GLOSSARY
Claim definition
What does Claim mean?
The formal assertion of a cause of action by one person (the claimant) against another (the defendant).
A claim is initiated when a claim form is issued by a court at the request of the claimant.
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Claim form—filing and issuing
Coronavirus (COVID-19): The guidance detailing normal practice set out in this Practice Note may be affected by measures concerning process and procedure in the civil courts that have been introduced as a result of the coronavirus (COVID-19) pandemic. In particular, for information on filing documents at court, see Practice Note: Coronavirus (COVID-19) implications for dispute resolution—Filing documents at court and for court specific guidance, see Practice Note: Coronavirus (COVID-19) civil court specific guidance—dispute resolution.Filing the claim formThe claim form, once completed, will need to be filed with the court you have decided to issue proceedings in together with a request that the court issues the claim form. The court will then normally issue the claim form on the day it is received. Proceedings are started when the court issues a claim form at the request of a claimant (CPR 7.2). CPR 2.6(1) provides that when issuing the claim form the court must seal it. ‘Seal’ is defined in the CPR glossary as being ‘a mark which the court puts on a document to indicate that the document has been issued by the court’. The seal is added to the claim form either by hand or by printing a facsimile of the seal on the document, whether electronically or otherwise (
Claim form—the contents
This Practice Note considers the current position and provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further below.This Practice Note provides guidance on drafting the claim form. It should be read in conjunction with Practice Note: Drafting statements of case, which provides guidance on drafting statements of case in general, including formatting requirements, the need for a statement of truth, and electronic filing of statements of case.This Practice Note deals with the contents of a claim form in a Part 7 claim. For Part 8 claims, see Practice Note: CPR Part 8 claims (alternative procedure for claims).What is a claim form?A claim form is the document used to start proceedings and contains information relevant to the proceedings including the court reference number to be used on all subsequent court documents, the parties to the proceedings, what is being claimed, particulars of the claim including any claim for interest and contact details for the claimant, generally the claimant's solicitor. The section on the claim form dealing with the particulars of the claim can either:•set out the particulars if dealing with a simple claim, or•reference the fact the particulars will
Costs of discontinuing a claim—the general rule
What is discontinuance?Discontinuance is the means by which a claimant can bring all or part of the proceedings it has instigated to an end by serving a formal notice of discontinuance. This has specific costs consequences which are set out in CPR 38.For information on the process of discontinuance, which is when a claimant brings all or part of the proceedings to an end, see Practice Note: Discontinuance of a claim.It is important to be aware that there is a difference between the formal discontinuance of proceedings and the amendment of a claim such that part of the claim is abandoned during the proceedings. A discrete cause of action can be abandoned by way of an amendment to a statement of case, in such cases the costs consequences under CPR 38 will not apply as this will not amount to formal discontinuance. However, it should be noted that where the abandoned part of the claim is a substantial amount of the total claim and the defendant has already incurred a considerable sum in defending it, the court may consider that this amounts to discontinuance such that the claimant is ordered to pay not only the defendant’s costs of and caused by the amendment but also the defendant’s costs of the issue itself. An example can be seen in
Where to start the claim
High Court or the County Court?Whether to start your claim in the High Court or the County Court is generally a question of the value of the claim. The rules are set out in CPR PD 7A (for CPR 7 claims).For information on commencing a claim under CPR 8, see: Part 8 claims.Claims which may (and in some cases, generally must) be started in the High CourtProceedings (whether for damages or a specified sum) may not be issued in the High Court unless the value of the claim is more than £100,000 (£50,000 in the case of a personal injury claim) (CPR PD 7A, paras 2.1–2.2).Where the financial threshold is met, claims which must generally be issued in the High Court are (the relevant division or specialist court is shown in brackets):•admiralty—Commercial Court (CPR 61.2)•libel and slander—Queen's Bench Division. Note, however, a claim for damages or for any other remedy for libel or slander may be started in the County Court where the parties agree this in writing (CPR PD 7A, para 2.9(1))•judicial review—Administrative Court (CPR 58)In addition, CPR PD 7A, para 2.4 provides that claims should be started in the High Court if the claimant believes
Drafting the particulars of claim
This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further below.This Practice Note provides guidance on drafting the particulars of claim. It should be read in conjunction with Practice Note: Drafting statements of case, which provides guidance on drafting statements of case in general, including formatting requirements, the need for a statement of truth, and electronic filing of statements of case.Particulars of claim—part of claim form or separate document?The particulars of claim can be included in the claim form or attached to the claim form as a separate document (CPR 7.4).If the particulars of claim are in a separate document they must either be served with the claim form, or within 14 days after service of the claim form; in any event, they must be served no later than the latest date for service of the claim form (CPR 7.4). In addition, the claim form must state that the particulars of claim will follow (CPR 16.2(2)).Particulars of claim served separately to the claim form must include the name of the court in which the claim is proceeding, the claim number, the title of the proceedings and the claimant’s address for service (CPR
