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Initiating Proceedings Notes

Law Notes > Litigation - Civil Procedure Notes

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7 initiating proceedings

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Table of Contents

7 initiating proceedings [8.10- 8.425]
Intro:

Overview: (Pre-commencement - preliminary discovery, interim orders, ?)

1. Proceedings initiated

2. Obligation to serve the originating process a. Generally required to be served personally though under certain circumstances the UCPR allows other means of service to be considered equivalent to personal service

3. Rules concerning pleadings

Exam tips

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Definitions:

* 'Originating process' is the process by which proceedings are commenced, and includes the process by which a cross-claim is made: CPA s 3

* 'Plaintiff' person by which proceedings are commenced and includes a person by whom a cross-claim is made

* 'Defendant' means person against whom proceedings are commenced and includes a person against whom a cross-claim is made

1. Has the originating process begun?
a. Two ways to initiate proceedings: i. (a) Summons (taking a step within litigation prior to litigation, see r 6.4 eg preliminary discovery or injunction) or ii. (b) Statement of claim (r 12.40). Used where there are disputes over facts see r 6.3 eg tort fraud debt b. Note: date of filing of originating process conclusive for purposes of any limitation defences.

2. Reasonable prospects of success: (in claim/defences of a claim for damages) Legal practitioners must certify that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim/defence has reasonable prospects of success: LPA s 347.

3. Served? SEE NOTES ON SERVICE

4. After originating process, D can put on an appearance or a defence or both a. Appearances?
b. Defences

5. Issues with pleadings FOR THE SOC/DEFENCE?
a. If unclear then can be struck out.

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1 Originating Process [8.20]
Exam format

How to initiate proceedings: First choose whether or not you need a Statement of claim of summons

1. Two ways to initiate proceeding: Proceedings can be initiated by using a statement of claim or summons: UCPR r 6.2

2. When statements of claim required: Where proceedings involve disputed contentions of fact and will initiate pre-trial and trial processes for that purpose.

3. When summons required: Where a question of law and not substantial dispute of fact is at issue. This stimulates a summary procedure (eg where evidence in chief usually given by affidavit rather than orally for a speedy resolution). Speedy resolution effected by a date ('return date') being entered on summons by Court Registry when filed.

4. What happens if wrong process used?: See UCPR r 6.5 for proceedings wrongly commenced by statement of claim and r

6.6 for proceedings wrongly commenced by summons. Then make sure formal requirements are met:

5. Content and appearances requirements must be met: Consider whether contents and appearance requirements of originating process have been met under r 4.2-4.4 o Identity of parties: There is limited scope for the identity of litigants to be kept private (in order to ensure that justice is done in public): J v L & A Services Service:

6. Service: Originating process must be served on each defendant within time constrains: r 10.20(2)(a) personal service is required for originating proceedings (outside of the local court) Note:

7. Date of filing originating process conclusive for purposes of

2. When a Statement of claim must be used: r 6.3 UCPR

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limitation defences. Proceedings of the following kinds must be commenced by statement of claim: (a) proceedings on a claim for relief in relation to a debt or other liquidated claim, (b) proceedings on a claim for relief in relation to a tort, (c) proceedings on a claim based on an allegation of fraud, (d) proceedings on a claim for damages for breach of duty (however arising) and the damages claimed consist of or include: (i) damages in respect of the death of any person, or (ii) damages in respect of personal injuries to any person, or (iii) damages in respect of damage to any property, (e) proceedings on a claim for relief in relation to a trust, other than an express trust wholly in writing,

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