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Flashcards in LG1 Deck (50):
1

What are the main primary sources of civil procedural law?

1. Senior Courts Act 1981 (before 1 October 2009 this statute was known as the Supreme Court Act 1981)

2. County Courts Act 1984

2

What are the main secondary sources of civil procedural law?

Civil Procedure Rules 1998 (“CPR”)

These are divided into “Parts”, and the Parts are divided into “rules”

Text in WB Vol 1.

Gets updated / revised frequently. There are 6 Amendment SIs so far in 2014

3

Do the new rules start afresh, or not?

Under CPR r. 1.1(1), the CPR as a whole is a 'new procedural code' which overrides any preceding code.

4

Are there any other primary or secondary sources of procedural significance?

Other Acts and Statutory Instruments cover things like:

High Court and County Court jurisdiction

Legal aid

Other forms of funding, eg CFAs and DBAs

Enforcement

Appeal

5

Are there any non-statutory documents bearing on civil procedure?

Yes, in particular the Practice Directions, for which there is one for each Part of the CPR.

6

Describe the reforms which caused, and have since qualified, the introduction of the CPR.

The CPR was introduced in response to the Woolf Report of 1999, replacing the old "Rules of the Supreme Court" and "County Court Rules" from 1 April 1999.

Further changes were made in the wake of the Jackson Report in 2009:

A unified County Court replaced the approx. 200 county courts, each serving a district, on 22 April 2014 (Courts and Crime act 2013, s.17)

7

What, exactly, are practice directions?

Practice Directions are ‘directions as to the practice and procedure of any court’ (Civil Procedure Act 1997, s. 9(1) and (2)).

The official Practice Directions are promulgated by the Ministry of Justice and published with the CPR on the MoJ website.

Judges often give guidance on the application and interpretation of the law (and often give guidance on how the CPR and Practice Directions work). This does not come within the definition (s. 9(5)):

See Bovale Ltd v Secretary of State for Communities and Local Government [2009] 3 All ER 340. Held: Judges are bound to follow, and have no power to alter, Practice Directions made under s. 5. They have no authority to lay down practice directions which change rules laid down in the CPR or Practice Directions promulgated by the Ministry of Justice, and any such

8

Where can the present Pre-action Conduct and Protocols be found?

WB Supplement (pp 73-76 in 3rd Supplement)

9

What is required by the normal, as opposed to the specialised, Pre-action protocol?

Parties are expected to exchange sufficient information to enable them to understand each other's position, and to be able to enter into meaningful negotiations or ADR processes (para 3)

Taking tactical advantage is deprecated (para 4)

Costs in complying with the protocol must be kept proportionate (para 5)

Claimant should write to the defendant with concise details of the claim and the remedy sought (para 6(a))

D should respond within a reasonable time. 14 days in an easy case; maybe 3 months in a very complex claim (para 6(b))

The reply must say if liability is admitted; the grounds on which liability is denied; and whether a counterclaim will be advanced (para 6(b))

Both parties must disclose key documents to each other (para 6(c))

If an expert is necessary the parties should try to minimise how much the expert evidence will cost. A single joint expert may be best (para 7)

Parties should consider whether to use ADR (paras 8-11)

Where the claim is not resolved by following the protocols, the parties must stocktake by reviewing their respective positions (para 12)

They should at least try to narrow the issues in dispute (para 12)

10

Can compliance with the protocol excuse missing the limitation deadline?

No (para 17)

11

How closely must parties comply with the protocol?

They need only comply with the substance of the protocol (para 13)

12

On what grounds may a finding of a failure to comply be based?

A failure to comply may be based on (para 14):
(a) not providing sufficient information
(b) not acting within the time limits in the protocol
(c) unreasonably refusing to use ADR

13

What are the effects of non-compliance?

Non-compliance may be taken into account (para 13):

when the court gives case management directions

when the court makes costs orders (eg at trial)

The court may further order (para 15):
(a) the parties to be relieved from further compliance with the protocol
(b) a stay of the proceedings to allow time for compliance
(c) the imposition of sanctions
Sanctions for non-compliance

These sanctions are set out at para 16:
(a) payment of costs
(b) payment of costs on the indemnity basis
(c) depriving C of interest on their damages
(d) ordering D to pay interest on any damages at up to 10% above base rate

14

How many divisions of the High Court are there?

3: The Queen's Bench Division, the Chancery Division, and the Family Division.

15

What does the QBD specialise in? Where can it be found?

Primarily contract, tort, trespass, administrative law.

Royal Courts of Justice, Strand.

16

What does the Chancery Division specialise in?

Primarily equity: trusts, wills, company law; IP.

The Rolls Building off Fetter Lane

17

What does the Family Division specialise in?

Primarily divorce and children

First Avenue House on High Holborn.

18

Can you use the same claim form in the Chancery division, as in other divisions?

No. The claim form must have "Chancery Division" entered in the top right corner (PD 7A, para 2.5). Claim forms raising chancery business in the CC must be similarly marked "Chancery Business".

19

What other specialist courts comprise the High Court?

The Technology and construction court

The Commercial Court

The Administrative Court

The Planning Court

The Companies Court

The Patents Court

The Intellectual Property Enterprise Court

20

What claims can only be brought in the High Court?

Defamation, and Judicial review.

21

When can a Personal injuries claim be brought in the HC?

When it is over £50,000

22

When can Money Claims not concerning personal injury be brought in the High Court?

When they are over £100,000.

23

Can the County court hear Equity cases?

Yes, if not exceeding £350,000

24

What considerations suggest that a claim, over the monetary threshold, probably should be heard in the High Court?

Financial Value

Complexity

Importance to the public.

25

What should be taken into account to calculate the value of a claim, and what not?

