claim form to start more two or more claims?

A

Yes, so long as the claims can be disposed of in the same proceedings

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4
Q

How can the time for serving a claim form be extended?

A

the claimant can apply to the court for an extension of time to comply with service

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5
Q

when must an application for extension of time to serve a claim form be made?

A

within the 4 month period

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6
Q

Can the court extend the period of time for service if the claimant applies outside of the 4 month period?

A

Yes if-

(1) the court failed to serve the claim form; or
(2) the claimant has taken reasonable steps to comply with the rule but has been unable to do so; and
(3) the claimant has acted promptly.

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7
Q

What is needed for an application for an order extending the time for compliance with CPR 7.5?

A

supporting evidence

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8
Q

Does an application for extension of time need to be made with notice?

A

No

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9
Q

What will happen if a claim is required to be made at a particular County Court centre, but is made at the wrong centre?

A

a court officer will send the claim to the correct centre before they issue it

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10
Q

What must the claim form and every other statement be headed with?

A

the title

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11
Q

What should the title state?

A

(1) the number of proceedings
(2) the court or division in which they are proceeding
(3) the full name of each party
(4) each party’s status in the proceedings

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12
Q

Where there is more than one claimant and/or defendants how should the parties be described?

A

(1) AB
(2) CD
(3) EF Claimants

and

(1) GH
(2) IJ
(3) KL Defendants

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13
Q

What date was the claim form issued if there is an issue of limitation?

A

the date that the claim form was brought to the Court Office

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14
Q

How will the date that the claim form was received by the court be noted?

A

either on a date stamp on the claim form or on the letter that accompanied the claim form when received by court

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15
Q

Who should queries as to the date on the claim form be directed to?

A

the court officer

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16
Q

What should a claimant do to start proceedings against a deceased person?

A

the claim form should be issued against “the personal representatives of AB deceased”

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17
Q

When should the PoC be served if not included on the claim form?

A

within 14 days after service of the claim form provided that the service of the PoC is within 4 months after the date of issue of the claim form

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18
Q

If the PoC are not included in the claim form, what must be stated in the claim form?

A

that the PoC will follow

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19
Q

What must follow the claim form?

A

a statement of truth

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20
Q

What should the evidence state in an application for an extension of time for service of the claim form?

A

(1) all the circumstances relied on
(2) the date of issue of the claim
(3) the expiry date of any extension; and
(4) a full explanation as to why the claim has not been served

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21
Q

What was the outcome in the case of Marshall v Maggs (not on syllabus but in commentary)?

A

The CoA held that the court can allow an application to extend time under CPR r 7.6(2) without being satisfied that the claimant has taken all reasonable steps to comply with CPR r7.5.

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22
Q

What did the case of FG Hawkes Ltd v Beli Shipping state in relation to an extension in time for serving the claim form?

A

the better the reason for not having served in time, the more likely that an extension would be granted. Incompetence or oversight by a claimant will most likely not amount to a good reason.

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23
Q

What is the interpretation of CPR r 7.6(3)?

A

(1) it includes cases where the court has not even tried to serve the claim form through neglect.
(2) it turns on the interpretation of taking reasonable steps

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24
Q

Where can proceedings be commenced if both the High Court and County Court have jurisdiction?

A

in either court

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25
Q

What does personal injuries mean?

A

personal injuries too the plaintiff or any other person, and includes diseases, impairment of physical or mental condition and death.

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26
Q

what should the value of the claim, be calculated in accordance with?

A

CPR r 16.3(6)

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27
Q

When does CPR r 6.1 apply to service?

A

Nearly always, except where-

(1) another Part, any other enactment or PD makes different provisions; or
(2) the court orders otherwise

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28
Q

What is the meaning of a business day?

A

any day except Saturday, Sunday, a bank holiday, good Friday or Christmas Day

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29
Q

What are the different methods of service for a claim form?

A

(1) personal service (rule 6.5)
(2) first class post, document exchange or other service which provides for delivery on the next business day.
(3) leaving it at a specified place
(4) fax or other means of electronic communications
(5) any method authorised by the court under rule 6.15

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30
Q

How can a claim form be served on a company?

A

(1) by any method permitted under CPR r.6

(2) by any method permitted undertake Companies Act 2006

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31
Q

How can a limited liability partnership be served?

A

(1) by any method permitted under this Part; or
(2) by any method permitted under the Companies Act 2006 as applies with modification by regulations made under the Limited Liability Partnerships Act 2000

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32
Q

Who can serve the claim form?

