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Flashcards in LGS03 Case Management Deck (67):
1

What does the overriding objective include?

1 Overriding Objective

At all times when conducting litigation the parties must abide by the “overriding objective”, which, by CPR, r. 1.1(1), is “to deal with cases justly and at proportionate cost”.

What does the overriding objective include?

Dealing with cases justly and at proportionate cost includes:

r. 1.1(2)(c), dealing with cases proportionately

r. 1.1(2)(d), expedition and fairness

r. 1.4(a), co-operation between the parties

2

When will conduct aimed  at achieving an advantage over the other side be penalised?

  •  if it results in:
  • unnecessary expense
  • delay
  • inefficient case management
  • adverse impact on other cases
  • prejudice to another party through what is seen as underhand tactics

3

Recite by rote: CPR, r. 1.1(1)

CPR, r. 1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

4

When must the court must seek to give effect to the overriding objective?

CPR, r. 1.2 The court must seek to give effect to the overriding objective when it –

(a) exercises any power given to it by the Rules; or

(b) interprets any rule,

5

How does the court advance the The court must further overriding objective by actively managing cases?

(2) Active case management includes –

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b) identifying the issues at an early stage;

(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

(d) deciding the order in which issues are to be resolved;

(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(f) helping the parties to settle the whole or part of the case;

(g) fixing timetables or otherwise controlling the progress of the case;

(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;

(i) dealing with as many aspects of the case as it can on the same occasion;

(j) dealing with the case without the parties needing to attend at court;

(k) making use of technology; and

(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

6

How does Provisional Track Allocation work?

  • This normally happens when D files its Defence
    • when a case is defended the defence goes on court file and civil servant looks at it. obligation is for them to do a provisional track allocation decision. only provisional. 
  • Where there are 2 or more defendants, it is either when the last of them files its defence, or when the period for filing the last defence has expired (CPR, r 26.3(2))
  • A court officer (not a judge) provisionally allocates defended claims to one of the case management tracks
  • Based largely on the value of the claim
  • Court sends the parties notice of provisional allocation
    • tells you when you have to take the next step

7

What does the notice of provisional allocation in Provisional Allocation contain?

  1. specify any matter to be complied with by the date specified in the notice
  2. require the parties to file a completed directions questionnaire and serve copies on all other parties 
  3. state the address of the court or court office to which the directions questionnaire must be returned
  4. inform the parties how to obtain the directions questionnaire; and
  5. if a case appears suitable for allocation to the fast track or multi track, require the parties to file proposed directions by the date specified by the notice 

8

What are the basic track allocation rules?

  • Small claims track: value not more than £10,000
  • Fast track: value between £10,000 and £25,000
  • Multi-track: value over £25,000

9

What is the scope of the small track?

(1) The small claims track is the normal track for–

(a) any claim for personal injuries where –

(i) the value of the claim is not more than £10,000; and

(ii) the value of any claim for damages for personal injuries is not more than £1,000;

(b) any claim which includes a claim by a tenant of residential premises against a landlord where –

(i) the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises (whether or not the tenant is also seeking some other remedy);

(ii) the cost of the repairs or other work to the premises is estimated to be not more than £1,000; and

(iii) the value of any other claim for damages is not more than £1,000.

(Rule 2.3 defines ‘claim for personal injuries’ as proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death)

(2) For the purposes of paragraph (1) ‘damages for personal injuries’ means damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed.

(3) Subject to paragraph (1), the small claims track is the normal track for any claim which has a value of not more than £10,000.

(Rule 26.7(4) provides that the court will not allocate to the small claims track certain claims in respect of harassment or unlawful eviction)

10

What is the scope of the fast track?

(4) Subject to paragraph (5), the fast track is the normal track for any claim –

(a) for which the small claims track is not the normal track; and

(b) which has a value –

(i) for proceedings issued on or after 6th April 2009, of not more than £25,000; and

(ii) for proceedings issued before 6th April 2009, of not more than £15,000.

(5) The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that –

(a) the trial is likely to last for no longer than one day; and

(b) oral expert evidence at trial will be limited to–

(i) one expert per party in relation to any expert field; and

(ii) expert evidence in two expert fields.