After a claim has been served—issues for the defendant
Action following service of a claimA claim may commenced under CPR 7 (on which see Practice Notes: Claim form—the contents, Claim form—filing and issuing and Drafting the particulars of claim) or CPR 8 (on which see Practice Note: CPR Part 8 claims (alternative procedure for claims)).CPR 9.2 provides that when particulars of claim are served on a defendant, the defendant may:•file or serve an admission in accordance with CPR 14 (see Practice Note: Admissions)•file a defence in accordance with CPR 15 (see Practice Note: Filing the defence), or•file an acknowledgement of service in accordance with CPR 10 (see Practice Note: Acknowledgment of service)A defendant may also wish to consider if it is appropriate to apply for summary judgment or to strike out the claim—see: Summary judgment or strike out.Where parties have followed a pre-action protocol or exchanged pre-action correspondence, the defendant has a chance to consider and prepare its response to the claim (see Practice Notes: The pre-action protocols and when they apply, Pre-action behaviour in non-protocol cases—Practice Direction Pre-Action Conduct and Protocols and Responding to a letter of
Preparing manual PDF electronic bundles
Preparing manual PDF electronic bundles This Practice Note provides guidance on preparing manual PDF bundles, similar to those required by Practice Direction 51O, the Protocol and Supreme Court Practice Direction 14. The process for uploading documents to specialised trial management software may be different. It should be read in conjunction with Practice Note: Electronic bundles in civil proceedings. With the kind permission of Blake Hawthorne, his ‘Guide to Creating Electronic Appellate Briefs, Blake A. Hawthorne, Supreme Court of Texas’ dated 1 January 2019, has been used as a starting point for this guidance on preparing manual electronic bundles for use in proceedings in England and Wales. How to prepare PDF bundles—five basic steps There are five basic steps to create an electronic bundle which will be as effective and easy to use as possible: • Convert your submissions from the original word processing document, eg Microsoft Word, directly to PDF. Unless it is unavoidable, do not scan a document to create a PDF • Convert any exhibits to PDF. Do not scan exhibits that are available in electronic format, such as judgments, authorities or orders • Combine the submission and any exhibits together into one PDF file • Make any scanned materials searchable using optical character recognition (OCR) software like Adobe Acrobat • Create bookmarks for any documents contained in the exhibit Tools Word processor The primary tool for creating an electronic bundle is
Sponsorship
Sponsorship This Practice Note provides an overview of the key elements of a sponsorship deal, including establishing a sponsorship hierarchy for multiple sponsors, exclusivity arrangements, standard and additional rights commonly found in a sponsorship deal, fees and payment by value-in-kind, protection of sponsorship as well as compliance and regulatory issues. Brands are increasingly looking to align themselves with events or content that consumers care about. For this reason, sponsors are increasingly aligning themselves with areas outside of the traditional sports sponsorship model. For example, there has been significant growth in sponsorship of music events and artists, sectors that brands traditionally shied away from due to the myriad of rights owners. English law does not recognise the existence of proprietary rights in a sports (or other) event. It follows that there is no such recognised right as ‘sponsorship rights’ to an event, team or league. The sponsorship rights granted by rights holders to brands do not exist in and of themselves, rather they are created, exploited and protected via a contractual and legal matrix. Types of sponsorship There are many different types of sponsorship opportunities available, including sponsoring: • a team • an individual • an event, or series of events • a venue • content (such as a television programme) Key components of a sponsorship deal Sponsorship hierarchy Sponsorship programmes have developed to form a hierarchical model with the sponsors at the top granted the widest suite
Business and Property Courts—shorter trials scheme
Business and Property Courts—shorter trials scheme This Practice Note provides guidance on the interpretation and application of the relevant provisions of the CPR. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further below. Purpose of the shorter trials scheme This Practice Note gives guidance on the shorter trials scheme (STS) in CPR PD 57AB to claims issued on or after 1 October 2015 in the Business and Property Courts. The scheme is intended to effect resolution of commercial disputes within commercial time frames through streamlining and controlling various case management procedures, including the pre-action procedure, statements of case, costs budgeting, disclosure, factual and expert evidence, interim applications, the trial timetable, cross examination at trial, etc. CPR PD 57AB deals with both the shorter and flexible trials schemes and came into effect on 1 October 2018, following a successful pilot scheme which operated under CPR PD 51N in the Rolls Building only. From 1 October 2018, the STS applies to all Business and Property Courts and to claims issued on or after 1 October 2015 (CPR PD 57AB, para 1.2). The flexible trials scheme (FTS) is also contained in CPR PD 57AB. This Practice Note only considers the STS. For guidance on the FTS, see Practice Note: Business and Property Courts—flexible trials scheme. Where the provisions of
Part 36 offers—what are they, why make them?
