unit 2: limitation, parties and service - clt paralegal · unit 2: limitation, parties and service...

© Central Law Training 2010 CLT/PLD1371B

of 39

Unit 2:

Limitation, Parties and Service


of 39

Table of Contents

Page No. Unit 2: Limitation, Parties and Service Learning Outcomes 3 1. Limitation 4 2. Ordinary Time Limits 7 3. Parties to the Actions 18 4. Service 30


of 39

Unit 2: Limitation, Parties and Service

Learning Outcomes Learning Outcomes

Assessment criteria To achieve this unit a learner must demonstrate the ability to:

1. Investigate Limitation

P1: Identify the relevant limitation periods

P2: Identify the statute that governs this area of law

2. Explore Ordinary Time Limits

P3: Explain the limitation periods for different areas of law

P4: Explain then limitation periods can be extended

3. Explore Parties to the Actions

P5: Identify the different types of parties to an action

P6: Explain the term ‘litigation friend’ and in what circumstances there would be a litigation friend

P7: Explain what would happen if the limitation period has expired

4. Investigate Service

P8: Explain the procedure for service of documents

P9: Identify who to serve documents on

P10: Describe when a document is deemed to have been served


of 39

1. Limitation

1.1 Introduction

1.1.1 Time limits

When taking initial instructions it is extremely important to research and identify the relevant limitation periods. This means that certain types of case are only allowed to be commenced within certain time periods. They are controlled, in the main, by the Limitation Act 1980. This is a consolidated statute, which has been amended several times and represents Parliament’s wish to control the period of time in which proceedings must be commenced.

Task 1 Look at lawsoceity.org.uk website and print off what services they provide with regard for risk and compliance.

In order to bring a valid claim, the Claimant must commence the action within the relevant time period i.e. the claim must be issued (this happens by either attending at the court personally or by posting the claim form to the court and paying the relevant fee), but it does not have to be served (service of documents is dealt with in section 4 of this Unit). The general rule is that a claim form must be served within four months of the date of issue. This is the date of the court’s seal, which is also the relevant date for determining whether it has been issued within the limitation period. A Claimant can start proceedings out of time, but unless the case can be brought within one of the extensions to the basic limitation period or the court exercises its discretion to extend the period, then the Defendant will have a complete defence to the claim. Given that this is a procedural defence, the court will not take a limitation point of its own accord; therefore, the defendant must state that he/she is claiming the defence under the Limitation Act to be able to rely upon it.


of 39

A prospective Defendant can waive the right to rely on the limitation defence, by giving a clear unequivocal, unambiguous and unconditional promise that he/she will not raise the defence. However, it is most unusual for the defendant to do this, as he/she is giving away the opportunity to rely on a complete defence. If the Defendant’s choose to rely on the limitation defence and it is successful, then the Claimant will not be allowed to continue with his/her claim and the Defendant is no longer at risk of having to pay any damages to the Claimant. Where the Defendant has promised not to pursue the limitation point, the Claimant must have relied on the promise and altered his position to his detriment, this issue was examined in the case of – Law Society v Sephton & Co (a firm) 2004 EWCA Civ 1627 in this case: A sole practicing solicitor, Mr Payne, employed the defendants, Sephton & Co, to provide compulsory accountants’ reports to the society for the years ending October 1988-95. None of the reports identified that Payne had been stealing clients’ money throughout that period. The society relied on each report by renewing Payne’s practising certificate and by taking no action to investigate his practice. In late 1995, one of Payne’s clients made a complaint to the society, and the true position came to light. Subsequently, the Society through its Compensation Fund had to make substantial payments to Payne’s defrauded clients. The Society sued Sephton & Co to recover the compensation payments as damages for what were accepted to have been negligent reports. The Society issued proceedings within six years of their discovery of Payne’s fraud. Was this still in time for limitation purposes? Section 2 of the Limitation Act 1980 provides that: “an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued”.


of 39

In tort, the cause of action accrues when ‘actual damage’ is suffered, which, according to the Court of Appeal decision in Forster v Outred & Co. #, approved by the House of Lords in Nykredit Mortgage Bank v Edward Erdman [1997] UKHL 53, “is any detriment, liability or loss capable of assessment in money terms and it includes liabilities which may arise on a contingency”. In Forster v Outred itself, the Court of Appeal held that the plaintiff suffered ‘actual damage’ as soon as she entered into a binding guarantee in respect of her son’s borrowings, and not, as she had argued, the later point when that guarantee actually matured into a financial loss. So, in The Law Society v Sephton & Co, when did the society suffer ‘actual damage’?

The two alternatives were: 1. When the Society relied on each report (between

1989 and 1995) by renewing Payne’s practising certificate or when he first misappropriated money thereafter; or

2. When the Society made the first compensation payment in 1995 to a defrauded client?

Sephton & Co argued that the first alternative represented the relevant dates from which the six-year limitation period ran for each report. The Society, of course, argued for the second alternative, on the basis that prior to actual payment there were too many contingencies to be able to say that it had suffered ‘actual damage’. At first instance, the trial judge agreed with Sephton & Co and struck out the claim. Subsequently, however, the Court of Appeal disagreed and reinstated the action. The majority drew a distinction between ‘contingent loss’ and mere ‘risk of loss’. They held that the events, which had occurred by the time of the first alternative, gave rise only to a ‘risk of loss’ and not a ‘contingent loss’, and accordingly did not start time running. The dissenting judge rejected these distinctions as unjustified. He considered that time ran against the society from the first misappropriation by Payne after each report, as those events had exposed the society to a contingent liability to make compensation payments.


of 39

The case proceeded to the House of Lords where the Law Society argued that it was not any worse off and that it suffered loss when it decided to pay a claim. The accountants contended that the Law Society suffered damage when the fraudulent Solicitor stole from his clients because it was at that point that the compensation fund became exposed to an application for compensation. The House of Lords agreed with the Law Society and held that the possibility of having to pay money in the future is not in itself actual damage. Damage was sustained only when the contingency occurred and the loss became actual. Task 2 Log onto the bailli website. Find and read the case of ‘Law Society v Sephton 2006 UKHL 22’

