Stage 2 - Commencing Proceedings Flashcards
(79 cards)
1
Q
Which courts deal with civil disputes?
A
High Court and County Court.
2
Q
What claims go to the County Court?
A
- £100,000 or less. [MUST be started in the County Court]
- could be a specified OR unspecified claim
3
Q
What types of claims must be sent to the County Court Money Claims Centre (CCMCC) in Salford?
A
- money-only claims made on paper
- including both specified and unspecified claims.
4
Q
What types of claims are sent to the County Court Business Centre at Northampton?
A
- online specified claims (debt claims)
for up to £100,000 - made via the website Money Claim Online (MCOL)
5
Q
What is the threshold for proceedings to begin in the High Court?
A
- If a claim > £100,000, it MAY begin in the High Court.
- for personal injury claims: if > £50,000.
6
Q
What other factors would the High Court consider, in addition to threshold, when deciding whether to hear a case?
A
- if the claim is complex in relation to the facts/legal issues
- if the outcome of the case is of public importance
- Even if a claim is issued in the High Court, the judge may decide to transfer the matter to the County Court at a later date.
7
Q
What 3 divisions make up the High Court?
A
- King’s Bench Division - deals with tort and contract
- The Chancery Division - for disputes over trust, land, inheritance and company law
- The Family Division - family disputes/adoption
8
Q
What are the Business and Property Courts?
A
Numerous courts that decide specialist business and other civil disputes, national and international.
9
Q
What are examples of the Business and Property Courts?
A
- The Commercial Court - deals with complex cases arising out of business disputes over contracts, insurance, banking and finance;
- The Technology and Construction Court - handles claims about buildings, engineering and surveying.
10
Q
When are proceedings officially commenced?
A
Once the claim form has been formally issued [ie filed at court].
11
Q
When is a claim officially ‘brought’ (for limitation purposes)?
A
- A claim is ‘brought’ for limitation purposes (and so time on the limitation clock stops running) when the claim form is RECEIVED in the court office.
12
Q
How detailed should the claim form be?
A
The content should be sufficiently detailed so that the court and the other parties understand the claimant’s case without being a full recitation of all the evidence in support. The key word is ‘summary’.
13
Q
What is usually sent alongside the claim form?
A
- Claim form (Form N1)
- Court fee
- Particulars of claim (can be included in claim form or sent separately)
- Docs that are required to be annexed by the CPR such as a copy of any contract
14
Q
What must be included on the claim form?
A
- Date
- Brief summary of what happened [facts]
- Details of cause of action
- Details of remedy
- Disclosure of statutory duty that applies
15
Q
For an unspecified claim in the County Court, what amount must be put in the claim form [for amt they expect to recover/value of claim]?
A
they must state whether they expect to recover:
- max £10,000
- btwn £10,000 and £25,000
- over £25,000
- or cannot predict how much they might recover.
- For personal injury claims: cl must state whether amount of dmgs expected for pain, suffering + loss of amenity is > £5000
16
Q
For a specified claim in the HC, what amount must be put in the claim form [for amt they expect to recover/value of claim]?
A
- cl must write that they expect to recover more than 100,000 pounds
17
Q
When would a solicitor add the recip sol’s details (name/address) to the claim form?
A
if the sols have confirmed in writing that they can accept service of stuff on their client’s behalf]
18
Q
Formalities for the statement of truth in the claim form?
A
must be in witness’s own language, signed [by witness/senior mgmt person/solicitor], dated.
19
Q
Formalities when a solicitor signs a statement of truth?
A
- must sign in their own name, not their firm’s [but should state the capacity in which they sign + include firm’s name where possible]
20
Q
What happens if a party doesn’t include a statement of truth in the claim form?
A
- the court may strike out the claim form
- even if they don’t: claimant may be prevented from relying on claim form
21
Q
What if details of both parties are not included/not sufficient?
A
- proceedings may be struck out.
22
Q
How do you serve a claim form on an individual?
A
- hand it to them/leave it with them or near them
- at their usual or last known residence
- if sole trader, can ALSO be: principal or last known place of business.