Part 36 offers—what are they, why make them? Note: This Practice Note is relevant only to Part 36 offers as considered under CPR 36 in force as from 6 April 2015. For guidance on transitional provisions, see Practice Note: Illustrating the changes—the transitional provisions for the revised Part 36 in force as of 6 April 2015 [Archived]. This Practice Note explains what a Part 36 offer is, the reasons behind making one and the costs consequences of Part 36 offers made by claimants and defendants, as considered under the CPR 36 in effect as of 6 April 2015. Which set of CPR 36 rules apply? A revised CPR 36 came into force on 6 April 2015 replacing the old set of rules governing Part 36 offers. See News Analysis: The New Rule 36 in force from 6 April 2015 for an analysis of the revised regime. For a Part 36 offer made on/after 6 April 2015, therefore, the revised CPR 36 rules apply and all references to provisions of CPR 36 in this Practice Note are, unless specifically stated otherwise, references to the CPR 36 in force as of 6 April 2015. To understand the changes as between the pre-6 April 2015 regime and the revised CPR 36 in force as of that date, see Practice Note: April 2015 revisions to CPR 36—table of changes [Archived]. Part 36 offer made before
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Warranty limitations—pro-seller—share purchase agreement
Insert the following definitions as new definitions into clause 1 of Precedent: Share purchase agreement—pro-buyer—corporate seller—conditional—long form: 1 Definitions and interpretation Claim means a claim by the Buyer for any breach of the provisions of this Agreement (including a claim for breach of the Warranties); Data Room means the data room relating to the [Company OR Group] comprising all contracts, agreements, licences, documents and other information made available to the Buyer and its advisers, as listed in the Data Room index attached to the Disclosure Letter; The ScheduleLimitations on the Warranties Replace Schedule 5 of Precedent: Share purchase agreement—pro-buyer—corporate seller—conditional—long form with the following schedule: 1 General 1.1 The following provisions of this Schedule [5 OR [insert schedule number for limitations on the warranties schedule]] shall, subject to their terms, limit the liability of the Seller in relation to a Claim[ and, where specifically provided, a Tax Covenant Claim] except where such Claim[ or Tax Covenant Claim] arises as a result of fraud on the part of the Seller. 1.2 The Seller shall not be liable for any Claim unless written particulars of it
Property indemnity for a share purchase agreement
Property indemnity clause for insertion into a share purchase agreement Indemnity clause
Property warranties (short-form) in an asset purchase
Property warranties and definitions to include in a short-form asset purchase agreement 1 Definitions In this Agreement, unless the context otherwise requires: Encumbrance means any mortgage, claim, charge (fixed or floating), pledge, lien, hypothecation, guarantee, right of set-off, trust, assignment, right of first refusal, right of pre-emption, option, restriction or other encumbrance or any legal or equitable third party right or interest including any security interest of any kind or any type of preferential arrangement (or any like agreement or arrangement creating any of the same or having similar effect) and Encumbrances means more than one of them; Freehold Properties means the freehold properties, described in Part [insert number] of Schedule [insert number] and Freehold Property means any one of them; Lease means the lease and any supplemental documents under which any Leasehold Property is held, further details of which are set out in Part [insert number] of Schedule [insert number] and Leases means more than one of them; Leasehold Properties means the leasehold properties described in Part [insert number] of Schedule [insert number] and Leasehold Property means any one of them; Properties means the Freehold Properties and the Leasehold Properties described in the Schedule [insert number] and the Property means any one of
Loss payable clause: for hull and machinery insurance in shipping finance
It is noted that, by an assignment in writing collateral to a first preferred mortgage dated [insert date] (the Mortgage) [Name of Owner] of [Address of Owner] (the Owner), owner of the vessel '[Name of Vessel]' (the Vessel), assigned absolutely to [Name of Mortgagee] acting through its branch at [Address of Mortgagee] (the Mortgagee), the benefit of this policy of insurance and all benefits of this policy, including all claims of any nature (including return of premiums) hereunder. Claims payable under this policy in respect of a total or constructive total or an arranged or agreed or compr
Systems integration agreement—pro-supplier
