#10363 - Commencing Proceedings - BPC Civil Litigation

COMMENCING PROCEEDINGS

DEFINITIONS

• filing = giving document into court

• issue = application of court issue stamp

• service = sending to other side

• bringing a claim = depositing documents at court; court date stamps on receipt

• particulars of claim - formal written statement setting out nature of C's case and nature of relief/remedy sought from D

ISSUE OF CLAIM - SUMMARY

1. file: take claim form and documents to court

2. pay fee

3. issue claim

CLAIM FORM

Contents of claim form (r16.2(1), PD16 para 2, PD 7A para 3 and 4)

• names and addresses of parties - if not supplied - claim form issued but not served until supplied

• concise statement of nature of claim

• remedy sought; AND

• statement of value where claim for money - r16.3

  • if damages to be decided by court - state (for track allocation) if expect to recover

    • no more than 10k

    • 10k - 25k

    • more than 25k

    • cannot say - r16.3(4)

    • PI cases only - is PSLA above or below 1000 - r16.3(3)

  • when calculating how much C expects to recover must disregard - r16.3(6)

    • interest (future, which may be awarded by court)

    • costs (which may be awarded by court)

    • that court may find contributory negligence

    • that D may make a counterclaim

    • that defence may include a set-off

    • D may be liable to pay money court awards to C to Secretary of State for Social Security

• if C only claims for specified sum of money - amount sought inc. accrued interest (interest up to date of issue)

• proceedings against crown - govt depts, officers of crown, brief details of how liability alleged to have arisen

• representatives' capacity (if any)

• statement of truth - part 22

• endorsement if HC claim

  • endorse with statement confirming HC's jurisdiction e.g. expect to recover >25k (>50k PI)

Issuing the claim form

• solicitor - makes copies, retains 1, sends others to court (OR personally takes them) with cover letter requesting issue of claim

• court - issues claim (seals claim forms), enters details in records, allocates claim number, sends notice of issue to C's solicitors (confirms date of service if court effecting service)

• designated money claims

  • can use if:

1. claim for debt AND / OR damages; AND

2. started in coco; AND

3. part 7 claim; AND

4. NOT governed by special procedure

   • must send claim form to Northampton coco for issue

   • undefended claims - transferred to C's preferred coco (specified in claim form)

   • defended claims - stay in Northampton till parties file DQ OR stay to attempt ADR expired then transfer to D's home coco / that specified in DQ

• money claim online

  • can use if:

1. debt claims <100k; AND

2. part 7 procedure used; AND

3. C child / PP / funded by LSC; AND

4. D crown / child / PP; AND

5. C's service address in UK; AND

6. D's service address in E+W; AND

7. claim against single D OR 2 Ds w/ single amount against each

   • issued in Northampton Coco: send court service online form; pay issue fee electronically

   • service of claim form deemed to be effected by court on 5th day after issue (even if not business day)

   • D's response may be electronic OR hard copy

   • if D does NOT respond, C can file electronic request for judgment in default

   • claim transferred to D's home court on filing of defence

Court fee

• payable on stated value of claim AND accrued interest

• C may state value below full potential loss, even though this may reduce fee payable

PART 7 PROCEDURE

• most proceedings (likely to be substantial dispute of fact) = Part 7

Summary

1. claim form (+ PoC and response pack)

2. C has 14 days after service of claim form to file PoC + response pack

3. Defence - ADD

PARTICULARS OF CLAIM

• particulars of claim - formal written statement setting out nature of C's case and nature of relief/remedy sought from D

Contents of particulars - r16.4

• concise statement of facts giving rise to dispute (essential elements of cause of action as matter of law)

• C's causes of action (essential elements)

• remedy claimed

  • if C seeking aggravated, exemplary or provisional damages - statement to that effect and grounds for claiming

  • if C seeking interest

    • statement to that effect and grounds for claiming

    • basis - contract / statutory authority / other

    • if claim for specified amount of money: rate; period; total claimed to date; daily rate after date

• statement of truth: 'I believe (the claimant believes) that the facts stated in these particulars are true'

Service of particulars

• serve w/ response pack containing - r7.8

  • form for defending claim

  • form for admitting claim; and

  • form for acknowledging service

• serve within validity period of claim form (usually within 4 months after issue of claim form) - CPR r 7.4(2)

• can be - PD 16 para 3.1 - 3.4

  • included on reverse of claim form; OR

  • set out in separate document served

    • w/ claim form; OR

    • within 14 days after service of claim form CPR r7.4(1)

Contractual claims

• particulars should include

  • written or oral?

  • date who acted for each side in formation

• written contracts must be attached to/served w/ particulars - PD 16 para 7.3

• oral contracts - particulars must include- para 7.4

  • contractual words used

  • who said

  • when, where

PI claims

• particulars must state - PD 16 para 4.1

  • basis of claim

  • C's DOB

  • brief details of injury sustained

• C must attach

  • schedule of past and future expenses/losses, verified by statement of truth - para 4.2; AND

N.B. schedule only includes special damages; PSLA dealt w/ in particulars

• serve w/ medical report dealing w/ injuries sustained - para 4.3

HRA claims

• particulars must set out:

  • article relied on

  • infringement

  • remedy sought

PART 8 PROCEDURE

Summary

1. claim form + evidence (WS / affidavit) + form for D to acknowledge service

2. D has 14 days to file AoS + evidence (must file evidence)

3. C has 14 days to file and serve evidence in reply (optional)

Track allocation

• part 8 claims always allocated to multi track - CPR r8.9(c)

When is Part 8 procedure used?

• must use part 8 procedure for:

  • claims where Act, rule or PD provides claim is brought by originating: summon, motions or application (PD 8A para 3.3)

  • claims listed in PD 8A (long list!)

• may use part 8 procedure for

  • claims where unlikely to be substantial dispute of fact - CPR r8.1(2)(a)

  • approval of children's / PP's settlements settled before proceedings commenced (PD 8A para 3.1)

  • claim for provisional damages settled before proceedings commenced, where sole purpose = to obtain consent judgment PD 8A para 3.1

Part 8 claim form

• part 8 claim form must state

  • that part 8 applies

  • Q C wants court to decide / remedy sought / (seek court's approval of settlement) - CPR r8.2

  • if claim pursuant to statute, relevant statute

  • statement of truth - part 22

  • if representatives: capacity in which they act

• along w/ part 8 claim form must:

  • file and serve C's evidence (in form of witness statement or affidavit - PD8A para 7.2)

  • serve form only for D to acknowledge service - r7.8(2)

• if approval of child / PP's settlement: must set out terms of settlement OR attach consent order

Inappropriate use of Part 8 (PD 8A para 3)

• if court officer realises part 8 used inappropriately, claim may be referred to judge to decide how to deal w/ case

• procedural judge may order claim to continue as part 7 court will issue directions and allocate track

Reply

• After issue and service, D has 14 days to acknowledge service (r8.3(1))

• D must file evidence when acknowledges service

• C may file and serve evidence in reply...