23
Q
How do you serve a claim form on a partnership?
A
- Leave it at the principal place of business/with a partner or person w control/mgmt of partnership.
- Usual or last known residence of the individual; or principal or last known place of partnership
- if LLP: principal office / any place of business within the jurisdiction that has a real connection w the claim.
24
Q
How do you serve a claim form on a company?
A
- leave docs w a senior person [director, chief executive, treasurer, secretary]
- principal office / any place of business within the jurisdiction that has a real connection w the claim.
25
How do you serve a claim form on a LTD company?
- docs may be left at/posted to the company's registered office
- principal office / any place of business within the jurisdiction that has a real connection w the claim.
26
When should a claim form be SERVED [not deemed served, just served] on D?
- Within 4 calendar months after issue of claim form.
* The month number + 4 (so something in January -> deemed in May bc 1 + 4 = 5 th month)
27
When does the period of service for a claim form end? [depends on method]
the date:
- personal service was effected
- delivery was made at the relevant place; or
- the letter was posted or left with the DX provider
- the transmission of the fax was completed - the email was sent.
28
When can you serve a claim form by fax?
- Only if recipient expressly confirmed they are willing to accept service by fax
- Express confirmation = e.g. a fax # on sol's letterhead
BUT NOT an email address/fax # on the party's letterhead.
29
When can claim form be served via email?
- The receiving party's solicitor must agree to accept service by email.
- agreement must be in writing
- they must specify the email address to be used.
30
When can a claim form be served by an alternative method?
- Court can authorise other methods/places of service - e.g. text message/voicemail.
31
What if a contract between the parties specifies how a claim form is to be served?
- If a contract says you can serve legal documents a certain way or on someone’s agent,
- You must ask the court for permission to do it that way,
- And the court may allow it if the contract clearly supports it.
32
If particulars of claim are being served separately to claim form, when must it be served?
- within 14 days after service of the claim form (but no later than 4 months after the date of issue of the claim form). [so 14 days after service, and max 4 months after date of issue of claim form]
33
What if service of particulars of claim does not meet that deadline?
- may lead to the proceedings being compromised or struck out, with a consequential claim for negligence against the solicitor.
34
When should a claim form being served outside the jurisdiction of England and Wales be served?
- The document must be served on the other parties within 6 months of being issued.
35
Is court permission required to serve proceedings in Scotland and Northern Ireland?
No.
36
What special rules apply to serving proceedings in Scotland and Northern Ireland?
- Court has power to hear the claim, and
- No ongoing proceedings about the same matter in another part of the UK, and
- D is domiciled in UK / specific consumer or employment case / D agreed to Scot/NI court's jurisdiction
OR
- Court's authority (S/NI) comes from another law
- D is not physically present in the jurisdiction [S/NI]
- Events behind the claim did not happen in S/NI
37
What are the requirements for a claimant who wants to serve a claim form on a D out of the jurisdiction, that is not in S/NI?
-Cl must obtain permission to serve proceedings out of the jurisdiction
- Unless: a contract contains an English jurisdiction clause
- Claim form must be accompanied by a notice setting out grounds on which cl is entitled to serve it outside the jurisdiction + evidence that England and Wales is the proper forum.
38
When is a claim form DEEMED SERVED?
- 2 business days after the step required [reception of claim form] has occurred
Business days exclude: weekends, Good Friday, Christmas Day, bank holiday
39
When are other documents deemed served - other than by class post/dx?
- If served BEFORE 4.30pm on a business day, deemed served on that day.
- If not, on the next business day
Either that day (if before 4:30 on a business day)
Or, if not a business day OR after 4:30, on the next business day
40
When is a document sent by first class post/DX DEEMED SERVED?
- The second day [not business day!] after it was posted provided that day is a business day. (2 days after)
If not, on the next business day.
41
Who can make an application to add/substitute/remove a party from a claim form?
- An existing party, or
- A person who wants to become a party.
note: No one can be added or substituted as a claimant unless they've given written consent + it's filed at court.
