SA6 Commencing Proceedings

Question 1

When are proceedings started?

Answer 1

When the court issues a claim form at the request of C

Question 2

When is a claim form considered issued?

Answer 2

On the date entered on the form by the court

Question 3

Can a claimant use a single claim form to start more than one claim?

Answer 3

Yes, as long as they can be conveniently disposed of in the same proceedings.

Question 4

How can PoC be served?

Answer 4

Particulars of Claim must -

(a) be contained in or served with the Claim Form; OR
(b) be served on D by the claimant within 14 days of service of the CF

Note: where C serves the PoC on D under (b), C must also, within 7 days of service on D, file copy of the PoC unless a copy has already been filed.
EXCEPTION: if the claim is being dealt with at the Production Centre or the Civil National Business Centre and is not transferred to another court.

Question 5

Can proceedings where both High Court and County Court have jurisdiction be started in either court?

Answer 5

Yes.

Proceedings where both the High Court and the County Court have jurisdiction may be started in the High Court or in the County Court.

Question 6

Proceedings may only be started in the High Court if the value of the claim is more than?

Answer 6

more than 100,000 pounds

OR

more than 50,000 pounds if PI

Question 7

A claim should be started in the High Court by reason of - …?… C believes it ought to be dealt with by a High Court judge

Answer 7

(1) The financial value of the claim and the amount in dispute, and/or

(2) The complexity of the facts, legal issues, remedies or procedures involved, and/or

(3) The importance of the outcome of the claim to the public in general.

Question 8

What happens if a claim required to be made at a particular County Court hearing centre is made at the wrong hearing centre?

Answer 8

A court officer will send the claim to the correct hearing centre before it is issued.

Question 9

In a claim relating to Business and Property work, what should the claim form say if issued in the High Court?

Answer 9

It should be marked “Business and Property Courts” in the top right hand corner.

Question 10

In a claim relating to Business and Property work, what should the claim form say if issued in the County Court?

Answer 10

It should be marked “Business and Property work”

Question 11

What is the date on which the claim is brought, if it is issued later than the date on which it was received in the court office?

Answer 11

It is brought on the day that it was RECEIVED (not the day is was ISSUED)

This can be important where there is a potential limitation issue

Question 12

How is the date on which the claim form was received by the court marked?

Answer 12

It is marked by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

Question 13

To whom should an enquiry about the date on which the claim form was received by the court be directed?

Answer 13

A court officer

Question 14

What should a person do if they are seeking to start proceedings against the estate of a deceased D where probate or letters of administration have NOT been granted?

Answer 14

The claimant should issue the claim against “the personal representative of A.B. deceased”

The claimant should then, before the expiry of the period for service of the claim form, apply to the court for the appointment of a person to represent the estate of D (deceased)

Question 15

What should the evidence state in an application for extension of time for service of the CF

Answer 15

The evidence should state
1) all the circumstances in the case
2) the date of issue of the CF
3) the expiry date of any extension, and
4) a full explanation as to why the claim has not been served.

Question 16

What should the court bear in mind when deciding whether to grant an application for extension of time for service of the CF

Answer 16

1) D has a right to be sued within the statutory period of limitation and served within the period of its initial validity of service. A departure from this needs to be justified.

2) The reason for inability to serve within time is a highly material factor. The better the reason, the more likely the extension will be granted.

3) Where there is no good reason for the need for an extension, the court still retains a discretion to grant an extension of time but it is not likely to do so.

4) Whether the limitation period has or may have expired since the commencement of proceedings is an important consideration. If a limitation defence will or may be prejudiced by the granting of an extension of time, C should have to show at the very least that they have taken reasonable steps (but not all reasonable steps) to serve within time.

5) The discretionary power to extend time prospectively must be exercised in accordance with the OO.

Question 17

What is a business day?

