#13696 - Basic Tests For Revision - BPC Civil Litigation

1. The court has failed to serve the claim form or

2. The C has taken all reasonable steps to comply with the service of the claim for but has been unable to do so and

3. In either case the C has acted promptly in making the application

1. The court may allow an amendment whose effect will be to add or substitute a new claim but only if the new claim arises out of the same fact s or substantially the same facts as the claim in respect of which the party applying for permission has already claimed a remedy in the proceedings

2. The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

3. The court may allow an amendment to later the capacity in which a party claims if the capacity is one which that party had when the proceedings started or had since acquired.

1. The court may order a person to be added as a new party if:

1. It is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings

2. There is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue

2. the court may order a new party to be substituted for an existing one if:

1. the existing party’s interest or liability has passed to the new party and

2. it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings

1. The relevant limitation period (ie the lim period of the new claim) was current when the proceedings were started (ie when the limitation period for the new claim had not expired when the original action commenced) AND

2. it is necessary to determine the original action.

Rule 19.5(3): necessary only if the court is satisfied that:

1. The new party it to be substituted for a party who was named in the claim form in mistake for the new party

2. The claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant or

3. The original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party

A claimant can enter a default judgment in the following circumstances (r.12.3) :

1. If the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim) and 14 days have expired since service of the Particulars of Claim; or

2. If the defendant has filed an acknowledgment of service but has not filed a defence, and 28 days have expired since service of the particulars of claim.

MANDATORY:

1. Situations where the essential conditions about failing to acknowledge service or defend, or the relevant time having elapsed, are not satisfied; or

2. The claim was satisfied before judgment was entered; or

3. The defendant had already applied for summary judgment or to strike out the claim; or

4. The defendant had already filed an admission requesting time to pay (where an admission has been filed the C cannot obtain a default judgment. They can instead obtain judgment on that admission)

DISCRETION:

1. ‘a real prospect of successfully defending the claim’; or

2. there is some other good reason why the defendant should be allowed to defend the claim

3. Taking into account whether the application to set aside has been made promptly.

Court can grant summary judgment if:

1. Claimant has no real prospect of succeeding on the claim or issue; or

2. Defendant has no real prospect of successfully defending the claim or issue; and

3. There is no other compelling reason for there to be a trial

Claimant may apply only after the Defendant has filed either an acknowledgement of service or a defence. A defendant can apply only after filing an acknowledgement of service or a defence.

1. If an interim injunction has been granted in relation to the claim being discontinued;

2. If any party has given an undertaking to the court in relation to the claim being discontinued;

3. If the claimant has received an interim payment in relation to the claim being discontinued, permission must be sought from the court or consent must be given in writing by the Defendant;

4. Where there is more than one claimant, the claimant wishing to discontinue must either obtain permission from the court, or obtain confirmation in writing from all other claimants;

5. Where a claim is brought by a person under a disability, approval of the court is required if the discontinuance amounts to a settlement or compromise of the claim

Stage 1: Identify and assess the seriousness of the non-compliance. Is the breach "serious or significant"?

Stage 2: If it is, why did the default occur?

Stage 3: Consider all the circumstances of the case in order to deal with the application "justly", including (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules, directions and court orders.

Having regard to all the circumstances of the case, It is just to make such an order and one or more of the conditions below are satisfied or the enactment permits the court to require security for costs.

1. C is a resident outside jurisdiction

2. C is a company or other body and there is reason to believe it will be unable to pay the D’s costs if ordered to do so.

• IF the Ds are sued jointly or in the alternative, the C may accept the offer if:

1. He discontinues his claim against those Ds who have not made the offer and

2. Those Ds give written consent to the acceptance of the offer

• If the C alleges that the Ds have a several liability to him, the C may:

1. Accept the offer and

2. Continue with his claim against the other Ds if he is entitled to do so.

• In all other cases, the C must apply to the court for an order permitting him to accept the Pt 36 offer.

1. The claimant fails to obtain judgment more advantageous than the Part 36 offer if made by the defendant; or

2. Judgment is entered against the defendant which is at least as advantageous to the claimant as the proposals set out in the Part 36 offer if made by the claimant.

1. Children

There are special rules relating to children in civil cases.

Children are competent, even if not giving evidence on oath, if the court is of the opinion that the child (Children Act 1989 s 96):

1. understands his duty to speak the truth

2. has sufficient understanding to justify the evidence being heard.

A child, for these purposes, is a person under the age of 18; s 105 CA 1989.

2. Defective Intellect

A witness is not competent if prevented by mental illness from understanding the nature of the oath and from giving rational testimony. R v Hill (1851) 2 Den...