A

The court will serve the claim form except where-

(a) a rule or PD 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

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33
Q

When the court serves the claim form, who determine the method of service to be used?

A

the court

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34
Q

Where the court is serving the claim form, what must the claimant provide?

A

a copy of the claim form for each defendant to be served when filing the court’s copy.

35
Q

Can a claim form be served personally?

A

(1) yes it must if required by another Part, PD or court order
(2) it may except-
(a) where rule 6.7 applies; or
(b) in any proceedings against the Crown

36
Q

How is a claim form served personally?

A

(1) on an individual by leaving it with that individual
(2) on a company or other corporation by leaving it with a person holding a senior position within the company or corporation; or
(3) on a partnership by leaving it with-
(a) a partner; or
(b) a person who, at the time of service, has the control or management of the partnership business at its principal place of business

37
Q

Can the claim form be served on a solicitor?

A

Yes it can if-

(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.

38
Q

What should happen where before service the defendant gives an address at which the defendant may be served?

A

the claim form should be served at this address.

39
Q

What happens for service of the claim form where the defendant does not give an address at which the defendant may be served?

A

the claim form must be served in one of the following places:

(1) on an individual- in their usual or last known residence
(2) individual being sued in the name of a business- usual or last known residence of the individual; or principal or last known place of business
(3) individual being sued in the business name of a partnership - same as (2)
(4) limited liability partnership - principal office of the partnership, or any place of business of the partnership within the jurisdiction which has a real connection with the claim
(5) corporation - same as (4) above
(6) company registered in England and Wales - same as (4) above
(7) any other company or corporation - any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction

40
Q

How should a claim be served if there is a provision in a contract relating to this?

A

By the method stipulated in the contract

41
Q

Is permission needed to serve a claim form out of the jurisdiction?

A

Permission can be granted under rule 6.36; or

No permission needed under rule 6.32 or 6.33

42
Q

When is a claim form deemed to be served?

A

the second business day after the completion of the relevant step

43
Q

Can a claim form be served by an alternative method or at an alternative place?

A

if 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 permit the service by an alternative method or at an alternative place

44
Q

When can service be made by document exchange?

A

only where-

(1) the address 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 sets out a DX box number, and
(3) the party or solicitor has not indicated in writing that they are unwilling to accept service by DX.

45
Q

How is service effected by post, an alternative service provider or DX?

A

(1) by 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

46
Q

When can service by fax or other electronic means be used?

A

the part who is to be served or solicitor must have indicated in writing to the party serving-

(a) that they are willing to accept service by fax or other electronic means; and
(b) provide the fax number, email address or other electronic identification to which it must be sent

47
Q

What is a sufficient written indication for the purposes of showing an allowance for service through electronic communication/fax?

A

(1) a fax number set out on the writing paper of the solicitor acting for the party to be served
(2) an email address set out on the writing paper of the solicitor acting for the part to be served but only where it is stated that the email address may be used for service; or
(3) a fax number, email address or electronic identification set out on a statement of case

48
Q

If a document is served by electronic means, does the party also need to send or deliver a hard copy of the document?

A

No

49
Q

What should the party ensure when serving a document by electronic means?

A

if there is any limitation on the recipient’s agreement to accept service by such means.

50
Q

Who is a person holding a senior position in a company or corporation?

A

a director, the treasurer, the secretary of the company or corporation, the CEO, a manager or other officer of the company or corporation

51
Q

Who is a person holding a senior position in a corporation that is not a registered company?

A

a director, treasurer, secretary, the CEO, a manager, the mayor, the chairman, the president, a town clerk.

52
Q

Where the court serves the claim form, what is the usual method of service?

A

first class post

53
Q

How can the PoC be served?

A

either with the claim form or separately within 14 days after service of the claim form

54
Q

What is the latest date for service of the PoC?

A

The PoC can be served no later than the latest date on which the claim form should have been served.

55
Q

If the claimant serves a PoC when must they lie a copy?

A

within 7 days of service on the defendant.

56
Q

If the claim form is served within the jurisdiction when must the relevant step be completed by?

A

before 12:00 midnight on the calendar day four months after the date of issue of the claim form

57
Q

If the claim form is served outside of the jurisdiction when must the claim form be served?

A

within 6 months of the date of issue

58
Q

What is the relevant step for first class post, DX, or other service which provides for delivery on the next business day?