Systems integration agreement—pro-supplier This AgrEement is made on [date] Parties 1 [insert name of supplier], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [insert name of customer], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Customer) (each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties). Background (A) The Customer wishes to procure software, [hardware], software configuration and development services, installation services and other related services. (B) The Customer has agreed to procure the Services from the Supplier and the Supplier has agreed to provide the Services to the Customer on the terms and conditions of this Agreement. The parties agree as follows: 1 Definitions and Interpretation 1.1 In this Agreement the following terms have the following meanings: Acceptance • means that: (a) the Customer confirms in writing that the Software has passed or is deemed to have passed the relevant Software Acceptance Tests; and/or (b) the Supplier confirms in writing that the Supplied Hardware has passed or is deemed to have passed the relevant Hardware Acceptance Tests, as the context so requires, and Accept shall be construed accordingly; Acceptance Criteria • means the criteria to be satisfied to demonstrate that: (a) the Software Acceptance Tests have been successfully completed as determined pursuant to
Software support agreement—pro-customer
Software support agreement—pro-customer This Agreement is made on [date] Parties 1 [Insert name of supplier], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [Insert name of customer], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Customer), each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties. Background (A) The Supplier is [the licensor of certain software applications]. (B) The Customer is [insert details of Customer’s background/background to the relevant transaction]. (C) The Supplier has granted a licence to the Customer[, members of its group] [and certain authorised third parties] to use certain software applications and agrees to provide support and maintenance services for such software on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Authorised Third Parties • means any third party (including agents and contractors) engaged to provide services to the Customer or to any Customer Affiliate including any supplier to whom the Customer or any Customer Affiliate has outsourced any part of its business; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Commencement Date • means the date of this Agreement; Confidential Information • means any and all confidential information (whether in oral, written or
Confidentiality and personal data sharing agreement—one-way—pro-recipient
Confidentiality and personal data sharing agreement—one-way—pro-recipient This Agreement is made on [date] Parties 1 [Insert name of party] [of [insert address] OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (the Recipient); and 2 [Insert name of party] [of [insert address] OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (the Discloser), each of the Discloser and the Recipient being a party and together the Discloser and the Recipient are the parties. Background (A) The Recipient carries on the business of [insert details] and the Discloser the business of [insert details]. (B) The Discloser intends to disclose Shared Data to the Recipient for the Purpose. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: [Authorised Person • means any of the officers, directors, members, partners, employees, consultants, agents, representatives, sub-contractors or professional advisers of the Recipient or of any of the Recipient’s direct or indirect sub-contractors and any other persons whom the Discloser designates in writing as authorised;] Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England or Wales; Confidential Information • means (subject to clause 3.5) Shared Data that is disclosed after the date of this Agreement which is: (a) confidential in nature and designated [in writing by the Discloser OR in Schedule
MVNO agreement
MVNO agreement This Agreement is made on [insert date] Parties 1 [insert name] a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [insert name] a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (MVNO) (each of the Supplier and the MVNO being a party and together the Supplier and the MVNO are the parties). Background (A) The Supplier is a mobile network operator in the Territory. (B) The MVNO is a mobile virtual network operator in the Territory. (C) The Supplier has agreed to provide wholesale mobile electronic communications services to the MVNO for resale [on a pre-pay basis OR on a post-pay basis OR on a pre-pay and post-pay basis] in the Territory in accordance with the terms and conditions of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Account Manager • means the primary point of contact for each party as notified by each party to the other on or before the date of this Agreement (or in accordance with clause 20.3); Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Charges • means any amounts that have been paid
Sales and marketing agency agreement for services—exclusive—pro-principal