2. Ordinary time limits

2.1 Actions founded on simply contract or on tort - Sections 2 and 5 of the Limitation Act 1980

The basic limitation period is 6 years from the date when the cause of action accrued. That is 6 years from the date of the breach of contract or from the date of the commission of the tort (civil wrong – involving a breach of duty – e.g. negligence). In contract, the cause of action accrues as soon as the contractual duty is broken. However, since negligence is actionable only on proof of damage, an action in negligence accrues only when some damage occurs. It is to be understood there may be a considerable gap between when the breach of duty occurred and some damage occurs. Most negligence actions – save and except in personal injury cases, are now subjected to a long stop limitation period of 15 years from the date of the Defendant’s breach of duty – see Section 14 B Limitation Act 1980 – referred to below.


of 39

2.2 Limitation in respect of certain loans – Section 6 Limitation Act 1980.

This section, intended to apply to loans between family members or friends, applies to any contract of loan, which does not have any effective term about when payment should be made. It makes the assumption that the time limit that applies to the loan is indefinite, unless a formal demand for repayment is made.

In this case, the basic period for limitation is 6-years from the date the lender makes a demand in writing for repayment – it is not 6-years from the date of when the loan was made.

2.3 Actions upon a speciality – Section 8 Limitation Act 1980.

For actions on a bond or on a contract under seal, the basic period is 12 years unless a shorter period is prescribed by some other section. Under Sections 19 and 20 a six-year period is specified for arrears of rent and arrears of mortgage interest.

2.4 Claims for contribution – Section 10 Limitation Act 1980

The Civil Liability (Contribution) Act 1978 – Section 1, provides that where two or more persons are liable in respect of the same damage, but only one of them pays or is ordered to pay compensation to the person who is, say, injured then he is entitled to recover a contribution from the other persons liable.

This is because, generally speaking, a claim for a contribution is raised in the same action in which the person injured seeks compensation. However, where there are separate proceedings contemplated, the limitation period is 2 years from either:

a. The date on which judgment for the compensation was

given or on which an award was made on an arbitration; or

b. If there was no judgment or award, the earliest date on

which the amount of compensation was agreed between the person being compensated and the person now claiming contribution.


of 39

2.5 Personal injury litigation – Section 11 Limitation Act 1980.

This section provides:

(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2) None of the time limits given in the preceding provisions of

this Act shall apply to an action to which this section applies.

(3) An action to which this section applies shall not be brought

after the expiration of the period applicable in accordance with subsection (4) … below.

(4) . . . The period applicable is three years from – (a) the date

on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured.”

2.6 Negligence actions in respect of latent damage – Section 14 A

Limitation Act 1980

This section deals with any action for damages for negligence, other than one to which Section 11, set out in 2.5, applies. It applies where facts relevant to the cause of action are not known at the date when the cause of action accrued. It further applies to non-personal injury cases in negligence where at the time the cause of action accrued the damage in question was still latent, i.e. not known. This section provides an alternative limitation period of 3-years from the date of knowledge of certain material facts as follows: a. Knowledge of the material facts about the damage in

respect of which damages are claimed; and b. That the damage was attributable in parts to the act or

omission which is alleged to constitute negligence; and c. The identity of the Defendant; and


of 39

d. If it is alleged that the act or omission was that of a person other than the Defendant, the identity of that person and the additional facts supporting the bringing of an action against the Defendant.

Under this section, knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of this section.

A person’s knowledge includes knowledge, which he might reasonably have been expected to acquire: a. From the facts observable or ascertainable by him; or b. The facts ascertainable by him with the help of an

appropriate expert advice, which it is reasonable for him to seek.

In order to protect Defendants from what would otherwise be perpetual risk of liability; Section 14 B provides a longstop limitation period of 15 years from the date of the alleged breach of duty. Section 14 B is quite widely worded and this long stop can, by cause of action, bar a cause of action before it has accrued. This means that a breach of duty taking place on 1 April 1990 will be barred from being pursued on 1 April 2005 even though on 1 April 2005 no actual damage has been caused by the breach of duty – Section 14 B (ii). This section is often used to protect Claimant’s against professional advisors so that the Claimant frames his case in tort simply to obtain the advantageous limitation period that Section 14 A allows the Claimant to enjoy. The advantage is that in a claim for breach of contract against professional advisers, the time limit will expire 6-years from the date that the contract is breached regardless of the claimant’s knowledge that the contract had been breached.

2.7 New claims in pending actions – Section 35 Limitation Act 1980

In order to determine whether a claim is statute barred, you must measure the time period between the date the cause of action arose and the date of commencement of proceedings.


of 39

However, some claims can be raised as part of an existing case without the need to issue a separate Claim Form. By way of example, a Claimant may amend the proceedings in an original action and Section 35 defines, for limitation purposes, when that claim is deemed to commence. Claimant’s actions made by amendment are deemed to have been commenced on the same date as the original action. The important feature of Section 35, however, is to allow amendment after the expiry of a limitation period.

2.8 Mortgage actions – Section 20 Limitation Act 1980

A mortgagor is someone who mortgages his or her property. A mortgagee is someone who lends money secured on that property i.e. the lender e.g. Halifax. How long does a mortgagee have to sue for the principal and interest? The answer is that Section 20 governs claims for a mortgage debt, even if the mortgagee has exercised the power of sale before issuing proceedings. So there is 12 years from when the cause of action accrues for a mortgagee to sue for the principal but only 6 years pursuant to Section 20 (5) to sue for interest – Bristol & West v Bartlett [2002] 4 All E.R. 544.

