Unit 5 - Commencement Reading PDF

***PREPARATORY READING (and Syllabus Areas)*** ***To prepare for this Unit you should:*** 1. *Read the examinable material in The White Book set out in the Syllabus below including commentary* 2. *Read PD49E paragraphs 1-3. These paragraphs are not on the syllabus but provide context to...

***PREPARATORY READING (and Syllabus Areas)*** ***To prepare for this Unit you should:*** 1. *Read the examinable material in The White Book set out in the Syllabus below including commentary* 2. *Read PD49E paragraphs 1-3. These paragraphs are not on the syllabus but provide context to enable you to understand how Part 8 claims operate* 3. *Read the following rules in the White Book: CPR 7.1, 7.4, These rules are not on the syllabus but provide context to enable you to understand how Part 7 claims operate* 4. *Read paragraphs 4, 4A, 5 and 9 of the High Court and County Courts Jurisdiction Order 1991 (SI 1991/724), at section 9B of Volume 2 of the White Book). These paragraphs are not on the syllabus but provide context to enable you to understand how the rules operate* 5. *Review notes from Unit 1* *** *** ***BSB Centrally Set Assessments Syllabus Coverage for Unit 5*** ***(please see syllabus for full WB references):*** ***SYLLABUS AREA 6. Commencing Proceedings*** 1. The Part 7 procedure 2. Validity, extension and service of claim forms 3. Service of other court documents within the jurisdiction 4. The Part 8 procedure ***SYLLABUS AREA 7. Parties*** 2\. Children and persons suffering from mental incapacity ***SYLLABUS AREA 13. Case Management, Sanctions, Striking out and Discontinuance*** 3\. Case management ***SYLLABUS AREA 22. Judgments, Orders and Enforcement*** 2\. Enforcing money judgments -- in particular paragraph 8 of the High Court and County Courts Jurisdiction Order 1991 (SI 1991/724) at section 9B of Volume 2 of the White Book) 6 **Commencing Proceedings** ============================ 1. the Part 7 procedure 2. validity, extension and service of claim forms 3. service of other court documents within the jurisdiction 4. the Part 8 procedure ***Examinable Material*** 1. Examinable material on the Part 7 procedure will consist of *where to start proceedings; how to start proceedings; the right to use one claim form to start two or more claims; start of proceedings; and statement of truth.* The relevant material is addressed in **CPR 7.2-7.3; CPR 7.4; PD7A paragraphs 1, 2.1-2.6, 6.1-6.5, 10.1-10.2 and 11.1-11.2;** the commentary in the **first sub-paragraph of 7.6.2** (to "v)... in accordance with the overriding objective."), and the **first two sub-paragraphs of 7.6.3** (ending "... on the last day of the four month period.") of Volume 1 of **'Civil Procedure' (the White Book) 2024;** and *articles 4, 4A, 5 and 9 of the High Court and County Courts Jurisdiction Order 1991 (SI 1991/724), at **paragraphs 9B-935 to 9B-935.2 and 9B-948 of Volume 2** of \'Civil Procedure\' (the White Book) 2024.* [How to start proceedings] 2. -- 1. Proceedings are started when the court issues a claim form at the request of the claimant 2. A claim form is issued on the date entered on the form by the court Part 16 sets out what claim form must include. [Right to use one claim form to start two or more claims] 7.3 A Claimant may use single claim form to start all claims which can be conveniently disposed of in the same proceedings. [Particulars of claim] 4. -- 1. PoC must -- a. B contained in or served with claim for, or b. Subject to paragraph (2) be served on D by C within 14 days after service of claim form 2. PoCs must be served on D no later than latest time for serving a claim form (see Rule 7.5 on latest time) 3. Where C serves PoC on D, the C must, within 7 days of service on D, file a copy of particulars unless copy already filed. 4. C need not file copy of PoC under para (3) if claim dealt with at Production Centre or Civil National Business Centre & is not transferred to another claim. **[PD7A -- How to start proceedings -- the claim form]** PD7A Para 1 - Proceedings where both HC and CC have jurisdiction, may be started in HC or CC PD7A Para 2.1 Proceedings (whether damages or specified sum) may only be started in High Court if value of claim +£100,000. PD7A Para 2.2 Proceedings including claim for damages in respect of personal injury may only be started in High Court if value of claim £50,000 or more PD7A Para 2.4 Subject to 2.1 and 2.2 above, claim should be started in High Court if by reason of -- 1. The financial value of the claim & amount in dispute, and/or 2. The complexity of the facts, legal issues, remedies/procedure involved, and/or 3. Importance of the outcome of the claim to the public in general The C believes that claim out to be dealt with by HC judge. PD7A Para 2.5 1. Claim in County Court under Part 