Parties to proceedings Flashcards
(27 cards)
Claims are brought against a partnership where…
There are 2 or more people who were partners and carried on the partnership business at the time when the cause of action accrued.
If claim being brought against partnership…
should be brought against name under which partnership carried on business at time cause of action accrued unless inappropriate to do so.
it may be inappropriate to bring claim against name of partnership if…
there have been multiple name changes or multiple mergers, hence it would be clearer to identify partners by their individual names.
Is the partnership a separate legal identity?
NO
if the partnership dissolves before proceedings are issued…
claim is made against former partners in the name of the dissolved firm.
For bringing claim against sole traders…
both individual and trading name used.
When bringing a claim against an LLP or company…
full registered name (including the suffix ‘LLP’ ‘plc’ or ‘limited’) is used.
A company may be represented by an employee at trial if:
-employee has been authorised to do so by company.
-court gives permission.
bringing claim against trusts
-not necessary to add beneficiaries of trust as parties to claim.
-any order made in claim is binding on beneficiaries unless court orders otherwise.
bringing claim against deceased persons who had an interest in a claim
if they have no personal representative the court may order:
* The claim to proceed in the absence of a person representing the estate of the deceased; or
* A person to be appointed to represent the estate of the deceased.
if a defendant against whom a claim could gave been brought has die:
- If a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased.
- If a grant of probate or administration has not been made:
- the claim must be brought against ‘the estate of’ the deceased; and
- the claimant must apply to the court for an order appointing a person to
represent the estate of the deceased in the claim.
children and protected parties (persons lacking capacity)…
are legally incapable of pursuing claims on their own behalf and are represented by a litigation friend unless court makes an order permitting child to conduct proceedings without a litigation friend.
a person may act as a litigation friend provided they:
-can fairly and competently conduct proceedings on their behalf.
-have no adverse interest to child/protected party.
-undertakes to pay any costs which child/protected party may be ordered to pay subject to any right he may be repaid from assets of the party.
Often appointments for a litigation friend are made without court order by
filing and
serving of a certificate of suitability demonstrating that the litigation friend satisfies the criteria either at the time the claim is made or when the child takes the first step in the proceedings.
for a protected party, the Court of Protection may
appoint someone to
conduct proceedings on the protected party’s behalf
A person cannot make an application against a child or a protected party before
proceedings have started or take any step in the proceedings unless the child or protected party has a litigation friend (except for issuing and serving a
claim form or to apply for the appointment of a litigation friend by court order).
Serving documents on children/protected parties
documents must be served on litigation friend.
What happens if during proceedings
a party lacks capacity to continue to
conduct proceedings?
No party may take a further step in the proceedings without the permission of the court until the protected party has a litigation friend.
What are the consequences of no litigation friend?
Any step taken before a child or protected party has a litigation friend has no effect unless the court orders otherwise.
Child/protected party is referred to in the claim form as being represented by their litigation friend e.g…
Alice Brown (a child/protected party, suing by Kate Brown her mother and litigation
friend).
settlement, compromise, payment or acceptance of money paid into court is
not valid for
a claim brought by or against a child or protected party without the approval of the court.
Where a settlement or compromise is reached before proceedings have been commenced…
proceedings should be commenced under CPR 8 and court’s approval of settlement/compromise should be requested.
A claimant child or protected party,
through his/her litigation friend, is obliged to file certain documents so settlement can be approved:
- Details of the claim
- Terms of the settlement with attached draft consent order (using form N292)
- Details of whether and to what extent the defendant admits liability
- Age and occupation (if any) of the child or protected party
- Litigation friend’s approval of the proposed settlement
- Copy of any financial advice on the proposed settlement
In PI claims arising from an accident…
medical and quantum reports and joint
statements material to the opinion of counsel or a solicitor as to quantum must also be filed.
