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Flashcards in SGS2 Deck (33):
1

Proceedings brought by a litigation friend – for a child or protected person: r.21.2

James is a minor (child = under 18)
Proceedings must be brought, or defended by a litigation friend ‘Master James Williams (a child, by Mrs Jane Williams, his litigation friend)

2

Settlement procedure - r.21.10

If proceedings issued, court’s permission must be sought r.21.10
In practice, court’s permission will be sought even if no proceedings – to create a binding agreement

Litigation friend: r.21.4

3

Part 8: when does it apply

Where a C seeks the court’s decision on a question
Which is NOT likely to involve a substantial dispute of fact: r.8.1(2)
BUT provided there is not PD forbidding the use of Part 8: r.8.1(4)!
Where a rule or PD requires or permits the use of Part
For approval of a settlement for a child or protected party (as in Q5)
For a claim for provisional damages, settled before proceedings have begun: PD8 para 3.1
Where a rule, statute or PD says the claim should be brought by originating summons/application (the RSC version of this) PD 8 para 3.3

4

Q2: serving on an individualbeing sued in name of business

Gail is wrong, she did not effect personal service under r.6.5
But service has been properly effected under the CPR r 6.9:
service on an individual being sued in the name of a business
by leaving the claim form at his principal or last known place of business
2nd box down at Table at r.6.9

5

Time for service of claim form?

service has been effected in time; relevant step has been completed by midnight on the last day for service: r.7.5
Deemed date of service of the CF?
Tuesday 29 September.
Does it matter that this is outside the 4 month period under r 7.5?
No: the step must be taken within the period: see WB commentary 6.16.3
BUT: Gail also needs to serve the PoC within the 4 month period: r 7.4(2)

6

Q 2: If claim form delivered onTuesday 29 Sep 2015?

Advice would be different
Service would have been attempted late
CF no longer valid for service: r 7.5

7

What applications could be made where there are problems with service?

Apply to extend time for service of/renew the claim form: r.7.6
Seek an order that alternative has already been effected under: r.6.15
Seek an order for service to be dispensed with under : r.6.16

8

Extending time for service of the claim form: r.7.6(3)

Application made after claim form has expired
r.7.6(3) applies here
(a) not relevant here (court failing to serve CF)
(b) has C taken all reasonable steps to serve the CF in time under r.7.5, but not been able to do so?
(c) Has C made application promptly?

9

WB commentary at 7.6.3

Authorities reveal: the steps must be those taken within the 4 month period; the court will not look favourably on Cs who leave it to the last minute to attempt service (and then get into difficulties); ultimately, there must be a good reason why service could not be effected; it is very difficult to succeed on these applications
WB commentary paras 7.6.3

10

Alternative service?

Alternative service of the claim form:
Power to order by an alternative method or at an alternative place: r.6.15
Test: Is there a good reason?
Will it get to the attention of the D? PD6A para 9
Procedure: r.6.15(3) and PD6A, para 9
application supported by evidence, stating:
Reason why order is sought and the proposed alternative method/place of service and why it is believed it will get to the attention of D in this way
- may be made without notice
You need Notes from the PD

11

WB commentary at 7.6.3

Authorities reveal: the steps must be those taken within the 4 month period; the court will not look favourably on Cs who leave it to the last minute to attempt service (and then get into difficulties); ultimately, there must be a good reason why service could not be effected; it is very difficult to succeed on these applications
WB commentary paras 7.6.3

12

Alternative service?

Alternative service of the claim form:
Power to order by an alternative method or at an alternative place: r.6.15
Test: Is there a good reason?
Will it get to the attention of the D? PD6A para 9
Procedure: r.6.15(3) and PD6A, para 9
application supported by evidence, stating:
Reason why order is sought and the proposed alternative method/place of service and why it is believed it will get to the attention of D in this way
may be made without notice
You need Notes from the PD

13

Alternative service and Q 2: service of CF on 29 September

However, this is not an appropriate application here
C has served the claim form late, after it has expired
Gail is not seeking an order for service by an alternative method or at an alternative place.
r.6.15 can’t be used to cure late service

14

Dispensing with service of the claim form?

