Bar Professional Training Course

LW7069 Civil Litigation and Evidence

Lecture slides

@MrJohnBates

Civil Litigation
Lecture 03
Syllabus: [05] Parties

John Bates

Syllabus overview

 
1. General
Matters

12. Disclosure
2. Limitation

11. Case
Management
3. Pre-action
Conduct

10. Default
Judgment &
Summary
Judgment
4. Commencing
Proceedings

9. Further
Information
5. Parties

8. Amendment
6. Statements of
Case

7. Multiple
causes of action

13. Interim 14. Interim 15. Interim 16. Offers to 17. Evidence of 18. Expert
Applications Payments Injunctions settle fact evidence

20. Judgments,
22. Appeals 21. Costs Orders and 19. Civil Trial
Enforcement

02 October 2019 Civil Litigation and Evidence 2019-20 2

[05] Parties
 Identifying the correct claimant
 Identifying the correct defendant

Civil Litigation & Evidence Lecture 03 - [05] Parties 1

Bar Professional Training Course
LW7069 Civil Litigation and Evidence
Lecture slides

The parties to the litigation

 Usually very obvious!

 Some tricky areas:

o Partnerships
o Individuals with trading names - persons carrying on business in another
name
o Trusts and estates [where trustees / executors or administrators are
dealing with assets for the benefit of beneficiaries]:
o Death
o Children and ‘Protected parties’

Partnerships
 Definition: Two or more persons who were partners/alleged
partners in business in the jurisdiction at the time when the cause
of action accrued

 Who to name as a party?

o If the partnership has a name  use the name of the partnership [e.g.
Bandbox (a firm)’ if appropriate
o If the partnership does not have a name  use the names of the partners
[e.g. ‘Martin Edward Williamson and Simon Gary Hartnell’
[See also ‘N1A Notes on completing the claim form’]

Persons with trading names

 Definition: Individual defendant who carries on a business in a
name other than the individual’s name (i.e. the ‘business name’)

 Who to name as a defendant?

o The business name in exactly the same way as if it were a partnership [e.g.
Bandbox’ if appropriate
o [‘N1A Notes on completing the claim form’ also suggests full name and
trading name (e.g. Steven James Walsh trading as ‘Walshy’s Washers’]

Civil Litigation & Evidence Lecture 03 - [05] Parties 2

Bar Professional Training Course
LW7069 Civil Litigation and Evidence
Lecture slides

Trusts and estates

 Definition: Trusts and estates [where trustees / executors or
administrators are dealing with assets on behalf of beneficiaries]:
o Named trustees/executors/administrators can:
 sue as claimant(s); and
 be sued as defendant(s)

o No need to include any beneficiaries as named parties

o Any judgment binding on the beneficiaries

The effect of death

 What happens if a party (a claimant with a claim/defendant
defending a claim) dies?
o with Personal Representatives appointed to represent the party’s estate; or
o without any Personal Representatives appointed to represent the party’s
estate

The effect of death – where there

are PRs
 If a proposed party dies, and:
o has left a will, and there are Personal Representatives appointed to deal
with the deceased’s estate (i.e. persons holding a grant of probate
o has not left a will, and there are Personal Representatives appointed to deal
with the deceased’s estate (i.e. persons holding a grant of probate (i.e.
persons holding letters of administration

 the Personal Representatives should be named as a party in place

of the deceased (e.g. ‘Allan Phillips and Sarah Hart as personal
representatives of the estate of Jeremy Taylor (deceased)’)

Civil Litigation & Evidence Lecture 03 - [05] Parties 3

Bar Professional Training Course
LW7069 Civil Litigation and Evidence
Lecture slides

Children and ‘Protected parties’

 Definition:
o ‘Child’  a person under 18
o ‘Protected party’  a party or an intended party who lacks capacity to
conduct proceedings [definition in Mental Capacity Act 2005]

Children and ‘Protected parties’