7 may be made at any CC hearing centre, unless enactment, rule or PD specifies otherwise 2. If claim required to be made in particular CC HC and is made at wrong HC, then court officer will send to correct HC before it is issued. **[Start of Proceedings]** PD7A Para 6.1 Proceedings are started when court issues claim form at the request of the claimant, but where form as issued was received by court on a date earlier than date of issue, the claim is 'brought' for purposes of LA 1980 on that earlier date. PD7A Para 6.2 Date on which claim form received by court will be recorded by a date stamp on claim form or on letter accompanying it. PD7A Para 6.3 Enquiry about date on which form received by court should be directed to court officer. PD7A Para 6.4 Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise potential importance of establishing the date the claim form was received by court & should themselves make arrangements to record the date. PD7A Para 6.5 Where a person seeks to start proceedings against the estate of deceased D, where probate or letters of administration have not been granted, C should issue claim against 'the personal representatives of A.B deceased'. C should then, before expiry of period for service of claim form, apply to the court for appointment of a person to represent estate of the deceased. **[RULE 7.6: Extension of time for serving a claim form ]** *See notes below* [Commentary 7.6.2 Rule 7.6: Applications under rule ] General principles summarised by Carr LJ in ***ST v BAI (SA)*** \[2022\] as follows: i. D has a right to be sued by means of originating process issued within statutory period of limitation and served within period of initial validity of service. a. A departure from this starting point needs to be justified ii. The reason for inability to serve within time is a highly material factor. The better the reason the more likely an extension is to be granted. b. Further, what may be sufficient reason for extension of time for service of PoC is not necessarily sufficient reason for extension of service of the claim form. iii. Where no good reason, court still has discretion to grant extension but is unlikely to do so iv. Whether limitation period has expired or may expire since commencement of proceedings is an important consideration. c. If a limitation defence will be prejudiced by granted extension of time, then C has to show at the very least that is has taken reasonable steps (but not all reasonable steps) to serve within time. v. Discretionary power to extent must be exercised in accordance with the overriding objective. Case law: A claimant who is granted an extension of time for service of claim form, without notice to D, must be aware that the order may be set aside subsequently on application by D. - Where D successful, and where C's application was made close to end of 4 month period for service, and where cause of action has become time barred since issuance, C will be worse off than if their application without notice was refused as they will be unable to serve the claim form in time to issue new proceedings. - See Hoddinott v Persimmon Homes \[2007\] [Commentary 7.6.3 Application under rule] In *Cranfield v Bridgegrove Ltd* \[2003\] CoApp decided r7.6(3) includes cases where court has not even tried to serve claim form through neglect. However, most of the cases have turned on the interpretation of 'reasonable' steps by C. *Chaudri v Post Office* \[2001\] the claim form was sent to D by DX. D was not a member of the DX -- application to extent time for service retrospectively was refused. *Mersey Docks Property Holdings v Kilgour* \[2004\] decided that reasonable steps must be taken to locate D, before serving at their last known address. Drury v BBC & Carnegie \[2007\] decided that in determining whether C has taken 'all reasonable steps to serve the claim form' , the court is limited to taking into account steps taking during the 4-month period allowed by r7.5. Steps taken after that time are irrelevant. [Statement of truth ] PD7A Para 10.1 Form specified in para 2.1 of PD 22 PD7A Para 10.2 Attention drawn to rule 32.14 which sets out consequences of verifying statement of case containing a false statement without an honest belief in its truth. [Extension of time] PD7A Para 11.1 Application under rule 7.6 (for extension of time for serving claim form under rule 7.6(1)) must be made in accordance with Part 23 and supported by evidence. PD7A Para 11.2 The evidence should state -- 1. All the circs relied on 2. The date of issue of claim 3. Expiry date of any rule 7.6 extension, and 4. A full explanation as to why claim has not been served *articles 4, 4A, 5 and 9 of the High Court and County Courts Jurisdiction Order 1991 (SI 1991/724), at **paragraphs 9B-935 to 9B-935.2 and 9B-948 -- BOOK 