DISPUTE RESOLUTION Flashcards
1
Q
What does ‘file’ mean?
A
Give to the court
2
Q
What does ‘issue’ mean
A
Court issues application
3
Q
What does ‘serve’ mean?
A
Documents given to the other side.
4
Q
What does ‘concurrent jurisdiction’ of CC and HC refer to?
A
Courts both have jurisdiction to deal with civil claims (note the rules around this)
5
Q
What are the FOUR tracks?
A
- SMALL CLAIMS (under £10k)
- FAST TRACK (£10k to £25k)
- INTERMEDIATE TRACK (£25k - £100k)
- MULTI TRACK (Over £100k)
6
Q
Decision Tree for which court to issue in?
A
Q1: Does specific enactment tell you to issue claim in HC or CC?
YES - issue in said court
NO - next Q
Q2: is claim a PI claim worth less than £50k?
Yes -> CC
No -> next Q
Q3: is claim a non-PI claim worth £100k or less?
Yes -> CC
No -> next Q
Q4: Is issuing in HC justified on grounds of:
a. financial value of claim/amount in dispute
b. complexity of facts/legal issues/remedies/procedures; OR
c. importance to public
Yes -> HC
No -> CC
7
Q
How many County Courts?
A
ONE - No separate divisions (court of first instance, can start claim here)
8
Q
How many divisions in High Court?
A
THREE: KBD, Chancery, Family
Disputes in London MUST be started in RCJ, but there are district branches of HC.
9
Q
What are the relevant courts for civil proceedings?
A
Tribunals
Mags (v limited jurisdiction)
CC (most claims start here, can have appeals)
HC (most claims start here, can have appeals)
CA (appeals only)
UKSC (appeals only, rare).
10
Q
KBD cases?
A
General/Admin/Planning/Commercial/ Technology + Construction/Admiralty + FInancial List
11
Q
Chancery Cases?
A
Insolvency, Revenue, Competition, Business, Property/Trusts/Probate, IP + Financial List
12
Q
What is the financial list?
A
= shared between KBD and Chancery - >£50m, needing judicial knowledge of financial markets
13
Q
What are the Business and Property Courts?
A
Commercial/ Technology + Construction/Admiralty + Financial List
Insolvency, Revenue, Competition, Business, Property/Trusts/Probate, IP
14
Q
Rights of audience rules?
A
Solicitors have auto-rights in Tribunals, Mags and CC.
Need higher rights of audience for HC, CA and UKSC
15
Q
Judges - addresses - senior members?
A
⚜️DDJ (Judge), DJ (Judge), Recorder (Your Honour), CJ (Your Honour)
🧑⚖️HC Masters (Judge), HC Judges (my lord/lady),
🧑⚖️C.A Judges (judge),
🧑⚖️Justices of UKSC (my lord/lady)
LCJ - most senior, represents vies of judiciary - responsible for welfare/training/guidance/deployment.
Master of Rolls - Pres of civil division of C.A
President of Fam Div/Pres of KBD/Chancellor of HC(head of Chancery div) - all members of C.A.
16
Q
What does CPR 44.2 say about costs? What is exception to this? What factors will be taken into account re this exception?
A
Court decides whether payable + amount + when
⭐ General Rule - unsuccessful party pays costs
EXCEPTION: court has discretion to make different order
Factors: conduct, success on PART of case, admissible offer to seller (not offer to which Part 36 applies)
Includes….conduct before (Pre-Action) and during, whether reasonable to pursue/contest allegation/issue, manner that pursued/defended case, whether successful party exaggerated its claim
17
Q
TWO types of costs?
A
- Solicitor/own client costs
- Party/Party Costs
18
Q
What are the TWO bases of assessment of costs?
A
Standard - only allow costs proportionate to matters and resolve doubt in favour of paying party - will look at whether costs proportionately and reasonably (1) incurred or (2) in amount [60% of award for costs on standard basis]
Indemnity - resolve doubt in favour of the receiving party - will look at whether costs unreasonably (1) incurred) or (2) in amount
If basis of assessment is not indicated, or indicated other than standard/indemnity, it will be standard. [70/80% of award for costs on indemnity basis]
19
Q
When will costs be considered to be reasonably incurred?