Answer 17

Any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day

Question 18

How may a claim form be served (i.e., methods of service)

Answer 18

a) personal service
b) first class post, document exchange or other service which provides for delivery on the next business day
c) leaving it at a place specified (there are particular rules about where this is)
d) fax or other means of electronic communication

A company may be served
a) by any means permitted in Part 6
b) by any of the methods of service permitted under the Companies Act 2006

A limited liability partnership may be served
a) by any of the means permitted in Part 6
b) by any of the methods of services permitted under the Companies Act 2006 as applied with modifications by regulations made under the Limited Liability Partnership Act 2000

Question 19

Who is to serve the CF?

Answer 19

The court will serve the CF except where-
a) a rule or PD provides that C must serve it;
b) C notified the court that C wishes to serve it;
c) the court orders or directs otherwise.

Question 20

T/F: Where the court is to serve the CF, it is for the court to decide which method of service is to be used

Answer 20

True

Question 21

Where the court is to serve the CF, what must C additionally do?

Answer 21

In addition to filing a copy for the court, C must provide a copy for each D to be served

Question 22

A claim may be served personally EXCEPT where…

Answer 22

a) the rule concerning service on a solicitor applies
b) in any proceedings against the Crown

Question 23

A CF is served personally by …

Answer 23

A claim form is served personally on-
a) an individual by leaving it with that individual;
b) a company or other corporation by leaving it with a person holding a senior position within the company or corporation; or
c) a partnership (where partners are being sued in the name of their firm) by leaving it with-
(i) a partner; or
(ii) a person who, at the time of service, has the control or management of the partnership business at its principal place of business.

Question 24

T/F: C must include in the CF an address at which D may be served. That address must include a full postcode, unless the court orders otherwise.

Answer 24

True

Question 25

Service on a solicitor

Answer 25

Where- a) D has given in writing the business address within the jurisdiction of a solicitor as an address at which D may be served with the claim form; OR b) a solicitor acting for D has notified C in writing that the solicitor is instructed by D to accept service of the CF on behalf of D at a business address within the jurisdiction, **the CF MUST be served at the business address** of that solicitor

Question 26

How does service of CF work where D has given an address where D may be served?

Answer 26

a) D may be served with the claim form at an address at which D resides or carries on business within the UK and which D has given for the purpose of being served with the proceedings; or b) in any claim by a tenant or contract-holder against a landlord, the CF may be served at an address given by the landlord

Question 27

How does service of the claim form where D does not give an address at which D may be served, and personal service, service on solicitor and D giving an address do not apply and C does not wish to effect personal service.

Answer 27

CF must be served on ... Individual -> usual/last known residence Individual being sued in the name of a business -> usual/last known residence of the individual; or principal or last known place of business of the partnership LLP -> principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim Corporation (other than company) incorporated in E&W -> 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 Company registered in E&W -> principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim Any other company or corporation -> any place within the jurisdictino where the corporation carries on its activities; or any place of business of the company within the jurisdiction

Question 28

When is a CF deemed served?

Answer 28

A CF served within the UK in accordance is deemed served on the **second business day** after completion of the relevant step | This is an irrebuttale presumption

Question 29

When may the court make an order for service in an alternative place or by an alternative method?

Answer 29

Where it appears to the court that there is a good reason to authorise it

Question 30

T/F: On an application for service of CF by alternative method or in alternative place, the court may order that steps taken to bring the CF to the attention of D by an alternative method or alternative place is good service.

Answer 30

True

Question 31

How can an application for service of CF in alt place or by alt method be made?

Answer 31

Such an application (a) must be supported by evidence; and (b) may be made without notice

Question 32

What must an order for service of the CF by alt method or in alt place specify?

Answer 32

An order under this rule must specify: a) the method or place of service; b) the date on which the CF is deemed served; and c) the period for - (i) filing an acknowledgment of service; (ii) filing an admission; or (iii) filing a defence.

Question 33

Where the CF is served within the jurisdiction, by when MUST C complete the required step?

Answer 33

Before 12 midnight on the calendar day four months after the date of issue of the CF

Question 34

Step required for service of CF by first class post, document exchange or other service which provides for delivery on the next business day

Answer 34

Posting, leaving with, delivering to or collection by the relevant service provider

Question 35

Step required for service of CF by delivery of the document to or leaving it at the relevant place

Answer 35

Delivering to or leaving the document at the relevant place

Question 36

Step required for service of CF by personal service

Answer 36

Completing the relevant step under s.6.5(3), i.e., leaving it with the individual or particular person outlined in the rule if partnership, etc.

