#13776 - Initiating Proceedings And Service - BPC Civil Litigation

Initiating 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 stamps on receipt;

• Particulars of Claim - Written formal statement, setting out C’s case, and remedies sought.

How to Start

• Started by issuing a Claim Form (CF) - (r7.2)

• Date of issue will be receipt by court (PD7A(5.1)) - But if CF is received earlier than date of issue, the claim is “brought” for the purposes of LA 1980 on that earlier date. (PD7A(5.1)).

Parties to the Proceedings Summary

Against Children or Protected Parties

• Appointing a Litigation Friend

  • No party may, without permission of court, make an application against a child/PP or take any step except issuing and serving CF/PoC until child/PP has Litigation Friend (r21.3)

  • Children

    • A child must have Litigation Friend unless the Court orders otherwise, upon an application by the child, and notice must be given to LF (if there is one, if not, can be without notice!)

    • Child is someone under 18.

    • Child must notify all parties when turn 18 that not subject to LF anymore.

  • PP

    • PP must have a litigation friend to conduct proceedings on their behalf (r21.2);

    • PP is someone who lacks capacity

• Service

  • CF must be served upon (r6.13):

    • Children

      • Parents or guardians;

      • If no parent/guardian, the person with whom child resides.

    • PP

      • Attorney with registered Enduring Power of Attorney

      • Donee of Lasting Power of Attorney

      • Deputy Appointed by Court of Protection

• Taking Steps in Proceedings

  • No settlement, compromise, or payment may be made by or against child/PP without the approval of court (r21.10, Pt 8).

    • Child

      • If recovered on behalf of child, it will be paid into Court, and paid out on age of majority.

    • PP

      • If over 50k, LF must apply to CoP to appoint deputy to make investment decisions. If below 50k, or court gives authorisation, it can be paid into Court and invested in the same way as a child’s fund.

Who can become a Litigation Friend?

• Three methods:

  1. Be appointed by the Court;

  2. A Deputy Appointed by the Court of Protection (r21.4);

     1. Must file an Official Copy of the Court of Protection Order. When?

        1. If acting as LF for C, must file at the time the claim is made; or

        2. If acting as LF for D, must file at the time when he first takes a step in the proceedings on behalf of the defendant.

  3. A person after filing a Certificate of Suitability (r21.5(3)) confirming (r21.4(3)):

     1. He can fairly and competently conduct proceedings for the child/PP;

     2. Has no interest adverse to that of the child or protected party; and

     3. Where the child or protected party is a claimant, undertakes to pay any costs, subject to any right he may have to be repaid from the assets of the child/PP.

     4. A Certificate of Service must be filed with the Court.

• Ceasing to be Litigation Friend

  • The Court may direct that:

    • A person may not act as LF;

    • Terminate an LF’s appointment;

    • Substitute a new LF for an old one.

  • It must be served on all parties, including the proposed and existing LF.

Consolidating Multiple Proceedings

• Joinder of Claims and Defendants

  • s49 SCA 1981 - All matters must be completed and finally determined and avoid multiplicity of proceedings.

  • Multiple claims or defendants may be joined only if:

    • It can be “conveniently disposed of in the same proceedings” per r7.3 CPR.

  • If C is jointly entitled to a remedy with another, that other must be joined to the proceedings. If they don’t agree to become claimant, they will be joined as a defendant (r19.3). Doesn’t apply in Probate.

  • Once issued, need Court’s permission to add/remove/substitute parties (r19.4).

  • Non-parties may be added as parties either (r19.2):

    • Intervenor’s presence is required to resolve matters;

    • There exists an issue between party and intervener which is desirable to resolve.

• Consolidation

  • Several matters may be consolidated into a single claim, if before the Court at the same time under r3.1(2)(g).

  • Thus, in a case where C begins two separate proceedings, in compliance with s49(2) SCA 1981 (“avoiding multiplicity of proceedings”), r7.3 (“conveniently disposed of in the same proceedings”)and the overriding objective, the Court would consolidate proceedings under r3.1(g) and s49(2) SCA 1981.