A
If they bear reasonable relationship to: sum of issues, value of non-monetary relief in issue, complexity of litigation, any additional work generated by conduct of paying party, any wider factors e.g. public importance, any additional work/expense due to vulnerability of party or any witness.
Court will consider: Conduct - during/before/efforts made to resolve dispute, Amount/Value involved, importance of matters to all parties, complexity/novelty of questions raised, skill/effort/specialised knowledge involved, time spend on case, place where/circs work/any part done; receiving party’s last approved/agreed budget.
20
Q
How will courts approach costs payable by paying party to receiving party UNDER TERMS OF CONTRACT?
A
Court assessing costs payable by paying party to receiving party under terms of a contract - costs, unless contract expressly provides otherwise, will be presumed to be reasonably incurred + reasonable in amount = REBUTTABLE PRESUMPTIONS
21
Q
With litigation costs, should distinguish between?
A
SOLICITORS’ FEES
DISBURSEMENTS (non-solicitor fees e.g. court fees, counsel’s fees, expert fees, other costs).
22
Q
What is BTE and ATE Insurance?
A
BTE: Before the Event Insurance - (taken out pre-need for legal work - BTE premiums generally not recoverable from otherside)
ATE: After the Event Insurance - Note: insurance policy premium is not recoverable from other party (with exception of clinical negligence expert reports).
23
Q
How is CONDITIONAL FEE AGREEMENT calculated?
A
(paid normal + success fee if successful, which comes out of damages - this is % of normal fee i.e. 90% success fee would be normal fee plus 90% of normal fee - does not cover disbursements, just solicitor’s costs - 🧠note must not exceed 25% of damages in PI cases)/
Basic Fee + Success Fee (agreed % of Basic Fee)
e.g. Basic = £20k
Success = 90% (of basic) = £18k
Total = £38k
24
Q
Damages-based Agreements are calculated how?
A
(here just get proportion of damages awarded to client by way of remedy - capped - 50% of damages generally, 35% in employment tribunal, 25% in PI)
So DBA = 20% of damages
£150k damages + £10k costs (+ solicitor paid £5k disbursements = £165k
20% of £150k damages = £30k
£165 - 30k (20%) - 5k(disbursements) = £130k for the client. And the solicitors get their £30k under the DBA along with £5k for the disbursements they paid out.
25
What is the OO in CPR along with the factors to consider?
OVERRIDING OBJECTIVE - JUSTLY + PROPORTIONATE COSTS - FACTORS:
👣 - ensuring parties on equal footing, can fully participate, parties/witness can give best evidence
🧠 Court should take proportionate measures to identify vulnerable witnesses - where factor may adversely affect their participation e.g. mental/physical disability, culture, unable to understand due to language/age etc.
💰- saving expense
⚖️ - deals w case = proportionate re amount of money, importance, complexity, financial position of C/D
😀 - expeditiously + fairly
⏲️ - appropriate share of court’s resources
✅ - enforcing compliance w rules/PDs/orders
CPR 1.2 - Courts must give effect to OO
CPR 1.3 - Parties must help court to further OO – also see CSS 2.1-2.7
26
Limitation Period for:
a. Personal Injury
b. Fatal Accidents
c. Claims for Contribution
d. Negligence Action where facts re cause of action not known at date of accrual
e. Latent Damage
f. enforcement of judgments
g. Tort
h. Contract
Personal Injury - 📅 3 years from later of (1) Date action accrued or (2) Date of knowledge
Knowledge = significant, attributable (min in part) to wrong, identity (or identity of TP if under D’s control)
Fatal Accidents - 📅 3 years from later of (1) Date of Death or (2) Date of knowledge of dependant.
Knowledge = same as PI (above).
Claims for Contribution - 📅 2 years from date on which right accrued:
Date judgement (in civil proceeding)/award (arbitration) made
Where A agrees to make payment to B, rather than have judgement/award imposed, date agreed amount
Negligence Action where facts re cause of action not known at date of accrual non-PI claims - limitation period = later of:
(1) 📅 6 years from when cause of action accrued or
(2) 📅 3 years from when C had requisite knowledge and right to bring claim.
