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Flashcards in LGS01 Service Deck (59):
1

What are the Main Sources of Procedural Law in Civil Litigation?

Main Sources of Procedural Law

Primary Legislation

  1. Senior Courts Act 1981 (before 1 October 2009 this statute was known as the Supreme Court Act 1981)
  2. County Courts Act 1984

Secondary Legislation

  1. Civil Procedure Rules 1998 (“CPR”)
  2. These are divided into “Parts”, and the Parts are divided into “rules”
  3. Text in WB Vol 1 & BCP Appendix 1
  4. Also available online on the Ministry of Justice website
  5. Gets updated / revised frequently. There are 3 Amendment SIs so far in 2015

2

What does CPR, r. 1.1(1) say?

These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

3

How do Practice Directions work?

  • Practice Directions
  • Generally, there is a PD for each Part of the CPR
  • Printed in WB/BCP after the relevant Part of the CPR
  • PDs are amended by MoJ "Updates". Currently Update 81
  • Latest updates will not be in any of the books
  • APA Civil Procedure and WB Supplement
  • You need to be up to date to 31 October 2015 for the exams in 2015-16

4

Describe relevant recent reforms to civil procedure.

  • The CPR replaced the old "Rules of the Supreme Court" (High Court and Court of Appeal) and "County Court Rules", with effect from 1 April 1999. This followed the Woolf Report of 1998.
  • Further radical changes were made on 1 April 2013 following the Jackson Report of 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).
  • Criminal Justice and Courts Act 2015, ss 57-93 made further reforms to civil procedure, but mostly on things not on the syllabus.

5

Can judges issue 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)).

Bovale Ltd v Secretary of State for Communities and Local Government [2009] 3 All ER 340

A judgment of the court which suggests a procedure to fill a gap in the CPR was held not to be a Practice Direction. Practice Directions may be given either in accordance with the Constitutional Reform Act 2005, sch 2, part 1, or with the approval of either the Lord Chancellor or Lord Chief Justice (Civil Procedure Act 1997, s. 5).

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 purported practice direction has no effect.

6

What are the protocol steps for Pre-action Conduct?

  • Parties expected to exchange sufficient information to enable them to understand each other's position, and to be able to enter into meaningful negotiations/ADR (para 3)
  • Taking tactical advantage 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 claim and the remedy sought (para 6(a))
  • D should respond within a reasonable time. 14 days easy case; maybe 3 months very complex claim (para 6(b))
  • The reply must say
    • if liability admitted
    • grounds on which liability denied
    • 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 cost. 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 (para 12)
  • They should at least try to narrow issues in dispute (para 12)

7

Is complying with the pre-action protocol an excuse for issuing the claim form late?

Claimant must issue a claim form within time. Complying with the protocol is no excuse for issuing late. If needs be, the claimant can ask for a stay of the proceedings after issue so the remaining steps can be taken (para 17)

8

What is the eseence of non-compliance with protocols?

The requirement is to comply with the substance of the protocol (para 13).

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

9

When in non-compliance with the protocols taken into account and what might the court order?

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 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

10

What possible sanctions are there for non-compliance with pre-action protocol?

These 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

 

11

What are the three divisions of the high court and what do they each deal with? 

Queen's Bench Division   primarily contract, tort, trespass, administrative law

Chancery Division             primarily equity: trusts, wills, company law; IP

Family Division                   primarily divorce and children

12

What special rules apply to claim forms lodged in the Chancery Division or claim forms raising chancery business? 

ChD and specialist courts are in the Rolls Building off Fetter Lane. 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".

13

What are the specialist courts?

TCC (Technology and Construction Court)

Commercial Court

Administrative Court (Judicial Review)

Planning Court

Companies Court

Patents Court

Intellectual Property Enterprise Court (IP cases under £0.5 million)

14

What are the two exceptions to the County Court's general jurisdiction over all civil claims?

  • defamation (only High Court)
  • JR (only High Court)

15

What is the General Rule and the restrictions on it when determining where a claimant can start his claim (in the CC or HC?)

General Rule  Claimant is free to choose.