Power r.6.16
Test: exceptional circumstances
Particularly difficult here because application is for retrospective dispensation
See examples at APA Civil at 6.38

15

Chronology: Q3

38 months ago Accident (Aug 2012)
30 months ago Negotiations commenced
7 Dec 2014 Claim form issued by Hugh
? Dec 2014 Julia’s sols ask for 14 days’ notice before CF served
1 April 2015 DJ’s order renewing claim form for 8 months
7 April 15 Last day of original validity
Aug 15 End of limitation period
19 Aug 15 Last offer by D (8 weeks ago)
2 Sep 15 Notice of intention to serve (6 weeks ago)
16 Sep 15 Service of the claim form (4 weeks ago)
14 Oct 15 Today (say)
2 Dec 2015 Extended period of validity will expire (from facts)

16

Q 3:Factors to be taken into account on granting the extension of time for service of CF

Claim form to be served 4 months after issue: r.7.5
Applications to extend must generally be made whilst CF is valid: r.7.6(2)
This is the case here
No test is set out in the rule
Discretion should be exercised in accordance with overriding objective

17

Factors for extending time for service…/

A valid/good reason should be advanced
As the reason is highly material
Generally the reason must be difficulty in effecting service
Ds have a right to be sued within the limitation period
If there is a good reason, court will balance the hardship between the parties in either granting or refusing the extension of time
Further Notes on WB 7.6.2 on Moodle at end of week

18

Q3(a): application to facts

We are not given any reason
but there does not appear to be any difficulty in effecting service
it looks as though Hugh’s solicitors were buying more time to continue negotiating
Court should also ask:
if any extension of time was appropriate, how long should it be?
and what is the justification for that?

19

Q3(b): What evidence should have been provided to the court?

Must support with evidence: r.7.6(4)(a)
including all the circumstances relied on,
date of issue of the CF,
expiry of any extension already granted under r.7.6
and full explanation as to why claim has not been served
PD 7A para 8

20

Q 3(c): What factors will the court now consider on the application to discharge the order?

Should the extension have been granted?
(ie look again at the merits)
Apply the overriding objective to seek to deal with the case justly and at proportionate cost
Consider whether the D has been prejudiced by the delay: this was considered on the facts in Hoddinnot v Persimmon Homes (WB p386)
Here: Hugh had no good reason linked to difficulties in service (delay was for negotiating); but Julia was fully aware of the nature of the claim (had been negotiating for 8 months), so no apparent prejudice.
See: Part 11 and APA from 12.13 for further background

21

Q3(a): application to facts

We are not given any reason
but there does not appear to be any difficulty in effecting service
it looks as though Hugh’s solicitors were buying more time to continue negotiating
Court should also ask:
if any extension of time was appropriate, how long should it be?
and what is the justification for that?

22

Q3(b): What evidence should have been provided to the court?

Must support with evidence: r.7.6(4)(a)
including all the circumstances relied on,
date of issue of the CF,
expiry of any extension already granted under r.7.6
and full explanation as to why claim has not been served
PD 7A para 8

23

Q 3(c): What factors will the court now consider on the application to discharge the order?

Should the extension have been granted?
(ie look again at the merits)
Apply the overriding objective to seek to deal with the case justly and at proportionate cost
Consider whether the D has been prejudiced by the delay: this was considered on the facts in Hoddinnot v Persimmon Homes (WB p386)
Here: Hugh had no good reason linked to difficulties in service (delay was for negotiating); but Julia was fully aware of the nature of the claim (had been negotiating for 8 months), so no apparent prejudice.
See: Part 11 and APA from 12.13 for further background

24

Default Judgment – the steps from PAP to default judgmentPart 12

Pre-action protocol (if any)
Issue and serve claim form
Serve Particulars of Claim
C must file certificate of service if served by C: r.6.17(2)(b)
No response to PoC, i.e. no Ackn of Service within 14 days and/or no Defence within 28 days
File a request for (most money cases) or apply (non-money claims)for Judgment in Default
Summary: see Procedural Guides/Time Limit Tables (Section D of WB): D1-030

25

Responding to a claim: what happens next after service of the claim form (CF)?

