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Flashcards in SGS1 Deck (19):
1

Which court?

Both the High Court and County Court have jurisdiction – claim for more than £100,000: PD7A para 2
Para 2.4 for factors which make a case suitable for the HC: financial value of the claim, complexity of law, facts, procedure or remedies, importance of outcome for the public

Commercial Court r 58.1(2) and Mercantile Court r 59.1(2), : both specialist courts of the Queen’s Bench Division
Both appropriate because of the commercial nature of the claim

2

Which are the specialist courts?

Administrative Court
(includes New Planning Court) )
Admiralty Court )
Commercial Court ) QBD
Mercantile Courts )
Technology and Construction Court )
Designated Financial List Judges: both QBD & ChD
Companies Court )
Bankruptcy ) ChD
Patents Court )
Intellectual Property Enterprise Court)

3

What should happen before issuing proceedings?

The parties should follow the relevant pre-action protocol (‘PAP’)
There is no specific PAP for: contractual claims, for the Commercial Court, or for the Mercantile Court
Where there is no designated PAP, the PD Pre-Action Conduct and Protocols applies
WB cumulative supplement (p73)

4

Pre-action protocols (PAPs)

PD – Pre-Action Conduct
Personal Injury
Resolution of Clinical Disputes
Construction and Engineering Disputes
Defamation
Professional Negligence
Judicial Review

5

PAPs …

Disease and Illness
Housing Disrepair
Possession Claims by Social Landlords
Possession Claims based on Mortgage arrears
Dilapidation of Commercial Property
Low Value PI claims in RT accidents (not ˃ £25,000)
Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (not ˃ £25,000)

See: WB cumulative supplement p76

6

Purpose of a Pre-action Protocol

The parties should exchange sufficient information to
Understand each other’s positions
Make decisions about how to proceed
Try and settle without issuing proceedings
Consider a form of ADR to assist with settlement
Support the efficient management of proceedings (if they do are issued)
Reduce the costs of resolving the dispute
Para 3 PD Pre-Action Conduct and Protocols

7

Overview of stages of PD Pre-Action Conduct

Provide relevant information
Including relevant documents in support
So comply with the objectives at para 3 of the PD
If expert evidence required, consider single, jointly instructing one
Consider ADR, at all stages, including once litigation started
Be able to provide evidence that ADR has been considered
Take stock of the issues in dispute again before issuing proceedings
Steps taken should be reasonable and proportionate as should the costs of taking them

8

Q 2: How the Court furthers the Overriding Objective

By active case management
Encouraging parties to co-operate
Early Identification of the issues
Prompt decisions on which issues need full investigation
Disposing summarily of the others
Deciding the order of resolving issues
Encouraging parties to use ADR and facilitating its use
Helping parties to settle whole or part of case
Fixing timetables and controlling the progress of the case
Cost benefit analysis of taking particular step
Dealing with as many matters as possible on same occasion
Dealing with matters in the absence of the parties
Using technology
Giving directions so trial proceeds quickly and efficiently
CPR r.1.4

9

Summary of Q 3: Service of CF

How much time is left for service?: About 1 month CPR r 7.5(1)
What documents?
Claim form with PoC on/attached or to follow within 14 days
With PoC: response pack, (because a pi case) medical report and schedule of past and future loss PD 16 para 4
Where? Serve on solicitors who have said they are authorised to accept service: r.6.7.
Entitled to serve by email? Yes, if solicitors overtly agreed to this: r.6.3(1)(d) and PD 6A para 4. (In the WB PD references are set out slightly differently: 6APD.4).

10

Permissible Methods of Service r.6.3ie how (when service is not effected by the Court)

Personal Service
On party’s solicitor
First class post / next day delivery service
Leaving documents at address for service (which may have been specified, r 6.7 & r 6.8, or as provided by r 6.9)
Document exchange
Fax or e-mail (note: different rules apply for each: PD 6A para 4.1)
By alternative method permitted by Court
By a method agreed contractually between the parties
See: hierarchy of service APA Civil 6.18

11

Hierarchy of service – questions which might help you remember it

Is personal service required here?
If not, have I been notified by D or his solicitors that service should be at his solicitors’ address?
If not, has D given me another address for service (which is where he resides or carries on business and is in the UK or an EEA state)?
Even so, do I want to serve him personally?
If none of these, what is his usual or last known home or business address

12

Question 4:Deemed service of Claim Form

When is claim form deemed to be served on Henry Jennings, if posted on Tuesday 29 September 2015?