Sales and marketing agency agreement for services—exclusive—pro-principal This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Principal); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Agent), (each of the Principal and the Agent being a party and together the Principal and the Agent are the parties). Background (A) The Principal supplies the Services (as defined below). (B) The Principal wishes to appoint the Agent as its exclusive agent in the Territory (as defined below) for the [marketing OR marketing and sale] of the Services on the terms of this Agreement. (C) The Agent has agreed to [market OR market and sell] the Services in the Territory on the Principal’s behalf on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Agreement • means the main body of this Agreement, its schedules and appendices, as each may be amended from time to time in accordance with their terms; Bribery Laws • means the Bribery Act 2010 [and associated guidance published by the Secretary of State
Deed of covenant: for a ship mortgage
Deed of covenant: for a ship mortgage This Deed is made on [insert day and month] 20[insert year] Parties 1 [insert name of Owner], a company incorporated in [England and Wales] with registered number [insert company number] whose registered office is at [insert address] (the Owner); and 2 [insert name of Mortgagee] a company incorporated in [England and Wales] with registered number [insert company number] whose registered office is at [insert address] (the Mortgagee) Background (A) The Mortgagee and the Owner have entered into a loan agreement dated [insert date] (the Loan Agreement) [a copy of which is attached to this Deed as Schedule 3] in which the Mortgagee has agreed to make a loan of [insert amount of loan] to the Owner to [re-] finance the [purchase OR construction] of the m.v. [insert name of ship] registered as a United Kingdom ship in the name of the Owner under official number [insert ship number] (the Ship). (B) To secure the performance by the Owner of its obligations under the Loan Agreement and this Deed including the payment to the Mortgagee of all principal, interest, costs and other amounts which are or may at any time in the future become due and owing to the Mortgagee from the Owner under the Loan Agreement and this Deed (the Secured Indebtedness), the Owner as beneficial owner and registered owner of sixty-four (64)
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Can the transferable nil rate band and transferable residence nil rate band be claimed when the first spouse died in 1971?
Can the transferable nil rate band and transferable residence nil rate band be claimed when the first spouse died in 1971? This Q&A considers whether the transferable nil rate band (NRB) and the transferable residence nil rate band (RNRB) are available when the first spouse died in 1971, which is before the introduction of inheritance tax (IHT) on 18 March 1986. Transferable NRB In order to claim the transferable NRB, it is necessary for the individuals to have been married or in a civil partnership at the date of the first death. For spouses, it does not matter when the first death occurs, although the second death must be on or after 9 October 2007. For civil partners, the first death must occur on or after 5 December 2005 (ie the introduction of civil partnerships) and the second death on or after 9 October 2007. As the question refers to a spouse, we have assumed that the individuals concerned were married at the date of the first death. Therefore, assuming that the second spouse died on or after 9 October 2007, the transferable NRB can be claimed even though the first spouse died in 1971. However, there may be evidential issues with making a claim. The regime in force at the date of the first spouse’s death was estate duty. Estate duty included a tax-free amount which, under paragraph
What obligations does an occupier of land have to a neighbour where Japanese knotweed has spread from their land to neighbouring land?
What obligations does an occupier of land have to a neighbour where Japanese knotweed has spread from their land to neighbouring land? An occupier of land could face liability for the spread of Japanese knotweed to neighbouring land in a number of ways, including: • under section 14 of the Wildlife and Countryside Act 1981 (WCA 1981), which makes it an offence to plant or cause Japanese knotweed to grow • under section 34 of the Environmental Protection Act 1990, which imposes a duty of care on people dealing with controlled waste (Japanese knotweed), to take reasonable steps to keep that waste safe • through a claim for private for private nuisance For more information see our Practice Notes: Japanese knotweed—legal framework and Japanese knotweed—management, which also cover the amendments to the WCA 1981, added by the Infrastructure Act 2015, concerning Japanese knotweed and species control agreements and orders. Private nuisance This Q&A concerns the spread of Japanese knotweed to neighbouring land and so it involves a focus on private law/civil liability principles. Allowing Japanese knotweed to spread to neighbouring land could constitute a private nuisance, which the neighbour may seek a remedy for. Our Practice Note: Private nuisance—general principles explains that private nuisance is concerned with the unlawful
What is the procedure in the small claims court for relying on a statement made otherwise than by a person giving oral evidence?