D’s obligations to respond do NOT arise until service of the PoC: r 9.1(2)
PoC could be with the C: r.7.4(1)(a)
If not,must be served within 14 days of service of the CF: r.7.4(1)(b)
And must be served no later than the latest time for serving the CF (ie within the 4 months in r 7.5): r.7.4(2)
Always from the deemed date of service

26

Once PoC served on D: D must act

Once PoC have been received by D, he must respond in 14 days
14 days from the deemed date of service of the PoC
3 choices: file/serve an admission, file a defence, file an acknowledgement of service (A/S): r 9.2
Admissions: Part 14: r. 14.2
A/S: Part 10: r. 10.3:
Defence: Part 15: r.15.4

27

If a D wishes to defend: steps

D must:
Either file a defence: within 14 days of the deemed date of service of PoC: r.15.4(1)(a);
Or file an acknowledgement of service within 14 days of the deemed date of service of PoC
And file a defence within 28 days of the deemed date of service of the PoC r.15.4(1)(b)
But parties may agree extra 28 days for D to file defence: r.15.5, D must notify the court of the agreement

28

Question 4(a): What steps?

Serve the PoC
And wait a further 14 days for a response
Because a D need only respond to the PoC, not a claim form: rr 9.1(2), 10.3, 15.4
Sophie has served only the claim form
Check you know:
When is judgment in default not available: r 12.2
What action by a D will prevent a C from seeking judgment in default? r.12.3

29

Question 4(b): Judgment without trial?

Yes, she can apply for judgment in default
If the time for D to file an A/S or defence has expired/no response to the PoC has been received from the D in the time limit: r 12.3(1) and (2)
Time limits: D must respond to the PoC 14 days from the deemed date of service of the PoC r 10.3 and r. 15.4
Action: make an application for judgment in default, because she is seeking equitable relief/seeking an injunction/claiming another remedy in addition to money: r 12.4(2)
Check you know: the procedure for this type of application (Part 23)

30

Question 4(c): Abandoning injunction claim?

Yes, different advice if the injunction claim is abandoned: r 12.4(3)(b)
This is then a normal money claim and within r 12.4(1); see WB 12.4.7
Default judgment
obtained by filing a request
in the relevant form
(here seeking damages to be assessed)
no judge is involved
it is an administrative act

31

Test for setting aside default judgment: CPR r 13.3

Does the D have real prospects of successfully defending the claim?
Or, is there some other good reason why the judgment should be set aside or varied, or D should be allowed to defend?
real prospects of success: real = not fanciful, a case which is better than merely arguable

32

Discretion to set aside default judgment: r.13.3

D must act promptly (or if not, explain why)
the court will look at the overall justice of the case – apply the overriding objective
relief from sanctions r.3.9: it seems that this is likely to be/must considered
relevant to the issue of promptness (see LG4A Notes, especially on WB commentary paras 13.3.1-13.3.5 and 3.9.5)

33

Time for serving the Particulars of Claim: r.7.4

If the PoC are not served with the Claim Form, they must be served within 14 days of service of the CF: r.7.4(1)(b)
But this is subject to r.7.4(2):
PoC must be served no later than the latest time for serving the CF
This is no later than midnight 4 calendar months after the issue of the CF: 7.5(1)
ie within the period of validity of the Claim Form.
Technical Note: The WB Commentary at 7.4.3 (NOT on the syllabus) suggests that served means deemed date of service
And sugests that the PoC must be deemed to be served within the 4 calendar months of the validity of the CF
NB: NOT yet decided by the CA; how much will that cost?