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Parties to proceedings Flashcards

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1
Q

What must the claim form include regarding the parties?

A

The full name of each party.

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2
Q

How should individuals generally be referred to in a claim form?

A

Using their full unabbreviated name and title (e.g.

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3
Q

Against whom are claims brought when suing a partnership?

A

The partnership under the name it carried on business at the time the cause of action accrued

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4
Q

Why is using the firm name of a partnership for claims convenient?

A

Because it is shorthand for listing partners individually; the partnership is not a separate legal entity.

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5
Q

What is a compromise solution when suing a partnership if enforcement against personal assets might be needed?

A

Use the partnership’s name and set out the individual names of the partners.

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6
Q

How should a partnership (other than an LLP) be fully named when partners are sued in the partnership name?

A

The full name by which the partnership is known.

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7
Q

How should a partnership (other than an LLP) be fully named when partners are sued as individuals?

A

The full unabbreviated names of each partner.

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8
Q

If a partnership dissolves before proceedings are issued

A

against whom is the claim made?

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9
Q

When can a claim be brought against a business name as if it were a partnership?

A

If a claim is brought against an individual carrying on business within the jurisdiction in a name other than their own (CPR 7A PD 5C).

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10
Q

How are sole traders commonly referred to when describing a party to a claim?

A

Commonly both the individual and trading name are used (e.g.

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11
Q

Is an LLP a separate legal entity from its members?

A

Yes

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12
Q

What is the extent of liability for the debts of an LLP?

A

The LLP is liable for all its debts to the full extent of its assets.

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13
Q

How should an LLP registered in England and Wales be named in a claim?

A

The full registered name

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14
Q

What must be included in the full registered name of a company registered in England and Wales in a claim form?

A

The suffix (such as plc or limited)

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15
Q

Under what conditions can a company employee represent the company at trial?

A

If the employee has been authorised by the company and the court gives permission.

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16
Q

Who can bring or defend a claim on behalf of a trust or estate?

A

Trustees

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17
Q

Is it necessary to add beneficiaries of a trust or estate as parties to the claim?

A

No (CPR 19.12(3)).

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18
Q

Is an order made in a claim involving trustees

A

executors

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19
Q

What happens if a person with an interest in a claim dies and has no personal representative (CPR 19.12(1))?

A

The court may order the claim to proceed without a representative or appoint someone to represent the estate.

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20
Q

If a defendant against whom a claim could have been brought has died and probate/administration has been granted

A

against whom must the claim be brought (CPR 19.12(2))?

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21
Q

If a defendant against whom a claim could have been brought has died and probate/administration has not been granted

A

against whom must the claim be brought (CPR 19.12(2))?

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22
Q

What must a claimant do if they are bringing a claim against ‘the estate of’ a deceased person where no grant of probate/administration has been made (CPR 19.12(2))?

A

Apply to the court for an order appointing a person to represent the estate.

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23
Q

Who are legally incapable of pursuing claims on their own behalf?

A

Children (under 18) and protected parties (lack capacity under the Mental Capacity Act 2005).

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24
Q

What is the definition of a child in civil proceedings (CPR 21.1(2))?

A

Any person under the age of 18 years.