What is the procedure in the small claims court for relying on a statement made otherwise than by a person giving oral evidence? Small claims track—case management Claims on the small claims track are known as small claims and are governed by CPR 27 and CPR PD 27. Parties on the small claims track often act in person (known as litigants in person) and so the case management provisions have been focused and designed to make the dispute resolution process as quick, cheap and straightforward as possible. For further guidance on case management in relation to litigants in person, see Practice Note: Litigants in person—case management and relief from sanctions. The court has a very wide discretion as to the conduct of the proceedings. It is important to be aware that: • many parts of the CPR do not apply to small claims eg CPR 33, which includes provisions on dealing with hearsay evidence which might otherwise apply in these circumstances—see CPR 27.2 for a full list • recoverable costs are very limited The court can adopt any procedure it believes to be fair and appropriate to the dispute. Generally, the strict evidence rules don't apply, evidence does not need to be on oath and the court can limit
When seeking an order for sale, having obtained a final charging order, does one have to comply with pre-action protocol prior to issuing a Part 8 claim form?
When seeking an order for sale, having obtained a final charging order, does one have to comply with pre-action protocol prior to issuing a Part 8 claim form? In answering this Q&A we have limited our research to cover pre-action requirements when seeking an order for sale. We assume you are referring to applying under CPR 8 for an order for sale to enforce a final charging order against a property CPR PD 8A, para 3.1 sets out the types of claims for which the Part 8 procedure may be used. The claimant must use the Part 8 procedure for applications to enforce charging orders by sale under CPR 73.10C, para 4. For more information on Part 8 claims and enforcing charging orders, see Practice Notes: CPR Part 8 claims (alternative procedure for claims) and Order for sale—how to enforce a charging order. No specific provision regarding the applicability of the pre-action protocols in a Part 8 claim to enforce a charging
Is it possible to remove an entry from the Register of Judgments and Orders where a judgment has not been satisfied? What is the correct court form, fee and procedure to use?
Is it possible to remove an entry from the Register of Judgments and Orders where a judgment has not been satisfied? What is the correct court form, fee and procedure to use? A judgment registration can only be removed from the register if it was: • entered in error • paid before the court date • cancelled due to full payment being made within one calendar month If a judgment has not been satisfied it can
Are there any reported cases concerning the Pre-Action Protocol for Debt Claims which concern the issue of a claim following non-compliance with this protocol or where an alternative protocol has been followed in error?
Are there any reported cases concerning the Pre-Action Protocol for Debt Claims which concern the issue of a claim following non-compliance with this protocol or where an alternative protocol has been followed in error? We have not been able to find any case law on the specific point raised in your query. However, we refer you to the following information which you may find useful. When the Pre-Action Protocol for Debt Claims (the Protocol) applies The Pre-Action Protocol for Debt Claims (in force from 1 October 2017) applies where a business (including a sole trader or public body) is claiming payment of a debt from an individual (including a sole trader). It does not apply to business-to-business debts unless the debtor is a sole trader (Pre-Action Protocol for Debt Claims, para 1.1). Prior to 1 October 2017, such claims were governed by the Practice Direction Pre-Action Conduct and Protocols (the Practice Direction). Claims which fall outside the ambit of the Protocol will continue to be governed by the Practice Direction. The Pre-Action Protocol for Debt Claims also does not
What are the general rules for serving applications and giving notice of a hearing to a defendant who is in the United States?
What are the general rules for serving applications and giving notice of a hearing to a defendant who is in the United States? We have assumed that the matter is not proceeding in the Commercial Court—different rules apply in relation to applications in this court. Putting respondents on notice of applications In civil proceedings before the courts in England and Wales, applications are initiated by the applicant filing an application notice (usually, Form N244). Generally, applications are governed by the procedural rules set out in CPR Part 23 and CPR PD 23A. See Practice Note: Making an application. The application notice should state the applicant's full name and (if not a party already) their address for service—see Practice Note: Serving documents—excluding the claim form and defence—Address for service (CPR 6.23). The general rule is that applications should be served on the other parties, although there are exceptions (CPR 23.4). See also Practice Note: Applications without notice at section When an application can be without notice. One of the exceptions is when an application without notice is permitted by a court order, rule or practice direction. Even where a without notice application would be permitted there are certain duties which befall an applicant, including a duty of full and frank disclosure and, where possible, to give informal notice (where time is shortened, for example, because the application is urgent). If none
Where there is a default judgment and the judgment debtor applies to overturn what factors will the court consider?