Knowledge = attributable to wrong (in whole/part), identity (or identity of TP if under D’s control).
🧠Note: for non-PI cases, no need for injury to be significant ⚠️
NOTE: For Latent Damage - long stop limitation date of 📅 15 years from date of latest negligent act/omission which caused all/part of damage.
Judgments - action to enforce judgement cannot be brought after 📅 6 years from when J enforceable (nor can interest be recovered after that period)
Tort - 📅 6 years after date cause of action accrued = expiry of limitation period
Contract - 📅 6 years after date cause of action accrued = expiry of limitation period
27
Requirements for time extension for PI and Fatal Accidents claims?
Extension - For PI and Fatal Accidents - Court can extend if equitable, balancing prejudice to C w prejudice to D. Court will look at: conduct, reason for delay; and effect of late claim on evidence.
28
Time extension for Disability - Limitation period?
If the claimant is under a disability at the time that the cause of action accrued, the limitation period starts to run from when the disability ends, and is:
(a) 📅 2 years in relation to contribution claims;
(b) 📅 3 years in relation to personal injury or fatal accident claims; and
(c) 📅 6 years in most other cases.
A person is under a disability whilst they are a minor (under the age of 18) or lacks mental capacity to conduct the proceedings (within the meaning of the Mental Capacity Act 2005) (s 38).
29
Time extension for fraud/concealment/mistake - Limitation Periods?
Where a claim is:
(a) based on fraud, or;
(b)any fact relevant to the cause of action has been deliberately concealed by the defendant; or
(c) the action is for relief from the consequences of a mistake;
Then limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).
30
Parties to Proceedings?
Claim against Partnership - where 2/more people who were partners carried out business at time cause of action accrued
Must be brought in partnership name, unless inappropriate - Flagstones (a firm) and/or (1) Jo Flag (2) Nisha Katon
Claim against Sole Traders - John Flagstone (trading as John's Café)
Claims against LLPs - Flagstones LLP (usually contract w clients on basis cannot sue members of LLP personally)
Claims against Companies - Rockstone Limited - employee can represent at trial is (1) authorised by Co + (2) court agrees
Claims against Trusts - trustees/executors/administrators party to claim, Bs not added as parties, but any order = binding on Bs
Claims against deceased Persons
If C is dead - if no personal rep for C, court may order claim proceed in absence of person representing estate or C, or person be appointed to represent estate of C
If D is dead and probate/admin grant has been made, claim must be brought against personal rep of the deceased, if no grant of probate/admin, claim must be brought against ‘estate of’ deceased.
Claims against Children/Protected Parties = legally incapable of pursuing claim on own behalf
Child = under 18
Protected Party = person lacking capacity to conduct proceedings within MCA 2005 - impairment of brain/mind
🧠 Adult presumed to have capacity until contrary proven. Burden on proving = w whoever asserts no capacity.
Determining capacity, lawyers must be satisfied:
Can person recognise problem they encounter?
Can person explain w sufficient clarity the problem?
Can person understand and evaluate advice received from appropriate source
Can person understand effects of choosing A over B and give effect to their chosen option.
May get GP report/get psychologic advice if legitimate concern/need to prove have capacity.
A child is referred to in the claim form as being represented by his/her litigation friend for example: Alice Brown (a child, suing by Kate Brown her mother and litigation friend)
A protected party is also referred to in the claim form as being represented by his/her litigation friend, for example: Adam Black (a protected party by Clara Dunn his litigation friend)
Litigation Friend - represent children and protected parties in civil proceedings. Appointed by court order (court of protection may appoint someone for PPs), or without court order by filing and serving a certificate of suitability demonstrating satisfy criteria:
Fairly + competently conduct proceedings on behalf
No Adverse Interests
If representing C, undertake to pay costs which child/PP may be ordered to pay re proceedings, subject to any right may have to be repaid from assets of child/PP
🧠 Note, court can also permit child to conduct proceedings without a litigation friend.
Service on Children and Protected Parties - any doc due to be served on child/PP must be served on litigation friend.
31
What are pre-action protocols?
each apply to a certain type of dispute - duty to follow them and make sure that saving costs and time.