11

What is the scope of the multi-track?

(6) The multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track.

12

How is financial value determined for track allocation?

(1) When deciding the track for a claim, the matters to which the court shall have regard include –

(a) the financial value, if any, of the claim;

(b) the nature of the remedy sought;

(c) the likely complexity of the facts, law or evidence;

(d) the number of parties or likely parties;

(e) the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it;

(f) the amount of oral evidence which may be required;

(g) the importance of the claim to persons who are not parties to the proceedings;

(h) the views expressed by the parties; and

(i) the circumstances of the parties.

(2) It is for the court to assess the financial value of a claim and in doing so it will disregard

(a) any amount not in dispute;

(b) any claim for interest;

(c) costs; and

(d) any contributory negligence.

13

When will low value PI and L&T claims will be allocated to the fast track

Personal injuries claims and landlord & tenant disrepair cases: CPR r 26.6(1)(b)

Low value PI and L&T claims will be allocated to the fast track rather than the small claims track if:

(a) It is a PI claim with damages for PSLA at least £1,000

(b) It is a L&T claim with cost of repairs or damages at least £1,000

14

Can the court allocate a case to a track outside its financial value?

The court may allocate a claim to a track higher or lower than its financial value, having regard to the factors in r. 26.8(1) (r. 26.7(1)). There used to be a veto on claims being allocated to a track lower than its financial value unless all the parties agreed, but this party veto was removed on 1 April 2013.

15

By when must filing and serving of directions questionnaires be complied with? 

  • The notice of provisional allocation will specify a date for compliance
  • In small claims cases the date must be at least 14 days after deemed service of the notice
  • In fast track and multi-tracks it is no less than 28 days after deemed service of the notice (r 26.3(6))

16

What are the consequences for failing to file a Directions Questionnaire? 

Sanctions

If a party fails to file the directions questionnaire, by the deadline, it risks its claim, defence or counterclaim being struck out (i.e. brought to an end) by the court.

Distinctions are drawn between:

  • County Court money claims
    • r. 26.3
    • Non-filing means strike out 
  • High Court claims for a specified sum of money
  • All other cases (High Court damages claims; High Court and County Court non-money claims)

17

What happens if you fail to file Directions Questionnaire in a County Court money claim?

  • The court will send a reminder (APA para 15.14) warning that compliance is required in a further 7 days
  • Further non-compliance results in the claim being automatically struck out (C in default) or the Defence being automatically struck out (D in default)

18

What happens if you fail to file Directions Questionnaire in a High Court money claims for a specified amount?

The court will make such order as it considers appropriate, including-

  • order for directions
  • order striking out the claim
  • order striking out the defence and entering judgment
  • listing a case management conference

19

What happens if you fail to file Directions Questionnaire in other claims?

No prescribed sanction

Tell you to file on another day

20

Who is responsible for track allocation?

Provisional track allocation is by a court official. Actual track allocation requires a court order, so typically is done after directions questionnaires are received, and is typically done by District Judges (County Court) or Masters (High Court). The judge makes:

  • Track allocation decision
  • Directions simultaneously with track allocation
  • Or lists the case for a case management conference

21

Where are county court money claims started?

County Court money claims if in hard copy, Conty Court Business centre if electronic

22

Where are county court money claims sent after they are started?

To a county court hearing centre if a hearing is required or if the claim is defended 

23

Where are defended High Court specified money claims sent?

To the defendant's home court 

24

When is a County Court money claim sent to the claimant's preferred hearing centre?

Where the claim is undefended and the court needs to either assess the amount payable or the rate of payment  

(CPR, rr. 3.5A, 12.5A, 13.4(1A), 14.7A, 14.12(2A), 14.13(3A), and 26.2A(4));

25

When are County Court claims for specified sums of money sent to the defendant’s home court?

where the defendant is an individual. This happens at the ‘relevant time’, which is when (rr. 13.4, 26.2A(3), (6)):

  • all parties have filed their directions questionnaires, or
  • a stay to attempt mediation has expired, or
  • an application is made to set aside a default judgment.

