Consequences of making a statement of truth
Lecture 5. Commensing a claim
Joinder of parties and causes of action
Introduction
The Supreme Court Act 1981, s. 49(2), requires the court to exercise its discretion so as to ensure that:
as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided.
The CPR absolutely reflect this viewpoint. Under r. 3.1(2) (g) and (h) the court has powers to consolidate proceedings and to try two or more claims on the same occasion. In r. 7.3 it is provided that a single claim form may be used to start all claims which can conveniently be disposed of in the same proceedings and all parties jointly entitled to a remedy must be joined as joint claimants (r. 19.2). In r. 19.1(2) the court is empowered to add a party where it is desirable:
(a) to enable[U1] it to resolve all the matters in dispute in the proceedings; or
(b) to resolve a matter between an existing party and a proposed new party which is connected with an issue in the claim.
Likewise[U2] the court has the power to 'tidy up' proceedings under r. 19.1(3) by removing a party where it is not desirable for him to remain a party to the claim.
To take a common example: if one driver should leave the road and knock down several people standing in a bus queue all the potential claimants can combine together to issue just one claim form against the driver, because their actions arise out of the same facts. There is no obligation to do so and indeed in many cases it might be tactically or procedurally inconvenient[U3] . In that case each could issue a separate claim form.
Where there is more than one claimant on the same claim they must all use the same solicitor and counsel and may not generally make allegations[U4] of fact which are inconsistent[U5] with each other's cases. Thus, if some or all of the persons in the bus queue happened to know each other or be related, they might well combine to issue one form of claim. If, however, they were strangers, each might prefer to issue separate proceedings using his own choice of solicitor and counsel.
Similarly, if the cause of a motorway accident seems to be the negligence of two or more drivers, e.g., where there is a crash involving several vehicles in fog, and it may be impossible for an innocent person initially to judge which of several other drivers may have been to blame, the claimant can (and would usually be wise to) sue two or more defendants jointly or in the alternative in the same proceedings. If there is more than one defendant, each is entitled to his own individual choice of solicitor and counsel— there is no compulsion[U6] to use the same one as there is likely to be a conflict of interest in such cases as each defendant attempts to blame the others.
In terms of joinder of causes of action there is nothing to stop a claimant who has a number of causes of action against the same defendant or defendants suing for all of them in the same proceedings, even if there is no factual connection between them. For example, if a claimant is owed money by a defendant and in the course of discussions the argument becomes heated and the defendant assaults the claimant, there is nothing to stop the claimant including both causes of action on the same claim form. Whether it would be tactically wise to do so would be another matter and indeed it might be in such a case that the court thought it convenient[U7] to dispose[U8] of the two issues by allocating[U9] them to different tracks, but the right to start proceedings in this way exists.
5.1.2. Joinder of issues by the defendant: Counter claim
If a defendant has one or more claims against a claimant, he may raise them in the same proceedings by way of a counterclaim under Part 20 of the CPR. The nature of his cause of action against the claimant need not in any way be factually related to the claimant's claim against him. Thus if, for example, the defendant allegedly[U10] owed the claimant a sum of money and after a meeting to discuss financial matters at the claimant's offices, the defendant tripped[U11] on frayed[U12] carpeting and fell down the stairs breaking his leg, he would be perfectly entitled to counterclaim for his injuries in any action brought by the claimant for the debt. Alternatively, he could issue separate proceedings of his own. The problems of Part 20 claims were already discussed separately in Lecture 2[U13] .
5.1.3. Consolidation[U14]
Under the court's case management powers, it has a power of its own initiative (or on the application of any party) to consolidate actions to save costs and time. It might do this where there are several claims by separate claimants arising out of the same incident, for example, a specific spoiled holiday or an accident which involved several victims. However, to return to the bus queue example, while it would be convenient to consolidate their actions, there is no mechanism by which the court will be informed of how many potential claimants there are, if they all have separate solicitors and propose to issue proceedings at their own time and place (within the Limitation Act period), and indeed in courts at different ends of the country. Although one might think it would be very much in a defendant's interests to have all the cases consolidated to proceed together in the one court, that may not be the case. It often suits defendants to have claimants suing in separate proceedings and to use different tactics against each. Moreover, attractive though the prospect of consolidating, say, 10 claimants might be, circumstances may vary between claimants with minor injuries, who wish to proceed on the small claims or fast track, and those with major injuries who wish to hold back their claims until a good deal of medical and other evidence has been collected and who may not even issue proceedings until relatively late in the limitation period. Subject to these sorts of problems, however, consolidation of actions will often be an attractive option for the court in applying the overriding objective and basic case management principles.