32
What is the practice direction of pre-action conduct?
Cover all cases = procedure parties expected to follow e.g. act reasonable exchanging docs, consider whether negotiation/other form of ADR might avoid proceedings, take stock before issue proceedings etc.
33
If the protocols and practice direction provisions conflict, which comes first?
Pre-action protocols TRUMP PD provisions
34
What are the consequences of non-compliance?
Court may impose consequences -
1. likely COSTS and INTEREST,
2. may also STAY proceedings until relevant step completed or
3. may ask for EXPLANATION OF NON-COMPLIANCE
35
What level of breach are court's NOT concerned about?
Parties expected to comply with the spirit of protocols and court will not be concerend with trivial breaches.
36
In what circumstances might NON-compliance be justified?
Non-compliance might be justified where limitation period = about to expire, whether another reason e.g. application for ‘unannounced’ revisit to opponent’s premise to search for documents.
37
Pre-action Protocol for Personal Injury Claims - steps parties should take?
1. Letter of Notification to potential Ds giving brief details, to enable D to notify insurer
2. Parties consider any rehabilitation needs (i.e. any ongoing medical + care needs) and how to address them.
3. C should write to D to give full details of the claim (Letter of Claim)
4. D acknowledge letter of claim within 📅 21 DAYS
5. D investigate and send full LETTER OF RESPONSE within 📅 3 MONTHS of letter acknowledging claim. If D denied liability or quantum (or both then...
6. Parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement. C should send schedule of losses giving details of losses.
7. Joint selection of quantum expert (i.e. medical expert), or C discloses report and D sends written questions.
38
When does pre-action protocol for PI claims apply?
It applies to:
1. PI claims....
2. Which do not fall within another pre-action protocol....
3. and which are likely to be allocated to the fast-track (a value of up to £25k - the 'spirit' of the protocol should also be followed in higher value claims).
39
Steps required by the Practice direction (i.e. where specific protocol doesn't apply and trump the PD...)
1. Claimant should write to potential D to give details of the claim (LETTER OF CLAIM).
2. Within a reasonable period (depends on complexity of claim) D should send a RESPONSE LETTER. Response letter must either ACCEPT claim or REJECT claim (in whole/in part - giving reasons).
3. Parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement.
40
What do proceedings START?
when 📅court issues claim form at request of C
41
What is claim form ISSUED?
on 📅date entered on form by court
42
THREE considerations for where SHOULD be started in HC (where not required by enactment and could otherwise be started in CC)?
1. FINANCIAL VALUE of claim/disputed amount.
2. COMPLEXITY of facts/legal issues/procedures
3. PUBLIC IMPORTANCE of outcome of claim in general.
43
What FORM must C used to start claim?
N1 Form.
If a claim started in HC - CF must state that C expects to recover £100k+ (of £50k/+ if PI); or state which enactment requires claim to be started in HC, or state claim = to be in one of the specialist HC lists.
If a claim started in CountyC - CF must state whether or not C expects to recover 🤏more than £1000 re pain/suffering/loss of amenity
44
What does the £100k amount include and not include?
£100k does NOT include interest
DOES include e.g. VAT
45
What can CC claims be started?
CC claims can be started at ANY hearing centre - unless enactment requires a specific one.
If required to be made in a specific hearing centre but made in wrong one - court officer will sent claim to correct hearing centre before it is issued.
46
What requirements of title of proceedings that must head a CF and every other SOC?
(1) the identifying number given to the 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 (i.e. claimant/defendant).
47
If court DISAGREES with C's choice once claim has been issued, court may consider whether case should remain in court or issue and may transfer cases between HC and CC?
YES
If proceedings have been started in the wrong county court, a judge of the county court may order that the proceedings –
(a) be transferred to the county court in which they ought to have been started;
(b) continue in the county court in which they have been started; or
(c) be struck out.
