Part 8 – How to Start Proceedings

The claimant – how to start proceedings

 8.1

1. A claimant starts proceedings by filing in the court office the original and one copy (for sealing) of –
   1. the claim form; and (subject to rule 8.2)
   2. the statement of claim; or
   3. if any rule or practice direction so requires – an affidavit or other document.
2. A claim is issued on the date entered on the claim form by the court office.
3. For the purpose of any enactment relating to the limitation of proceedings, a claim is brought on the day on which the claim form is filed at the court office.
   • Rule 3.7(2) defines when a document is filed.
4. A claim form must be in Form 1 except in the circumstances set out in paragraph (5).
5. Form 2 (fixed date claim form) must be used –
   1. in claims arising out of hire-purchase or credit sale agreements;
   2. in proceedings for possession of land;
   3. whenever its use is required by a rule or practice direction; and
   4. where by any enactment proceedings are required to be com­menced by originating summons or  motion.
      • Rule 27.2 deals with the procedure under a fixed date claim.
6. A person who seeks a remedy –
   1. before proceedings have been started; or
   2.  in relation to proceedings which are taking place, or will take place, in another jurisdiction; must seek that remedy by an application under Part 11.

 Statement of claim, etc. to be issued and served with claim form

8.2

1. A claim form may be issued and served without the statement of claim or affidavit or other document required by rule 8.1 (1) (b)or (c) only if the –
   1. claimant has included in the claim form all the information required by rules 8.6. 8.7, 8.8 and 8.9; or
   2. court gives permission.
2. In a case of emergency when it is not practicable to obtain the permission of the court a claimant may issue and serve the claim form without a statement of claim or affidavit or other document required by rule 8.1(1) (b) or (c) provided that the claimant –
   1. certifies in writing that the issue and service of the claim form is a matter of emergency, stating why; and
   2. serves a copy of the –
      1. certificate; and
      2. application for permission; with the claim form.
3. If a claim form is issued under paragraph (2), the claimant may take no further steps except to serve the claim form until permission is given.
4. The court may give permission under paragraph (1) only if it is satisfied that –
   1. a relevant limitation period is about to expire and the claimant has obtained legal advice relating to the claim for the first time within the 28 days prior to the date that the claimant wishes to file the claim; or
   2. the claim form must be issued as a matter of urgency and it is not practicable for the claimant to prepare  a statement of claim or affidavit.
5. An application for permission may be made without notice but must be supported by evidence on affidavit.
6. Any order giving permission for the claim form to be served without a statement of claim or affidavit or other document required by rule 8.1(1) (b) or (c) must state a date by which that document must be served.
7. Such date must in no case be more than 56 days from the date of issue of the claim form.
8. A copy of the order or the certificate and application under paragraph (2) must be served with the claim form.
9. The claimant must file a copy of the statement of claim or affidavit or other document required by rule 8.1(1) (b) or (c), served in accordance with paragraph (6), endorsed with a certificate stating the date of service and the address at which and the manner in which it was served.

 Where to start proceedings

8.3

1. This rule identifies the court office at which a claim form maybe issued.
2. Where proceedings relate to land they may be commenced only in the court office for the Member State, Territory or circuit in which the land is situated.
3. Any other proceedings may be commenced only in the court office for the Member State, Territory or circuit where either the –
   1. cause of action arose; or
   2. defendant resides or carries on business.

 Right to make claim which includes two or more claims

8.4

1. A claimant may use a single claim form to include all or any other claims which can be conveniently disposed of in the same proceedings.

Claim not to fail by adding or failing to add parties

8.5

1. The general rule is that a claim will not fail because a person –
   1. who should have been made a party was not made a party to the proceedings; or
   2. was added as a party to the proceedings who should not have been added.
2. However –
   1. where a claimant claims a remedy to which some other person is jointly entitled, all persons jointly entitled to the remedy must be parties to the proceedings, unless the court orders otherwise; and
   2. if any such person does not agree to be a claimant, that person must be made a defendant, unless the court orders otherwise.
3. This rule does not apply in probate or administration proceedings.
   • Rules 67.2 and 68.3 deal with parties in such proceedings.