Restrictions

PI claims:

Must be started in the CC if under £50K

May be started in HC or CC if £50K or more

Money claims (not PI) 

Must be started in the CC if up to £100K

May be started in HC or CC if more than £100K

Equity Claims

CC has jurisdiction where the value of the property does not exceed £350,000.

16

What extra directions for when a claim shoud be started in the High Court are contained in Para 2.4 of the PD?

Subject to the thresholds, a claim should be started in the High Court if by reason of:

(1) the financial value of the claim, and/or

(2) the complexity of the facts, legal issues, remedies or procedures involved, and/or

(3) the importance of the outcome of the claim to the public in general,

the claimant believes that the claim ought to be dealt with by a High Court judge.

17

How is a PI Claim value calculated for jurisdictional purposes?

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

18

What are the criteria for issuing at the Salford County Court Money Claims Centre?

County Court claims where the only remedy sought is an amount of money, whether specified or unspecified, are started by sending the claim form for issue to the County Court Money Claims Centre in Salford (PD 7A, para. 4A.1).

19

What are the criteria for issuing in the Money Claim Online 

Money claims with a value up to £100,000 where neither party is a child or protected party, and where certain other conditions set out in PD 7E, para. 4 are satisfied, can be issued electronically using the ‘Money Claim Online’ process.

20

What are the criteria for issuing in the production centre?

Certain bulk users of the court system can start money claims using magnetic media at the Production Centre under PD 7C.

21

Where are County Court non-money claims issued?

Covers claims for equitable relief, possession of land, discrimination claims etc. Can issue at any civil hearing centre used by the County Court. However, the claim will usually be transferred to the location where the property etc is located.

22

Where are High Court Claims issued?

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

23

What are the steps for 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)

24

What options are there for including the Particulars of Claim with the claim form?

  • endorsing the PoC into the claim form on the reverse side; or
  • stapling the PoC to the claim form ('attached to the claim form'); or
  • serving the claim form followed at a later date with the PoC

25

What is the protocol for serving Particulars of Claim after the claim form and where is it contained?

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

26

What is the purpose 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

27

What 4 different regimes deal with service and what are the relvant Rules?

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)

28

What is the purpose of serving a claim form?

(a)        Establishing the court's jurisdiction over the case; and

(b)        Bringing the case to the notice of the defendant

29

What is the practical signifcance of Integral Petroleum

Service of other court documents is only about bringing the document to the attention of the other side.  Hence the approach is somewhat more permissive.

1. In many cases where a party has breached the rules and, on the face of it, requires relief from sanctions, the party may in fact be saved by CPR 3.10.

2. The observation that  “CPR 3.10 is to be construed as of wide effect so as to be available to be used beneficially wherever the defect has had no prejudicial effect on the other part” is of considerable importance.

3.  Also the passage

” CPR 3.10 is particularly apposite for treating as valid a step whose whole function is to bring a document to the attention of the opposing party where such function has been fulfilled. It prevents a triumph of form over substance”

4.   It is difficult for a party to “stand on their rights” if service has taken place by e-mail or fax or some other means. A wide construction of 3.10 means that the service could be taken to be valid.

30

What is the period for serving a claim form?

The period of validity of a claim form is:

  • 4 months if it is served within the jurisdiction
  • 6 months if it is served outside the jurisdiction

31

Within the jurisdiction, when must the step required by r. 7.5 

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.

32

Who should serve the claim form?

  • 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.

33

What must a party do if service is effected by them?

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)).

34

What documents are to be sealed with a claim form?

  • Claim form as sealed by the court
  • Particulars of Claim
  • In personal injuries claims (where special rules apply)
    • Medical report
    • Schedule of past and future loss and expense, WBK pp 9, 10
  • Response pack

35

What permissible methods of service exist under CPR, r. 6.3:?

(i)         Personal service

(ii)        1st class post

(iii)       Mail transmission service providing for next day delivery

(iv)       Document Exchange (DX)

(v)        Leaving documents at the other side’s address

(vi)       Fax

(vii)      Other electronic systems

(viii)     In accordance with contract

36

?What are the steps for effecting service under r. 7.5

Method of service

Step required

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

37

How is personal service effected?