Task 3 – Go to the following link: Go to www.dndlaw.com/news/viewdetails.asp?ID=41 and read the article Read the case of Bristol & West v Bartlett [2002] 4 All E.R. 544, print off and keep it with your notes

2.9 Extending or excluding or ordinary time limits

2.9.1 Personal Injury and Debt Claims

These are governed by Section 33 of the Limitation Act 1980. We will not be dealing with these in detail in this Unit.


of 39

2.9.2 Disability – Section 28 and Section 28 A Limitation Act 1980

The Limitation Act 1980 provides for several exceptional cases in which the basic periods can be extended:

a. Minors

Limitation periods do not begin to run against a child until he/she dies or comes of age, that is, 18 years of age. By way of example, a child who was born in 1995 and suffers personal injuries in 2000 could commence a valid action at any time until the year 2016 - 3 years after attaining the age of 18.

b. Patient

Limitation periods do not begin to run against a patient until a patient dies or recovers. A patient is someone who is not capable of conducting litigation on their own behalf because they are not capable of understanding and giving instructions in relation to the matter e.g. a person with Alzheimer’s disease or someone whose injury has caused severe brain damage.

c. Section 28A

This section applies to cases governed by Section 14 A and Section 14 B of the Limitation Act 1980, which deal with negligence actions in respect of latent damage - i.e. damage that cannot be seen. It also provides an extension to the special 3-year limit for claimants who are not under a disability when the cause of action accrues, but have become so when the special limit starts to run. In this case, the period will run from the date of cessation of disability or death. It is, however, subject to the 15-year longstop period referred to in Section 14 B.


of 39

2.9.3 Debts: acknowledgement or part payment – Section 29 (5) Limitation Act 1980

Where a debtor accepts that they owe money or makes a partial payment in respect of a debt, then the creditors right of action “shall be deemed to have accrued on and not before the date of the acknowledgment or payment”. In order to be effective for the purpose of Section 29 an acknowledgment must be “in writing and signed by the person making the acknowledgement”. Section 29 (7) provides that a current limitation period may be repeatedly extended by further acknowledgements or payments but a right of action once barred cannot be revived by any subsequent acknowledgement or payment.

What this section prevents is a debtor making a partial payment of money or simply acknowledging that they are fully indebted to a creditor and commencing some form of repayment programme, which could extend over many years, and then claiming that the six-year limitation period applies if he/she fails to keep to the repayment programme and money is still owing at the end of the six-year period. When a creditor enters into the repayment programme, the limitation period is extended as a consequence of either a part payment or an acknowledgement that the debt is owed.

2.9.4 Fraud, concealment and mistake – Section 32 Limitation

Act 1980

The limitation period here is 6 years from the date the Claimant discovers the fraud, concealment or mistake or could with reasonable diligence (giving the degree of care required in a given situation) have discovered it:

a. Where the action is based upon the fraud of the

Defendant or his agent; b. Where any fact relevant to the Claimant’s right of

action was deliberately concealed from him by any such person;

c. Where the action is for relief from the consequences of a mistake.


of 39

Reasonable diligence, in these circumstances, requires only the taking of such steps, if any, as an ordinarily prudent Claimant would take. In relation to deliberate concealment it does not matter whether the concealment was made initially or subsequently. In the case of Cave v Robinson Jarvis & Rolf (a firm) [2001] EWCA Civ 245 the House of Lords pose the question whether the words “deliberate commission of a breach of duty” in Section 32 (2) of the 1980 Act meant “deliberate commission of an act or omission, being an act or omission which gives rise to a breach of duty” or simply “deliberate breach of duty”. The distinction drawn by earlier case law was between intentional wrongdoing on the one hand and negligence or inadvertent wrongdoing on the other. The House of Lords held that Section 32 deprives the Defendant of a limitation Defence in two situations:

I. Where he is guilty of deliberate wrongdoing and

conceals or fails to disclose it in circumstances where it is unlikely to be discovered for some time; and

II. Where he takes active steps to conceal his own breach of duty after he has become aware of it.

It does not deprive a Defendant of the limitation Defence, however, where he is charged with negligence, if, being unaware of his error or that he has failed to take proper care, there has been nothing for him to disclose. Significantly, however, claims within Section 32 are not subject to the longstop period of 15 years, which might otherwise apply and which have been referred to above – see Section 32 (5).

Task 4 For those who want more detailed information read the case of ‘Cave v Robinson Jarvis & Rolf (a firm) [2002] on the bailli website.


of 39

2.9.5 Consumer Protection Act 1987

This piece of legislation makes producers and, in certain circumstances, suppliers of products, strictly liable (Strict liability is a legal doctrine that makes a person responsible for the damage and loss caused by their acts and omissions regardless of moral or legal liability) for personal injury, death or damage to “consumer” property caused by defective products. There is no claim for property damage alone, unless the property was for private use and consumption and the damages exceed £275. Section 11 A of the Limitation Act 1980 applies to this Act. This section imposes a 10-year long stop on actions on breach of the statutory duty. Time runs from when the Defendants applied the defective product to another. Contrary to the normal rule that the claimants’ rights are merely barred and not extinguished after the 10-year period, the right of action is extinguished. For actions for personal injury, the basic time limit is the same as under Section 11, that is, three-years from the date when the cause of action accrued or the date of the injured persons knowledge, whichever is the later. In relation to potential claimants with a disability, the 10 year long stop overrides the normal disability provisions in Section 28 (see before) which otherwise apply. Section 32 (4) A provides that the 10 year long stop also overrides the normal provisions concerning deliberate concealment of facts relating to cause of action under the 1987 Act.

