Initiating Proceedings And Service Notes

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...

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