• Human Rights

  • If Declaration of Incompatibility is applied for:

    • Notice must be given to Crown with 21 days prior notice (variable by Court)

    • Minister can apply to be a party, or nominate any other person (s5 HRA 1998)

    • In respect of judicial act, notice must be given to Lord Chancellor, served on Treasury Solicitor on his behalf.

Types of Multiple Claimant Proceedings

• Representative Proceedings

  • Where more than one person has the same interest (whether as C, or D), a single person may bring the action in Representative Proceedings. (r19.6). Is there a common interest, grievance, or relief sought?

• Derivative Claims

  • A Derivative Claim may be brought my a Company Member, but needs to apply under Pt 23 for permission to continue, and file written evidence in support of application.Derivative Proceedings can only be brought for breach of duty, breach of trust, negligence, and default. Includes former directors and shadow directors.

  • Current Members can bring actions for breaches before they were members.

• Group Litigation Orders

  • If there are common or related issues of fact or law (“GLO Issues”), the Court can make a “Group Register” of these GLO issues, and assign to a single “Management Court”, and the judgments are binding on all, or on some as directed by the Court. There is no minimum number for a GLO, but it can only be made by a Senior Judge (President of QBD, PD of ChD, Head of Civil Justice for CC).

• Trustees & Beneficiaries

  • Claims brought by or against Trustees are binding on Beneficiaries whether or not parties (r19.7A).

Which Court to start in?

This is important - If wrongly commenced in HC, when should be CC, that can be taken into account of costs under s51(8) SCA 1981 usually leading to a reduction of upto 25% in costs awarded to C.

• Concurrent Jurisdiction

  • HC and CC have concurrent jurisdiction in:

    • Contract and Tort - s15 CCA 1984;

    • Recovery of Land - s21 CCA 1984;

    • Inheritance (Provision for Family & Dependents) Act 1984 - s25 CCA 1984;

    • Relief from forfeiture - s139 CCA 1984;

    • Landlord & Tenant Act 1954 for security of business tenants - s63 LTA 1954.

• MUST be High Court (HC)

  • Judicial Review (s38(3) CCA 1984)

  • Libel, slander (s15(2)(b) CCA 1984)

  • Title to toll, fair, market or franchise (s15(2)(a))

  • Human Rights Act 1998 (r7.11)

    • No Declaration of Incompatibility unless Crown given at least 21 days notice (or as court directs). A minister or other Crown representative must be joined as a party to the Court.

  • Administration of Estates, Declaration of Trust, or Variation of Trusts exceeding the statutory limit for CC matters:

    • Equity Jurisdiction (Administration of Estates, Execution of Trusts, SP) 350,000.

    • CL Jurisdiction - 30,000

    • s1 Charging Orders Act 1979 - 5,000.

• EITHER HC or CC

  • May not be started in High Court (HC) unless: (PD7A(2.1)

    • the value of the claim is more than 100,000, or 50,000 if PI case.

    • It falls within a specialist List defined in Part 49 as:

      • Companies Act proceedings;

    • Fall within PD29(2.6):

      • Claims involving Professional Negligence;

      • Fatal Accident Act;

      • Fraud or undue influence;

      • Defamation;

      • Malicious Prosecution;

      • False Imprisonment;

      • Claims against the Police;

      • Contentious Probate Claims.

  • Otherwise determine on financial value, complexity, and importance to general public.

  • NB: You can still issue in CC even if you’re over the 100k/50k threshold as it states “may” start in HC. But you must use the HC if it exceeds the CC threshold of 350k for estates.

• MUST be County Court (CC)

  • A matter with a value less than 100,000 will be transferred to CC (PD29) unless:

    • Required by enactment to be heard in CC;

    • Falls within specialist list;

    • Parties agree to hear in CC - s24 CCA 1984.

  • If started in CC under Pt 7, and is a claim only for an amount of money with no special procedures, the CF must be sent to the County Court Money Claims Centre (CCMC).

• If claim is for a specific sum of money, and is commenced in the HC or CC which is not D’s home court, and D is an individual, it will be transferred to his local HC (r26.2) or CC (r26.2A).

• If there is a “real possibility” that a party may be required to disclose material “damaging to the interests of national security” it must be transferred to HC. (Even if below 100k!)

Service of Documents

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