Application for such order must be made to hearing centre where claim proceeding
Matters which court should consider include:
(a) the FINANCIAL VALUE of the claim and the amount in dispute, if different;
(b) whether it would be MORE CONVENIENT OR FAIR for hearings (including the trial) to be held in some other court;
(c) the AVAILABILITY OF JUDGE SPECIALISING IN TYPE OF CLAIM in question and in particular the availability of a specialist judge sitting in an appropriate regional specialist court;
(d) whether the facts, legal issues, remedies or procedures involved are simple or COMPLEX;
(e) the IMPORTANCE OF THE OUTCOME of the claim to the PUBLIC in general;
(f) the FACILITIES AVAILABLE to the court at which the claim is being dealt with, particularly in relation to –
(i) any disabilities of a party or potential witness;
(ii) any special measures needed for potential witnesses; or
(iii) security;
(g) whether the making of a declaration of incompatibility under section 4 of the Human Rights Act 1998 has arisen or may arise;
(h) in the case of civil proceedings by or against the Crown, as defined in rule 66.1(2), the location of the relevant government department or officers of the Crown and, where appropriate, any relevant public interest that the matter should be tried in London.
If court orders transfer of proceedings - will GIVE NOTICE of transfer to all parties.
48
If courts transfer case, who may they order to pay the costs of transfer?
C
49
If matter continues in HC, but court believe was wrongly brought in HC, what might court do?
there is a separate sanction for wrongly beginning a matter in the HC when it should have been issued in the County Court. The penalty is that any costs awarded in the claim can be deducted by up to 25%, but this is at the Court’s discretion
50
What documents do you need to give to court to commence proceedings (at minimum)?
Copies of CF (Form N1) to be issued and sealed: - 1 copy for court, 1 for C, 1 for every D.
and Court issue fee (varied depending on value of claim).
51
What is the significance of the date of issue of the claim form?
🛑 STOPS time running for limitation purposes and 🟢 starts clock for time in which CF must be served.
52
What action of court is sufficient to stop time running for limitation purposes?
Court will stamp covering letter w date of receipt
53
How will court ISSUE claim form?
By entering date of issue on claim form, giving case a claim number and sealing (stamping w court seal) all copies of CF
Court creates case management file + places own sealed copy of CF in it.
54
How are claims in CC for money issued?
By post in the Civil National Business Centre - done by CF being sent to Civil National Business Centre in Northampton - central centre manages claims until hearing required, then transfers to particular local CC hearing centre.
55
Where are claims that are not money-only claims generally issued?
Can generally be issued at any of the County Court Hearing Centre by sending in / attending with the claim form
56
Can claim specify it's preferred county court hearing centre?
YES
The claimant will also specify its preferred County Court hearing centre on the form, and the claim may later be transferred to that County Court hearing centre if a hearing is required
57
Which CC money claims can be issued online?
Some County Court money claims can be issued online using ‘Money Claim Online’, an online service provided by HMCTS - CAN ONLY BE USED FOR MONEY CLAIMS WITH VALUE OF UP TO £100,000 WHICH ARE AGAINST NO MORE THAN TWO DEFENDANTS
CF served in the usual way, but D may then response via online service.
58
MAXIMUM number of Ds for using online money claim service?
TWO
Money only claim with more than 2 Ds should be sent to Civil National Business Centre.
59
MAXIMUM amount of claim able to be issued online using money claim online?
Up to £100k.
60
How is service by the court effected?
Usually First Class Post 🏤
Once court has effected service, will send C a notice of issue stating deemed date of service
If court unable to serve claim form, C will be sent a notice of non-service.
Then up to C to try to serve claim form on D.
61
How is service by C or C's solicitor effected?
C/C’s solicitor must notify court when issuing claim form that they do not want court to serve it.
Court will give or send C/C’s solicitor the issued claim form with sealed copies for service on the D(s)
C effects service
C’s solicitor must then file certificate of service at court 📅 WITHIN 21 DAYS OF SERVICE certifying details of date on which claim posted/delivered/transmitted and method and address used (📖CPR6.17)
62
What are the SIX methods recognised as valid by CPR to serve CF?
1. Personal Service
2. First Class Post/DX or other service which provides for delivery on next business day
3. Delivery of document to or leaving it at Permitted plan
4. Fax
5. Other electronic method
6. Alternative method or place
63
Relevant detail (on Certificate of Service) where CF served by personal service?