HC & CC Jurisdiction Order 1991, art. 9, applies CPR, r. 16.3(6): The value of a claim is calculated by adding together:

General damages for pain, suffering and loss of amenity

Past losses (property damage, loss of income, expenses etc)

Future losses (through to death or recovery)

But ignoring:

Interest

Costs

Contributory negligence

Counterclaims

Recovery of State Benefits under Social Security (Recovery of Benefits) Act 1997

26

Where are County Court money claims issued?

The County Court Money Claims Centre, in Salford

27

If a claim is under £100,000, neither party is a child or protected party, and other conditions under PD 7E are complied with, in what other way may a money claim be brought?

Online, using the "Money Claim Online" process

28

How might a company issue money claims in bulk?

Using magnetic media at the Production Centre, under PD 7C

29

Where are High Court claims issued?

Either in the QBD, or ChD, and either in London or a District Registry. Choice rests with the claimant.

30

Where can the requirements of a claim form be found in the CPR?

CPR r 16.2

31

How is a claim form issued?

Issuing the claim form

Pay issue fee to court
(See Civil Proceedings Fees Order "CPFO"): for this £50,000+ case it is £3,750

Claim form is stamped (issued)

Enough copies for the court, for C, and for service on each D

Claim number is allocated

Court opens a file for the case

Limitation stops running when the claim is "brought" (see LGS 5)

32

What must a Claim Form, at a minimum, include?

The facts relied upon by the claimant, the cause of action, the remedy sought.

33

Need one write the particulars of claim on the claim form?

No. One can staple it to the claim form, or serve it later.

34

If serving a particulars of claim at a later date, when must it be served by?

CPR, r 7.4(1)(b) and r 7.4(2):

Within 14 days of service of claim form

Within the [4 month] period of validity of the claim form

35

What is the function of service?

Service is primarily about bringing proceedings to the notice of the defendant. This is so that the defendant has the chance to defend the case and raise arguments against the claim.
Abela v Baadarani [2013] UKSC 44, [2013] 1 WLR 2043

36

How many regimes govern service, and what are they?

Different regimes dealing with service
There are 4 different systems dealing with:
1. Service of the claim form within the jurisdiction (CPR, rr 6.1 to 6.19)

2. Service of other court documents (CPR, rr 6.20 to 6.29)

3. Service on companies and directors (Companies Act 2006, ss 1139, 1140)

4. Service outside the jurisdiction (APA Civil ch 11. Not on the syllabus)
1 and 2 are in most respects identical to each other, but there are some important

37

Why are the rules governing service of a claim form, less permissive than those governing service of other forms?

Service of a claim form has TWO functions:
(a) Establishing the court's jurisdiction over the case; and
(b) Bringing the case to the notice of the defendant
For this reason the rules are highly technical and restrictive in
Different regimes.

Service of other documents is only to bring them to the notice of the defendant (Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm))

38

To what does 'Filing' refer?

The process of lodging documents with the court.

39

What is the period of service for a valid claim form?

If service is within the jurisdiction, 4 months. Otherwise, 6.

40

When specifically does the period expire?

CPR, r. 7.5(1). Where the claim form is served within the jurisdiction, the claimant must complete the step required by [the table in r 7.5] in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

41

On whom is the responsibility to serve claim forms?

County Court claims are usually served by the court.
Usually by first class post (PD 6A, para 8.1; CPR, r. 6.3(1)(b))

Party (usually their solicitor). Typical in High Court claims.

If service is effected by a party, they inform the court by filing a certificate of service (unless all defendants file acknowledgments of service, CPR, r. 6.17(2)).

42

What documents must be served?

Claim Form, sealed by the court

Particulars of Claim

In Personal injuries claims, a Medical Report, and Schedule of past and future loss and expense.

A Response pack.

43

What are the available methods of service, and where can they be found listed?

CPR r 6.3:

I) Personal Service
II) 1st class post
III) Mail transmission service providing for next day delivery
IV) Document exchange
V) Leaving documents at the other side's address
VI) Fax
VII) Other electronic systems
VIII) In accordance with contract.

44

How does one effect service?

By taking the appropriate step, for one's chosen method, specified in CPR 7.5.

First class post, document exchange or other service which provides for delivery on the next business day: Posting, leaving with, delivering to or collection by the relevant service provider

Delivery of the document to or leaving it at the relevant place: Delivering to or leaving the document at the relevant place

Personal service under rule 6.5: Completing the relevant step required by rule 6.5(3)

Fax: Completing the transmission of the fax Other electronic method Sending the e-mail or other electronic transmission

45

What does personal service involve?

This is done “by leaving it with that individual” (r. 6.5(3)).

46

What does postal service involve?

It is permissible to post the claim form either:
(1) By ordinary first class post. 2nd class post is not good enough;
(2) Or by any other postal delivery service (such as through DHL, or using recorded delivery post) that provides for next day delivery
There are detailed rules for ascertaining the address that should be used (see above). It might be D's solicitor's address, or D's current residential address, or last known address etc.
The letter must include a full postcode (PD 16, para. 2.4).

47

What does leaving at the address involve?

This usually means taking the document yourself to the Defendant's address and putting it through the letter box.

48

What does Service by document exchange entail?

This is typically used for correspondence between solicitors and with chambers. Usually next day delivery.

PD 6A, para 2.1:-
Service by DX may take place only where—
(1) the address at 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 for that party sets out a DX box number, and
(3) the party or the solicitor acting for that party

49

What does service by fax involve?

PD 6A, para 4.1:

Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means—

(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving—
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1)—
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.

50

When is service by email permitted?

PD 6A, para 4.1 applies (because it refers to both fax and "other electronic means"). So there is a requirement for a previous written indication of willingness to accept service by email.
In addition, regarding email service, PD 6A provides:
4.2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).
4.3 Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy.