Commencing Proceedings

Question 1

PD on pre-action conduct

Answer 1

Best practice and parties must comply with this (it saves money and time and encourages quick resolution)

Question 2

objective of PD on pre-action protocols - HOW do we achieve?

Answer 2

para.3

Question 3

para.8, PD on pre-action conduct

Answer 3

litigation should be the last resort

Question 4

para.9, PD on pre-action conduct

Answer 4

parties should try to reach settlement at all times

Question 5

how do the pre-action protocols and PD on pre-action conduct achieve its objective?

Answer 5

ONE - encourage pre-action contact/discussion/exchange of info

TWO - ensure full pre-action investigation of the claim

THREE - encourage parties to resolve the claim early and fairly by negotiation or ADR without the need for litigation

Question 6

non-compliance with PD on pre-action conduct

Answer 6

para.13 - courts will consider the non-compliance when making:

ORDER FOR COSTS (CPR 44.2(5)a)

and when

GIVING DIRECTIONS (CPR 3.1(4))

Question 7

para 16, PD on PAC

Answer 7

sanctions for non-compliance

Question 8

which court do you commence proceedings?

• 3 things to consider

Answer 8

1. JURISDICTION (HC and CC have concurrent jurisdiction over most claims)
2. RULES GOVERNING COMMENCEMENT (7APD2.1)
3. RULES GOVERNING TRANSFER (to minimise chance of case subsequently being transferred) - CPR 30

Question 9

RULES GOVERNING COMMENCEMENT

Answer 9

can only be in HC if worth more than £100,000 (7APD2.1) unless personal injury or a few other exceptions

if recovering more than £100,000, you have a CHOICE Consider:

ONE - FINANCIAL VALUE (CPR16.3(6))

TWO - COMPLEXITY

THREE - PUBLIC IMPORTANCE

Important to choose correctly/most appropriate court because of the rules governing transfer

Question 10

which division?

Answer 10

QBD: tort/contract
CD: land/trust

Question 11

documents required to start an action

Answer 11

CF
POC
Response Pack
fee payment

IF POC not served with CF - NO NEED to send Response Pack (served later with POC which needs to be verified by separate SOT)

Question 12

deadlines

Answer 12

C must serve to D the CF and POC within 4 months after date of issue of CF (7.5)

D must respond within 14 days of deemed service of POC with acknowledgement (10.3) or defence (15.4(1)a)

D must respond with defence within 28 days of service of CF if D served an acknowledgement (15.4(1)b)

Question 13

counting time exam structure

Answer 13

1. what is the document which has been served?
2. how has it been served?
3. what is the deemed date of service? (6.14, 6.26, 7.5(1))
4. how should you respond and when by?
5. count time to establish deadline using CPR 2.8 to assist you

Question 14

if deadlines missed

Answer 14

CPR 12: JUDGEMENT IN DEFAULT

• start with definition 12.1
• apply for it by (1) showing you’ve affected service correctly and (2) D failed to acknowledge or file defence and time has now expired

C will win the case and get a judgement in default

no evidence heard or read

Question 15

CPR 13: SETTING ASIDE A JUDGEMENT IN DEFAULT

Answer 15

2 ways of setting aside:
ONE - court MUST if the judgement in default was wrongly entered (i.e. one of the CPR 12 conditions not met)

TWO - court MAY if D has a real prospect of success (or some other good reason) - nb. an arguable defence is not good enough, + this is not a mini trial but court won’t just accept anything without analysis

nb. FOR TWO, court may consider D’s promptness in setting aside

Question 16

HOW TO I START A CLAIM

Answer 16

Take to the court a number of copies of CF and a court fee (one CF for court, one for C, one for each D)

ONE - court stamps covering letter with date of receipt (this stops time for limitation)

TWO - court seals CF (this issues proceedings)

Question 17

Page v Heweetts Solicitors

Answer 17

if solicitor sends the wrong court fee, C has not issued proceedings until correct fee sent (this means time not frozen for limitation period)

Question 18

when must CF be served

Answer 18

CF and POC must be served on D by midnight on calendar day 4m from date of issue of CF

(extension - very strict rules, CPR 7.6)

Question 19

procedure for CPR 12 (judgement in default) - for money claims

Answer 19

• C files request ‘request for judgement’
• application dealt with on paper

IF SPECIFIED SUM - court enters judgement for

• amount sought
• fixed costs
• interest accrued to date of judgemnet

IF NOT SPECIFIED SUM - court enters judgement for

• sum to be decided by court
• costs
• set timetable leading up to hearing where court decides sum

Question 20

procedure for CPR 12 (judgement in default) - non-money claims

Answer 20

• C must apply for judgement in default hearing
• not on paper

Court will enter judgement it considers appropriate based on merits of the case

Question 21

extending time for serving defence (between parties)