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25
What is the definition of a protected party in civil proceedings (CPR 21.2(1))?
Any person who lacks capacity to conduct the proceedings within the meaning of the Mental Capacity Act 2005.
26
What is the presumption regarding the capacity of an adult?
An adult is presumed to have capacity until the contrary is proved.
27
Who bears the burden of proving that an adult lacks capacity?
Whoever asserts incapacity.
28
What must legal advisors be satisfied of regarding a party's capacity?
That the party is capable of understanding the issues and making decisions with proper explanation.
29
What are the key questions legal advisors should ask to determine a party's capacity (Martin Masterman-Lister case)?
Can the person recognise the problem? Can they explain it clearly? Can they understand and evaluate advice? Can they understand the effects of choices and give instructions?
30
Who represents children and protected parties in civil proceedings (CPR 21.2)?
A litigation friend.
31
What are the criteria for a person to act as a litigation friend (CPR 21.4(3))?
They must be able to fairly and competently conduct proceedings
32
How is a litigation friend often appointed without a court order?
By filing and serving a certificate of suitability (CPR 21.4(3)).
33
When is a certificate of suitability for a litigation friend filed if the child/protected party is the claimant?
At the time the claim is made.
34
When is a certificate of suitability for a litigation friend filed if the child/protected party is the defendant?
When the child takes the first step in the proceedings.
35
Who else
besides relatives or court-appointed individuals
36
Can a court ever permit a child to conduct proceedings without a litigation friend (CPR 21.2(3))?
Yes
37
On whom must documents for a child or protected party be served (CPR 6.25)?
On the litigation friend.
38
What is the exception to serving documents on the litigation friend for a child or protected party?
For an application for an order to appoint a litigation friend
39
Can an application be made against a child or protected party before proceedings start if they don't have a litigation friend (CPR 21.3)?
No.
40
Can a step be taken in proceedings if a child or protected party does not have a litigation friend (CPR 21.3)?
No
41
What is the exception to the rule that no step can be taken if a child/protected party lacks a litigation friend?
To issue and serve a claim form or to apply for the appointment of a litigation friend by court order.
42
What happens if a party lacks capacity to continue proceedings during the case (CPR 21.3(3))?
No further step can be taken without court permission until the protected party has a litigation friend.
43
What is the consequence of taking a step before a child or protected party has a litigation friend (CPR 21.3(4))?
Any step taken has no effect unless the court orders otherwise.
44
How is a child referred to in the title to proceedings (CPR 21.2 (6) and (7))?
As being represented by their litigation friend (e.g.
45
How is a protected party referred to in the title to proceedings (CPR 21.2 (6) and (7))?
As being represented by their litigation friend (e.g.
46
Is a settlement for a claim by or against a child or protected party valid without court approval (CPR 21.10(1))?
No.
47
How is court approval sought for a settlement reached before proceedings have begun for a child or protected party (CPR 21.10(2))?
Proceedings should be commenced under CPR 8
48
What documents must a claimant child or protected party file with the claim when seeking approval for a pre-action settlement (CPR 21.10.(3))?
Details of the claim
49
What additional documents are required in a personal injury case for pre-action settlement approval for a child or protected party (CPR 21.10(3)-(4))?
Medical and quantum reports
50
How is court approval sought for a settlement reached after proceedings have been issued for a child or protected party?
An application must be made to the court.
51
What must be supplied to the court when seeking approval for a post-proceedings settlement for a child or protected party?
The prescribed opinion as to quantum of counsel or a solicitor and documentary evidence material to that opinion (CPR 21.10(3)).
52
What happens to monies recovered by or on behalf of a child or protected party (CPR 21.11(1))?
The monies must be dealt with in accordance with the court’s directions.
53
Who is responsible for protecting the property of protected parties under the Mental Capacity Act 2005?
The Court of Protection.
54
What must be provided for in any settlement involving a protected party?
The Court of Protection's fees for administering funds.
55
What happens when a protected party regains capacity and has funds administered by the Court of Protection?
An application for payment out of funds must be made to the Court of Protection.
56
What directions might the court give regarding money invested for a child?
Directions as to the type of investment
57
What might the court order if a small amount of money is recovered for a child?
It may order it to be paid directly to the litigation friend to be put into a building society account for the child.
58
When are monies invested in court for a child usually paid out?
When the child reaches 18 years old.
59
Can the court order monies recovered for a child to be invested elsewhere than the special investment account?
Yes
60
What must the claim form include regarding the parties?
The full name of each party.
61
How should individuals generally be referred to in a claim form?
Using their full unabbreviated name and title (e.g.
62
Against whom are claims brought when suing a partnership?
The partnership under the name it carried on business at the time the cause of action accrued
63
Why is using the firm name of a partnership for claims convenient?
Because it is shorthand for listing partners individually; the partnership is not a separate legal entity.
64
What is a compromise solution when suing a partnership if enforcement against personal assets might be needed?
Use the partnership's name and set out the individual names of the partners.
65
How should a partnership (other than an LLP) be fully named when partners are sued in the partnership name?
The full name by which the partnership is known.
66
How should a partnership (other than an LLP) be fully named when partners are sued as individuals?
