#10336 - Parties And Joinder - BPC Civil Litigation

BRINGING PROCEEDINGS BY OR AGAINST PARTICULAR CLASSES OF PARTY

Individuals

• full names and titles; initials if they are all known

• possible to commence proceedings using D's surname

• litigant who changes name must file notice at court office and serve on other parties

Direct claims against motor insurers

• general rule: if D insured, only bring proceedings against D (NOT insurer too)

• exception: Cs can bring tort proceedings arising out of road accidents against driver and insurer

Persons under disability

• children

• protected parties (PP)

  • presumption of full mental capacity, displaced where impairment of mind/brain prevents them from making relevant decisions

• litigation friends

  • person under disability must sue - and be sued by - LF (court can give child permission to dispense with LF, and reinstate LF if necessary)

  • until LP appointed, no steps beyond issuing and serving claim form and applying to appoint LP can be taken - r21.3(2)(b)

  • child's LF = relative w/ no adverse interest in litigation

  • PP's L = deputy appointed by Court of Protection

  • becoming LF without needing court order

    • when takes first step in proceedings (if acting for C = issuing claim form), person intending to act as LF must file:

      • deputy: official copy of Court of Protection order (deputy)

      • any other person: certificate of suitability, stating that:

        • can fairly and competently conduct proceedings on pp's behalf

        • has no adverse interest; AND

        • if acting for C undertakes to pay pp's costs subject to right to be repaid from assets of child/pp

      • serve certificate on all whom claim form must be served upon and file certificate of service

  • becoming a LF by court order

    • person wishing to become LF OR party applies

    • court may then appoint that person if suitable (see above)

    • may be necessary if PP is a D, as no steps can be taken in claim

• child turning 18

  • file and serve notice:

1. state child has turned 18

2. state LF's appointment ceased

3. give address for service

4. state if ex-child intends to remain a party

• PP regains capacity

  • LF's appointment ended by court order

  • any party (including PP and LF) can apply for order

• who to serve?

  • child - parent / guardian OR if none, adult child lives with

  • PP - person power of attorney OR if none, adult PP lives with

• seeking approval of settlements in monetary claims

  • settlement agreed before commencement of proceedings - use Part 8 procedure

  • settlement agreed after commencement of proceedings - issue application notice under Part 23

  • regardless of when settlement agreed

    • must be supported by written evidence (whether D admits liability, age of child, LF's approval of settlement)

    • must supply counsel's instructions and opinion on merits to court

  • approval hearing

    • heard by DJ / master in chambers, decision pronounced publicly

    • question for court: is settlement in child / PP's best interests?

      • N adjourn for renegotiation

      • Y settlement approved

        • Q: does PP lack capacity to manage money (protected beneficiary)

          • Y court of protection make investment decisions

          • N court invests money for purpose for which damages awarded

Sole traders

• sue as individual

Partnerships

• definition

  • partnership = number of people carry on business in common w/view to profit

• joint and several liability

  • partners are jointly AND severally liable can sue:

1. jointly liable - partnership (has partnership assets / insurance)

   1. if partnership has name must bring claim against name only (= shorthand for all partners at accrual)

-------OR--------

2. severally liable: individual partners (e.g. if partnership bankrupt, 1 partner has lots of assets)

• service

  • usual methods

  • individuals suing / being sued in name of partnership: address for service = usual / last known residence OR last known place of business of partnership

• acknowledging service where claiming against the partnership

  • must acknowledge service in name of partnership, on behalf of all partners at accrual

  • any partner (or person authorised by partners) may sign acknowledgement

• disclosure of individual partners at accrual's names

  • any party may request membership statement

  • partners must provide within 14 days of receipt (PD 7A para 5B)

• who / what can a judgment be enforced against

  • always: partnership assets in jurisdiction (PD 70 para 6A.1)

  • sometimes: individual partner

Registered companies

• at hearing, duly authorised individual must complete written statement giving: company's full name and registration number, status of authorised individual, date authorised and how e.g. Fatcash, 243424, director, 17 September 2013: board resolution dated 1 September 2013

• overseas companies

  • must register list of names and addresses of UK residents authorised to accept service + other documents with registrar of companies

  • service

    • leave at OR post

    • to address of authorised person OR UK place of business

• companies in liquidation

  • during liquidation: need court's permission to bring proceedings

  • after liquidation when company dissolved: apply to court to restore company to register of companies, provided limitation period hasn't expired (e.g. PI claim against company insured at time of accident)

Trusts

• trustees act jointly and must be parties in any proceedings (as Cs if consent, otherwise as Ds)

• beneficiaries need NOT be parties to the proceedings - order against trustee is binding on beneficiary unless court orders otherwise

Deceased persons

• cause of action vests in PR (except defamation)

• party dies during litigation

  • PR may be ordered to be made parties by substitution (does NOT offend Limitation Act) (r19.2(2))

  • if fail to substitute and deceased served, irregularity can be rectified as defect under r3.10

• claim brought against dead person

  • deemed to have been brought against PR (r19.8(3)(b))

• claim with multiple parties, 1 party dies without PR

  • surviving parties can apply for order to proceed in absence of PR

Bankrupts

• need court's permission to bring proceedings against a bankrupt (CANNOT be granted retrospectively, so proceedings brought without permission are a nullity)

• bankrupt's estate vests in trustee in bankruptcy on appointment BUT bankrupt has no standing to bring claim even before trustee appointed

• trustee in bankruptcy should be a party

• PI and defamation - claim remains vested in bankrupt

• party goes bankrupt during proceedings - court may order trustee to be substituted in as a party (r19.2(2))

Vexatious litigants who persistently bring unmeritorious claims

• serious cases: HC can make civil proceedings order preventing litigant bringing claim without HC's permission (if granted, D can apply to set aside)

• less serious cases: court may make civil restraint order preventing litigant bringing claim in courts named in order

• if court finds unmeritorious claim must consider a civil restraint order

JOINDER

Deciding whether to join parties / causes of action

• guiding principles

  • court should seek finality, avoid multiplicity in proceedings

  • OO

  • court's general powers of case management: consolidate proceedings; try 2+ claims on same occasion

Joinder of parties

• any number of Cs or Ds may be joined as parties, provided each has / has against them a cause of action

• the test

  • court may add party if desirable to resolve all matters in dispute / issue between existing and new party connected to proceedings (r19.2(3))

• joint Cs: must have aligned interests AND same counsel and solicitors

• joint Ds: need NOT have aligned interests

• specific application

  • parties jointly entitled to remedy (except probate)

    • must be joined as Cs (unless court orders otherwise)

    • if refuse to be joined as C, must make D (unless court orders otherwise) (r19.3)

  • parties jointly liable e.g. trustees

    • everyone jointly liable must be made a D

Joinder of causes of action

• C may use single claim form to start all claims which can be conveniently disposed of in same proceedings

• specific application

  • single C with multiple causes of action: should join causes to avoid costs, irreconcilable judgments, res judicata

  • parties severally liable OR C with related causes against several Ds: may join causes, if prudent

Power to order separate trials

• court can order separate trials to ensure case proceeds efficiently, even if joinder technically permissible (r3.1(2)(i))

REPRESENTATIVE PROCEEDINGS

• members of class with same interest can start representative proceedings

• any order made binding on all members of class BUT need court's permission to enforce

INTERVENING IN PROCEEDINGS

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