Where there is a default judgment and the judgment debtor applies to overturn what factors will the court consider? For information on the criteria for setting aside a default judgment and factors the court will take into account, we refer you to our Lexis®PSL Dispute Resolution Practice Notes: Obtaining default judgment—general principles and Setting aside default judgment under CPR 13.3. In particular: • applications to set aside default judgment are governed by CPR 13 • the court must set aside default judgment in the circumstances set out in CPR 13.2. This is where the default judgment has been incorrectly or irregularly obtained, ie when the defendant can show he has filed the acknowledgement of service or defence (as appropriate) on time • the court has a discretion to set aside or vary default
What impact did the findings in Marathon v Seddon have on awards of ‘Wrotham Park’ damages? Are ‘Wrotham Park’ (or negotiating) damages regularly awarded?
What impact did the findings in Marathon v Seddon have on awards of ‘Wrotham Park’ damages? Are ‘Wrotham Park’ (or negotiating) damages regularly awarded? ‘Wrotham Park’ damages Derived from the case of Wrotham Park Estate Co v Parkside Homes Ltd, ‘negotiating damages’ (or ‘licence fee’ damages as they are also referred to) are recoverable to represent such a sum that the defendant would have reasonably paid had they, prior to breaching their obligations, negotiated a release from those obligations. For further information on negotiated damages and the related case law, see Practice Note: Negotiating damages for contractual breach. Assessing damages in such cases and considering what price would have been negotiated is usually based on a hypothetical scenario. Marathon v Seddon In Marathon Asset Management LLP v James Seddon, proceedings were brought against former employees, one of whom admitted to having copied confidential information in breach of his contract of employment. Although the information was never actually used and, therefore, Marathon suffered no financial loss (and nor had the former employees gained financially), Marathon argued that the employees were liable in damages for the value of the confidential information, which was estimated at £15m. As there had been no financial loss or gain as a result of the breach, Marathon did not seek damages in the ordinary sense or an account of profits and chose to confine the claim
If a party wishes to bring a counterclaim in a probate claim, where the force and validity of the Will are disputed, is an application required for this and is a fee payable? If a defendant to the counterclaim is not a party to the proceedings, is leave of the court required to bring the counterclaim and is an application required?
If a party wishes to bring a counterclaim in a probate claim, where the force and validity of the Will are disputed, is an application required for this and is a fee payable? If a defendant to the counterclaim is not a party to the proceedings, is leave of the court required to bring the counterclaim and is an application required? Background The purpose of Part 20 is to enable counterclaims and other additional claims to be managed in the most convenient and effective manner (CPR 20). Claim The procedure for the counterclaim will differ depending on whether the claim is Part 7 or Part 8. A probate claim must be commenced using the procedure in Part 7 (CPR 57.3(b)). Within Part 57, a ‘probate claim’ includes a claim for a decree pronouncing for or against the validity of an alleged will (CPR 57.1(2)(a)(iii)). Counterclaim A defendant who contends that he has any claim relating to the grant of probate of the Will of the deceased person must serve a counterclaim making that contention (CPR 57.8(1)). A defendant can make a counterclaim against: • the claimant (CPR 20.4), or • the claimant and another person (CPR 20.4 and CPR 20.5) A defendant may make a counterclaim against the claimant by filing particulars of the counterclaim: • at the same time as filing his defence—no permission required from the court (CPR 20.4(2)(a)) • at any other time—permission from
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Jurisdiction and Part 20 claims—timing, evaluation and approach (Golubovich v Golubovich v Mirimskaya)
Dispute Resolution analysis: On appeal, Mr Justice Edwin Johnson held: (i) that it was not an abuse of process for the respondent to argue (following a previous anti-suit injunction (ASI) application) that England was the natural forum for his Part 20 claim; (ii) that the Master had not pre-judged the forum question; and (iii) that the Master had not misevaluated the factors pointing to Russia as the competing natural forum. This judgment will be important for anyone considering the question of forum non conveniens and, more particularly, anyone considering how the court will decide jurisdiction for a Part 20 claim where the court has already accepted jurisdiction in the main claim. Written by Douglas James, barrister at Crown Office Chambers.