Date of personal service
Physically leaving w D (person) or with appropriate person where company/similar legal entity - can be served on D wherever they are found in the jurisdiction
64
Relevant detail (on Certificate of Service) where CF served by 1st class/DX/next business day service?
Date of posting, or leaving with, delivering to or collection by the relevant service provider.
65
Relevant detail (on Certificate of Service) where CF served by permitted place option?
Date when the document was delivered to or left at the permitted place
Whether or not there is someone present to receive doc does not affect validity of service.
66
Relevant detail (on Certificate of Service) where CF served by fax?
Date of completion of the transmission.
Only permitted if D or D’s 🧑⚖️ has indicated it will accept service by Fax.
67
Relevant detail (on Certificate of Service) where CF served by other electronic method?
Date of sending the e-mail or other electronic transmission
Only permitted if D or D’s 🧑⚖️has indicated it will accept service by email
68
Relevant detail (on Certificate of Service) where CF served by alternative method or place?
As required by the court.
69
If D gives IN WRITING solicitor's address in jurisdiction of service, or solicitor does the same, what MUST happen?
Service MUST be to solicitors ADDRESS
70
If D/solicitor does not explicitly give solicitor's address?
D may be served with CF at the address at which D lives or carried out business within the UK and which D has given for the purpose of being served with proceedings.
71
If neither of 54 and 55 apply (i.e. not got written confirmation of solicitor address, and no able to serve on place D lives/carried out business in UK and given for purpose of serving proceedings) then what?
Individual - usual or last residence
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
Individual being sued in the business name of a partnerhip - usual or last known residence of the individual; or principal or last known place of business of the partnership.
Limited Liability Partnership/company registered in E&W - principal office of partnership/company; or any place of business of partnership/company within the jurisdiction which has a real connection with the claim.
72
By when must 'RELEVANT STEP' to serve CF be COMPLETED by?
📅before 12.00 midnight on calendar day four months after date of issue of CF
73
'Relevant step' for personal service/leaving document at relevant place?
Leaving CF with D
74
'Relevant step' for First class post/DX?
Posting the CF/leaving it with DX service
75
'Relevant step' for fax?
Completing the transmission
76
'Relevant step' for electronic method?
Sending the email or other electronic transmission.
77
What happens if CF not served within the required time?
Claim will AUTOMATICALLY fail 😢
C would need to then issue new claim, pay court fee again, and for limitation purposes, date the new claim issued, will be relevant date.
78
Can C file for an extension of time to serve CF?
If so by when?
What must C show to court - and when will court make such an order?
CPR 7.6
C must apply for order to do this - such application must be made 📅within 4 months of period of validity of CF.
Application for extension may be made without notice, but C must provide evidence to support (show GOOD REASON for extension).
Court may make such an order ONLY IF -
a. the court has failed to serve the claim form; or
b. the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; AND
c. In either case, the claimant has acted promptly in making the application.
79
Three options for serving PARTICULARS OF CLAIM
Within CF - then must also serve a response pack (Form N9) containing form for admission, form for defending; and form for acknowledging service.
Attached to CF - then must also serve a response pack (Form N9) containing form for admission, form for defending; and form for acknowledging service.
To follow later - only serve CF, response pack should be served later with Particulars of Claim.
80
If POC are to follow from CF, when must they be filed?
⏰ If to follow later, particulars must be served 📅within 14 days of deemed date of service of CF AND 📅within 4 months of issue (assuming service within jurisdiction)
81
Once POC are filed with D, what MUST C do?
C must file copy at court 📅within 7 days of service unless already been filed.
82
If not ready to file POC within required timeframe, what option is available to C?
EXTENSION OF TIME FOR COMPLIANCE WITH ANY RULE (CPR 3.1(2)(a))
83
What are the permitted methods for serving documents other than the CF (i.e. POC)?
Personal service
Delivering to or leaving the document at a permitted address
First class post / document exchange (DX)
Fax or other electronic method (eg email)
When responding to a claim, D must give an address at which documents may be served going forwards (other than D’s solicitors’ address). That address is then used going forward
84
Meaning of 'business day' in CPR?
(b) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;
85
When is DEEMED DATE OF SERVICE of CF?