Where there is more than one defendant, the case is sent to the home court of the defendant who first files a defence

26

When are High Court claims for specified sums of money transferred to the defendant’s home court ?

where the defendant is an individual. These claims are transferred to the defendant’s home court if a defence is filed or if an application is made to set aside a default judgment (rr. 13.4, 26.2).

27

What are the courts discretionary categories to transfer a case?

There is also a general discretion to transfer to and from:

  • the High Court / County Court
  • different Divisions of the High Court
  • different County Court hearing centres
  • specialist Lists

28

What happens if a case is started in the wrong court?

Transferred to the correct court, and claimant will usually be penalized by being made to pay the costs of the application to transfer the claim and, if ultimately successful, may have an award for costs reduced by up to 25% (SCA 1981 s 51(8) and (9)

If the court is satsfied that the claimant knew or ought to have known that the claim is being started in the wrong court, the court has a discretion to transfer or to strike out proceedings (CCA 1984 ss 40(1)(b)and 42(1)(b)

Striking out is inappropriate for  bona fide mistakes but could be proper in instances where starting in the court was a deliberate attempt to harrass a defendant or run up unecessary costs or was done in defiance of a warning from the defendant about the proper venue for the proceedings. 

29

May a case be transferred to the County Court even if it exceeds the relevant CC limit ?

Yes

Nat WEst Bank Plc v King [2008] Ch 385

30

What are the criteria for a transfer order?

Criteria for a transfer order

30.3

(1) Paragraph (2) sets out the matters to which the court must have regard when considering whether to make an order under –

(a) section 40(2), 41(1) or 42(2) of the County Courts Act 19841 (transfer between the High Court and a county court);

(b) rule 30.2(1) (transfer within the County Court); or

(c) rule 30.2(4) (transfer between the Royal Courts of Justice and the district registries).

(2) The matters to which the court must have regard include –

(a) the financial value of the claim and the amount in dispute, if different;

(b) whether it would be more convenient or fair for hearings (including the trial) to be held in some other court;

(c) the availability of a judge specialising in the type of claim in question and in particular the availability of a specialist judge sitting in an appropriate regional specialist court;

(d) whether the facts, legal issues, remedies or procedures involved are simple or complex;

(e) the importance of the outcome of the claim to the public in general;

(f) the facilities available to the court at which the claim is being dealt with, particularly in relation to –

(i) any disabilities of a party or potential witness;

(ii) any special measures needed for potential witnesses; or

(iii) security;

(g) whether the making of a declaration of incompatibility under section 4 of the Human Rights Act 1998 has arisen or may arise;

(h) in the case of civil proceedings by or against the Crown, as defined in rule 66.1(2), the location of the relevant government department or officers of the Crown and, where appropriate, any relevant public interest that the matter should be tried in London.

(3) Where in proceedings in the County Court the court considers that there is a real possibility that a party would in the course of the proceedings be required to disclose material the disclosure of which would be damaging to the interests of national security, the court must transfer the proceedings to the High Court.

31

What kinds of Case Management Hearing are there?

  • Case management conferences (“CMC”);
  • Costs management conferences (LGS 11);
  •  “Hearings under rule 28.5(4)” (or 29.6(4)) (called “listing hearings”); and
  • Pre-trial reviews (“PTR”)

32

what happens with cases commenced in courts that are not civil trial centres (feeder courts)?

They are considered by a procedural judge when defences are filed. If it appears that the case is suitable for allocation to the multi-track, the DJ will normally make an order allocating, give CM directions and transfer to a civil trial centre (PD 26, para 10.2(5)).

Sometimes a case might be allocated multi track but remain in a feeder court where there will be >1 CMC and the parties or reps live far for civil trial centre 

33

Who sits in a Case Management Hearing?

  • Hearings take place before a “procedural judge”
  • Usually a District Judge or Master, but sometimes a Circuit or HC Judge
  • Multi-track cases may be "docketed", which means all interim applications will be heard by the same judge, and often the trial too (APA Civil para 15.06)
    • Cases in the Ch. and QB are assigned to individual Masters (PD 2B para 6.1) but from time to time hearings may be dealt with by other masters or deputies as the circs. require, and cases may be transferred from one master to another 
    • Important cases in the Commercial Court are allocated to a management team of two designated judges (Commercial Court Guide para D 4.1)

34

What is a Case Management Conference

This is a formal hearing before a procedural judge, often lasting 30 mins or 1 hour.  Basically designed to ensure the case is dealt with efficiently. 