42
Is permission needed to add/substitute/remove a party from proceedings?
Yes UNLESS claim form has not been served yet.
43
What are the grounds for an application for removal/substitution/addition WITHIN limitation period [of claim - so 6 years/15 years]?
- Court considers whether it is desirable to add/remove/substitute a party.
44
What are the grounds for an application for removal/substitution/addition OUTSIDE limitation period?
- A party may only be added or substituted if:
- The limitation period was valid [open] when proceedings started,
- AND one of the following applies: [M,D,B,R]
- the original party was named by mistake, or
- The original party has died / is subject to a bankruptcy order, and their interest/liability has passed, or
- The claim cannot properly be carried on without the new party.
45
What are statements of case?
the formal documents in which the parties concisely set out their respective cases.
46
Examples of statements of case?
claim form, particulars of claim, defence, counterclaim, requests for further information + replies & responses.
47
Purpose of statements of case
- Statements of case are served btwn the parties + filed at court.
- Central to litigation - they ensure that each party knows their opponent's case at an early stage. [so they can analyse how strong it is]
48
What are NOT examples of statements of case (not included in the term)?
Evidential documents e.g. witness statements/expert reports.
49
What are the formalities when formatting statements of case?
- must be in plain English.
- when prepared by a solicitor, it must be signed in the name of the FIRM.
- should only include allegations that are evidentially based - so don't include things that u are unable to prove.
50
What if there is a material error in the statements of case, and it misleads the court?
- the solicitor should advise the client to amend the statement of case
- if the client refuses to do so, sol should cease to act [citing professional reasons].
51
What are particulars of claim?
A concise statement outlining the factual and legal basis of the claim, ensuring the defendant understands the case against them and can prepare a defense.
52
What MUST particulars of claim contain?
1. Concise statement of the legal and factual basis of the claim [cause of dispute]
2. Details of the breach + remedies sought.
3. If cl wants any interest, this should be stated [for a contract or tort claim]
53
What must be included in particulars of claim for a CONTRACT dispute?
- Status of parties (claimant/defendant + their legal capacity - company, sole trader)
- Chronological timeline of events
- Substance of the matter: issues in dispute
- Existence of the contract must be established + if written, a copy MUST be included in the particulars/if spoken, the contractual words must be specified on the form
- Details of express and implied terms [all stated expressly]
- Details of which terms were breached + specifically how [specify what the D did wrong: not just that they breached a term, but that they breached it BY not doing something/doing something wrong]
- What happened as a result of the D's breach [e.g. poor quality goods supplied could then not be sold to consumers/repair work could not be carried out]
- Loss must be alleged generally [state the C has suffered damage and loss]
- Loss must be itemised [so clear to D exactly what is being claimed from them + how it is calculated]
- Interest [parties calculate it, but whether or not it is rewarded is up to discretion of court]
54
What are the 3 ways in which interest may be awarded in a contract claim?
1. If specified in the contract
2. If B2B debt - can apply statutory interest (at 8% + BoE base rate the day the debt was due)
3. At court's discretion. If spec, claimant must calculate total: interest from day of breach to date of claim form issue + daily interest rate since date of issue. If unspec, court will award as it sees fit.
55
What are the requirements for a particulars of claim set out for a tort/negligence claim?
Same as contract, but laid out in tort/negligence format:
- duty of care
- breach [general + specific]
- causation
- loss
56
How is interest awarded for a tort/negligence claim?
- The court has a general discretion (which is usually exercised) to award interest on damages in respect of both High Court & County Court claims.
- In practice, interest is normally awarded from when the loss was sustained.
57
What is the purpose of the defence?
sets out the defendant’s answer to the claim + highlights the issues in dispute.
58
What must the D include in a defence?
- they must respond to each allegation by cl in turn, and either:
- Admit [D agrees, no need to prove allegation]
- Not admit [forcing cl to prove their allegation; D does this if they don't know smth]
- Deny [in which case the D must include their version of events + reason for denying]
59
What happens if D doesn't respond to an allegation?