A

posting the form, leaving it with the relevant person, delivering to or collection by the relevant service provider

59
Q

What is the relevant step for delivery of a document to or leaving it at a relevant place?

A

delivering it to, or leaving it at the relevant place

60
Q

What is the relevant step for personal service?

A

leaving the document with the individual or the person with a senior position in a company

61
Q

What is the relevant step for service by fax?

A

completing the transmission of the fax

62
Q

What is the relevant step of other electronic methods of service?

A

sending the email or other electronic transmission

63
Q

What methods of service can be used for documents other than the claim form?

A

(1) personal service
(2) first class post/DX
(3) leaving at a place specified
(4) fax or other means of electronic communication
(5) any method authorised by the court

64
Q

Who serves documents other than the claim form?

A

the party who prepared the document except where-

(1) a rule, PD or enactment provides that the court will serve the document
(2) the court orders otherwise

65
Q

How are documents served on children or protected parties?

A

the document must be served on the litigation friend conducting the proceedings on behalf of the child or protected party. The court may also make an order for the document to be served on another party.

66
Q

When is a document other than a claim form deemed served?

A

For non-instant methods- the second day after the relevant step was taken, if that day is a business day. If not- the next business day after that day.

For instant methods- relevant step completed before 4:30pm, deemed served that day. If not- the next business day.

67
Q

What types of documents are included as documents other than the claim form?

A

PoC, evidence, reports etc.

68
Q

For what types of claims is the part 8 procedure used?

A

where a party seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact or where a rule or PD requires the use of Part 8

69
Q

Can a claimant obtain default judgment if the Part 8 procedure is used?

A

No

70
Q

What must the claim form for a Part 8 claim contain?

A

(1) that Part 8 applies
(2) the question that the claimant wants to court to decide or, the remedy which the claimant is seeking and the legal basis for the claim to that remedy.
(3) if the claim is being made under an enactment, which enactment
(4) if the claimant is claiming in a representative capacity, what that capacity is

71
Q

What are the defendant’s obligations when a Part 8 claim is issued?

A

D must file an acknowledgement of service not more tan 14 days after service of the claim form; and serve it on the claimant and any other party. D does not need to file a defence.

72
Q

What should the acknowledgement of service for a Part 8 claim state?

A

whether the defendant contests the claim and if the defendant seeks a different remedy, what that remedy is.

73
Q

What is the consequence of a defendant not filing an acknowledgement of service for a Part 8 claim?

A

the defendant may attend the hearing of the claim but may not take part unless the court gives permission.

74
Q

What are the claimant’s obligations in relation to evidence for a Part 8 claim?

A

(1) the claimant must file any written evidence on which he intends to rely.
(2) the evidence must be served not he defendant with the claim form

75
Q

For a Part 8 claim, can a defendant file evidence?

A

Yes, the defendant must file this with his acknowledgement of service. The evidence must also be served on the other parties.

76
Q

In a Part 8 claim, if the claimant receives evidence from a defendant what can they do?

A

within 14 days of service of D’s evidence, file further written evidence in reply.

77
Q

In Part 8 claims can the claimant rely on matters set out in the claim form as evidence?

A

Yes but only if the claim form is verified by a statement of truth.

78
Q

For a Part 8 claim, can written evidence be relied on at the hearing?

A

No unless-

(a) it has been served in accordance with CPR r.8.5; or
(b) the court gives permission

79
Q

For a Part 8 claim can oral evidence be given at a hearing?

A

Yes if the court permits this.

80
Q

What is the procedure when a defendant objects to the use of the Part 8 procedure?

A

(1) the defendant must state his reasons for this when he files his acknowledgment of service
(2) once the court receives the acknowledgment of service and further evidence, it will create further case management directions

81
Q

When Part 8 procedure is followed where will the claim be allocated?

A

it will be treated as allocated to the multi-track

82
Q

What form is evidence usually in for a Part 8 claim?

A

written statements or affidavits, but the claimant can rely on facts set out in the claim form if it is verified with a statement of truth

83
Q

Can a party get an extension for time to file evidence for a Part 8 claim?

A

Yes, a party can apply to the court or-

(1) agree with the other parties for the defendant time must not be extended by more than 14 days after the defendant files his acknowledgment of service
(2) the agreement for a claimant must not extend time to more than 28 days after service of the defendant’s evidence on C.

Civil Litigation (24 decks)

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