Parties to Proceedings Flashcards
(21 cards)
Why is it important to identify the correct parties in a civil claim?
The claim form must state the full name of each party; incorrect identification may cause issues in service, enforcement, or validity of proceedings.
How should individuals be named in proceedings?
Use full, unabbreviated names and titles (e.g., Mr Stephen James Smith).
Can a dissolved partnership be sued?
Yes. Claims are brought against the former partners in the name of the dissolved firm.
How are claims brought involving trusts?
Against or by the trustees; beneficiaries do not need to be named
Can claims be brought against deceased persons?
Yes.
- If there is a personal representative, sue them.
- If not, sue “the estate of” the deceased and apply for a representative
Who is a child under CPR?
Anyone under 18 years old
Who is a protected party?
A person lacking capacity to conduct proceedings due to impairment or disturbance
What presumption applies to adults regarding capacity?
Adults are presumed to have capacity unless the contrary is proven.
When is a litigation friend required?
For all proceedings involving children or protected parties, unless court orders otherwise
What are the criteria for being a litigation friend
- Must fairly and competently conduct proceedings
- Have no adverse interest
- If acting for a claimant, must undertake to pay costs (recoverable from the child’s/protected party’s assets)
How is a litigation friend appointed?
- By filing a certificate of suitability (without court order)
- By court order (if required under CPR 21.6)
- Via the Court of Protection (for protected parties)
Can a child act without a litigation friend?
Yes, but only if permitted by the court
How must documents be served on children/protected parties?
On their litigation friend
Can a step be taken against a child or protected party before they have a litigation friend?
No. Only issuing/serving a claim or applying for a litigation friend is allowed
Can a settlement be made without court approval for a child/protected party?
No. Court approval is always required
How is court approval sought before proceedings are issued?
Issue under CPR 8, file required documentation (e.g., claim details, settlement terms, financial advice, medical reports).
What must be included in a court approval application?
- Details of claim and settlement
- Approval from litigation friend
- Age and occupation
- Medical evidence and schedule of loss
- Quantum opinion from counsel/solicitor
What if a settlement arises after proceedings are issued?
An application to the court must be made to approve it
What happens to money recovered for a child or protected party?
The court will give directions which may include:
- Paying into court
- Investing
- Payment for expenses
- Creation of personal injury trusts
Who manages funds for a protected party?
The Court of Protection
What happens to funds when a child turns 18?
Funds held in court are paid out to them.