Settlement agreement between employer and surety did not bind contractor (ML Hart Builders v Swiss Cottage)
Construction analysis: The Technology and Construction Court (TCC) found that a settlement agreement made between the employer under a construction contract and the surety under a bond provided by the contractor was not binding on the contractor, in relation to the value of the final account under the construction contract. Further, the contractor was entitled to refer the value of the final account to a second adjudicator, where a previous adjudicator had declined to carry out the valuation.
Trends from the Paris Court of Appeal on arbitrators’ duty of disclosure—lessons from the PRIDE case and the Billionaire case
Arbitration analysis: In two decisions dated 17 May 2022, the PRIDE case and the Billionaire case, the Paris Court of Appeal dismissed two claims for annulment of an award, which were based on an arbitrator’s alleged breach of its duty of disclosure—a component of the arbitral tribunal’s duty of independence and impartiality. This outcome is not surprising, since the French courts rarely annul awards, and even more so on the basis of an arbitrator’s lack of independence and impartiality. However, these two decisions provide insights into the ever-evolving position of the Paris Court on the conditions to challenge an award on this basis. Read together with other recent decisions of the court, they will provide helpful guidance to navigate the arbitral tribunal’s duties, but give little hope for parties wishing to challenge an arbitrator for lack of independence, if the alleged circumstances go back in time and are deemed academic. Written by Flore Poloni, partner & Kimberley Bazelais, associate at Signature Litigation.
Deutsche, NatWest eye deals worth US$34m in Swiss LIBOR case
Law360: A proposed class of investors accusing various financial institutions of conspiring to manipulate the Swiss Franc LIBOR has asked a New York federal court to approve a US$21m settlement with NatWest Markets and a US$13m settlement with Deutsche Bank.
Damages for disrepair-applying Simmons v Castle (Khan v Mehmood)
Property Disputes analysis: The Court of Appeal has held that general damages for breach of a repairing covenant are subject to the 10% Simmons v Castle uplift. This analysis looks at the arguments raised for disapplying the uplift in disrepair cases, and provides a summary of the decision. Written by Thomas Stockton, associate solicitor at MSB Solicitors.
PI & Clinical Negligence weekly highlights—30 June 2022
This week’s edition of PI & Clinical Negligence weekly highlights includes a Supreme Court judgment in relation to a metal-on-metal total hip replacement and the Consumer Protection Act 1987. We also have an analysis of a case where a litigation friend was entitled to recover the ATE premium from the child’s damages. In addition, we have our usual round-up of other key cases and news and New Law Journal articles of interest.
Pensions weekly highlights—30 June 2022
Welcome to the Pensions weekly highlights from the Pensions team. This week's edition of Pensions highlights includes a review of key news stories, as well as dates for your diary and trackers.
Energy weekly highlights—30 June 2022
This week's edition of Energy weekly highlights including Ofgem’s decision on amending the CfD methodology, HMRC’s consultation on the draft Energy (Oil and Gas) Profits Levy Bill, BEIS’ agreement to modernise the terms of the Energy Charter Treaty that will align with the Energy Security Strategy, and the Council of the EU’s agreement to raise renewables and energy efficiency targets.
Restructuring & Insolvency weekly highlights—30 June 2022
This week's edition of Restructuring & Insolvency weekly highlights includes: the publication of a report highlighting the impact of CVAs on commercial landlords, a judgment on whether an administration had been properly extended (Re E Realisations 2020 Ltd), the first successful criminal prosecution of bounce back loan fraud, plus a round-up of other news and cases for restructuring and insolvency professionals.
Environment weekly highlights—30 June 2022
This week's edition of Environment weekly highlights includes analysis on the challenge to Southampton airport expansion project being rejected. In addition, this week the Climate Change Committee published its 2022 progress report on emissions reduction to Parliament, an agreement has been reached on modernising the Energy Charter Treaty, the UK signed up to the Sustainable Productivity Growth Coalition, the Taskforce on Nature-related Finance Disclosures released version 2 of the beta framework for nature-related risk and opportunity management and disclosure, and the Committee on Transport and Tourism of the European Parliament adopted a draft negotiating mandate on the ReFuelEU aviation rules. We have also published a new Practice Note which details the key Environment resources available in Lexis®Library.
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