This document summarizes the key parties that can be involved in civil litigation cases. It discusses identifying the correct claimant and defendant, including for partnerships, individuals with trading names, trusts and estates. It also covers what happens if a party dies and the role of personal representatives. For children and protected parties, it explains that a litigation friend is required to conduct proceedings on their behalf. Finally, it discusses the process for settling cases involving children or protected parties, which requires court approval.
This document summarizes the key parties that can be involved in civil litigation cases. It discusses identifying the correct claimant and defendant, including for partnerships, individuals with trading names, trusts and estates. It also covers what happens if a party dies and the role of personal representatives. For children and protected parties, it explains that a litigation friend is required to conduct proceedings on their behalf. Finally, it discusses the process for settling cases involving children or protected parties, which requires court approval.
This document summarizes the key parties that can be involved in civil litigation cases. It discusses identifying the correct claimant and defendant, including for partnerships, individuals with trading names, trusts and estates. It also covers what happens if a party dies and the role of personal representatives. For children and protected parties, it explains that a litigation friend is required to conduct proceedings on their behalf. Finally, it discusses the process for settling cases involving children or protected parties, which requires court approval.
This document summarizes the key parties that can be involved in civil litigation cases. It discusses identifying the correct claimant and defendant, including for partnerships, individuals with trading names, trusts and estates. It also covers what happens if a party dies and the role of personal representatives. For children and protected parties, it explains that a litigation friend is required to conduct proceedings on their behalf. Finally, it discusses the process for settling cases involving children or protected parties, which requires court approval.
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’]
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)’)
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
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.
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.