2*** 2. Examinable material on validity, extension and service of claim forms will consist of service of a claim form; extension of time for serving a claim form; methods of service; who is to serve the claim form; personal service; general provisions regarding where to serve the claim form; service on a solicitor within the United Kingdom; service of the claim form where before service the defendant gives an address at which the defendant may be served; service of the claim form where the defendant does not give an address at which the defendant may be served; service of the claim form by contractually agreed method; deemed service; service of the claim form by an alternative method or at an alternative place; when service may be by document exchange (DX); how service is effected by post, an alternative service provider or DX; service by fax or other electronic means; personal service on a company or other corporation; service by the court; and application for an order for service by an alternative method or at an alternative place. The relevant material is addressed in CPR 6.1-6.7(1), 6.8-6.9, 6.11 and 6.14-6.15; CPR 7.5 and 7.6; and PD6A paragraphs 1.1-4.3, 6.1-6.2 and 8.1-9.3. [Part 6 rules about service apply generally] CPR 6.1 This part applies to service of documents except where -- a. Another Part or PD makes different provision b. Court orders otherwise [Interpretation] CPR 6.2 1. 'Bank holiday' means a bank holiday under Banking and Financial Dealings Act 1971 2. 'business day' = any day except Saturday, Sunday, a bank holiday, Good Friday, or Christmas day 3. 'claim' includes any application made before an action to commence proceedings [Methods of service ] CPR 6.3 1. Claim form may be served by any of the following methods -- a. Personal service in accordance with rule 6.5 b. First class post (or any other service providing for next business day delivery under PD 6A) c. Leaving it at place specified in rule 6.7, 6.8, 6.9 or 6.10 d. Fax or other electronic comm under PD6A e. Another authorised method under r6.15 2. A company may be served by f. Any method permitted under this Part g. Any method permitted under Companies Act 2006 3. Limited liability partnership may be served by h. Any method under this Part i. Ant method permitted under Companies Act 2006 as applied with modifications by regulation under LLP Act 2000. [Who is to serve the claim form] CPR 6.4 1. Court will serve the claim form except where -- a. A rule or PD provides C must serve it b. C notifies court that C wishes to serve it c. The court orders or directs otherwise 2. Where court is to serve, it is for the court to decide which method of service will be used 3. Where court is to serve, the C must, in addition to filing copy for the court, provide a copy for each D to be served. 4. Where court has sent -- d. Notification of outcome of postal service to C (per r6.18), or e. Notification of non-service by bailiff (per r6.19) The court will not try to serve claim form again. [Personal Service] CPR 6.5 1. Where required by another Part, PD or court order, claim form must be served personally 2. In other cases, a claim form may be served separately except where -- a. R6.7 applies, or b. Any proceedings against the Crown 3. A claim form is served personally on -- c. An individual by leaving it with that individual d. Company/corp by leaving it with person holding senior position within, or e. Partnership by leaving it with -- i. Partner ii. Person who at the time, has control or management of partnership business [Where to serve a claim form ] CPR 6.6 1. Claim form must be served within the jurisdiction except where 6.7(2) or 6.11 applies 2. C must include in claim form an address at which the D can be served (must include full postcode unless court orders otherwise) 3. Para (2) does not apply where order made by court under 6.15 (serve by alternative method or at alternative place) specifies the place or method of service [Service on a solicitor within the UK] CPR 6.7 1. Solicitor within the jurisdiction: subject to r6.5(1), where - a. The defendant has given in writing the business address within the jurisdiction of a solicitor b. Solicitor acting for D, has notified C in writing that solicitor is so instructed and accepts service of claim form on behalf of D [Service of the claim form where, before service, the Defendant gives an address at which the Defendant may be served] CPR 6.8 Subject to r6.5(1) and 6.7, and except where rule or PD specifies otherwise -- a. The D may be served with claim form at address where they reside or carry on business within the UK & which the D has given for purpose of being served with proceedings b. In any claim by tenant or contract-holder against a landlord, claim may be served at an address given by landlord [Service of the claim