DR 2 Flashcards
(24 cards)
County Court or High Court?
If the value is £100,000 or less it must be started in the County Court.
If the value is more than £100,000, it may be started in the High Court.
For PI claims, these cannot be in the High Court unless they are £50,000 or more.
Starting County Court proceedings
The CNBC issues most civil claims and retains those that are undefended.
All money-only claims either specified or unspecified must be sent to the CNBC. If a hearing is required, matter will be transferred to the D’s local County Court.
Online claims for specified sums of money (debt claims) up to £100,000 can be made on the website Money Claim Online (MCOL).
For all other County Court claims, the C can usually issue proceedings in their closest County Court hearing centre.
What is heard in the different branches of the High Court?
King’s Bench Division - contract and tort
Chancery Division - disputes over land, trusts, contentious inheritance matters, partnership claims and company law
Family Division - defended divorce and adoption.
Statement of value in specified and unspecified claims
In a specified claim, you calculate the precise figure including interest and write that down (remember interest is still not considered in the value for allocation purposes).
In an unspecified claim, you write down the bracket corresponding to the desired allocation. Doing this, you disregard interest, costs, contrib and counterclaims.
For PI claims, they must state if they intend to recover as general damages for PSLA more than £1,500 or less.
‘Amounts claimed’ box on Claim Form
For specified claims, write the precise figure and interest accrued at date of issue.
For unspecified claims, write the amount of damages they genuinely expect to recover.
From this figure, the court fee payable is calculated.
Statement of truth on Claim Form and POC
Can be signed by C or legal representative.
For a partnership, can be a partner or person with control and management of the business.
For a company, can be a person holding a senior position such as directory, secretary or chief executive.
Where an individual signs on behalf of a party, it should be added ‘I am duty authorised by [the party] to sign this statement.’
Where a legal representative signs on their behalf, it is taken to mean that the client has authorised them to do so, they have explained to the client what it means and client also warned of the consequences of not being honest (contempt of court).
Service of the claim form
Once issued, must be served on the other parties within 4 months.
Can only be served on a firm of solicitors if been nominated in writing to deal with this issue - cannot send to them because they represented on another matter. Once nominated, all documents must go to them unless personal document like an injunction.
Methods of service
Personal service
First class post or document exchange
Leaving at a specified place
Fax or email - must expressly state they are willing to accept service in this manner. Email or a fax number on a letterhead is not sufficient. However, a fax number on a solicitor’s letterhead is sufficient. Not email though.
Service by an alternative method authorised by the court.
When the D has not given an address for service, can serve at the usual residence for an individual/ sole trader/ partnership or at the principal office or an office with a real connection to the claim for LLPs and companies.
Deemed service for a claim form
The second business day after the step required has occurred.
Deemed service for documents other than a claim form
First class post and DX - the second day after posted, provided it is a business day.
Any other method - deemed on that day if before 16:30, the next business day if after 16:30.
When should the POC be served?
If served separate to the claim form, must be done at the same time or within 14 days of serving the claim form (but no later than 4 months after the date of issue of the claim form).
Responding to the claim
The D will receive Form N9 - the response pack - detailing how to respond and the time limits.
D must respond within 14 days of deemed service.
D has 28 days from deemed service of the POC to file a defence if they provide an acknowledgement of service.
What happens if the D responds with an admission in a specified claim?
If admission of entire claim, the D must provide details of their income and expenditure and make an offer of payment either in full or instalments. Upon receipt, C can file request for judgement. If C rejects D’s payment terms, judge will decide appropriate rate often without a hearing.
If admission of part of the claim, the C has 14 days to consider the offer made and to decide:
- to accept partial admission in full satisfaction of the claim and file request for judgement
- to accept partial admission but not payment terms, then the court will decide on their suitability
- to reject the offer entirely and proceed with their claim as a defended action.
What happens if the D responds with an admission to an unspecified claim?
The court will serve notice on the C asking if they accept the figure in satisfaction of the claim. If they accept, they may file a request for judgement and the same procedure applies regarding payment terms.
If the C does not accept the figure or D makes no offer, then the C will enter judgement for damages to be assessed at a disposal hearing.
Filing a defence
Once the defence is filed, a copy must be served on the other parties. This is the court’s responsibility unless otherwise indicated by the D’s solicitor.
May pursue a counterclaim as part of their defence.
With agreement from other parties, deadline for filing a defence can be extended by a maximum of 28 days (making it 56 days from deemed service of POC), any longer requires permission from the court.
Default judgement
When D ignores Claim Form and POC, C can force the issue by making an application to request default judgement.
For this, court must be satisfied that POC were served upon the D and the D has not filed acknowledgement of service or defence within the relevant time period.
For a specified sum, C must state the date payment was due, the interest up to now and a daily rate at which interest accrues. Court can then enter judgement, and payment is required 14 days of this.
For an unspecified sum, the court will grant request for default judgement but a disposal hearing to assess damages is necessary.
Mandatory ground to set aside default judgement
Court is obliged to if default judgement was wrongly entered. E.g. when entered too early or the owed amount has already been paid in full.
Discretionary ground to set aside default judgement
Where the D:
- has a real prospect of successfully defending the claim; or
- there is some other good reason why the D should be allowed to defend the claim.
Additionally, court will consider the D’s promptness in making the application to set aside.
Application made by application notice (form N244) supported by a witness statement.
Orders at default judgement
- D succeeds and they can defend the claim
- C succeeds so proceed to enforcement
- conditional order.
Costs of default judgement proceedings
- if application granted on mandatory ground, C at fault so they pay D’s costs
- if application granted on discretionary ground of good reason, neither at fault and therefore costs are usually in the case
- if application granted on discretionary ground of real prosect of success, D at fault so they pay the C’s costs
- if application fails, the D will be liable to pay the C’s costs for the application.
Discontinuance
C can discontinue at any time however they will be liable for the costs unless the court orders otherwise.
Usually do not need permission to discontinue unless the court has granted an interim injunction.
If multiple Cs, need consent of all the Cs in writing or courts permission to discontinue.
C files and serves a notice of discontinuance to all parties, together with a copy of consent if required.
Consent order
Can draft a consent order to be sealed by a court officer without need for an application. In practice, will only be shown to a judge if it appears incorrect or unclear.
Formalities:
- order agreed by parties must be drawn up in the terms agreed
- must be expressed as being By Consent, and
- signed by the legal representative acting for each of the parties to whom the order relates.
Proceedings are stayed, meaning that they can be continued if the D does not honour the agreement.
Tomlin order
A Tomlin order stays the claim on agreed terms that are set out either in a schedule to the order or separately.
Terms the parties wish to keep confidential or that the court does not have the power to order must be set out in the schedule or in a separate document.
Liberty to apply - means any party can apply to have the stay lifted so new proceedings do not need to commence.
Payment of costs or detailed assessment of costs - if one party wants either of these, it must go in the order itself.
Disputing the court’s jurisdiction
Must be stated on the acknowledgement of service.
Then has 14 days after filing the acknowledgement of service to make a challenge. Application must be supported by evidence as to why England and Wales is not the proper forum.
If granted, proceedings come to an end.
If rejected, original acknowledgement ceases to have effect and must provide further acknowledgement of service within 14 days.