Deemed service of CF served in UK 📅2nd business day after ‘relevant step’ complete
86
What is deemed date of service for other documents (not CF) e.g. POC?
1. First class post (or other service which provides for delivery on the next business day)
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.
2. Document exchange
The second day after it was 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.
3. Delivering the document to 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.
4. Fax
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 the day on which it was transmitted.
5. Other electronic method
If the e-mail or other electronic 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 the day on which it was sent.
6. Personal service
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.
87
Summary of Instant Methods vs Non-Instant Methods for deemed date of service of non-CF documents?
Instant: If done before 4.30 pm on a business day: deemed served the same day. Otherwise: deemed served the next business day.
Non-Instant: deemed served second day after posting/giving to DX provider, if a business day. Otherwise: deemed served the next business day.
88
Deemed date of service if particulars CONTAINED?
If Particulars are contained in claim form, they are clearly part of the CF and rules on deemed service re claim forms apply.
89
Deemed date of service if particulars ATTACHED?
If Particulars are attached to or served with CF in separate document and contained in same envelope, then there is some ambiguity in rules as to whether:
a. Rules and time limits re CF apply to particulars of claim to, or
b. Whether rules set out re other documents apply (which could lead to CF and Particulars being deemed served on different dates, despite being in same envelope ❗ \
Probably prudent to assume that particulars are served at earliest possible date.
90
Deemed date of service if particulars SEPARATE?
If particulars are served separately i.e. 📅served within 14 days after service of claim form (📖CPR 7.4(1)(b)) then rules re documents other than CF will apply to the Particulars.
91
What are the THREE main statements of case in ALL defended actions? (and then the two optional ones that might be included)?
1. CF
2. POC (if separate to CF)
3. Defence
4. Counterclaim; and
5. Reply (which follows defence, but only when circumstances require).
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Requirements of Statement of Case?
📃Statement of case drafted by lawyer should bear their signature - and if member/employee of firm, should be signed in name of firm.
Title of proceedings (see above)
A4 paper, bound securely if possible, pages numbered consecutively, numbered paragraphs, all numbers (incl dates) expressed as figures), reference in margins of every document mentioned that has already been filed.
Must be verified by a STATEMENT OF TRUTH = statement that the maker believes facts stated in the document to which the statement refers are TRUE.
Statement of truth for a statement of case must be signed by:
I. the party or litigation friend;
II. the legal representative on behalf of the party or litigation friend
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Additional requirement where document verified on behalf of a company?
must be signed by ‘senior position’ person i.e. for registered company = director, treasurer, secretary, CEO, manager or other officer. If partnership - then any of the partners, or person having control/management of partnership business.
94
What will signature of legal rep who has signed statement of trust be taken by court as?
their signature will be taken by the court as their statement that:
(1) the client on whose behalf they have signed had authorised them to do so,
(2) 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) before signing they had informed the client of the possible consequences to the client if it should later appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).
95
If document signed by statement of truth turns out to contain a false statement, what is the potential effect?
If document turns out to contain a false statement and person signing statement of truth does not have an honest belief that statement was true, then contempt of court may be brought against person signing. Can lead to sanctions within proceedings, fines and/or imprisonment in serious cases.
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Significance of parties' addresses on CF?
Parties’ addresses are the addresses of service (often Solicitor’s address) but C must also indicate an address where it resides or carries on business (if different)
Note: if CF sent without full address for all parties, CF will be issued but retained by court and not served until C has supplied full address (inc post code. Court will notify C)
If Particulars served separately from CF, Particulars must contain C’s address for service.
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What must CF contain (in terms of substance)?
(a) contain a concise statement of the nature of the claim;
(b) specify the remedy which the claimant seeks;
(c) contain a statement of value in accordance with rule 16.3, where the claimant is making a claim for money;
(d) contain a statement of the interest accrued on that sum, where the only claim is for a specified sum; and
(e) contain such other matters as may be set out in a practice direction.
98
What must claim form state if any party is claiming in a representative capacity?
If the claimant is claiming in a representative capacity, the claim form must state what that capacity is.
If the defendant is sued in a representative capacity, the claim form must state what that capacity is.
⚠️If do not do this, then persons allegedly represented may not be bound by any decision court makes
99
Is court limited to the remedy sought by C in the claim form?