Method (i), personal service, involves serving on a person.  This is done “by leaving it with that individual” (r. 6.5(3)).

38

What methods of Postal service are acceptable?

(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

The letter must include a full postcode (PD 16, para. 2.4).

39

How do you effect service by "Leaving at the address"?

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

40

How is service effected by DX?

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 has not indicated in writing that they are unwilling to accept service by DX.

41

How do you effect service by fax or other electronic means?

 

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.

42

How do you effect service by e-mail

  • PD 6A, para. 4.1 applies (because it refers to both fax and "other electronic means").
  • 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).

43

Brown v Innovatorone plc [2009] EWHC 1376 (Comm), LTL 23/6/2009

What was the decision on the facts?

Purported service on the defendant by faxing a claim form to the defendant’s solicitor did not comply with the CPR where the defendant’s solicitor (using a letterhead which included a fax number) merely entered into correspondence on behalf of the defendant in respect of the dispute with the claimant.

44

Brown v Innovatorone plc [2009] EWHC 1376 (Comm), LTL 23/6/2009

What were the general principles established?

  • Merely entering into correspondence on behalf of the defendant in respect of the dispute with the claimant not the same as "giving" the solicitor's address for the purpose of service (see below on 'where to serve').

  • A solicitor is ‘acting for’ a party within the meaning of PD 6A, para. 4.1, when the defendant has given written notification that his address for service is that of his solicitor, or the solicitor has notified the claimant that he has the defendant’s instructions to accept service, as required by CPR, r. 6.7.
  • A solicitor engaging in correspondence with the claimant is not enough.
  • While faxing a claim form to the solicitor in such circumstances would probably result in the claim form coming to the attention of the defendant, it was not open to a party to devise their own methods of bringing claim forms to the attention of the defendant.
  • The CPR prescribe the methods for effecting service, and it is in the interests of certainty that parties are not allowed to deviate from [methods for effecting service].

45

What is the service hierarchy laid out in CPR Part 6?

1. Personal service on the Defendant (where this is required by the CPR, statute, PD or court order, CPR, r. 6.5).  An example is a claim form seeking committal for contempt of court by interfering with the due administration of justice (r. 81.14(2)).

2.  At the Defendant’s solicitor’s address (CPR, r. 6.7). This is required if:

  • D gives C D’s solicitor’s address for service, or
  • D’s solicitor notifies C in writing he is instructed by D to accept service 

D's solicitor's address may be either in the UK or in an EEA state (r. 6.7).

3.  Address D has given C for the purpose of serving proceedings (r. 6.8).

The address must be:

  • where D resides or carries on business; and
  • within the UK or an EEA state

4.  At D's usual or last known home or business address in accordance with table in r. 6.9(2):-

46

How is the usual or last known home or business address determined?

r. 6.9(2):

Nature of defendant to be served

Place of service

1. Individual

Usual or last known residence.

2. 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.

3. Individual being sued in the business name of a partnership

Usual or last known residence of the individual; or

principal or last known place of business of the partnership.

4. Limited liability partnership

Principal office of the partnership; or

any place of business of the partnership within the jurisdiction which has a real connection with the claim.

5. Corporation (other than a company) incorporated in England and Wales

Principal office of the corporation; or

any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.

6. Company registered in England and Wales

Principal office of the company; or

any place of business of the company within the jurisdiction which has a real connection with the claim.

 

7. Any other company or corporation

Any place within the jurisdiction where the corporation carries on its activities; or

any place of business of the company within the jurisdiction.

47

In what circumstances can you sue someone in the name of a business?

Sued in name of a business (entry 2)

Only applies where an individual is sued in the name of a business which they use for trading, and which is not their personal name (a "sole trader"). It does not apply where an individual is just an employee:

Murrils v Berlanda [2014] EWCA Civ 6

48

What rules surround service at the "last known" address?

Cranfield v Bridgegrove Ltd [2003] 1 WLR 2441

  • May be the “last known” address even if D is known to have left

Collier v Williams [2006] 1 WLR 1945

  • The phrase cannot extend to an address where the individual had never resided.