LIMITATION PERIODS

Class of Claim Limitation period

Fraudulent breach of trust

None LA 1980 s.21 (1)

Recovery of land

12 years LA 1980 s.15 (1)

Recovery of money secured by mortgage

12 years LA 1980 s.20 (1)


of 39


Speciality

12 years LA 1980 s.8 (1)

Recovery of money due under statute

6 years LA 1980 s.9 (1)

Enforcement of a judgment

6 years LA 1980 s.24 (1)

Contract

6 years LA 1980 s.5

Recovery of trust property & breach of trust

6 years LA 1980 s.21 (3)

Recovery of arrears of rent

6 years LA 1980 s.19

Tort (except those listed below)

6 years LA 1980 s.2

Defective Premises Act 1972 (DPA) claims

6 years DPA 1972 s.1 (5)

Personal Injury claims

3 years LA 1980 s.11 (4)

Fatal Accident Act 1976 claims

3 years LA 1980 s.12 (2)

Claims under Consumer Protection Act

3 years LA 1980 s.11A

Carriage by Air Act 1961 (CAA) claims

2 years CAA 1961 Sch.1

Claims for personal injury or damage to shipping vessel, cargo or property at sea

2 years Merchant Act 1995 s.190 (3) & Schedule of Costs 6

Disqualifications of company directors

2 years Company Directors Disqualification Act 1986 s.7 (2)

Contribution under the Civil Liability 2 years LA 1980 s.10 (1)


of 39


(Contribution) Act 1978

Contributions under the Maritime Conventions Act 1911

1 year Merchant Shipping Act 1995 s.190 (4)

Carriage of Goods by Road Act 1965 (CGRA) claims

1 year (CGRA)

Defamation and malicious falsehood

1 year LA 1980 s.4A

Applications for Judical Review

3 months CPR r.54.5

Unfair dismissal under the Employment Rights Act 1996 (ERA)

3 months ERA 1996 s.111 (2)

Applications for new business tenancies under the Landlord & Tenant Act 1954 (LTA)

Not less than 2 months nor more than 4 months LTA 1954 s.29 (3)

Actions for an account

Period applicable to claim on which account is based LA 1980 s.23


of 39

3. Parties to the actions

3.1 Aim

This area summarises: • The law relating to particular types of litigants – i.e. people

who are parties to legal proceedings; • Adding or substituting parties to an action; and • The role of the legal representative in relation to this

matter.

3.2 Title of action

Every action that is commenced in the Court will have a title such as: (1) Wayne Beckham (2) David Rooney Claimants and (1) John Barton (2) Joey Terry Defendants

3.3 Type of litigants

3.3.1 Adult Individuals

Where individuals are involved all of their known first names and surnames should be stated in the heading to the action including the title Mr, Mrs, Miss or Ms or indeed any other title such as Dr. If a trading name is used by an individual that should be added, for example, Wayne Owen trading as Superstrikers. An individual must pursue an action himself or herself, the Court has decided that it is not possible for an individual to delegate the right to conduct litigation by Power of Attorney (a Power of Attorney is a legal document where one person, the donor, gives another person(s), the attorney, the power to act on their behalf in property or financial matters).


of 39

In Gregory v Turner [2003] EWCA Civ 183, the court decided that a party to an action could not be represented by their attorney. Task 5 Look at the judgement of the Gregory v Turner [2003] case on the bailli website. There is an interesting analysis of a lay person’s right to appear before the court in paragraphs 47-82.

3.3.2 Children – Part 21 of the Civil Procedure Rules

A child is a person under the age of 18. In order to conduct litigation, the child must have a “Litigation Friend,” unless the Court otherwise orders. The Court expects the Litigation Friend to be a substantial person and it is desirable that he/she should be a relation such as a parent or guardian or a close family friend. If no-one else is able and willing to act as Litigation Friend then the Official Solicitor will be appointed to act on the child’s behalf.

3.3.2.1 Child claimant

In order to become a Litigation Friend on behalf of a child Claimant the person who wishes to act must file a Certificate of Suitability. This is found in the County Court forms N235 which are contained within the White Book or on www.justice.gov.uk. This suitability certificate must be filed when a Claim Form is issued.

This certificate should confirm that the person:

1. Consents to act; 2. Knows or believes the Claimant to be a child; 3. Can fairly and competently conduct the

proceedings and; 4. Has no interest adverse to that of the child.

In addition, the Litigation Friend must undertake to pay any costs, which the child may be ordered to pay in relation to the proceedings.


of 39

The certificate should be served on one of the child’s parents or guardians or otherwise on the person with whom the child resides or in whose care the child is. A certificate of service must also be filed when the claim is issued.

3.3.2.2 Child defendant

In order to become a Litigation Friend on behalf of a child Defendant, the person who wishes to act must file and serve a Certificate of Suitability when he first takes a step in the action. This will often be the filing of a Defence.

3.3.2.3 Litigation Friend general duties

In the title to the action there is no requirement to state the relationship, if any, between the child and the Litigation Friend. The Litigation Friend has a duty to act fairly and competently when conducting the proceedings on behalf of the child and all steps must be for the benefit of the child. The Court has a power to prevent a person acting as a Litigation Friend or to terminate the appointment of the Litigation Friend at any time in the conduct of the proceedings. When a child reaches 18, a Litigation Friend’s appointment ceases and the child must, within 28 days, serve a notice on all of the parties that the appointment has ceased, give his address for service and state whether or not he intends to carry on the action. Failure to do so may result in a party applying to strike out the child’s statement of case. A Litigation Friend cannot enter into a binding settlement or compromise on behalf of a child. The Court must approve any agreement in relation to the whole or part of a claim before or during proceedings.


of 39

3.3.3 Patients – Part 21 of the Civil Procedure Rules

A patient is a person who, by reason of mental disorder within the meaning of Section 94(2) of the Mental Health Act 1983, is incapable of managing and administering their property and affairs. If a person has been authorised by the Court of Protection to conduct legal proceedings in the name of the patient or on his behalf that person should, normally, be appointed the Litigation Friend and must file at the Court an official copy of the order or other documents that constitutes his authorisation to act. When a party ceases to be a patient, the Litigation Friend’s appointment continues until it is ended by a Court order. Task 6 Go to the Official Solicitor and Public Trustee hyperlinks website and look at the function he/she carries out in respect of children and/or patients: www.justice.gov.uk- organisations

The case of Masterman-Lister v Jewell & Home Counties Diaries [2003] EWCA Civ 70 demonstrates the approach that a Court takes in relation to patients. Task 7 Look at the case of Master-lister v Jewell & Home Counties Diaries [2003] in detail.