🧠Remedy sought must be in the claim form, although court has power to grant any remedy to which C entitled (not just the remedy sought by the C in the claim form)
100
Where claim is for money, C must include a statement of value - what are the THREE options C can state?
Amount claimed (specified amount)
C expects to recover (unspecified amount):
🤏Not more than £10k; or
🤏Over £10k up to £25k; or
🤏Over £25k up to £100k; or
🤏Over £100k
C cannot say how much likely to be recovered
101
In PI claim, C must also state in CF whether amount expect to recover for WHAT is which of TWO options?
C must also state in CF whether amount expect to recover as general damages for pain, suffering and loss of amenity is:
🤏Not more than £1,500; or
🤏More than £1500
102
If claim issued in HC, what MUST be included in CF?
‘Judicial Endorsement’ must be included in CF if issued in HC - know from above the requirements i.e. state over £100k, or £50k or more if PI, or state enactment requiring/allowing claim be brought in HC, or that needs to proceed in specialist HC list.
103
When calculating how much C expects to recover, C must DISREGARD any possibility of what?
1. Award of (i) interest or (ii) costs
2. Finding of contributory negligence
3. D making counterclaim, or defence including set-off
4. D being liable to pay direct to SoS part of any award of money made by court to C against D.
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Are court's powers limited by C's statement of value?
NO. 🧠Court’s powers not limited by C’s statement of value - court an give judgment of whatever amount (if any) if finds C entitled to.
105
Are there requirements for format of name of party in CF?
YES (see OG notes)
106
Interest rate in specified claim?
Would usually be in contract, which would deal with it there?
107
Interest rate in unspecified claim?
STATUTORY RIGHT - s35A Senior Courts Act 1981
Summary - but look at statute itself: gives the High Court the power to award interest on debts and damages. This includes the ability to:
Award simple interest on the sum for which judgment is given
Calculate interest at different rates for different periods
Not award interest for a period during which interest on the debt already runs
108
Requirements of Particulars of Claim?
Must include:
Statement of facts = material facts + allegations which (if proved) would entitled C to remedy in law. But X set out law/evidence/arguments
Statement that going to claim and Details of Interest (if sought)
If seeking interest, C must state whether doing so under (1) contract terms, (2) enactment - if so, which, or (3) on some other basis, if so what basis.
If seeking interest + claim is for specified amount of money, must state % rate claimed, date from which and to which is it calculated (latter must not be later than date on which CF issued), total amount of interest claimed, daily rate at which interest accrues after that date.
Legal basis for claiming interest may be either:
Set out in contract between parties
Statutory right to interest - court has discretion as to whether to award interest and how much from date cause of action accrued until judgment.
In PI claims where damages over £200 are awarded, some interest must be awarded unless there are special reasons for not doing so, but amount is still at court’s discretion
In debt claims, if D pays whole debt during proceedings, some interest must be awarded, but amount still in court’s discretion
Statement that going to claim and details of aggravated damages or exemplary damages (if sought)
Statement that going to claim and details of provisional damages (if sought)
Such other matters (as may b set out in practice direction)
Must be verified with statement of truth
Must contain name of court, claim number, proceedings title, and C’s address for service - if served separate to CF
Note for PI claims, POC must also contain C’s DOB and brief details of injuries, must also attach a schedule of details of any past/futrue expense/losses, and report from medic if relying on evidence from them.
Where claim based on written agreement - copy should be attached to/served with POC, any general conditions of sale incorporated in contract should also be attached
Where claim based on oral agreement - POC should set out contractual words used and state by whom, to whom, when and where they were spoken.
Note, before final formalities - name of solicitors’ firm or barrister drafting particulars of claim and statement of truth, the particulars of claim closes with a summary of the remedies sought by C. This is referred to as the ‘prayer’ = quick way for court and D to know what C actually wants:
AND THE CLAIMANT CLAIMS:
(i) damages under paragraph 13 above; and
(ii) interest under paragraph 14 above.
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TWO relevant sections of CPR for CF DDS and non-CF documents DDS?
6.14: CF deemed date of service
6. 26: non-CF deemed date of service