35

In a Multi-track: what documents are required before the CMC?

Multi-track claims are typically going to be subject to:

  • Costs management (CPR, r 3.12(1)); and
  • Menu option disclosure (r 31.5(2)).

Therefore, in these cases, in advance of a CMC the parties must file and serve:-

  • (a)        Draft proposed directions using the standard forms found on the Ministry of Justice website (rr 29.1 and 29.4). See APA Civil pages 169-170 for an example;

    (b)        Costs budgets. See APA Civil page 183; and

    (c)        Disclosure reports (APA Civil para 15.10). See APA Civil page 343.

36

What are the requirements of CPR r. 31.5 on Disclosure.

Disclosure

31.5

(3) Not less than 14 days before the first case management conference each party must file and serve a report verified by a statement of truth, which –

(a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;

(b) describes where and with whom those documents are or may be located;

(c) in the case of electronic documents, describes how those documents are stored;

(d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and

(e) states which of the directions under paragraphs (7) or (8) are to be sought.

(4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report required by paragraph (3).

(5) Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

(6) If –

(a) the parties agree proposals for the scope of disclosure; and

(b) the court considers that the proposals are appropriate in all the circumstances,

the court may approve them without a hearing and give directions in the terms proposed.

(7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure –

(a) an order dispensing with disclosure;

(b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;

(c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;

(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;

(e) an order that a party give standard disclosure;

(f) any other order in relation to disclosure that the court considers appropriate.

(8) The court may at any point give directions as to how disclosure is to be given, and in particular –

(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;

(b) whether lists of documents are required;

(c) how and when the disclosure statement is to be given;

(d) in what format documents are to be disclosed (and whether any identification is required);

(e) what is required in relation to documents that once existed but no longer exist; and

(f) whether disclosure shall take place in stages.

(9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8).

37

Case management bundle

38

Who should attend a CMC?

CPR, r. 29.3(2):

A representative familiar with the case and with sufficient authority to deal with any issues that are likely to arise must attend.

PD 29, para 5.2

If an inadequate lawyer attends, the court will usually make a wasted costs order.

39

What is the order of business of a CMC?

The judge:

  • considers the statements of case
  • allocates to a track (if not yet allocated)
  • checks on progress in preparing the case for trial
  • may require the parties to consider ADR
  • gives directions

40

What are directions?

Directions are a timetable for steps to be taken to prepare the case.

41

Are deadlines given for directions?

Deadlines must be given for each step, usually expressed as “no later than 4 pm on Friday [16 October 2015]”.

42

Can the parties agree directions?

To avoid having an actual directions hearing, the parties will often attempt to agree directions. This will be achieved if the court considers the directions suitable (CPR, r. 29.4). This will only be possible (PD 29, para 4.7) if the agreed directions:

  • set out a timetable by reference to calendar dates
  • include provision for disclosure of documents
  • include provision for factual and expert evidence
  • include a proposed trial date, or trial period

43

What is the overriding objective when making directions?

Directions; overriding objective; and costs budgets                   APA para 15.35

In making directions the court must:

Apply the overriding objective of dealing with cases justly and at proportionate cost

Have regard to any available costs budgets (r. 3.17(1)).

44

What are typical directions in fast track claims?

1. Lists of documents within 4 weeks

Requests for inspection of documents: 7 days

2. Exchange witness statements (for use at trial) within next 4 weeks

3.         Experts

  • Fields of the experts, and the issues the evidence will address
  • If practicable, their names
  • Need an estimate of the cost of the expert evidence
  • In fast track claims, typically a single jointly instructed expert

4.         Dates for sending pre-trial checklists to parties and for the parties to return checklists to court

5.         Trial date or window

(Fast track claims:  30 weeks from allocation to trial). Estimate for length of           trial

45

What are other common directions given?

