Flashcards in Week 5 material Deck (62)
SGS 2; APA Civil Procedure ch 7
CPR, r. 7.6 provides:
(1) The claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –
(a) within the period specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.
(4) An application for an order extending the time for compliance with rule 7.5 –
(a) must be supported by evidence; and
(b) may be made without notice.
Extending the validity of claim form
It is easier to justify extending the period of validity of a claim form if the application for the extension is made while the claim form is still valid. The test in r. 7.6(2), which applies to this situation, is far easier to satisfy. See APA Civil paras 7.10- 7.15.
An application for an extension made after the claim form has expired is governed by r. 7.6(3). In addition to showing the application was made promptly (but obviously late, given it is a r. 7.6(3) application), the claimant must prove one or other of the conditions in r.
7.6(3)(a) or (b). It is next to impossible to do so. See APA Civil paras 7.16- 7.17
Attempts to Evade the Restrictions in rule 7.6
Vinos v Marks & Spencer  3 All ER 784
Anderton v Clwyd County Council (No 2)  1 WLR 3174
Initially held that the rules on extending validity in r. 7.6 form a comprehensive code
Meant the court could not use other rules to give relief to a claimant
Thus rules like r. 3.1(2)(a) (power to extend time)
r. 3.9 (granting relief from sanctions)
r. 3.10 (power to rectify errors of procedure) cannot be used to save a claimant who serves late
However, r. 6.15 (power to allow service by an alternative method) can be used if there is “a good reason” APA Civil paras 6.34 – 6.36
Also, r. 6.16 (power to dispense with service) can be used if there are “exceptional circumstances” APA Civil paras 6.37 – 6.38
PD Pre-action Conduct
PD Pre-action Conduct is a fall-back provision, and applies where no specific protocol applies to the relevant type of case. It sets out the steps parties are expected to take before they start court proceedings.
Normal protocol steps
Parties are expected to exchange sufficient information to enable them to understand each other's position, and to be able to enter into meaningful negotiations or ADR processes (para 3)
Taking tactical advantage is deprecated (para 4)
Costs in complying with the protocol must be kept proportionate (para 5)
Claimant should write to the defendant with concise details of the claim and the remedy sought (para 6(a))
D should respond within a reasonable time. 14 days in an easy case; maybe 3 months in a very complex claim (para 6(b))
The reply must say if liability is admitted; the grounds on which liability is denied; and whether a counterclaim will be advanced (para 6(b))
Both parties must disclose key documents to each other (para 6(c))
If an expert is necessary the parties should try to minimise how much the expert evidence will cost. A single joint expert may be best (para 7)
Parties should consider whether to use ADR (paras 8-11)
Where the claim is not resolved by following the protocols, the parties must stocktake by reviewing their respective positions (para 12)
They should at least try to narrow the issues in dispute (para 12)
Limitation about to expire
Claimant must issue a claim form within time. Complying with the protocol is no excuse for issuing late. If needs be, the claimant can ask for a stay of the proceedings after issue so the remaining steps can be taken (para 17)
Non-compliance with Protocols
The requirement is to comply with the substance of the protocol (para 13).
A failure to comply may be based on (para 14):
(a) not providing sufficient information
(b) not acting within the time limits in the protocol
(c) unreasonably refusing to use ADR
The court may order (para 15):
(a) the parties to be relieved from further compliance with the protocol
(b) a stay of the proceedings to allow time for compliance
(c) the imposition of sanctions
Sanctions for non-compliance
These are set out at para 16:
(a) payment of costs
(b) payment of costs on the indemnity basis
(c) depriving C of interest on their damages
(d) ordering D to pay interest on any damages at up to 10% above base rate
1 Civil Courts
Queen's Bench Division: primarily contract, tort, trespass, administrative law
Chancery Division: primarily equity: trusts, wills, company law; IP
Family Division primarily divorce and children
The claim form must have "Chancery Division" entered in the top right corner (PD 7A, para 2.5).
Claim forms raising chancery business in the CC must be similarly marked "Chancery Business".
High Court also sits in civil court hearing centres around the country (“District Registries” of the High Court).
Specialist Courts APA Civil paras 3.38-3.44
TCC Technology and Construction Court
Administrative Court Judicial Review
Intellectual Property Enterprise Court IP cases under £0.5 million
There is a unified County Court (Crime and Courts Act 2013, s. 17). It uses court buildings at various locations around the country. While it has a general jurisdiction to
deal with most types of claim, it is intended for simpler, lower value, cases. CC has general jurisdiction over all types of civil claim, with some exceptions, principally:
defamation (only High Court)
JR (only High Court)
Jurisdictional Rules APA Civil paras 3.18-3.35
General Rule Claimant is free to choose whether to start in the HC or CC
Personal injuries claims must be started in the CC if under £50,000 may be started in HC or CC if £50,000 or more
Money claims (not PI) must be started in the CC if up to £100,000 may be started in HC or CC if more than £100,000
Equity Claims CC has jurisdiction where the value of the property does not exceed £350,000. There are other technical rules for trusts and enforcement etc.
See also PD 7A paras 1-2.5:
para 2.4: The £100,000 (non-PI) and £50,000 thresholds prevent claims under these values being started in the HC. Non-monetary claims, and claims above these limits,
may be started in the HC if C believes the claim should be dealt with by a HC judge bearing in mind the case's:
importance to the public
Personal Injury Claim Value for Jurisdiction Purposes
Note how value is calculated: APA para 3.29
HC & CC Jurisdiction Order 1991, art. 9, applies CPR, r. 16.3(6):-
The value of a claim is calculated by adding together
General damages for pain, suffering and loss of amenity
Past losses (property damage, loss of income, expenses etc)
Future losses (through to death or recovery)
Recovery of State Benefits under Social Security (Recovery of Benefits) Act 1997
Rutland Engineering Co Ltd wants to recover damages amounting to £120,000 in respect of equipment delivered pursuant to a written contract against Sturdy Compressors plc. Which is the correct court for these proceedings?
Appropriate Court: Contract
Judith Lewis was injured in a road traffic accident on the A583 not far from Blackpool. Philip Russell, the driver,
was subsequently convicted of driving without due care and attention. Judith lives in Rochdale, and has instructed local solicitors, who issued proceedings in a hurry.
Philip lives in Leeds. You have been asked to advise Judith whether the proceedings were commenced in
the right court.
Appropriate Court: Personal Injuries
4 Issuing Civil Claims
Place to Issue a Claim
County Court Money claims
County Court Money claims
County Court Money Claims Centre in Salford
County Court claims where the only remedy sought is an amount of money, whether specified or unspecified, are started by sending the claim form for issue to the County
Court Money Claims Centre in Salford (PD 7A, para. 4A.1).
Money Claim Online
Money claims with a value up to £100,000 where neither party is a child or protected party, and where certain other conditions set out in PD 7E, para. 4 are satisfied, can be issued electronically using the ‘Money Claim Online’ process.
Certain bulk users of the court system can start money claims using magnetic media at the Production Centre under PD 7C.
County Court non-money claims
Covers claims for equitable relief, possession of land, discrimination claims etc. Can issue at any civil hearing centre used by the County Court. However, the claim will
usually be transferred to the location where the property etc is located.
High Court claims
Issued in the QBD or ChD, and either in London or a District Registry. Choice usually rests with the claimant.
Requirements: see CPR, r. 16.2
Workbook pp 5, 6
Has C made the right choice of defendant?
Why is the Value stated to be 'over £25,000'? r. 16.3
Should C have ticked the Human Rights Act box (p 6)?
Did C have to sign the statement of truth (p 6)? r. 22.1(6)
Issuing the claim form
Pay issue fee to court
(See Civil Proceedings Fees Order "CPFO"): for this £50,000+ case it is £3,750
Claim form is stamped (issued)
Enough copies for the court, for C, and for service on each D
Claim number is allocated
Court opens a file for the case
Limitation stops running when the claim is "brought" (see LGS 5)
Particulars of Claim
It is a formal written statement setting out:
the facts relied upon by the claimant
the cause of action
the remedy sought
C has the choice of:
endorsing the PoC into the claim form on the reverse side; or
stapling the PoC to the claim form ('attached to the claim form'); or
serving the claim form followed at a later date with the PoC
Serving PoC after the claim form CPR, r 7.4(1)(b) and r 7.4(2):
within 14 days of service of claim form
within the [4 month] period of validity of the claim form
Service is primarily about bringing proceedings to the notice of the defendant. This is so that the defendant has the chance to defend the case and raise arguments
against the claim.
Abela v Baadarani  UKSC 44,  1 WLR 2043
Different regimes dealing with service
There are 4 different systems dealing with:
1. Service of the claim form within the jurisdiction (CPR, rr 6.1 to 6.19)
2. Service of other court documents (CPR, rr 6.20 to 6.29)
3. Service on companies and directors (Companies Act 2006, ss 1139, 1140)
4. Service outside the jurisdiction (APA Civil ch 11. Not on the syllabus)
1 and 2 are in most respects identical to each other, but there are some important differences.
Service of a claim form
This has two functions:
(a) Establishing the court's jurisdiction over the case; and
(b) Bringing the case to the notice of the defendant
For this reason the rules are highly technical and restrictive in situation 1.
Service of other court documents
(Situation 2) is only about bringing the document to the attention of the other side.
Hence the approach is somewhat more permissive.
Integral Petroleum SA v SCU-Finanz AG  EWHC 702 (Comm)
This is about lodging documents at Court
Period for serving a Claim Form
The period of validity of a claim form is:
he period of validity of a claim form is:
4 months if it is served within the jurisdiction
6 months if it is served outside the jurisdiction
CPR, r. 7.5(1).
CPR, r. 7.5(1). Where the claim form is served within the jurisdiction, the claimant
must complete the step required by [the table in r. 7.5] in relation to the particular
method of service chosen, before 12.00 midnight on the calendar day four months
after the date of issue of the claim form.
(a) Who should serve the proceedings?
County Court claims are usually served by the court.
Usually by first class post (PD 6A, para 8.1; CPR, r. 6.3(1)(b))
Party (usually their solicitor). Typical in High Court claims.
(b) What needs to be served?
Certificate of Service
If service is effected by a party, they inform the court by filing a certificate of service (unless all defendants file acknowledgments of service, CPR, r. 6.17(2)).
Documents to be served APA Civil, para 6.15
Claim form as sealed by the court
Particulars of Claim
In personal injuries claims (where special rules apply)
Schedule of past and future loss and expense, WBK pp 9, 10
(c) How should the proceedings be served?
CPR methods of service
Permissible methods of service under the CPR are, under CPR, r. 6.3:-
(i) Personal service
(ii) 1st class post
(iii) Mail transmission service providing for next day delivery
(iv) Document Exchange (DX)
(v) Leaving documents at the other side’s address
(vii) Other electronic systems
(viii) In accordance with contract
Service is effected by taking the step required by the chosen method of service. By CPR, r. 7.5 this is:-
Method: Step required?
First class post
Delivering/ leaving at relevant place
Personal Service rule 6.5
Other electronic transmission
First class post, document exchange or other service
which provides for delivery on the next business day:
- Posting, leaving with, delivering to or collection by
the relevant service provider
Delivery of the document to or leaving it at the relevant
- Delivering to or leaving the document at the relevant
Personal service under rule 6.5:
- Completing the relevant step required by rule 6.5(3)
Fax: Completing the transmission of the fax
Other electronic method: Sending the e-mail or other electronic transmission
Method (i), personal service, involves serving on a person. This is done “by leaving it with that individual” (r. 6.5(3)).
Note it is permissible to post the claim form either:
(1) By ordinary first class post. 2nd class post is not good enough;
(2) Or by any other postal delivery service (such as through DHL, or using recorded delivery post) that provides for next day delivery
There are detailed rules for ascertaining the address that should be used. It might be D's solicitor's address, or D's current residential address, or last known address etc.
The letter must include a full postcode (PD 16, para. 2.4)
Leaving at the address
This usually means taking the document yourself to the Defendant's address and putting it through the letter box.
Service by document exchange ('DX')
This is typically used for correspondence between solicitors and with chambers.
Usually next day delivery.
PD 6A, para 2.1:-
Service by DX may take place only where—
(1) the address at which the party is to be served includes a numbered box at a DX, or
(2) the writing paper of the party who is to be served or of the solicitor acting for that party sets out a DX box number, and
(3) the party or the solicitor acting for that party has not indicated in writing that they are unwilling to accept service by DX.
Service by fax or other electronic means
PD 6A, para 4.1:-
Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means—
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving—
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1)—
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.
Service by email
PD 6A, para. 4.1 applies (because it refers to both fax and "other electronic means").
So there is a requirement for a previous written indication of willingness to accept service by email
In addition, regarding email service, PD 6A provides:
4.2 Where a party intends to serve a document by electronic means (other than by fax) that party must first ask the party who is to be served whether there are any
limitations to the recipient's agreement to accept service by such means (for example, the format in which documents are to be sent and the maximum size of
attachments that may be received).
4.3 Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy.
Brown v Innovatorone plc  EWHC 1376 (Comm), LTL 23/6/2009
Purported service on the defendant by faxing a claim form to the defendant’s solicitor did not comply with the CPR where the defendant’s solicitor (using a letterhead which included a fax number) merely entered into correspondence on behalf of the defendant in respect of the dispute with the claimant.
This was not the same as "giving" the solicitor's address for the purpose of service (see below on 'where to serve').
A solicitor is ‘acting for’ a party within the meaning of PD 6A, para. 4.1, when the defendant has given written notification that his address for service is that of his solicitor, or the solicitor has notified the claimant that he has the defendant’s instructions to accept service, as required by CPR, r. 6.7.
A solicitor engaging in correspondence with the claimant is not enough.
While faxing a claim form to the solicitor in such circumstances would probably result in the claim form coming to the attention of the defendant, it was not open to a party to devise their own methods of bringing claim forms to the attention of the defendant.
The CPR prescribe the methods for effecting service, and it is in the interests of certainty that parties are not allowed to deviate from them.
d) Where should the claim form be served?
Obviously it is the Defendant who needs to be served with the claim form. However, parties to litigation often have solicitors acting for them, and their solicitor is their
agent for the purposes of the litigation. Also, not all Defendants are individuals: there are also companies, partnerships and every other type of organisation.
There is a hierarchy laid down in CPR, Part 6 on where a Defendant should be served. The Claimant must use the highest level that applies of those that follow:-
1. Personal service on the Defendant (where this is required by the CPR, statute, PD or court order, CPR, r. 6.5). An example is a claim form seeking committal for
contempt of court by interfering with the due administration of justice (r. 81.14(2)).
2. At the Defendant’s solicitor’s address (CPR, r. 6.7). This is required if:
D gives C D’s solicitor’s address for service, or
D’s solicitor notifies C in writing he is instructed by D to accept service D's solicitor's address may be either in the UK or in an EEA state (r. 6.7).
3. Address D has given C for the purpose of serving proceedings (r. 6.8).
The address must be:
where D resides or carries on business; and
within the UK or an EEA state
Service hierachy continued
2. Individual sued in name of business
3. Individual sued in business name of partnership
5. Coroporation (other than a company) incorp in England and Wales
6. Company reg in England or Wales
7. Any other Company/organisation
4. At D's usual or last known home or business address in accordance with table in r. 6.9(2):-
1. Individual: Usual or last known residence.
2. Individual being sued in the name of a
business: Usual or last known residence of the individual; or principal or last known place of business.
3. Individual being sued in the business
name of a partnership: Usual or last known residence of the individual; or principal or last known place of business of the partnership.
4. Limited liability partnership: Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.
5. Corporation (other than a company) incorporated in England and Wales: Principal office of the corporation; or
any place within the jurisdiction where the corporation
carries on its activities and which has a real connection with the claim.
6. Company registered in England and Wales: Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.
7. Any other company or corporation: Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.
Sued in name of a business (entry 2)
Only applies where an individual is sued in the name of a business which they use for trading, and which is not their personal name (a "sole trader"). It does not apply
where an individual is just an employee:
Murrils v Berlanda  EWCA Civ 6
Service at a “last known” address (entries 1, 2 and 3)
Cranfield v Bridgegrove Ltd  1 WLR 2441
May be the “last known” address even if D is known to have left Collier v Williams  1 WLR 1945
The phrase cannot extend to an address where the individual had never resided.
Reasonable inquiries before using last known address
CPR, r. 6.9(3)-(6):-
(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the
defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or
place of business (“current address”).
(4) Where, having taken the reasonable steps required by paragraph (3), the claimant—
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is—
(i) an alternative place where; or
(ii) an alternative method by which, service may be effected.
(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.
(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the
(a) cannot ascertain the defendant’s current residence or place of business; and
(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).
Deemed Date of Service
This is the date the document is by law taken to have been received by D.
CPR, r. 6.14. A claim form served in accordance with this Part is deemed to be served on the second business day after completion of the relevant step under CPR, r. 7.5(1).
T & L Sugars Ltd v Tate & Lyle Industries Ltd  EWHC 1066 (Comm)
Held that rr. 7.5 and 6.14 draw a clear distinction between the date on which service is effected, and the date upon which service is deemed to take place. Service is effected when the step required by r. 7.5 is completed, and it is the completion of that step which constitutes actual service.
The date on which service is deemed to have taken place is two business days later. Rule 7.5 looks at when actual service took place; r. 6.14 looks at when service is deemed to take place for the purpose of other steps in the proceedings.