Go to http://www.bailii.org/ew/cases/EWCA/Civ/2002/1889.html

3.3.4 Companies and other corporate bodies

Companies and other corporate bodies are legal persons in their own right and, therefore, can sue or be sued under their own names. Before issuing proceedings, you must ensure that you check the correct description of a company, which may be a “public limited company” or “plc” or “limited”.


of 39

A company search can be carried out at Companies House in order to establish the correct and full name. That search will also provide useful information such as the registered address of the company. Serving Documents is discussed in more detail in the paragraphs on service of documents - see page 26.

Task 8 Go to the Companies House website and find out how to make a search: http://www.companieshouse.gov.uk

3.3.5 Partnerships – this is covered by Schedules 1 and 2 of the

Civil Procedure Rules and with the rules of the Supreme Court Order 81 (which pre-dates the Civil Procedure Rules and County Court Rule Order 5, r 9 which also pre-dates the Civil Procedure Rules)

Partnerships are not legal persons, with a separate identity in the way that companies are. If partners carry on business in England or Wales they may sue or be sued in the name(s) of their firm, which is treated as their collective description. Therefore, in a title to an action a partnership’s name should read “Edwards & Co (a firm)”. You can compel the persons joined in an action in the name of a firm to disclose the names and addresses of all members constituting that firm. Where, however, a Claimant wishes to sue a firm, enquiries should be made before proceedings are commenced. The Business Names Act 1985 provides that a person or persons carrying on business in another name must give an address for service on all business letters, written orders for goods or services to be supplied to the business, invoices and receipts issued in the course of the business. As you may be aware, professional partnerships of more than 20 persons, such as a firm of solicitors, have different rules applying to them. For instance, instead of listing all the partners on the firm’s notepaper, a firm of solicitors, with 50 partners, may well state on their notepaper that a full list of the partners’ names is available for inspection at the principal place of business.


of 39

If you pursue a claim against partners and their firm’s name then you are able to enforce the judgment against partnership property. A disadvantage, however, is that you need to seek the Court’s permission to enforce a judgment against persons not identified in the proceedings as partners. Enforcement of judgment is dealt with in Unit 6.

3.3.6 Limited liability partnerships

A limited liability partnership or “LLP” joins the tax and organisational flexibility of a partnership with a limited liability for its members. LLP’s were created by the Limited Liability Partnerships Act 2000. An LLP is a legal person separate from its members. It is a body corporate, formed on incorporation. It must have a registered office and third parties, normally, contract directly with an LLP rather than with its individual members. The name of the body corporate will end with the words “limited liability partnership” or “LLP”.

3.3.7 Estates of deceased persons (this is governed by Part 19 of

the Civil Procedure Rules)

The estate should be represented by the deceased’s personal executors or administrators. An executor is someone responsible for the estate of the deceased person when that person leaves a will and they are nominated by the deceased person prior to death under a will to be an executor. An administrator, by contrast, is a person who is appointed after the person dies, as the deceased person has not left a will. This will often be a relative of the deceased person. Neither the executor nor the administrator has to be a beneficiary under the deceased person’s estate and they will be sued, as executors, regardless of whether or not there is any beneficial interest to them. Where a person dies during an action, then the Court may order the personal representatives to be joined into that action and the action then continues as if they had been substituted for the deceased.


of 39

Where a party to an action dies and there are no personal representatives appointed then the Court may require notice to be given to any person having an interest in the deceased’s estate. The Court may order that the action should proceed in the absence of any person representing the estate or it may appoint a person to represent the estate for the purpose of the proceedings. In any event, a judgment given in the action will bind the estate as if a personal representative had been joined. In debt claims, where there is no personal representative, the creditor himself should take out letters of administration of the deceased’s estate if it is large enough to cover his debt and expenses. If a prospective Defendant dies before proceedings are commenced then the claim must be made by issuing a Claim Form naming, as the Defendant, the personal representatives of the deceased. Within four months after issuing the Claimant must apply to the Court for it to appoint someone to represent the estate as referred to in the previous paragraph. If this is not done, then the Claim Form is no longer valid for service and will lapse.

If probate or letters of administration have not been granted by the time proceedings are issued then the claim must be brought against the “estate of” the deceased and the Claimant must then apply, within four months of issue, for an order appointing a person to represent the estate of the deceased in the claim. Failure to do so will mean that the Claim Form is no longer valid for service. If, in error, the Claim Form is issued against the “personal representatives” or the deceased but in fact a grant of probate or letters of administration have been made then by Rule 19.8 (3) such claims are treated as having been brought against “the estate of” the deceased.


of 39

3.3.8 Vexatious litigants – Practice Directions 3C and SCA 1981, Section 42(1A)

A “vexatious litigant” is someone who persistently, without any reasonable grounds, either institutes vexatious civil proceedings or makes vexatious applications in civil proceedings. The rules now allow a civil restraint order to be made against such a person. The mechanics for such an order appear in Practice Direction 3C contained within the White Book and the information can also be found at: www.justice.gov.uk/courts/procedure-rules/civil/rules#otherpd Such an order, will restrain the litigant from making any further application in these particular proceedings without first obtaining permission of the Court. Any application issued without such permission will stand dismissed without the need for the other party to respond to it. Guidelines are contained within the case of Bhamjee v Forsdick (No 2) [2003] EWCA Civ 1113 If a person exhibits persistent vexatious behaviour, then a Judge of the Court of Appeal High Court or designated Civil Judge in the County Court can consider whether to make an extended civil restraint order against him/her. If such an order is made, it should be for a period not exceeding two years. It will restrain the litigant from: • instituting proceedings; or • making applications in the courts identified in the

order; or • concerning any matters involving or relating to or

touching upon or leading to the proceedings; • without the permission of a Judge identified in the

order. In other words, this type of order seeks to prevent the vexatious litigant from changing the claim, in any way, to try and evade the terms of the order.