form where the defendant does not give an address at which the defendant may be served] CPR 6.9 1. This rule applies where -- a. Rule 6.5(1) -- personal service; b. Rule 6.7 -- service of a claim form on solicitor; and c. Rule 6.8 (D gives address at which D may be served) Do NOT apply and C does not wish to personally serve under r6.5(2) 2. Subject to paras (3)-(6), claim form must be served on D at the place shown in the table below: +-----------------------------------+-----------------------------------+ | **Nature of Defendant to be | **Place of service** | | served** | | +===================================+===================================+ | 1. Individual | Usual or last known residence | +-----------------------------------+-----------------------------------+ | 2. Individual being sued in the | Usual or last known residence of | | business name of a | the individual; or principal or | | partnership | last known place of business | +-----------------------------------+-----------------------------------+ | 3. Individual being sued in | Usual or last known residence of | | business name of a | the individual; or principal or | | partnership | last known place of business | +-----------------------------------+-----------------------------------+ | 4. Limited liability partnership | Principal office of the | | | partnership; or any business | | | place of the partnership within | | | the jurisdiction which has a real | | | connection with the claim. | +-----------------------------------+-----------------------------------+ | 5. Corporation (other than a | Principal office of the corp or | | company) incorporated in E&W | any place within the jurisdiction | | | where the corporation carries on | | | its activities & has a real | | | connection with the claim | +-----------------------------------+-----------------------------------+ | 6. Company registered in E&W | Principal office of the corp or | | | any place within the jurisdiction | | | where the corporation carries on | | | its activities & has a real | | | connection with the claim | +-----------------------------------+-----------------------------------+ | 7. Any other company or | Any place within the jurisdiction | | corporation | where the corp carries on its | | | activities; or any place of | | | business of the company within | | | jurisdiction. | +-----------------------------------+-----------------------------------+ 3. Where C has reason to believe that the address of the D referred to above, is an address at which the D no longer resides or carries on business, the C must take reasonable steps to ascertain the address of the D's current residence or place of business. 4. Where, having taken the reasonable steps required by para (3), the C -- d. Ascertains D's current address, form must be served at that address, or e. Is unable to ascertain D's current address, C must consider whether there is -- i. An alternative place where, or ii. An alternative method by which Service may be effected. [Service of the claim form by contractually agreed method] CPR 6.11 1. Where -- a. A contract contains a term providing that, in event of claim being started in relation to contract, the claim form may be served by a method or at a place specified in the contract, and b. A claim solely in respect of that contract is started, The claim form may, subject to para (2), be served on defendant by the method or a the place specified in the contract. 2. Where in accordance with the contract the claim form is to be served out of the jurisdiction, it may be served -- c. If permission to serve it out of jurisdiction has been granted under r6.36, or d. Without permission under s6.32 or 6.33 [Deemed Service] CPR 6.14 Claim form served within UK in accordance with this Part is deemed to be served on the second business day after completion of relevant step under r7.5(1). [Serving of claim form by an alternative method or at an alternative place] CPR 6.15 1. Where it appears to the court that there is good reason to authorise service by a method or at a place not otherwise permitted by this Part, court may make an order permitting service by alternative method/at alternative place. 