Bringing a claim
It is first necessary to explain the term 'statement of case'. By CPR, r. 2.3(1), 'statement of case' means a claim form, particulars of claim where these are not included in the claim form, defence, Part 20 claim, or reply to defence.
An action is commenced by a claim form in a prescribed form called N1. The following must be stated on the form:
(a) The court in which the claimant wishes to issue the claim. This may be either the county court of his choice, the High Court in London or a district registry. If it is the High Court, the division should be specified.
(b) The parties, namely claimant and defendant, and, if either is sued in a representative capacity (e.g., as personal representative of an estate), that fact must be stated.
(c) The addresses of all parties. If there is more than one defendant a separate claim form must be prepared for each, giving their name in the relevant box. On the assumption the claimant is employing a solicitor, his name should be given as the address for service on page 1.
(d) There must then be brief details of the claim (CPR, r. 16.2(a)).
EXAMPLE 1
The claimant's claim is for damages for personal injury and loss caused by the defendant's negligence in a motor accident at London Road, Middlemarch on 5 September 2008.
EXAMPLE 2
The claimant's claim is for the sum of £12,531 being the amount outstanding on invoices delivered in respect of goods supplied to the defendant between March and May 2008.
Much fuller and more precise details of the allegations will be contained in the particulars of claim which will be issued and served usually at the same time as the claim form, although they may be served up to 14 days after the claim form is served.
(e) Each claim form must also specify the remedy which is sought. This must be contained within the brief details of claim, hence the references to damages and debt above in the examples; if an injunction[U15] is claimed that should also be set out. However, it is important to note that by virtue of r. 16.2(5) if one fails to specify a particular remedy on the claim form that does not prohibit a court from granting such a remedy if the claimant later establishes that he is entitled to it.
(f) Statement of value. If the claimant is claiming money, the claim form must contain a statement of its value (CPR, r. 16.2(l)(c)). The relevant provisions of Part 16 and Part 7 ought to be followed and in particular PD 7. The statement of value must specify:
(i) the amount of money being claimed if it is an exact sum;
(ii) if a precise sum is not being claimed, as in damages for personal injury, the claimant should indicate the maximum that he seeks and it is also of help if he specifies the minimum he considers he is likely to get to assist the court in allocating to track. For example, one might specify that one expects to get 'damages between £5,000 and £15,000' so the court will know that this is potentially a fast track case; or damages 'exceeding £15,000, but not more than £50,000' which will be multi-track,
(iii) The claimant may say that he cannot state how much he expects to recover. This might well be the case, for example, where they might beawarded by a jury as would be the case in a false imprisonment, defamation or a malicious prosecution claim.
A claimant must state whether the amount he expects to recover is more than £1,000 for pain and suffering in a personal injury case as even if the value of the claim as a whole is under £5,000 in such a case it cannot be allocated to the small claims track (see Lecture 2.2.2). There is a similar provision in respect of housing disrepair claims which is also discussed at Lecture 2.2.2.
5.3. High Court or county court?
This is still a matter of choice for the parties except where a statute allocates proceedings exclusively to one or the other, as is the case with most landlord and tenant matters, and claims under the Consumer Credit Act 1974, all of which are allocated to the county court only. If a claim is to be issued in the High Court the claim form must explain why it is being filed there and, to comply with the rules, must state:
(a) That the claimant expects to recover more than £15,000 (if he cannot state this, the case cannot be issued in the High Court).
(b) That some other enactment provides that the claim may be commenced only in the High Court, and name the enactment.
(c) If the claim is one for personal injury that the claimant expects to recover £50,000 or more (this being a quite independent limitation on the right to issue in the High Court in personal injury cases).
(d) That the claim needs to be in one of the specialist High Court lists stating which list (e.g., the Commercial Court; the Admiralty list, etc.).
Computation of values
Under CPR, r. 16.3(6), where a value has to be stated, the value should be given honestly, although, given how early in the case the statement has to be prepared, a good deal of latitude is likely to be allowed so long as the value was given in good faith in the state of knowledge at the time. In personal injury cases in particular, there may be uncertainty at an early stage about the extent of the claimant's injuries and how potential damages, especially a continuing loss of earnings claim, may be computed. The following matters must be disregarded:
(a) interest;
(b) costs;
(c) any potential finding of contributory negligence (this should be left out);
(d) any potential counterclaim or defence of set-off[U16] ;
(e) any payments that the defendant may have to make in a personal injury case to the Compensation Recovery Unit out of the gross amount of damages due to the claimant.
Statement of truth
Under the CPR a claim form must be verified by a statement of truth. This is a statement in the following terms:
I believe that the facts stated in this (name of document) are true.