Question 37

Step required for service of CF by electronic method

Answer 37

Sending the email or other electronic transmission

Question 38

Can C apply for an order extending the period for serving the CF?

Answer 38

Yes

Question 39

Must an application to extend time for service of the CF usually be made within the original period for service (4 mos)

Answer 39

Yes, this is the general rule (subject to exceptions)

Question 40

When may an application to extend time for service of the CF be made after the original 4 mos allowed for service?

Answer 40

The court may make such an order only if - (a) the court has failed to serve the CF; OR (b) C has taken all reasonable steps to comply with the time limit for service but has been unable to do so; and (c) in either case, C has acted promptly in making the application.

Question 41

T/F: An application to extend time for service of the CF must be supported by evidence

Answer 41

True

Question 42

T/F: An application to extend time for service of the CF may be made without notice

Answer 42

True

Question 43

When may service be by DX?

Answer 43

Service by DX (document exchange) 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 solicitors acting for that party set out a DX box number; AND (3) The party/solicitor acting for that party has NOT indicated in writing that they are UNWILLING to accept service by DX.

Question 44

What must be done before service can ne done by fax/electronic means?

Answer 44

Where a document is to be served by fax/electronic means - (1) the party who is to be served or the solicitor acting for the 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, email address or email addresses or other electronic identification to which it must be sent; AND (2) the following are to be taken as sufficient indications - (a) a fax number set out on the writing paper of the solicitor acting for the party to be served; (b) an email address or email addresses set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the email address or email addresses may be used for service; OR (c) a fax number, email address or email addresses or electronic identification set out on a statement of case or a response to the claim filed with the court. (3) Where a party has indicated that service by email must be effected by sending a document to multiple email addressed, the document may be served by sending it to any 2 of the email addresses identified.

Question 45

Where a party intends to serve a doc by electronic means, what must that party do first?

Answer 45

That party must first ask the party who is to be served whether there are any limitations on the recipient's agreement to accept service by such means (for example, format of docs)

Question 46

If a document is served by electronic means, does the party serving the document also need to send or deliver a hard copy?

Answer 46

No

Question 47

How is service by the court normally done?

Answer 47

By first class post

Question 48

What must an application for service by an alternative method or alternative place state?

Answer 48

The application must be supported by evidence stating - (a) the reason why the order is sought; (b) what alternative method or place if proposed; and (c) why the applicant believes that the document is likely to reach the person to be served by the method or at the place proposed.

Question 49

How may a document (not CF) be served?

Answer 49

a) personal service b) first class post, DX, or other service which provides for delivery on next business day c) leaving it at a place specific pursuant to relevant rule d) fax or other means of electronic communication e) any method authorised by court. Company - any above method or anything permitted under Companies Act 2006 LLP - any above method or anything permitted under Companies Act 2006 as applied with modifications by regulations under Limited Liability Partnerships Act 2000

Question 50

Non-CF -> who is to serve?

Answer 50

A party to proceedings will serve a document which that party has prepared except where - (a) a rule or PD provides that the court will serve the document; or (b) the court orders otherwise The court will serve a document which it has prepared except where - (a) a rule or PD provides that a party must serve the document; (b) the party on whose behalf the document is to be served notifies the court that the party wishes to serve it; or (c) the court orders otherwise. Note: where the court is to serve a document, it is for the court to decide which method of service is to be used. Note: where the court is to serve a document prepared by a party, that party must also provide a copy for the court and for each party to be served.

Question 51

Non-CF -> how does service work on children and PPs

Answer 51

Any document which would normally be served on a child or PP must be left with the litigation friend. (Unless court has permitted child to conduct litigation w/o LF) The court may make an order permitting a document to be served on the child or PP or on some person other than the person specified (LF) The court may order that, although a document has been sent or given to someone other than the LF, the document is to be treated as if it were properly served.