 The general approach:
o a child must have a ‘litigation friend’ to conduct proceedings on their behalf,
unless the court orders otherwise (and a court can allow a child to conduct
proceedings without a litigation friend)
o a protected party, must have a ‘litigation friend’ to conduct proceedings on
their behalf

Children and ‘Protected parties’

 When is a ‘litigation friend’ necessary?
o Before proceedings have started, to make any application against a child or
protected party
o After proceedings have started, to take any step in proceedings except
 Issuing and serving a claim form; or
 Applying to the court for an order appointing a litigation friend

Unless the court orders otherwise (e.g. allows a child to continue without a
litigation friend)
Any step taken without a litigation friend (where one is needed) has no
effect unless the court orders otherwise

Civil Litigation & Evidence Lecture 03 - [05] Parties 4

Bar Professional Training Course
LW7069 Civil Litigation and Evidence
Lecture slides

Children and ‘Protected parties’

 What happens when a party with [mental] capacity to conduct
proceedings later loses that capacity?
o Any further step in those proceedings shall have no effect, unless the court
orders otherwise

Who can be a ‘litigation friend’?

 Protected Party: A Deputy appointed by the Court of Protection;

 Children and Protected Parties: A person can act as a litigation

friend if he:
o Can fairly and competently conduct proceedings;
o Has no adverse interests;
o Where acting on behalf of a Claimant, undertakes to pay any costs which
the child or protected party may be ordered to pay, subject to any right
they may have to be repaid.

Settlement and children/protected parties

 No settlement, compromise or payment can be made without the
approval of the court.

 Where sole purpose of hearing is to obtain settlement, use the Part 8

procedure, and request settlement or compromise. Should include:
o Draft consent order;
o Details of if D admits liability;
o Age & occupation of child or protected party;
o Litigation Friend’s approval;
o Copy of financial advice obtained or Opinion of Counsel/Solicitor;
o If personal injury, details of accident, medical report and Past/Future loss claim.

Civil Litigation & Evidence Lecture 03 - [05] Parties 5

Bar Professional Training Course
LW7069 Civil Litigation and Evidence
Lecture slides

Settlement and children/protected parties

 Court will direct what is to happen to any money that is
recovered.

 May be paid into court or invested on child or protected party’s

behalf.

Representation of Companies or other

Corporations
 A company can be represented at trial by an employee if:

o That employee is authorised by the company; and

o The court gives permission.

Correctly identify the parties

 If you get the identity of a party wrong, then:
 You may be suing the wrong person;
 You are likely to lose that claim;
 The opponent may apply to strike out the claim; or
 You may have to amend the court documents to correct your mistake;
 You may have to pay the costs of any amendments;
 Your client may refuse to pay those costs which are caused by your mistake;
 You may be in difficulties about time limits for bringing a claim against the
correct person;
 It may be embarrassing for you when explaining this to your client;
 It weakens your credibility with the court and the opponents.

Civil Litigation & Evidence Lecture 03 - [05] Parties 6

Bar Professional Training Course
LW7069 Civil Litigation and Evidence
Lecture slides

Syllabus overview

  
1. General
Matters

12. Disclosure
2. Limitation

11. Case
Management
3. Pre-action
Conduct

10. Default
Judgment &
Summary
Judgment
4. Commencing
Proceedings

9. Further
Information
5. Parties

8. Amendment
6. Statements of
Case

7. Multiple
causes of action

13. Interim 14. Interim 15. Interim 16. Offers to 17. Evidence of 18. Expert
Applications Payments Injunctions settle fact evidence

20. Judgments,
22. Appeals 21. Costs Orders and 19. Civil Trial
Enforcement

02 October 2019 Civil Litigation and Evidence 2019-20 19

@MrJohnBates

Civil Litigation
Lecture 03
Syllabus: [05] Parties

John Bates

Civil Litigation & Evidence Lecture 03 - [05] Parties 7