jurisdiction, adding parties, issuing claim, case management Flashcards
challenging jurisdiction
11(1) - to dispute jurisdiction, you need to apply to court for order
need to make app within 14 days of filing acknowledgment of service - need to file AoS first
if no app is made by then, jurisdiction is deemed to be accepted
general on service outside jurisdiction
Is there an alternative to serving the D outside the jurisdiction e.g. service on a UK branch of a foreign D or a solicitor authorised to accept service?
Can the D be served outside the jurisdiction without permission under CPR 6.33 (see below)?
6,32 - service in scotland or northern ireland. D must be domiciled in the UK
6.33 - claim has power to determine claim and no other proceedings are pending in UK/Member Statement OR
or is the court’s permission required under the CPR?
Does the court have the power to determine the claim under the Hague Convention on Choice of Court Agreements and the D is a party to an exclusive jurisdiction clause, to which the Hague Convention applies, in favour of the English courts (CPR 6.33(2B)(a)); or defendant is a party to an exclusive choice of court agreement conferring jurisdiction on that court within the meaning of Article 3 of the 2005 Hague Convention.
Is there a jurisdiction clause in favour of the English courts (CPR 6.33(2B)(b))????
If there is a jurisdiction clause, you don’t need permission to serve claim form overseas
If yes, do not need permission to serve
This sort of application would be heard on paper without notice
Could then serve claim form on D with particulars of claim as well as response pack
dont need permission to serve counterclaims outside jurisdiction
procedure for service outside of jurisdiction
procedure - app must set out (along witness statement, draft order and n244):
The ground under Para 3.1 of PD 6B relied on (CPR 6.37(1)(a)).
That the claimant believes that the claim has a reasonable prospect of success (CPR 6.37(1)(b)).
The defendant’s address or, if not known, in what place the defendant is, or is likely, to be found (CPR 6.37(1)(c)).
For the Court to grant permission, the Applicant must show that the matter falls within para 3.1 of PD6B.
This sets out a number of “gateways” which entitles a Claimant to serve outside of the jurisdiction.
jurisdictional gateways
he most important are the following:
PD6B, Para 3.1(3): The claim is made against a person (the ‘defendant’) on whom the claim form has been or will be served, and
PD 6B para 3.1(3)(a) There is between the claimant and defendant a real issue to be tried and
PD 6B para 3.1(3)(b) The claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.
(I.e. applies where there is a co-Defendant resident outside of the jurisdiction).
CPR 6.37 (2) Where the application is made in respect of a claim referred to in paragraph 3.1(3) of Practice Direction 6B, the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try.
High level answer will explain application of a and b in relation to the facts
Why are they necessary and proper party
PD6B, Para 3.1(6): Claim is in respect of a contract:
(6) A claim is made in respect of a contract where the contract –
was
(i) made within the jurisdiction or
(ii) concluded by the acceptance of an offer, which offer was received within the jurisdiction;
was made by or through an agent trading or residing within the jurisdiction or
is governed by the law of England and Wales.
Potential application - The Agreement was completed at the offices of Over Allerby in London (I.e. satisfying 6(a)(i) and (ii))
PD6B, Para 3.1(7): The claim is made in respect of a breach of contract committed within the jurisdiction.
Potential application - The breach was of the warranties contained in the contract, which was agreed and signed within the jurisdiction.
PD6B, Para 3.1(9): The claim is made in tort:
Where the damage was sustained within the jurisdiction or
The damage sustained resulted from an act committed within the jurisdiction.
BUT…
The court will not give permission unless it is satisfied England and Wales is the proper place in which to bring the claim (i.e. most convenient place) (CPR 6.37(3)) so need to show this too
Potential connecting factors to England and Wales:
If parties are based in E&W
Where the breach occurred/where the dispute arose
Location of witnesses of fact, docs and expert
English law governing the contract
Must also show that there is a real issues which it is reasonable for the court to try (CPR 6.37(2))
(Seaconsar (Far East) Ltd v Bank Markazi Jomhouri Islami Iran [1993] 4 All ER 456).
key points on adding parties etc
May use a single claim form for all claims which can be conveniently disposed of in the same proceedings (CPR 7.3).
Removing, adding or substituting an existing party requires the court’s permission after a claim form has been served (CPR 19.4).
Court may direct two or more actions be consolidated into a single action (CPR 3.1(2)(g)).
Group Litigation Orders are made where there are a number of claims giving rise to common issues of fact or law.
key cpr on counterclaims/additional claims
Counterclaims (CPR 20.2)
Definition: Counterclaims are claims by a defendant against a claimant in response to the main claim.
Procedure: Must be pleaded and served in accordance with court rules
.
2. Additional Claims (CPR 20.4)
Cross-claims: Claims made by one party against another party involved in the same proceedings.
Third-party claims: Claims brought by a defendant against a person not already a party to the proceedings.
- Procedure (CPR 20.6)
Notice: Parties must notify the court and other parties of their intention to make additional claims.
Consolidation: Allows for the consolidation of related claims to streamline proceedings.
service process in lit v arb
Process in Lit v Arb
Lit: file claim form and particulars
rules for when to file AoS
DJ if no response
arb: request for arbitration. parties then select an impartial arbitrator or panel
The request should include details of the parties, the relationship between them, the agreement/contract at issue, and a demand for arbitration.
must mention arbitration agreement
respondent responds
they then select arbitrator
what to do if in default
If ever in default
Serve the late doc
Make a formal application to court for relief from sanctions and must be supported by evidence. Best evidence is WS from person who was responsible for breach
mandatory online service
Mandatory Online Damages Claims Portal - pilot until later in 2024:
What: For claims that fall within the scope of Practice Direction 51ZB (PD 51ZB), issuing a claim is now mandatory online, using the damages claims portal on MyHMCTS (HM Courts and Tribunals Service).