The full unabbreviated names of each partner.
67
If a partnership dissolves before proceedings are issued
against whom is the claim made?
68
When can a claim be brought against a business name as if it were a partnership?
If a claim is brought against an individual carrying on business within the jurisdiction in a name other than their own (CPR 7A PD 5C).
69
How are sole traders commonly referred to when describing a party to the claim?
Commonly both the individual and trading name are used (e.g.
70
Is an LLP a separate legal entity from its members?
Yes
71
What is the extent of liability for the debts of an LLP?
The LLP is liable for all its debts to the full extent of its assets.
72
How should an LLP registered in England and Wales be named in a claim?
The full registered name
73
What must be included in the full registered name of a company registered in England and Wales in a claim form?
The suffix (such as plc or limited)
74
Under what conditions can a company employee represent the company at trial?
If the employee has been authorised by the company and the court gives permission.
75
Who can bring or defend a claim on behalf of a trust or estate?
Trustees
76
Is it necessary to add beneficiaries of a trust or estate as parties to the claim?
No (CPR 19.12(3)).
77
Is an order made in a claim involving trustees
executors
78
Under which CPR part are the rules for deceased persons found?
CPR 19.8.
79
What happens if a person with an interest in a claim has died and has no personal representative (CPR 19.8(1))?
The court may order the claim to proceed without a representative or appoint someone to represent the estate.
80
If a defendant against whom a claim could have been brought has died and probate/administration has been granted
against whom must the claim be brought (CPR 19.8(2))?
81
If a defendant against whom a claim could have been brought has died and probate/administration has not been granted
against whom must the claim be brought (CPR 19.8(2))?
82
What must a claimant do if they are bringing a claim against ‘the estate of’ a deceased person where no grant of probate/administration has been made (CPR 19.8(2))?
Apply to the court for an order appointing a person to represent the estate.
83
Who are legally incapable of pursuing claims on their own behalf?
Children (under 18) and protected parties (lack capacity under the Mental Capacity Act 2005).
84
What is the definition of a child in civil proceedings (CPR 21.1(2))?
Any person under the age of 18 years.
85
What is the definition of a protected party in civil proceedings (CPR 21.2(1))?
Any person who lacks capacity to conduct the proceedings within the meaning of the Mental Capacity Act 2005.
86
What is the presumption regarding the capacity of an adult?
An adult is presumed to have capacity until the contrary is proved.
87
Who bears the burden of proving that an adult lacks capacity?
Whoever asserts incapacity.
88
What must legal advisors be satisfied of regarding a party's capacity?
That the party is capable of understanding the issues and making decisions with proper explanation.
89
What are the key questions legal advisors should ask to determine a party's capacity (Martin Masterman-Lister case)?
Can the person recognise the problem? Can they explain it clearly? Can they understand and evaluate advice? Can they understand the effects of choices and give instructions?
90
Who represents children and protected parties in civil proceedings (CPR 21.2)?
A litigation friend.
91
What are the criteria for a person to act as a litigation friend (CPR 21.4(3))?
They must be able to fairly and competently conduct proceedings
92
How is a litigation friend often appointed without a court order?
By filing and serving a certificate of suitability (CPR 21.4(3)).
93
When is a certificate of suitability for a litigation friend filed if the child/protected party is the claimant?
At the time the claim is made.
94
When is a certificate of suitability for a litigation friend filed if the child/protected party is the defendant?
When the child takes the first step in the proceedings.
95
Who else
besides relatives or court-appointed individuals
96
Can a court ever permit a child to conduct proceedings without a litigation friend (CPR 21.2(3))?
Yes
97
Under which CPR part are the special provisions for service on children and protected parties found?
CPR 6.25.
98
On whom must documents for a child or protected party be served (CPR 6.25)?
On the litigation friend.
99
What is the exception to serving documents on the litigation friend for a child or protected party?
For an application for an order to appoint a litigation friend
100
Under which CPR part is it stated that a person cannot make an application against a child or protected party before proceedings have started without a litigation friend?
CPR 21.3.
101
Can a step be taken in proceedings if a child or protected party does not have a litigation friend (CPR 21.3)?
No
102
What are the exceptions to the rule that no step can be taken if a child/protected party lacks a litigation friend?
To issue and serve a claim form or to apply for the appointment of a litigation friend by court order.
103
What happens if a party lacks capacity to continue proceedings during the case (CPR 21.3(3))?
No further step can be taken without court permission until the protected party has a litigation friend.
104
What is the consequence of taking a step before a child or protected party has a litigation friend (CPR 21.3(4))?
Any step taken has no effect unless the court orders otherwise.
105
Under which Practice Direction are the rules for referring to children and protected parties in the title to proceedings found?
21 PD 1.1 and 1.2.
106
How is a child referred to in the title to proceedings (21 PD 1.1 and 1.2)?
As being represented by their litigation friend (e.g.
107
How is a protected party referred to in the title to proceedings (21 PD 1.1 and 1.2)?
As being represented by their litigation friend (e.g.
108
Is a settlement for a claim by or against a child or protected party valid without court approval (CPR 21.10(1))?
No.
109
Under which CPR part is court approval required for settlements involving children and protected parties?
CPR 21.10.
110
What will the court do with money recovered by or on behalf of a child or protected party?
Make directions about it.

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