Issuing and serving proceedings Flashcards
(18 cards)
When must the claim form be served?
Serve CF within 4 months of date of issue
What is the deemed date of service for the CF?
2nd business day after the relevant step
CPR 19: adding/subbing/removing parties
The general rule is that multiple Cs/Ds can join a claim
- desirability test - is the amendment desirable?
Is the court’s consent mandatory?
Court’s consent is mandatory unless CF has not been served yet
- if consent is denied for adding a new claimant, they can be added as a defendant
What are the main situations for adding a party post-limitation period?
- correcting a name/mistake
- changing capacity of a party (limitation period must have been current when proceedings started)
Necessary test:
- new party subbed for one name in CF by mistake; or
- claim can’t properly continue unless new party added; or
- OG party has had bankruptcy order - changing identify of defendant
What is the sardinia sulcis test?
- intended D must be identified in statements of case with a specific description
- if identified adequately, court may permit amendments (permission may be denied if not)
What are the questions for jurisdiction?
- do the courts of E+W have jurisdiction?
- which country’s laws apply?
- is enforcement abroad necessary? if so, how?
Jurisdiction is governed by Hague Convention or common law
What does the Hague Convention apply to?
- applies to civil and commercial issues (but excludes consumer and employment)
- only applies to choice of court agreements ON/AFTER 1st Oct 2015
- exclusive jurisdiction: only applies to clauses which give exclusive jurisdiction to a particular country
- in writing: jurisdiction agreement has to be in writing
- contracting state
What are the contracting states?
Hague convention only applies where the parties have chosen a contracting state as the court that will have jurisdiction:
- UK
- EU members
- Mexico
- Singapore
- Montenegro
When does the common law apply?
If the court is not a contracting state, see if common law applies:
- where proceedings are commenced ON/AFTER 1st Jan 2021, E+W jurisdiction must be answered by reference to Hague Con
- if it does not, CL rules apply
What are the common law rules?
- It is possible to serve proceedings on D in the jurisdiction (they are present), OR
- court gives permission to serve proceedings on D, outside jurisdiction, OR
- E+W courts are given jurisdiction by clause in the contract
Serving CF outside of jurisdiction
- when serving in E+W, CF valid for 4 months
- when serving outside, valid for 6 months
What is required to serve with permission?
MUST filed an interim application
Is permission to serve CF required?
Permission is NOT required if the Hague Convention grants jurisdiction or there is a jurisdiction clause
- file form N510 to serve without permission
Commencement and Service Overview of Stages
- Pre-action protocol/procedure and conduct
- Parties try to resolve matters without issuing proceedings
- (If cannot resolve without issuing proceedings) Start proceedings: issue at court and serve on D
Considerations for proceedings:
1. Which court?
2. How to issue? Take CF to court and pay issue fee
3. When a claim is issued? Must issue claim before end of limitation period
What are the methods for serving the Claim Form?
- personally on the defendant
- delivering or leaving document at permitted address
- served by first class post
- FAX / electronic method, e.g., email (only where D has indicated this is acceptable)
- Document exchange
DDS for claim form
Second business day after completion of the relevant step
DDS for other documents
- Post/DX: second day after posting, if a business day (otherwise next business day)
- Instant method: before 4.30pm on business day same day
- Otherwise - next business day