[A] Wednesday 30 Sep; [B] Thursday 1 Oct; [C] Friday 2 Oct; [D] Saturday 3 Oct

Why?
And if he never got it?

13

Deemed service of Claim Form …/

What if service had been on Friday 25 September?

[A] Saturday 26 Sep; [B] Sunday 27 Sep; [C] Monday 28 Sep; [D] Tuesday 29 Sep

Why?

14

Deemed service

For a claim form: r 6.14, 2nd business day after relevant step
For a document which is NOT a claim form, see: Table at r 6.26, and see PD6A, para 10

Service of documents other than Claim form:
See: rr.6.20-6.22

15

Supplementary topics: 4(i) and (ii)

Where to serve?:
to an address given by Henry for service:
r.6.8(a)
What if there’s a doubt about D’s address?
C must take reasonable steps to ascertain D’s current address
If reason to believe last known address no longer current: r.6.9(3)

16

Question 5: Suing a partnership, a LLP, a company

Include the full name of the party: PD16, para 2.6
Sue a partnership in its name, plus (a Firm) PD7A para 5A and PD16 para 2.6(c): Best Electrical Systems (a Firm)
Sue a company or LLP as the full registered name plus the suffix: Best Electrical Systems LLP, Best Electrical Systems plc, Best Electrical Systems Limited PD16 para 2.6(d)

17

Service on a company: r 6.3(2)

Either: by any methods under CPR Part 6 (see: personal: r 6.5(3(b), at solicitors’ etc r 6.7, no address given: principal office or place of business with real connection with the claim r 6.9) – check hierarchy of service
Or: as provided in the Companies Act 2006 (see s.1139)
Leaving at or
Sending by post to
Registered office
Note: deemed service under rr.6.14 and 6.26 only apply to Part 6 service.

18

Principles from cases on extension of time for serving claim form WB 7.6.2 and 7.6.3
NOTE: You do NOT need to know these case names for the Civ Lit exam; they have been included so you can identify where they are in the commentary.

WB commentary paras 7.6.2:
• no test is set out in this part of the rule (ie r.7.6(2)

• the discretion to extend under r.7.6(2) should be exercised in accordance with the overriding objective (from Hashtroodi v Hancock )

• A good/valid reason must be advanced Collier v Williams, Hashtroodi v Hancock WB commentary 7.6.2, first para

• The reason for the failure/inability to serve within a specified period is a highly material factor. The weaker the reason, the more likely the court will be to refuse the extension. Or the better the reason, the more likely the court will be to grant the application! . WB commentary 7.6.2 (2nd para)

• But, generally the reason must be a difficulty in effecting service: Cecil v Bayat [2011] EWCA Civ 135 WB commentary 7.6.2 (last para on p386)

• The issue of limitation is a crucial one. The primary question was whether, if an extension of time were granted, the D would or might be deprived of a limitation defence: Cecil v Bayat

• Defendants have a right to be sued by an originating process issued within the statutory limitation period and served within the period of its initial validity (notes on Cecil v Bayat).

• If there is a good reason, the court should then balance the hardship between the parties in either granting or refusing the application.

19

WB commentary para 7.6.3:

• The court will focus on what reasonable steps have been taken

• Those steps should have taken within the 4 month period (Drury v BBC & Carnegie [2007], bottom of p387)

• An example of the extent of taking reasonable steps: reasonable steps must be taken to locate a D before serving on their last known address (Mersey Dock etc v Kilgour [2004], 5th para down)

• The court always frowns on things done at the last possible moment (or beyond it) eg In Vinos v Marks & Spencer plc [2001] 3 All ER 784, the C served the claim form a week out of time; despite the fact that the D had admitted liability and made an interim payment, the court did not give permission to proceed, because the C’s solicitors offered no good reason for the late service of the claim form (first para of commentary) (1st para)