#16080 - Parties - BPC Civil Litigation

PARTIES

Claims against partnerships

CPR, Part 7, how to start proceedings

7.2A: PD 7A makes provision for procedures to be followed when: claims are brought by or against a partnership within the jurisdiction.

PD 7A

5A, Claims by and against partnerships within the jurisdiction

• para 5A and 5B apply to claims that are brought by or against two or more persons who:

  • (1) were partners; and

  • (2) carried on that partnership business within the jurisdiction

  • at the time when the cause of action accrued.

• for the purposes of this para, ‘partners” includes: persons claiming to be entitled as partners; and persons alleged to be partners.

• Where that partnership has a name: unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.

5C, Individual Persons carrying on business in another name

• This para applies where:

  • (1) the claim is brought against an individual;

  • (2) that individual carries on a business within the jurisdiction (even if not personally within the jurisdiction); AND

  • (3) that business is carried on in a name other than that individual’s own name (“the business name”).

• The claim may be brought against the ‘business name’ as if it were the name of a partnership.

Part 19, parties and group litigation

19.1, Any number of Cs or Ds may be joined as parties to a claim

• Any number of Cs or D may be joined as parties to a claim.

19.3, Provisions applicable where 2 or more persons are jointly entitled to a remedy

• (1) where a C claims a remedy to which some other person is jointly entitled with him all persons jointly entitled to the remedy must be parties

  • UNLESS the court orders otherwise.

• (2): if any person does not agree to be a claimant, he must be made a defendant,

  • UNLESS the court orders otherwise.

  • [[will be a defendant in name only, but it means he’ll be bound by the judgment, to avoid multiplicity of proceedings]]

• (3): This rule does NOT apply in probate proceedings.

19.7A, Representation of beneficiaries by trustees etc

• [[[Links to rule 19.3: all parties entitled to a remedy must be a party to the claim---so all trustees must be party to the claim, whether as C or D]]]

• (1) a claim may be brought by or against trustees, executors or administrators in that capacity, WITHOUT ADDING as parties “the beneficiaries” (any persons who have a beneficial interest in the trust or estate).

• (2) any judgment or order given or made in the claim is binding on the beneficiaries, unless the court orders otherwise in the same or other proceedings.

19.8, DEATH

• (1) where a person who had an interest in the claim has died; AND that person has no personal representative, the court may order:

  • (a) the claim to proceed in the absence of a person representing the estate of the deceased; OR

  • (b) a person to be appointed to represent the estate of the deceased.

• (2) where a D against whom a claim could have been brought has died AND:

  • (a) a grant of probate or administration has been made , the claim must be brought against the persons who are the personal reps [i.e. administrator or executor]] of the deceased;

  • (b) a grant of probate or administration has not been made

    • (i) the claim must be brought against “the estate of” the deceased; and

    • (ii) the C must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

• (3) A claim shall be treated as having been brought against “the estate of” the deceased in accordance with para (2)(b)(i), where:

  • (a) the claim is brought against the “personal representatives” of the deceased but a grant of probate or administration has not been made; OR

  • (b) the person against whom the claim was brought was dead when the claim was started.

• (4): before making an order under this rule, the court may direct notice of the application to be given to any other person with an interest in the claim.

• (5): where an order has been made under paras (1) or (2)(b)(ii) any judgment or order made or given in the claim is binding on the estate of the deceased.

Bringing & settling proceedings involving children & protected parties:

Part 21, Children and protected parties

21.1, Scope of this part

• (1) This Part

  • (a) contains special provisions which apply in proceedings involving children and protected parties;

  • (b) sets out how a person becomes a litigation friend; and

  • (c) does not apply, WHERE one of the parties to the proceedings is a child, to:

    • (i) proceedings under Part 75;

    • (ii) enforcement of specified debt by taking control of goods; or

    • (iii) applications in relation to enforcement of a specified debts by taking control of goods.