Answer 21

C and D’s solicitors can agree extension of up to 28 days (CPR 15.5)

• MUST give court notice in writing
• so D has max 56 days from deemed date of POC service

Question 22

extending time for serving defence (if more than 28 days extra)

Answer 22

C and D cannot agree extension of more than 28 days without court’s approval

D must apply to court for more time before deadline expires (interim application)

• issue application notice
• serve on C
• both sides attend before Master/District Judge who decides whether extension should be granted

(court will use case management powers to ensure OO is furthered)

Question 23

summary judgement and time for filing defence

Answer 23

if either party makes application for summary judgement, D does not need to file defence before application is heard

Question 24

money claims online

Answer 24

possible (7EPD)

• if for less than £100,000 (excl. interest and costs)
• quick resolution
• AOS/defence can be filed by email
• C can apply for default judgement or judgement following admission using online request form

IF CLAIM DEFENDED - transferred to relevant county court hearing centre upon completion of directions questionnaires

time limit different from CPR 7

Question 25

D's response once he recieves POC

Answer 25

D must respond in 14 days in one of these ways... ONE - admit all or part (to withdraw/amend admission, need permission of court CPR 14) TWO - file a defence (set out why claim is disputed, must be filed at court, served on all parties) THREE - file AOS (Gives D longer to prepare defence or if D wants to dispute jurisdiction)

Question 26

AOS

Answer 26

Form N9 | - court will notify C in writing that D has filed AOS (cpr 10.4)

Question 27

if court serves CF

Answer 27

* Service usually 1st class post * After effected service, court sends C a notice of issue stating deemed date of service * If court unable to serve CF for any reason, C sent notice of non-service * Up to C to try and serve CF on D after that

Question 28

If C's solicitor serves CF

Answer 28

* Notify court when it issues CF that it does not wish court to serve it * Court gives or sends C’s solicitor the issued CF with sealed copies for service on D(s) * C’s solicitor effects service using methods in CPR 6.3 * C’s solicitor must file a certificate of service at court within 21 days of service confirming document has not been returned undelivered and certifying details of the date on which claim was posted/delivered/transmitted (CPR 6.17) * NOT necessary to file a certificate of service if all D have filed an acknowledgement of service within that time

Question 29

address for service

Answer 29

CPR 6.6(2) - C must include in CF an address where D may be served (with post code) - address for service = business address of solicitor (if solicitor has been authorised to accept service) - if no address given and no solicitor acting, CPR 6.9 service (leave or post CF to D's usual or last known place of residence/principal/place of business) = presumed good service

Question 30

CPR 6.16

Answer 30

Court may dispense with service (usually discretion only exercised if other side is aware of the document)

Question 31

CPR 3.10

Answer 31

Court can cure procedural irregularities in service

Question 32

Alternative service

Answer 32

CPR 6.15 - court can permit service by alternative method if good reason to do so (i.e. other methods impossible or ineffective) in application to court: - set out why - state alternative method (e.g. advert in newspaper, serve on solicitor who was not authorised) CANNOT BE USED RETROSPECTIVELY to remedy irregular service BUT court can order steps taken to be good service

Question 33

if solicitor authorised to accept service

Answer 33

document must be served on solicitor (CPR 6.7(1))

Question 34

IF CONTRACT specifies method of service of CF

Answer 34

CPR 6.11 - this is valid if in accordance with contractual method

Question 35

what is in the CF

Answer 35

1. Heading 2. Parties + addresses 3. concise statement of nature of cliam 4. remedy sought 5. statement of amount claimed 6. jurisdictional endorsement 7. POC (can be separate) 8. statement of truth 9. court fees, fixed costs

Question 36

child

Answer 36

person under 18 - represented by litigation friend E.g. “Alice Brown (a child, suing by Kate Brown her mother and litigation friend)”

Question 37

protected party

Answer 37

person who lacks capacity to conduct proceedings - represented by litigation friend E.g. “Adam Black (a protected party by Clara Dunn his liigatio friend)

Question 38

protected beneficiary

Answer 38

protected party who lacks capacity to manage and control any money recovered in the proceedings [‘lacking capacity’ – defined in Mental Capacity Act 2005]

Question 39

sole trader

Answer 39

``` if suing: Fred Flagstone (trading as Fred’s Café) ``` ``` If sued: Fred Flagstone (trading as Fred’s Café) ``` OR Fred’s Café

Question 40

partnership

Answer 40

(1) name 1 (2) name 2 AND/OR Name of Partnership (a firm)

Question 41

service of CF - service under enactment

Answer 41

Methods of service in CPR 6 = alternatives to service under an enactment (e.g. a company may be served by any of the ways permitted in CA 2006 in additional to ways under CPR 6)