49

What is to be done before using a the "last known address"

CPR, r. 6.9(3)-(6):-

(3) Where a C has reason to believe that the address of the D referred to in... paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (“current address”).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant—

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is—

(i) an alternative place where; or

(ii) an alternative method by which, service may be effected.

(5) If, under para. (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant—

(a) cannot ascertain the defendant’s current residence or place of business; and

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).

50

What is the "Deemed date of service"?

CPR, r. 6.14.  A claim form served in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under CPR, r. 7.5(1).

51

What was held in T & L Sugars Ltd v Tate & Lyle Industries Ltd [2014] EWHC 1066 (Comm)?

Held that rr. 7.5 and 6.14 draw a clear distinction between the date on which service is effected, and the date upon which service is deemed to take place.

  • Service is effected when the step required by r. 7.5 is completed, and it is the completion of that step which constitutes actual service.
  • The date on which service is deemed to have taken place is two business days later.
  • Rule 7.5 looks at when actual service took place; r. 6.14 looks at when service is deemed to take place for the purpose of other steps in the proceedings.

52

What is the Irrebuttable Presumption of Service?

Godwin v Swindon Borough Council [2002] 1 WLR 997

Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174

 

  • The words 'deemed to be' in r. 6.14 (above) and r. 6.26 (below) create an irrebuttable presumption of service on the deemed date.

This means service is taken to have happened on the deemed date as a matter of law.  This result cannot be overturned by any evidence to the contrary, no matter how convincing, and even if the deemed date of service is a practical impossibility.

Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174

  • Even if it leads to absurd results

 

The reason for creating an irrebuttable presumption of due service is that it provides certainty. Any other rule would allow Defendants to lie about not receiving the relevant documents.

53

At what address must documents be served?

Must be at the party’s “address for service” (CPR, r. 6.23).

Every party has to provide an address for service (r. 6.23(1)).  This happens:

  • Claimant: by inserting this on the claim form
  • Defendant: by inserting this on the acknowledgment of service or defence

The address for service must be (r. 6.23(2), (3)):

  • The party’s solicitor’s address (within the UK)
  • If no solicitor is acting, the party’s residence or business address if in UK
  • Otherwise, a nominated address in the UK

54

At what date is a document other than a claim form deemed to be served? 

CPR, r. 6.26.  A document, other than a claim form, served ... is deemed to be served on the day shown in the following table—

1st Class post (or other next business day deliver service): 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 second business day after that

DX: [as above]

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 4.30 p.m., on that day; or in any other case, on the next business day after that day.

Fax: If the transmission of the fax is completed [as above]

Other electronic method: If the e-mail or other electronic transmission is sent [as above]

Pesonal Service: If the document is served personally [as above]

55

For deemed date of service, what is the difference between Business days and calendar days?

Consider entry 1 on the table in r. 6.26.

Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174

  • Distinguish entries in the Table which refer to “days” (every day counts)
  • From those which refer to “business days” (exclude weekends etc) (r. 6.2(b))

56

What happens if you serve at the wrong address?

Nelson v Clearsprings (Management) Ltd [2007] 1 WLR 962, at [48]

Attempting to serve at the wrong address is an ‘error of procedure’ within the meaning of CPR, r. 3.10, and the court has power under this rule, alternatively under r. 3.1(2)(m), to order the remedy of such an error.

57

Can alternative service be effected?

CPR, r. 6.15 (claim forms), r. 6.27 (other documents)

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

Brown v Innovatorone plc [2009] EWHC 1376 (Comm), LTL 23/6/2009

Given that CPR, r. 6.15, requires a good reason before an order for service by an alternative method will be permitted, the court should not be over-ready to make such an order. The mere absence of prejudice to the defendant is not a sufficient reason for making an order.

58

Can one dispense with service?

CPR, r. 6.16(1) provides:

The court may dispense with service of a claim form in exceptional circumstances.

Thorne v Lass Salt Garvin [2009] EWHC 100 (QB), LTL 5/2/2009

The fact that the defendant happens to be a firm of solicitors does not make the case an exceptional one such as to justify dispensing with service under CPR, r. 6.16.  Attempting service on the final day of validity, and attempting to serve without prior notification to the defendant, are powerful factors against dispensing with service

59