It is undoubtedly preferable that this should be signed by the party in person. It is, however, possible for the legal representative of the party to make a statement of truth, in which case the wording is:
The claimant/defendant believes that the facts stated in this(name of document) are true.
It is important to note that if a statement of truth is made by a legal representative, it must be signed by a named individual whose name is clearly shown in print next to the signature. It must not be signed simply in the name of the solicitor's firm.
In the case of a company or other corporation the statement of truth must be signed by one of the senior personnel listed in PD 22, giving his or her position in the organisation (chairman, director, treasurer, etc.). If the claimant is a partnership, any of the partners may sign.
Consequences of making a statement of truth
Any person who makes a false statement in a document verified by a statement of truth, or who causes such a statement to be made without an honest belief in its truth, is guilty of contempt of court. It is for this reason that it is highly desirable that such statements be signed by the party in question. If a statement is signed by a legal adviser its contents and the consequences of signing it are deemed by virtue of the signature to have been explained to the party and the signature will be taken by the court as meaning that the party has authorised a representative to sign (PD 22, para. 3.8). A solicitor must therefore always ensure that he has received specific full instructions on the contents of documents signed by him.
Particulars of claim
In the majority of cases the claim form will be supplemented by a full form of particulars of claim which will usually be served together. If they are not, the claim form must contain a statement that particulars of claim will follow and they must be served within 14 days after service of the claim form. Particulars of claim must include:
(a) A concise statement of the facts on which the claimant relies. The word 'concise' should not be taken too literally and it is desirable that a clear indication of precisely what the case is about should be given. In fact increasingly there is quite a full narrative in the particulars of claim to the extent even of setting out matters of evidence. Although prolixity is to be deplored generally, giving a full picture at this stage may assist in the early resolution of the case.
Thus, for example, if the claim is in respect of an accident which caused personal injuries at the factory of the claimant's employers, the particulars of claim will set out details of the way in which the accident occurred, a series of allegations of the ways in which the defendant employers were in breach of proper health and safety procedures; a description of the injuries suffered by the claimant; and a description of the financial consequences flowing from the claimed injuries. These will generally be in the form of a schedule attached to the particulars of claim, though if they were very brief they might be set out in the body of the particulars of claim itself.
The particulars of claim will then go on to claim the appropriate relief, namely, damages.
If the case concerned a breach of contract, the particulars of claim would normally describe the terms of the contract and the way in which it came about; and then go on to explain what breach was claimed and indicating what loss it had caused the claimant. The particulars would then end with a formal claim to damages, either in a specified amount, if it were capable of quantification, or general damages.
(b) Details of any interest claimed including an explanation of whether it is claimed under some contract with particulars, or under a statute. If the claim is for a specified sum of money, the particulars of claim should state the percentage rate of interest claimed and give the computation of interest due as at the date of issue of proceedings together with the daily rate of interest accruing after that date.
(c) If either aggravated or exemplary damages are being claimed, a statement to that effect, together with the grounds on which they are claimed.
(d) If provisional damages are being claimed in a personal injury case, a statement to that effect, together with the grounds on which they are claimed.
(e) If the claim is to enforce a right to recover possession of goods, a statement showing the value of the goods.
(f) If the claim is based upon a written agreement, a copy of the contract or contractual documents must be attached to or served with the particulars of claim.
(g) If the claim is based upon an oral agreement or an agreement by conduct, full particulars of the words spoken or the conduct relied upon.
There are a number of other specific matters raised by Part 16 which must be dealt with if the case concerns them. These include:
(a) allegations of fraud;
(b) illegality;
(c) misrepresentation;
(d) breach of trust;
(e) notice or knowledge of the fact;
(f) details of unsoundness of mind or undue influence;
(g) willful default;
(h) any facts relating to mitigation of loss or damage.
In addition, there are specialised requirements in a number of other claims for information which must be supplied. Reference to PD 16 should be made in such cases. The most important of these, however, relates to personal injury claims in which there are specific matters to be included in the particulars of claim or served with it. In particular:
(a) The claimant's date of birth.
(b) Brief details of the personal injuries.
(c) A schedule of details of any past and future expenses and losses claimed.
(d) A report from a doctor about the injuries must be attached if the claimant b relying on a doctor's evidence.
(e) A statement claiming provisional damages (if applicable), together with a statement that there is a chance that in the future the claimant may develop some serious disease or deterioration and specify what that is.
5.3.5. Issue of the claimant's statement of case
The claim is issued by attending at the county court or district registry, or by post. The relevant number of copies are produced and the court fee paid. This fee is on a sliding scale up to a maximum figure of £500 depending on the maximum value of the claim.