What must be included in claim form

8.6

1. The claimant must in the claim form –
   1. include a short description of the nature of the claim;
   2. specify any remedy that the claimant seeks; and
   3. give an address for service in accordance with rule 3.11.
2. Notwithstanding paragraph (1) (b) the court may grant any other remedy to which the claimant may be entitled.
3. A claimant who seeks aggravated damages and/or exemplary dam­ages must say so in the claim form.
4. A claimant who is seeking interest must –
   1. say so expressly in the claim form; and
   2. include, in the claim form or statement of claim, details of the –
      1. basis of entitlement;
      2. rate; and
      3. period for which it is claimed.
5. If the claim is for a specified sum of money, the total amount of interest claimed to the date of the claim and the daily rate at which interest will accrue after the date of the claim must be expressly stated in the claim form.
6. A claimant who claims in a representative capacity under Part 21 must state what that capacity is.
7. A claimant suing a defendant in a representative capacity under Part 21 must state what that capacity is.
   • Rule 3.12 requires the claim form to include a certificate of truth.

Claimant’s duty to set out case

8.7

1. The claimant must include in the claim form or in the statement of claim a statement of all the facts on which the claimant relies.
2. The statement must be as short as practicable.
3. The claim form or the statement of claim must identify any document which the claimant considers to be necessary to his or her case.
4. If the claimant seeks recovery of any property, the claimant’s estimate of the value of that property must be stated.
5. The statement of claim must include a certificate of truth in accordance with rule 3.12.

Permission to rely on allegation or factual argument

8.7A

1. A  The claimant may not rely on any allegation or factual argument which is not set out in the claim, but which could have been set out there, unless the court gives permission or the parties agree.
   • Rule 20.1 contains provisions about amendments to statements of case.

 Certificate of value (small claims)

 8.8

1. In any case in which the quantum of damages alone determines in which court the claim is to be brought but the amount of any damages claimed is not specified, the claim form must include a certificate by the claimant that the damages claimed exceed the civil jurisdiction of the District or Magistrate’s Court in the Member State or Territory in which the claim form is issued.

Special requirements applying to claims for personal injuries

 8.9

1. This rule sets out additional requirements with which a claimant making a claim for personal injuries must comply.
2. The claimant’s date of birth or age must be stated in the claim form or statement of claim.
3. If the claimant intends to rely at trial on the evidence of a medical  practitioner, the claimant must attach to the claim form a report from the medical practitioner on the personal injuries alleged in the claim.
4. Paragraph (3) does not restrict the right of the claimant to call other or additional medical evidence at the trial of the claim.
5. The claimant must include in, or attach to the claim form or statement of claim a schedule of any special damages claimed.

Relator claims

8.10

1. A person’s name may not be used in any claim as a relator unless that person has given written authority to that effect and the authority is filed at the court office before the claim is issued.

Service of claim form

8.11

1. After the claim form has been issued it may be served on the defendant in accordance with Part 5 (service of claim form within jurisdiction) or Part 7 (service of court process out of the jurisdiction).

Time within which claim form may be served

8.12

1. The general rule is that a claim form must be served within 6 months after the date when the claim was issued.
2. The period for –
   1. service of a claim form out of the jurisdiction; or
   2. service of an Admiralty claim form in rem; is 12 months.
      • Part 7 deals with service out of the jurisdiction.
      • Part 70 deals with Admiralty proceedings.

Extension of time for serving a claim form

 8.13

1. The claimant may apply for an order extending the period within which a claim form may be served.
2. The period by which the time for serving a claim form is extended may not be longer than 6 months on any one application.
3. An application under paragraph (1) –
   1. must be made within the period –
      1. for serving a claim form specified by rule 8.12; or
      2. of any subsequent extension permitted by the court; and
   2. may be made without notice but must be supported by evidence on affidavit.
4. The court may make an order under paragraph (1) only if it is satisfied that –
   1. the  claimant has taken all reasonable steps to –
      1. trace the defendant; and
      2. serve the claim form; but has been unable to do so; or
   2. there is some other special reason for extending the period.
5. If an order is made extending the validity of the claim form –
   1. the claim form must be marked with an official stamp showing the period for which its validity has been extended; and
   2. a sealed copy of any order made must be served with the claim form.
6. No more than one extension maybe allowed unless the court is satisfied that  –
   1. the defendant is deliberately avoiding service; or
   2. there is some other compelling reason for so doing.

Defence form, etc. must be served with claim form

8.14

1. When a claim form is served on a defendant, it must be accompanied by –
   1. a copy of any order made under rule 8.2 or 8.13;
   2. a defence form (Form 5);
   3. a form of acknowledgment of service (Form 4 or 4(A));
   4. if the claim is for money – an application to pay by installments (Form 3); and
   5. the prescribed notes for defendants (Form 1A).
2. There must be inserted on each form the –
   1. address of the court office to which the defendant is to return the forms;
   2. reference number of the claim; and
   3. title of the claim.
3. If there is a standard defence form appropriate to the particular case set out in a practice guide, the form sent to the defendant must be in a standard form of that type.