Question 52

Non-CF -> when is deemed service

Answer 52

First class post or other service which provides for delivery on next business day and DX -> the **SECOND DAY** after it was posted, left with service provider, etc., **provided that day is a business day** (if not, the next business day after that day) Instantaneous delivery (e.g., email, personal service, delivering to permitted address, fax, electronic means) -> If **before 4:30pm then deemed served on that day**; if **after 4:30pm, the next business day**

Question 53

Non-CF alternative method or alternative place

Answer 53

Same as for CF

Question 54

In what type of claim is the Part 8 procedure used?

Answer 54

C may (unless enactment, rule of PD says otherwise) use Part 8 procedure where they seek the court's decision on a question which is unlikely to involve a substantial dispute of fact

Question 55

Can C using Part 8 procedure obtain default judgment against D?

Answer 55

No! C may not obtain default judgment under Part 12.

Question 56

Part 8 - what are the required contents of the CF

Answer 56

Where C uses the Part 8 procedure, the CF must state: (a) that Part 8 applies (b) (i) the question which C wants the court to decide; OR (ii) the remedy which C is seeking and the legal basis for the claim to that remedy; (c) if the claim being made under an enactment, what that enactment is; (d) if D is claiming in a representative capacity, what that capacity is; and (e) if D is sued in a representative capacity, what that capacity is

Question 57

Part 8 Acknowledgement of service by D - when, how and on whom?

Answer 57

D must - (a) file an acknowledgment of service in the relevant practice form not more than 14 days after service of the CF; AND (b) serve the acknowledgment of service on C and any other party. The acknowledgement of service must state - (a) whether D contests the claim; and (b) if D seeks a different remedy from that set out in the CF, what that remedy is.

Question 58

Part 8 - What happens when D fails to file acknowledgement of service

Answer 58

Where D fails to file acknowledgment and time period has expired, D may attend the hearing of the claim but may not take part in the hearing unless the court gives permission

Question 59

Part 8 - when filing CF, what else must C file

Answer 59

Any written evidence on which C intends to rely C must serve this on D w/ CF

Question 60

Part 8 - What must D do if D wishes to rely on evidence?

Answer 60

D must file written evidence when they file their acknowledgment of service. They must also, at the same time, serve a copy of the evidence on all other parties.

Question 61

Part 8 - Can C file evidence in reply to D's evidence?

Answer 61

Yes. C may within 14 days of service of D's evidence on them file further written evidence in reply They must at the same time serve on all other parties

Question 62

Part 8 - Can party apply for extension of time to serve and file evidence?

Answer 62

Yes. They can apply to the court.

Question 63

Part 8 - Can parties agree on extension of time to file and serve evidence?

Answer 63

Yes. Parties may agree in writing on an extension of time of not more than 14 days for serving and filing evidence from D and not more than 28 days for serving and filing evidence in reply. Any such agreement must be filed with the court with the acknowledgment of service or, if it relates to the reply, within 48 hours of the agreement.

Question 64

Part 8 - Can the parties rely on evidence that has not been filed and served following the relevant procedure?

Answer 64

No. Unless the court gives permission.

Question 65

Part 8 - T/F: The court may give directions requiring the attendance for XX of a witness who has given written evidence

Answer 65

True

Question 66

How may D object to use of the Part 8 procedure?

Answer 66

Where D contends that the Part 8 procedure should not be used because - (a) there is a substantial dispute of fact; AND (b) the use of Part 8 procedure is not required or permitted by a rule or PD, he must state his reasons when he files acknowledgment of service.

Question 67

How does court respond to D objection to Part 8 procedure?

Answer 67

After D states reasons for objections when filing acknowledgment of service, court will give directions as the further case management when it receives the acknowledgement of service and written evidence.

Question 68

How does use of Part 8 procedure modify general rules?

Answer 68

Where the Part 8 procedure is followed- (a) provisions about CF and defence which do not apply: (i) Part 16 - statements of case (ii) Part 15 - defence and reply (iii) any time limit preventing a party from taking a step before defence is received (iv) no requirement to serve on D a form for defending the claim. C may not obtain judgement by request on an admission. The claim shall be treated as allocated to multi-track