Other common directions (and where they fit in), typical in multi-track claims

  • Amendment of statements of case
  • Requests for Further Information and answers
  • Lists of documents
  • Inspection of documents
  • Exchange of witness statements
  • Exchange of experts’ reports
  • Questions to be put to and answered by experts
  • Filing Pre-trial Checklists
  • Case summary
  • Estimates of costs

46

What is the purpose of directions?

  • ·Directions are made to ensure a workable timetable is laid down for the orderly progress of the litigation towards trial

  • Directions are aimed at the just resolution of the dispute, while keeping costs in proportion etc
  • The extent of the directions made, and the likely cost of complying with them, depends on which track applies, and overall considerations of how important the case is, how necessary the directions are
  • The court applies the general principle of “cards on the table”.  This means both sides must:
    • Show the other side their evidence before the trial
    • (Generally) disclose their evidence at (or about) the same time

47

What is the aim of the CPR re ADR?

WB Supplement 2013, p xii

"The aim is that, in general, no case should come to trial without the parties having undertaken some form of ADR to seek to settle the case. To assist in this process an ADR handbook will be published in April 2013."

(Sir Rupert Jackson)

48

What points did Halsey v MK General NHS Trust clarify?

Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002

  • Recognised the value of mediation, and that it can achieve excellent results
  • Rejected there is any presumption that mediation must be used
  • Parties must ‘consider’ ADR
  • Set out 7 factors that are used by the courts in deciding whether any refusal to use ADR was reasonable (set out in APA Civil, para 10.15).

49

What was the key question asked by Dyson LJ in Halsey?

"When should the court impose a costs sanction against a successful litigant on the grounds that he has refused to take part in alternative dispute resolution?"

50

What did the Court of Appeal in Halsey  have to say on the subject of court-ordered mediation?

Although Halsey involved inter-party mediation proposals and not where the court had itself recommended or ordered mediation, the Court of Appeal reaffirmed that ADR Orders in Commercial Court form, and also as used by Master Ungley in relation to clinical negligence cases were valid and worthy of wider application. 

51

What did the Court of Appeal in Halsey say could be the consequence of failing pursue a recommendation to mediate made by the court to mediate?

...could well of itself justify a costs sanction against a successful party.

52

What does Halsey confirm about the rule and exception of CPR 44.3(2)?

It makes it clear that although to deprive a successful party of costs is an exception to the CPR 44.3(2) that costs follow the event, the power still exists to do so on the basis of unreasonable conduct. Indeed, variations on traditional costs orders because of unreasonable litigation conduct, lack of proportionality or failure to win on certain issues and occupying court time doing so, have become commonplace since the CPR.

53

What six factors justifying refusel did the court idenfity in Halsey which might be relevant when determining costs issues?

  • The nature of the dispute, as to which the Court warned that "most cases are not, by their very nature, unsuitable for mediation."
  • The merits of the case, by which a party which reasonably believes it has a strong case might make refusal of mediation reasonable. Where a case is border-line, refusal is much riskier. In truth there are a vast number of cases which fall between those extremes, and little safe guidance is given there.
  • Other settlement methods have been attempted, though again the Court noted that"mediation often succeeds where other settlement attempts have failed", and it regards this reason as part of whether mediation has reasonable prospects of success (discussed below).
  • Costs of mediation would be disproportionately high ¸always a proper consideration late in a modest claim, but the cost benefit may be much better and justify mediation early in its life.
  • Delay to a trial date: this has never occurred in CEDR Solve's experience.
  • Whether mediation had a reasonable prospect of success, the burden of showing which lies with the unsuccessful party who proposed mediation, and not with the successful party who refused. This factor is actually rather played down by the Court in Halsey, since it may be the attitude of a party which means that mediation has no reasonable prospect of success. The burden is not regarded by the Court as being unduly onerous: the unsuccessful litigant must show that there was a reasonable prospect that the mediation would have succeeded. What amounts to 'success' in mediation remains open to debate.

54

What did Justice Lightman's say in Hurst v Leeming [2001] EWHC 1051 about the risk inherent in refusing to try ADR?