Applications for permission are paper based to prevent the litigant from actually attending Court to “have their say”.


of 39

A more serious order that the Judge can make is a general civil restraint order against a litigant. This order would cover all proceedings and all applications in the High Court or in an identified County Court as the case may be. Again, it can be for a period not exceeding 2 years. In order to prevent a litigant making repeated applications for permission, which are felt to be totally devoid of merit, the Court can make subsequent refusals of permission final and the litigant would then need to seek permission to appeal from the Judge who has made that order. If a vexatious litigant continues to contact the Court with telephone calls, faxes and letters then an order can be made with a penal notice which means if the individual continues to make contact with the Court by any means the person can be arrested, for being in breach of the penal notice with the potential of a prison sentence for contempt of Court.

3.3.9 Claims involving a number of parties and/or causes of

action - this is governed by Rule 7.3 of the Civil Procedure Rules.

This rule allows a single Claim Form to be used for one or more claimants to start all claims, which can be conveniently disposed of in the same proceedings, against one or more Defendants. In a simple case, only one Claim Form will be issued by a Claimant against a Defendant. This same Claim Form could be used for a Claimant to bring a claim against a shopkeeper who sold a drink that causes injury and also the manufacturer who made it. If the shopkeeper also owed the Claimant money then the Claimant could pursue the Defendant on the same Claim Form for that sum of money. The test in relation to more than one claim being dealt with in the same proceedings is relatively straightforward - “claims can be conveniently disposed of in the same proceedings”.


of 39

3.3.10 The addition and substitution of parties – Part 19 of the Civil Procedure Rules.

In cases where the limitation period has not expired then Rule 19.2 of the Civil Procedure Rules provides that: The Court may order a person to be added as a new party if:

a. it is desirable to do so in order that all matters in

dispute can be resolved; and b. there is an issue involving a new party and an

existing party, which is connected to the matters in dispute and it is desirable to add the new party in order to resolve that issue.

Additionally, the Court may order a new party to be substituted for an existing part y if:

1. the existing party’s interest or liability is 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.

It should be noted that the Court can make an order of its own initiative even if there is no cause of action against the party being joined.

3.3.10.1 Cases where the limitation period has expired –

Rule 19.5.

If the limitation period has expired at the time the application is made, the Court may add or substitute a party only:

a. the relevant limitation period is current when

the proceedings started; and b. the additional substitution is necessary.

Rule 19.5 (3) sets out three grounds of necessity which are:

1. the new party is to be substituted for a party

who was named in the Claim Form in mistake for the new party;


of 39

2. the Court of Appeal in the case of Morgan Est (Scotland) Ltd v Hanson Concrete Products Ltd said that two questions must be answered positively; a) has the limitation period expired; b) is the addition of the party necessary.

The Court indicated that there is no reason to construe “in mistake” restrictively.

a. The overriding objective of doing justice is

likely to be undermined if one gets finicky about different sorts of mistakes.

b. The claim cannot be properly carried on by or against the original party unless the new party is added or substituted as Claimant or Defendant.

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

Please note that Rule 19.5 (3) only provides an exhaustive list of the courts jurisdiction to add or substitute a party because the rule itself states that “the additional substitution of a party is necessary only if the Court is satisfied” that one of the three grounds is established.

3.3.11 Consolidation – Rule 3.1 (2)(g) AND (h)

The Court may, of its own initiative or on the application of any party, consolidate two or more actions into one action. The main purpose of consolidation is to save costs and time pursuant to the overriding objective. The same principles apply to consolidation as to where parties may be added.

3.4 Whom will the claimant sue?

If you are acting for a Claimant, a fundamental consideration is whom your client should sue.


of 39

Set out below are couple of examples illustrating the point:

a. Employer and employee? Where a tort is committed by an employee in acting the course of his employment, it is usual to sue both the employee and his employer. The reason for this is that the employer is vicariously liable (liable as if the employer had caused the harm) for the employee’s actions, providing that the employee is acting within the course of their employment.

b. Motorist and insurer? Where a tort is committed by an

insured person the victim has no right at common law to sue the insurer directly since the victim is not a party to the contract of insurance.

However, the insurer has a contractual right, normally, as against the Defendant to conduct the Defence on his behalf (known as a right of subrogation) and in an action against a motorist, the Claimant, usually, has a statutory right to enforce against the insurer any judgment he obtains against the Defendant. When you are dealing with a potential Defendant who is actually unknown to the Claimant, then PD7 Para 4.1 (1) provides that a Claim Form “should state ………the full name of each party”. This permits a description, rather than a name, to be used provided that it is sufficiently certain to identify both those that are included and those who are not. So, for instance, when the fifth book in the Harry Potter series was stolen by persons unknown from the printers and offered to certain newspapers an order was made against “the person or persons who have offered the publishers of The Sun, The Daily Mail, and the Daily Mirror newspapers a copy of the book Harry Potter and the Order of the Phoenix by J K Rowling”. The order required them to deliver up all copies of the book. A further example, in relation to a negligence claim is where the Claimant knows the name of the Defendant and has details of the Defendant’s Insurer but has no address for the Defendant whether present or in the past. The Claimant has invited the Insurer to nominate solicitors to act for the Defendant but they fail to do so. Then the Court may allow service by post on the Insurers in those circumstances.


of 39

4. Service

4.1 Service of documents

Rule 6 of the Civil Procedure Rules and its practice direction provides the code for the service of documents. Task 9 Go to the Civil Procedure Rules website: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06 and print off a copy of Rule 6 and the Practice Direction and place it in your notes

There are complicated provisions as to who, how and where service can be made. In addition, there are some irrebuttable presumptions as to when service takes effect. Generally speaking, where a party is legally represented they will request that all documents should be served on their legal representative. There are exceptions to the general rule of solicitors being able to accept service such as service of claim forms on registered companies and documents which must be served personally on a party in order to have their full effect against that party. In defended proceedings, it will become clear at the opening stages of the court procedure as to whether or not a solicitor is acting for a claimant. The reason for this is that the claim form must state the claimant’s address for service. Similarly, a defendant must state his address for service in an acknowledgement of service or defence that is filed in response to a claim form that has been served upon him. Once the solicitor’s address for service is included in the claim form of the defence, that solicitor is said to be “on the court record” acting for that client. This will remain so until a notice of change of solicitor is served on the opposing party of an order is made removing the solicitor from the court record. The fact that a solicitor has been authorised to accept service will render irregular any service by post, DX, fax or email if the document is sent or transmitted to a defendant’s personal address. Documents must be sent or transmitted to the defendant’s solicitor.