Irrebuttable Presumption of Service
Godwin v Swindon Borough Council  1 WLR 997
The words 'deemed to be' in r. 6.14 (above) and r. 6.26 (below) create an irrebuttable presumption of service on the deemed date.
This means service is taken to have happened on the deemed date as a matter of law. This result cannot be overturned by any evidence to the contrary, no matter how convincing, and even if the deemed date of service is a practical impossibility.
Anderton v Clwyd County Council (No 2)  1 WLR 3174
Even if it leads to absurd results
The reason for creating an irrebuttable presumption of due service is that it provides certainty. Any other rule would allow Defendants to lie about not receiving the
Address where other documents must be served
Must be at the party’s “address for service” (CPR, r. 6.23).
Every party has to provide an address for service (r. 6.23(1)). This happens:
Claimant: by inserting this on the claim form
Defendant: by inserting this on the acknowledgment of service or defence
The address for service must be (r. 6.23(2), (3)):
The party’s solicitor’s address (within the UK)
If no solicitor is acting, the party’s residence or business address if in UK
Otherwise, a nominated address in the UK
Deemed service of other documents
CPR, r. 6.26. A document, other than a claim form, served in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in
the following table—
1. First class post
2. Doc exchange
3. Delivering doc to or leaving it at a permitted address
5. Other electronic method
6. Personal service
1. First class post (or other service which provides for delivery on the next business day)
= The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.
2. Document exchange:
- The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.
3. Delivering the document to or leaving it at a permitted address:
- If it is delivered to or left at the permitted address on a
business day before 4.30 p.m., on that day; or in any other case, on the next business day after that day.
- If the transmission of the fax is completed on a business day before 4.30 p.m., on that day; or in any other case, on the next business day after the day on which it was transmitted.
5. Other electronic method
- If the e-mail or other electronic transmission is sent on a business day before 4.30 p.m., on that day; or in any other case, on the next business day after the day on which it was sent.
6. Personal service:
- If the document is served personally before 4.30 p.m. on a business day, on that day; or in any other case, on the next business day after that day.
Business days and calendar days
Consider entry 1 on the table in r. 6.26.
Anderton v Clwyd County Council (No 2)  1 WLR 3174
Distinguish entries in the Table which refer to “days” (every day counts)
From those which refer to “business days” (exclude weekends etc) (r. 6.2(b))
10.1 Rule 6.26 contains provisions about deemed service of a document other than a claim form. Examples of how deemed service is calculated are set out below.
10.2 Where the document is posted (by first class post) on a Monday (a business day), the day of deemed service is the following Wednesday (a business day).
10.3 Where the document is left in a numbered box at the DX on a Friday (a business day), the day of deemed service is the following Monday (a business day).
10.4 Where the document is sent by fax on a Saturday and the transmission of that fax is completed by 4.30 p.m. on that day, the day of deemed service is the following Monday (a business day).
10.5 Where the document is served personally before 4.30 p.m. on a Sunday, the day of deemed service is the next day (Monday, a business day).
10.6 Where the document is delivered to a permitted address after 4.30 p.m. on the Thursday (a business day) before Good Friday, the day of deemed service is the
following Tuesday (a business day) as the Monday is a bank holiday.
10.7 Where the document is posted (by first class post) on a bank holiday Monday, the day of deemed service is the following Wednesday (a business day).
Deemed Date of Service (Summary)
For claim forms, service is deemed to take effect on the second business day after posting the letter, leaving it at the address, personal service etc. All methods of service are treated in the same way.
For non-claim form documents, deemed service dates are set out in the table in r. 6.26, and depend on the method of service used. Personal service is quickest.
Less Usual Service Processes
Curing Defects in Procedure
Nelson v Clearsprings (Management) Ltd  1 WLR 962, at 
Attempting to serve at the wrong address is an ‘error of procedure’ within the meaning of CPR, r. 3.10, and the court has power under this rule, alternatively under
r. 3.1(2)(m), to order the remedy of such an error.
Rule 3.10: see White Book Vol 1
CPR, r. 6.15 (claim forms), r. 6.27 (other documents)
(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an
order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at
an alternative place is good service.
Brown v Innovatorone plc  EWHC 1376 (Comm), LTL 23/6/2009
Given that CPR, r. 6.15, requires a good reason before an order for service by an alternative method will be permitted, the court should not be over-ready to make such an order. The mere absence of prejudice to the defendant is not a sufficient reason for making an order
Dispensing with service
CPR, r. 6.16(1) provides:
The court may dispense with service of a claim form in exceptional circumstances.