Deemed accepted [omission = acceptance].
60
What are the formalities for a defence?
Must include:
- court name
- claim number
- parties
- title
- (!) date and signature of solicitors in the name of the firm
- statement of truth
- details of who is to be served and where.
- details of limitation period IF D is alleging that it has expired. - cl must then prove the claim is NOT time-barred.
61
When does the D have the burden of proof?
- where D alleges contributory negligence
- where D alleges cl failed to mitigate its loss.
62
What are the two claims under Part 20 a D can make?
- Counterclaims
- Additional claims
63
When is court's permission required for a Part 20 claim (counterclaim/defence)?
- When a counterclaim is not filed w defence (so filed separately to defence)
- Additional claim recipient is already party to proceedings + notice is NOT filed & served w defence [again, served separately]
- Additional claim recipient is NOT party to proceedings + additional claim is issued AFTER defence [so separately - specifically after]
64
What is a counterclaim?
Where the defendant is alleging they have their own cause of action against the claimant + have suffered loss attributable to the cl. [they could have been the first to take action agnst cl + issued proceedings.]
65
How are a defence and counterclaim structured?
- A counterclaim is treated as if it were a claim
- Should be filed with the defence.
- Will form one document, with the counterclaim following on from the defence.
- Permission is not required from the court to file a counterclaim unless the defence has already been filed.
66
What are additional claims?
additional claims made by D for a contribution or indemnity or some other remedy against sm1 - whether or not they are already a party.
67
When does a claim for indemnity arise? (3)
1. Where contract specifies that the 3rd party will be liable to D for indemnity if they are liable for the claim;
2. Where statute applies
3. By implication of law
68
When can a claim for contribution be made?
Where there are joint wrong-doers + the defendant argues that the third party is partly responsible for the harm the claimant has suffered.
69
Can D make an additional claim against a non-party?
- Yes.
- As long as they do it BEFORE or AT THE SAME TIME as they file defence, court's permission not needed.
70
When would claimant reply to defence?
- Cl's choice - under no obligation to do so.
- Tend to reply if the claimant wants to respond to matters that have been raised in the defence but which are not covered in the particulars of claim.
71
What are the formalities IF cl disputes the counterclaim?
1. Cl must file a defence to the counterclaim within 14 days (unless an extension of up to 28 days has been agreed with the defendant).
2. If they don't, the defendant may enter judgment in default on the counterclaim.
72
When applying for permission to amend statements of case, what must applicant do? [formalities]
1. File a copy of statement of case + proposed amendments + an application notice
2. Court will then decide whether or not to exercise its discretion to grant the application + considering overriding objective
73
Can amendments be made after filing statements of case, but before serving them?
Yes, amendments can be made any time before service.
74
Can amendments be made after filing and after serving them?
Yes, as long as the applicant has either:
- written consent of all parties, OR
- consent of the court
75
Can amendments be made after limitation period expires?
Only in the following 3 circumstances: [A,C,A]
1. To add or substitute a new claim arising out of the same/substantially the same facts as pre-existing claim.
2. To correct a (genuine) mistake as to the name of a party;
3. To alter the capacity in which a party claims.
76
What is a Part 18 Request for further info?
a request made by court or either party to clarify any matter in dispute; or
give additional information in relation to any such matter.
- typically used when statements of case are confusing/where unclear if C or D is going to win, not enough info
77
Procedure for Part 18 request for further information?
- Applicant/party requesting must serve a written request:
- Within a reasonable time
- In a single comprehensive document, not piecemeal
- Headed w name of the court + title and no of claim + identify that is is a P18 request
- Set out in separate no. paras, state date for response
78
Formalities for response to request for further information?
Must be:
- in writing,
- dated
- signed by the party or their solicitor.
- set out the same information as the request and then give details of the response.
- served on all parties
- Filed with court
- Verified by a statement of truth.
79
What happens if request for further information is not responded to?
- An application may be made to court under Part 18.
- The court will grant an order if it is satisfied that the request is confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their case or to understand the case against them.