of 39

Where a solicitor has been authorised to accept service of proceedings then personal service on the party is also ruled out, if the authorised solicitor has served notice that they are instructed. Accordingly, documents must only be served upon that solicitor. However, please remember, the mere fact that a solicitor is negotiating on behalf of a party does not by itself prove that the solicitor is authorised to accept service. If you are in any doubt whatsoever as to whether a solicitor is authorised to accept service of proceedings then the answer is to fax or send them a letter to ask them to confirm whether they expressly have the authority to accept service of the proceedings. Alternatively, you can contact them by telephone but always confirm in writing the fact that they have verbally agreed to accept service of the proceedings.

4.2 Methods of service

4.2.1 Personal Service – CPR Rule 6.3

A document is served personally on an individual by “leaving it with” that person. (See r 6.5)

To serve documents solicitors’ practices sometimes use an enquiry agent or a process server. The server will hand the document to the person and tell him/her what it is. If a person refuses to take the document, the server should explain what the document contains and leave it as nearly in his/her possession as possible. This may involve dropping the document at the person’s feet, as this is sufficient to make service.

4.2.2 Companies and Corporations

A document is personally served on a company or other corporation by leaving it with a person holding a senior position – Rule 6.3(2). In respect of a registered company or corporation that is a director, treasurer, secretary, chief executive, manager or officer. For a non-registered company, the person would include the mayor, chairman, president, town clerk or similar officer.


of 39

4.3 Document exchange (DX) – PD6, para 2.1 and 3.1

DX is a private postal system used by many businesses and professions, including solicitors. A subscriber to the system has a mailbox located at the local DX office. Letters and parcels are, normally, delivered within 24 hours. Service by DX is permitted if the party to be served includes his DX number in his address for service and/or it is on the solicitor’s notepaper. If someone becomes unwilling to accept service through the DX system then they must confirm this in writing to the other parties. Some solicitors state on their notepaper that they are not willing to accept service via the DX system. There is an irrebuttable presumption of service.

4.4 Fax PD6, part 4.1

Service by fax is only permitted if the party or its legal representative has previously indicated that he/she is willing to accept service by such method. The fact that a fax number appears on a legal representative’s notepaper will constitute such notice, as will the inclusion of a fax number in a statement of case, acknowledgement of service or similar document. However, simply because a party has a fax number on his/her notepaper, this is not sufficient notice of acceptance and the parties must expressly indicate in writing their willingness to accept service by these means. In addition, the fax number of the party must be at the address for service. Remember, a person can switch off their fax machine and it may be impossible to effect service through this means. Good practice only dictates that you should send a hard copy of a faxed document via the post or DX, but there is no requirement that this must be done. However, bear in mind that it is possible to mis-dial fax numbers and by sending a confirmatory copy you are doubly sure that service has taken place.


of 39

4.5 Email Service – PD6, Para 4.1 4.2 and 4.3

If the party to be served or their legal representative has previously indicated their willingness, in writing, to accept service in an acknowledgement of service, statement of case or similar and have stated their email address or other electronic identification then service may be effected by this means. The sender must check if the recipient places any limit on the size of the attachment. If documents are sent by email then there is no requirement to send a hard copy, but again, it does make it doubly sure that the document has been sent. It is also some firms’ practice to keep a copy of the hard copy sent, in order to prove service in case there is an issue in the future. The appearance of an email address on the firm’s notepaper does not, of itself, authorise service by email, as it is appreciated that most parties are unwilling to accept service by email for a variety of reasons, such as email addresses are linked to an individual and if that individual is absent for any period of time, the documents may not be seen. Additionally, there can be problems with the format of documents and the recipient not being able to open them.

4.6 Who will serve the documents?

Generally, the court serves documents, using first class post (PD6, Para 8.1). If you want a document served personally, for example, where a time limit is close to expiring then you must arrange this, as there is no provision for service by a court officer.

Once you have issued the Claim Form then it must be served together with a Response Pack (for completion by the Defendant – Form N9 can be found at: http://www.hmctsformfinder.justice.gov.uk If prior to issuing a Claim Form you decide to serve the Claim Form yourself, as opposed to the Court serving it, you must make this absolutely clear in the covering letter that you send to the Court with the Claim Form. This is so the Court will return the sealed document to you, rather than serving it directly on the Defendant or his/her representative.


of 39

The court will, normally, send documents by first class post. Rule 6.14 states that a document sent by first class post to the correct address is deemed to be served whether or not it ever gets there.

4.7 Address for service

If the party is based within the jurisdiction, he/she must give an address for service within it. The claimant must give the address on the Claim Form. A Defendant must state his/her address for service on an acknowledgment of service of defence. Where a party does not have a solicitor acting and he/she has not given an address for service then the service of documents can be effected either by personal service or by taking or posting the document to one of the places specified by Rule 6.9, as follows:

Nature of party to be served

Place of service

Individual

Usual or last known residence.

Proprietor of a business

Usual or last known residence; or Place of business or last known place of business.

Individual who is suing or being sued in the name of a firm

Usual or last known residence; or Place of business or last known place of business.

Corporation incorporated in England and Wales other than a company

Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.

Company registered in England and Wales

Principal office of the company; or any place of business of the company within the jurisdiction, which has a real connection with the claim.

Any other company or corporation

Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within


of 39

Nature of party to be served

Place of service

the jurisdiction.

Service via an address for service given by a party is valid even if the party no longer resides or carries on business at that address and even if it is a solicitor’s address and the solicitor no longer carries on business there or has no instructions to act.