2. Court may order that steps be taken to bring claim form to attention of D by an alternative method or at an alternative place 3. Application for order under this rule -- a. Must be supported by evidence b. May be made without notice 4. Order under this rule must specify c. Method or place of service d. Date on which form deemed served e. The period for i. Filing acknowledgment ii. Filing admission, or iii. Filing defence [CPR 7.5 -- SERVICE OF A CLAIM FORM] 1. Where claim form served within the jurisdiction, the claimant must complete the step required by the following table -- in relation to method of service chosen -- before 12.00 midnight on the calendar day four months after the date of issue of the claim form. **Method of Service** **Step required** --------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------- First class post, doc exchange, or other service which provides for delivery on next business day Posting, leaving with, delivering to or collection by relevant service provider Delivery of document to, or leaving it at, the relevant place Delivering document to, or leaving at, relevant place Personal service under r6.5 Completing relevant step under r6.5(3) Electronic method Sending the email or other electronic transmission 2. Where claim form to be served outside of jurisdiction, it must be served in accordance with Section IV of Part 6, within 6 months from date of issue. [CPR 7.6 -- EXTENSION OF TIME FOR SERVING A CLAIM FORM] **[PD6A Service within the UK]** **PD6A.1 -- Scope of this Practice Direction** 1. PD supplements -- 1. Section II (service of claim form in the jurisdiction) of Part 6 2. Section III (service of documents other than the claim form in the UK) of Part 6; and 3. Rule 6.40 in relation to method of service on party in Scotland or NI. **PD6A.2 -- When service may be by document** **exchange** 2.1 Service by document exchange (DX) may take place only where -- 1. Address which party is to be served at includes a numbered box at a DX, or 2. Writing paper of party to be served/solicitor acting for that party, sets out DX box number, and 3. The party/solicitor acting for party has not indicated in writing they are unwilling to accept service by DX **PD6A.3 -- How service is affected by post, an alternative service provider or DX** 3.1 Service, by post, DX or other service, which provides for delivery on the next business day is affected by -- 1. Placing document in a post box 2. Leaving the document with/delivering doc to the relevant service provider, or 3. Having doc collected by relevant service provider **PD6A.4 -- Service by fax or other electronic means** 4.1 Subject to provisions of r6.23(5) and (6), where document is to be served by fax/other electronic means -- 1. Party who is to be served/acting solicitor must've previously indicated in writing to serving party -- a. That party/acting sol is willing to accept service by fax/other electronic means, and b. Fax number, email address(es) or other electronic ID to which it must be sent, and 2. The following are to be taken as sufficient written indications for purposes of para 4.1(1) -- c. Fax number set out on writing paper d. Email addresses on the writing paper & stated that email address may be used for service e. Fax number, email address, or electronic ID set out in statement of case or response to claim filed. 3. Where party indicates service by email -- it must be affected by sending a document to multiple email addresses, or any 2 of the addresses identified. 4.2 Where party intends to serve document by electronic means (other than fax) that party must first ask party who is to be served IF there are any limitations to recipient's agreement to accept service by such means eg. format of documents. 4.3 Where doc served by electronic means, the party serving other doc does not need to send hard copy in addition. **PD6A.6 -- Personal service on a company or other corporation** 6.1 Personal service on a registered company/corp in accordance with r6.5(3) is affected by leaving document with person holding a senior position. 6.2 Each of the following holds a senior position -- 1. Registered corp: director, treasurer, secretary, Chief exec, or officer 2. Non-registered corp: in addition to \^, also the mayor, the chairman, president, and town clerk or similar officer. **PD6A.8 -- Service by the court** 8.1 Where the court serves a document in accordance with rule 6.4 or 6.21(2), method will usually be first class post. **PD6A.9 -- Application for an order for service by an alternative method or at an alternative place** 9.1 Where an application for an order under r6.15 is made before document is served, application must be supported by evidence stating -- 1. The reason why an order is sought 2. What alternative method or place is proposed, and 3. Why applicant believes that doc is likely to reach the person to be served by method/place proposed. 9.2 9.3 3. Examinable material on service of other court documents within the jurisdiction will consist of methods of service; who is to serve; personal service; service on children and protected parties; deemed service; service by an alternative method or at an alternative place; when service may be by document exchange (DX); how service is effected by post, an alternative service provider or DX; service by fax or other electronic means; service by the court; and deemed service of a document other than a claim form. The relevant material is addressed in CPR *6.20-6.22 and 6.25-6.27; and PD6A paragraphs 1.1-4.3, 8.1 and 10 (including the table at 10.1).