"Refusal is a high risk course to take… the hurdle in the way of a party refusing to proceed to mediation on this ground is high, for in making the objective assessment of the prospects of mediation, the starting point must surely be the fact that the mediation process itself can and does often bring about a more sensible and more conciliatory attitude on the part of the parties than might otherwise be expected to prevail before the mediation."

55

What is they key dictum in Halsey aimed at legal professionals?

Dyson LJ's judgement reads:
"All members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR."

56

What opportunities are there to stay the proceedings in order to try and settle at the preliminary stage of proceedings?

Stay to allow for settlement of the case

26.4

(1) A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed(GL) while the parties try to settle the case by alternative dispute resolution(GL) or other means.

(2) If all parties request a stay the proceedings will be stayed for one month and the court will notify the parties accordingly.

(2A) If the court otherwise considers that such a stay would be appropriate, the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it considers appropriate.

(3) The court may extend the stay until such date or for such specified period as it considers appropriate.

(4) Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached.

(5) If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached, the court will give such directions as to the management of the case as it considers appropriate.

 

57

What are the steps in civil claims?

  1. Pre-action Protocol
  2. Issue claim form
  3. Service of claim form and Particulars of Claim
  4. Acknowledgment of service (optional)
  5. Defence
  6. Reply (optional)
  7. Provisional track allocation
  8. Directions questionnaires
  9. Track allocation and directions
  10. Disclosure report and electronic documents questionnaires (multi-track)
  11.  Case management conference (optional)
  12. Lists of documents
  13. Inspection of documents
  14. Witness statements
  15. Experts’ reports
  16. Without prejudice meeting of experts
  17. Pre-trial checklists
  18. Listing for trial
  19. Pre-trial review (optional)
  20. Briefing of counsel
  21. Preparation of trial bundles and skeleton arguments
  22. Trial

58

What is a partnership?

Partnership is the relation which subsists between persons carrying on a business in common with a view of profit: Partnership Act 1890, s 1.

Note: "firm" is the legal shorthand of "partnership".

59

Does a partner have the power to bind a firm?

Every partner is an agent of the firm and the other partners for the purpose of the business of the partnership: Partnership Act 1890, s 5.

60

Is are partners liable for the debts and liability of other partners?

Every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he was a partner: PA 1890, s 9.

61

How is a claim against a partnership acknowledged?

PD 10 para 4.4. provids that where a claim is brought against a partnership,

 

a) service must be acknowledged in the name of the aprtnership on behalf of all persons who were partners at the time when the cause of action accrued; and

b) the acknowledgment of service may be signed by any of those partners or by any person authorised by any of those partners to sign it 

62

How do you put down the name of a partnership on headings?

HUNT & MURRAY (a firm)

Claimant

Also possible if the firm uses a trading name:

BOISTEROUS & Co (a firm)

Claimant

63

What is a partnership membership statement?

Partnership membership statements

PD 7A para 5B

5B.1  In this paragraph a ‘partnership membership statement’ is a written statement of the names and last known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued, being the date specified for this purpose in accordance with paragraph 5B.3.

5B.2  If the partners are requested to provide a copy of a partnership membership statement by any party to a claim, the partners must do so within 14 days of receipt of the request.

5B.3  In that request the party seeking a copy of a partnership membership statement must specify the date when the relevant cause of action accrued.

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Who is a sole trader?

You need at least two persons to be a partnership. A person trading on their own cannot be a partnership, even if they use a trading name. They are a "sole trader". Any trading name is just a pseudonym for the person in question.

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How do you sue in the business name of a partnership?

PD 7A para 5C

5C.1  This paragraph applies where –

(1) a claim is brought against an individual;

(2) that individual carries on a business within the jurisdiction (even if not personally within the jurisdiction); and

(3) that business is carried on in a name other than that individual’s own name (‘the business name’).

5C.2  The claim may be brought against the business name as if it were the name of a partnership.

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What is the name of a sole trader in proceedings? 

 

Name in Proceedings

                        Mr JOHN HUNT (trading as BOISTEROUS & Co)              Claimant

 

Also possible given PD 7A, para 5C.2:

                                                BOISTEROUS & Co (a firm)                         Claimant

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