When: This became effective from Monday, April 4, 2022.
What it means for users: Users must register with MyHMCTS and issue claims through the portal.
Purpose: To streamline the process and make it more efficient.
general rules of deemed service
CF
- second business day after relevant step is completed
non CF
1st Class Post or DX
Deemed served on the second day after the document was posted, IF that day is a business day.
If the second day after the document was posted is NOT a business day, the next business day.
Note that this is a different rule to service the Claim Form e.g. if you post a document e.g. the Defence on Friday, then the second day after it is posted is Sunday. However as Sunday is not a business day, the document will be deemed served on Monday.
If you post the Claim Form on Friday, then the second business day after the Claim Form is posted is Tuesday.
Any other method i.e.
Personal service.
Left at permitted address.
Fax
Email
Deemed served on the same day provided delivery of the document is completed before 4:30PM and that day is a business day.
If that day is not a business day, the next business day.
rule re service and bank hols
if less than 5 days and includes weekend or bank holiday, exclude (cpr 2.8(4))
deadline for filing aos
If the CF is marked “PoC to follow”:
Within 14 days of deemed service of the Particulars of Claim.
(CPR 10.3(1)(a))
In all other cases:
Within 14 days of deemed service of the Claim Form.
(CPR 10.3(1)(b)).
THEN
File the defence within 28 days of deemed service of the Particulars of Claim.
(CPR 15.4(1)(a))
If the time to file the defence expires, the claimant can apply for default judgment.
(CPR 12.3(2))
option if you dont file Aos
File a defence
Within 14 days of deemed service of the Particulars of Claim
(CPR 15.4)
court general duty and powers
General Duty and Proportionality
CPR 1: The court’s duty is to manage cases justly and at proportionate cost, considering factors like complexity, importance, and financial position of each party.
Active Case Management
Cooperation: Encourages parties to cooperate with each other.
Early Identification: Identifies issues early to streamline the process.
ADR: Promotes the use of alternative dispute resolution methods to settle disputes without a trial.
Court’s Powers
Adjourn Hearings: The court can postpone hearings.
Stay Proceedings: Temporarily halt proceedings.
Impose Conditions: Conditions can be imposed on parties.
Strike Out: The court can strike out statements of case for non-compliance.
relief from sanctions
General Principles:
Relief from sanctions is governed by CPR 3.9, which requires the court to consider all the circumstances of the case to deal justly with the application.
The court must specifically consider the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions, and court orders.
Three-Stage Test (Denton v White):
Stage 1: Identify and assess the seriousness and significance of the breach.
Stage 2: Consider why the default occurred - unforeseeable events are acceptable
Stage 3: Evaluate all the circumstances of the case to deal justly with the application, including the efficiency and compliance considerations.
Application to Appeals:
CPR 3.9 applies to applications for extensions of time to file an appellant’s notice.
The merits of the appeal are generally not considered unless they are plainly strong or weak.
Case Law Examples:
Altomart Ltd v Salford Estates: Confirmed that CPR 3.9 applies to extensions of time for filing a respondent’s notice.
R (Hysaj) v Secretary of State for the Home Department: Emphasized that the merits should not dictate the outcome of an application for an extension of time.
time extensions
if you miss deadline / there is sanction linked to deadline need to apply for relief from sanctions test in Dentons and CPR 3.9
arbitrators general powers
Procedural Powers
Conduct of Proceedings: Arbitrators have the authority to determine the procedure of the arbitration, including setting timelines, deciding on the admissibility of evidence, and conducting hearings1.
Interim Measures: They can order interim measures to preserve assets, maintain the status quo, or prevent harm to the arbitration process2.
2. Decision-Making Powers
Ruling on Jurisdiction: Arbitrators can decide on their own jurisdiction, including any objections to the existence or validity of the arbitration agreement3.
Final Awards: They have the power to make binding decisions (awards) on the merits of the case, which are enforceable in courts3.
3. Administrative Powers
Appointment of Experts: Arbitrators can appoint experts to provide independent opinions on technical matters relevant to the dispute2.
Ex-Parte Proceedings: If one party fails to participate, arbitrators can proceed with the arbitration and make decisions based on the evidence presented by the participating party2.
4. Enforcement Powers
Administer Oaths: They can administer oaths to witnesses, ensuring that the testimony given is under penalty of perjury2.
Cost Awards: Arbitrators can allocate the costs of the arbitration, including legal fees, between the parties
new intermediate track
New intermediate track
New track created in October 2023 to capture cases where damages are sought and the claim is worth between 25 and 100k
Inter partes costs determined by looking at table (table 14)
Unless it is PI case, costs at opening stage are not amount recoverable but instead the maximum amount recoverable. The figures at stage 1 do not represent the amount recoverable
After that stage, it is the amount recoverable not the max
Sweet spot is to settle after stage 1 as figures crystallise and do rep what you are entitled to recover AND the costs increase from S1 to S3
Incentivising early settlement
case - reasonable cooperation and eot
Mishcon de Reya LLP v. McTague [2022] EWHC 341 (Ch)
Mishcon penalised for not agreeing to EOT
Para 43 in denton case - duty on parties to be reasonable to one another
Heavy cost sanctions should be imposed on parties that unreasnably proposed relief from sanctions / don’t agree to EOT
Where improper conduct, application for costs may not be sufficient. Opposition to accept EOT may be taken into account when costs considered at end of the case