* 4. Examinable material on the alternative procedure for claims under Part 8 CPR will consist of the types of claim in which the Part 8 procedure may be used; contents of the claim form; acknowledgement of service; consequence of not filing an acknowledgement of service; filing and serving written evidence; evidence in Part 8 claims; procedure where the defendant objects to use of the Part 8 procedure; and modifications to the general rules. The relevant material is addressed in *CPR 8.1-8.2, 8.3-8.4, 8.5-8.6 and 8.8-8.9.* *7 **Par*****ties** =================== 1. 2. *children* and persons suffering from mental incapacity ***Examinable Material*** 1. 2. Examinable material on *children* and persons suffering from mental incapacity will consist of *bringing and settling proceedings involving children and protected parties; the requirement for a litigation friend in proceedings by or against children and protected parties; the stage of proceedings at which a litigation friend becomes necessary; who may be a litigation friend without a court order; compromise etc by or on behalf of a child or protected party; and control of money recovered by or on behalf of a child or protected party.* The relevant material is addressed in *CPR 21.1-21.4 and 21.10-21.11(1)-(4).* 13 Case Management, Sanctions, Striking Out and Discontinuance ============================================================== 1. 2. 3. case management ***Examinable Material*** ***1.*** ***2.*** ***3.*** Examinable material on ***case management*** will consist of calculating periods of time for doing acts specified by the Civil Procedure Rules, a practice direction, or a judgment or order of the court; variation of time limits by the parties; the court's general powers of management; case management in proceedings where at least one party is unrepresented; the court's power to make orders of its own initiative; judgment without trial after striking out; and the general *power of the court to rectify matters where there has been an error of procedure.* The relevant material is addressed in *CPR 2.8 and 2.11; CPR 3.1, 3.1A, 3.3, 3.5 and 3.10.* 22 Judgments, Orders and Enforcement ==================================== 1. 2. enforcing money judgments ***Examinable Material*** 1. 2\. Examinable material on enforcing money judgments will consist of enforcement of judgments generally; *methods of enforcing judgments and orders;* methods of enforcing money judgments; the rule that the court may order an act to be done at the expense of the disobedient party; *transfer of proceedings for enforcement*; transfer to county court for enforcement; transfer to High Court for enforcement; enforcement of judgment or order by or against non-party; effect of setting aside judgment or order; orders to obtain information from judgment debtors ('oral examination'); application notice; order to attend court; conduct of the hearing; attendance at court: normal procedure; attendance at court: procedure where the order is to attend before a judge; failure to comply with order; third party debt orders; debt due to judgment debtor and another; application for third party debt order; application notice; charging orders; charging order on matrimonial home; application for charging order; application notice; writs and warrants; enforcement of county court judgments; enforcement by taking control of goods; controlled goods agreements; where and how to make applications; attachment of earnings; where to make applications; mode of applying; and effect and contents of attachment of earnings order. The relevant material is addressed in *CPR 70.1-2A, 70.3, 70.4 and 70.6; CPR 71.1-2, 71.6 and 71.8; CPR 72.1-3; CPR 73.3; CPR 83.2; CPR 84.3; CPR 89.3-4*; *PD 70A paragraphs 1A.1 and 1.1(1) (2) (3) (charging orders only) and (4); PD 71 paragraphs 1, 2, 4 and 5; PD 72 paragraph 1; and PD 73 paragraph 1;* the editorial introductions to CPR Parts 71-73, 83-84 and 89 at paragraphs 71.0.1, 72.0.1, 73.0.1, 73.0.4 (1) and (2), 83.0.2-83.0.3, 83.0.17 (second sub-paragraph beginning "By virtue of art. 8..."), 84.0.2-84.0.3 and 89.0.1 (first sub-paragraph ending "... the court does the rest.") *of Volume 1 of* **'Civil Procedure' (the White Book) 2024;** *the commentary at paragraphs 70.3.1, 70.3.2 and* 72.2.13 *of Volume 1 of* **'Civil Procedure' (the White Book) 2024***; article 8 of the High Court and County Courts Jurisdiction Order 1991 (SI 1991/724) at section 9B-939 of Volume 2 of \'Civil Procedure\' (the White Book) 2024; and **s**ection 6(1)-(5) of the Attachment of Earnings Act 1971 at paragraph 9B-965+ of the online version of Volume 2 of* **'Civil Procedure' (the White Book) 2024***.*