Basic Tests For Revision Notes

1. The court has failed to serve the claim form or

2. The C has taken all reasonable steps to comply with the service of the claim for but has been unable to do so and

3. In either case the C has acted promptly in making the application

1. The court may allow an amendment whose effect will be to add or substitute a new claim but only if the new claim arises out of the same fact s or substantially the same facts as the claim in respect of which the party applying for permission has already claimed a remedy in the proceedings

2. The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

3. The court may allow an amendment to later the capacity in which a party claims if the capacity is one which that party had when the proceedings started or had since acquired.

1. The court may order a person to be added as a new party if:

1. It is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings

2. There is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings and it is desirable to add the new party so that the court can resolve that issue

2. the court may order a new party to be substituted for an existing one if:

1. the existing party’s interest or liability has passed to the new party and

2. it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings

1. The relevant limitation period (ie the lim period of the new claim) was current when the proceedings were started (ie when the limitation period for the new claim had not expired when the original action commenced) AND

2. it is necessary to determine the original action.

Rule 19.5(3): necessary only if the court is satisfied that:

1. The new party it to be substituted for a party who was named in the claim form in mistake for the new party

2. The claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant or

3. The original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party

A claimant can enter a default judgment in the following circumstances (r.12.3) :

1. If the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim) and 14 days have expired since service of the Particulars of Claim; or

2. If the defendant has filed an acknowledgment of service but has not filed a defence, and 28 days have expired since service of the particulars of claim.

MANDATORY:

1. Situations where the essential conditions about failing to acknowledge service or defend, or the relevant time having elapsed, are not satisfied; or

2. The claim was satisfied before judgment was entered; or

3. The defendant had already applied for summary judgment or to strike out the claim; or

4. The defendant had already filed an admission requesting time to pay (where an admission has been filed the C cannot obtain a default judgment. They can instead obtain judgment on that admission)

DISCRETION:

1. ‘a real prospect of successfully defending the claim’; or

2. there is some other good reason why the defendant should be allowed to defend the claim

3. Taking into account whether the application to set aside has been made promptly.

Court can grant summary judgment if:

1. Claimant has no real prospect of succeeding on the claim or issue; or

2. Defendant has no real prospect of successfully defending the claim or issue; and

3. There is no other compelling reason for there to be a trial

Claimant may apply only after the Defendant has filed either an acknowledgement of service or a defence. A defendant can apply only after filing an acknowledgement of service or a defence.