• (2) In this part:

  • (a) the ‘2005 Act’ = Mental Capacity Act 2005

  • (b) ‘child’ = person under 18

  • (c) ‘lacks capacity’ = lacks capacity within meaning of the 2005 Act;

  • (d) ‘protected party’ = a party, or an intended party, who lacks capacity to conduct the proceedings

  • (e) ‘protected beneficiary’ = a protected party who lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings;

  • (f) ‘specified debts’ = same meaning as in rule 75.1(2)(e);

  • (g) ‘taking control of goods’ = using the procedure to take control of goods in Sch 12 to the Tribunals, Courts & Enforcement Act 2007.

• (Rules 6.13 and 6.25 contain provisions about the service of documents on children and protected parties)

• (Rule 46.4 deals with costs where money is payable by or to a child or protected party).

21.2, Requirement for a litigation friend in proceedings by or against children and protected parties

• (1) a protected party must have a litigation friend to conduct proceedings on his behalf [[no exception]].

• (2) a child must have a litigation friend to conduct proceedings on his behalf, unless court makes an order under para (3):

  • (3), court may make an ordering permitting a child to conduct proceedings without a litigation friend.

• (4) An application for an order under para (3):

  • (a) may be made by the child;

  • (b) if the child already has a litigation friend, must be made on notice to the litigation friend; and

  • (c) if the child has no litigation friend, may be made without notice.

• (5), WHERE:

  • (a) the court has made an order under para (3) [[no litigation friend required for child]]; AND

  • (b) it subsequently appears to the court that it is desirable for a litigation friend to conduct the proceedings on behalf of a child,

  • the court may appoint a person to be the child’s litigation friend.

21.3, Stage of proceedings at which a litigation friend becomes necessary

• (1) this rule does not apply where the court has made an order under rule 21.2(3) [[no litigation friend required where court makes order that child to conduct proceedings without]].

• (2) UNTIL the child/protected party has a litigation friend, a person may not, without the permission of the court:

  • (a) make an application against a child or protected party before proceedings have started; OR

  • (b) take any step in proceedings EXCEPT:

    • (i) issuing & serving a claim form; or

    • (ii) applying for the appointment of a litigation friend under rule 21.6.

  • I.E.: a Defendant can’t do anything until have appointed a litigation friend; a Claimant can only issue & serve a claim form or apply for appointment of litigation friend.

• (3) if during proceedings a party lacks capacity to continue to conduct proceedings, no party may take any further step in the proceedings without the permission of the court UNTIL the protected party has a litigation friend.

• (4): any step taken before a child or protected party has a litigation friend HAS NO EFFECT unless the court orders otherwise.

21.4, Who may be a litigation friend without a court order

• (1) this rule does not apply IF: the court has appointed a person to be a litigation friend.

• (2) [[re a ‘protected party’, i.e. not for a child]]: a deputy appointed by the Court of Protection under the Mental Capacity Act 2005 with power to conduct proceedings on the protected party’s behalf is entitled to be the litigation friend of the protected party, in any proceedings to which his power extends.

• (3) If nobody has been appointed by the court (OR, in the case of a protected party, nobody has been appointed as a deputy as set out in para (2)) a person may act as a litigation friend if he:

  • (a) can fairly and competently conduct proceedings on behalf of the child or protected party;

  • (b) has no interest adverse to that of the child or protected party; AND

  • (c) where the child or protected party is a claimant, undertakes to pay any costs which the child/protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child/protected party.

21.10, Compromise etc by or on behalf of a child or protected party

• (1) where is claim is made:

• (a) by or on behalf of a child or protected party; OR

• (b) against a child/protected party

• no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of, or against, the child/protected party, without approval of the court.

• (2) WHERE:

• (a) before proceedings in which a claim is made by or on behalf of or against, a child/protected party (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; AND

• (b) the sole purpose of proceedings is to obtain the approval of the court to a settlement or...