4.8 CPR Service on Companies

The CPR provisions on personal service, postal service and other permitted methods are not limited to the service of individuals. They also apply to service on companies, including foreign companies if they give an address for service in the UK or authorise a solicitor to accept service. Section 725 of the Companies Act 1985 applies to companies registered under this Act. It also relaxes the restriction on using first class post and does not adopt the CPR provisions as to deemed service. Under section 725 any document can be served on a company registered under the Act by leaving it at or sending it by post to the registered office of a company even if that is not its “place of business”. In the case of service by post, it is immaterial whether first class, second class, recorded delivery of registered post is used. Delivery is presumed “in the ordinary course of post” if there is proof that it has been sent to the proper address by pre-paid post. The presumed date of service depends on the class of post used. Service upon a registered company, under section 725, is valid even where the company has solicitors acting for it who have written to the party serving confirming that they have instructions to accept service – proof of this is Cranfield v Bridgegrove Limited 2003 EWCA Civ 656: http://www.hrothgar.co.uk/YAWS/reps/03a656.htm


of 39

4.9 Service of document on children and protected parties

Rule 6.13 states that the methods of service vary according to the type of document that is to be served, as follows: 1. A Claim Form against a child, who is not also a patient, is

to be served on one of the child’s parents or guardians or if there is none the person with whom the child resides or in whose care the child is at the time.

2. A Claim Form issued against a protected party is to be

served on the person who has some authority in relation to the protected party under a lasting power of attorney, an enduring power of attorney or an order of the Court of Protection appoints the person to be served as a deputy.

3. Any other document is to be served on the litigation friend.

4.10 Deemed Service of Claim Form

A claim form in deemed to be served on the second business day after completion of the relevant step under rule 7.5(1)

Task 10 Download rule 7.5(1) from justice.gov.uk website and retain it.

4.11 Deemed Service of Other Documents

A court order that requires a party to take a step in the proceedings should state the last day on which this can be done. In all other cases, where a document is received but requires a response from the recipient within a specified time, it is necessary to work out when the period begins. The method by which service of the document is carried out will determine when the document is deemed to have been served. The rules provide that a document served by:

• First class post is deemed to be served on the second day

after it was posted. • Document exchange is deemed to be served on the

second day after it was left at the document exchange. • Delivering it to or leaving it at a last known address then it

is deemed to be served on the day after it was delivered or left at the premises.


of 39

• Fax is deemed to be served that day if it is transmitted on a business day before 4.30 p.m. but in any other case, on the business day after it was transmitted. 6.2 defines a business day as any day that is not a Saturday, Sunday or a bank holiday and the latter is said to include Christmas Day and Good Friday.

• Email or other electronic means before 4.30 p.m. are deemed to be served on that day.

• Personal service before 4.30 p.m. on a business day is deemed as being served on that business day.

Under 6.14 and other documents under 6.26. Proof of sending or transmission of the Claim Form gives rise to an irrebuttable presumption that the document was served on the day indicated by the rule, even if it can be proved as a fact that the document never came to the attention of the intended recipient. The rule applies no matter what evidence there is as to non-delivery of the document on that particular day.

4.12 Alternative methods of Service

If there is some difficulty in effecting service by the methods referred to above then an application can be made to the court to permit service by an alternative method. The applicant must demonstrate to the court that “there is a good reason to authorise service by a method not permitted by the rules”. If an order is made, it must specify the method of service to be used and the date when the document will be deemed to be served. Rule 6.15. If a Defendant is evading service or is untraceable then the rules now allow service by the Claimant at the defendant’s last known address and this will give rise to an irrebuttable presumption of service even if the document never reaches its intended recipient. An example for an alternative method of service is shown by the following case: In a negligence claim, in which the Claimant knows Defendant’s name, details of his/her insurer, but has no address for the Defendant and where the Claimant has invited the Insurer to nominate solicitors to act for the Defendant but they fail to do so, then the court may allow service by post on the Insurer.


of 39

4.13 Order to dispense with service – Rule 6.16

This power allows the court to dispense with service “in exceptional circumstances”. This rule is similar to pre 2008 rules and pre 2008 case law applies. In a series of decisions, culminating in the cases reported as Cranfield v Bridgegrove Ltd (see earlier) (in this case, the Claimants sought an order dispensing with service of a Claim Form where they had failed to make good service and where it was now too late to apply for an extension of time for service), the Court’s made some decisions about granting leave to serve a Claim Form. The cases are divided into two categories as follows: i. Cases in which no attempt at all was made to effect

service and; ii. Cases in which good service was attempted but not

achieved.

The message from the Court of Appeal is that the Court has power to dispense with the service in the first type of case and should be very slow to do so in all but the most exceptional of the second types of case. The Court has given examples of exceptional circumstances, which might justify an order dispensing with service: a. Claim Form sent to the correct person, at the correct

address and actually arrives in time but is irrebuttably deemed to arrive late.

b. Claim Form sent to the correct person, at the correct address and arrives in time but was sent by second-class post when first class post should have been used.

c. Claimants served a photocopy of a Claim Form as issued by the Court instead of the Court copy, which reaches the correct person at the correct address and arrives in time.

Task 11

Read the Cranfield case on the bailli website. Print it off and keep a copy with your notes.

4.14 Special Provisions about the service of a Claim Form

Contractually agreed methods – Rule 6.11


of 39

Some contracts specify a particular method of service, which should be used when a claim on the contact is eventually issued. An example is a nominated firm of solicitors to accept service of proceedings in England. This rule provides that in such cases the Claim Form will be deemed to be served on the Defendant if it is served by the method specified, provided that the Claim Form is issued only in respect of a claim under that contract.

4.15 Certificates of Service – Rule 6.17

A party who serves a document must also file at court a Certificate of Service in form N215, if such a certificate is required by any rule, practice direction or Court Order. A prime example of this is where the Claimant serves a Claim Form; he must file a Certificate of Service within 7 days. Until he has done so he is not entitled to enter Judgment in relation to those proceedings. Task 12 Go to the justice.gov.uk and find and print off form N215.

Remember to log in and attempt the multiple choice questions at: www.paralegaldistancelearning.co.uk