By Ravi Nanga
LAST week we examined what a pre-action protocol letter entails.
This week we will look at the commencement of proceedings and what is required.
In the event a dispute is not resolved at the stage of the pre-action protocol letter, it is necessary to file a Claim Form and Statement of Case.
This is the most common way of commencing an action, however, there are other methods of commencing an action depending on the relief that is being sought.
Normally the statement of case must be issued together with the claim form, but there are instances where a person can apply to the court for permission to file a claim form without a statement of case.
The claim form is a document that is filed in court and once filed, signals the commencement of proceedings. The claim form contains the identity of the parties, namely the claimant and the defendant and states in a concise manner the cause of action that is being pursued and the relief that is being claimed.
For example, in the event a person is involved in an accident, the cause of action will be for negligence and the relief will be damages caused by the defendant’s negligence.
Along with the claim form, the claimant must also file his statement of case.
The statement of case is required to contain a concise statement of the facts that the claimant will be relying upon in putting his claim forward and this will be based upon the claimant’s instructions.
The statement of case must contain sufficient information that allows the defendant to understand the claim that is being made against him.
Should the statement of case provide insufficient particulars, where the cause of action is not clear, the court can order the claimant to provide particulars of the statement of case. In extreme cases, where particulars will not assist, the Court can strike out the matter.
Taking the example of an accident, a concise statement of facts will entail the identity of the respective drivers of the vehicles, the date on which the collision took place, where the collision took place, what were the circumstances in which the accident took place, the damage that was done to the vehicle, how much it cost to repair the vehicle and whether the claimant suffered any other monetary losses.
Please note that this is by no means a comprehensive list and the facts that are required to be stated will vary depending on the nature of the matter.
If you fail to include a particular fact that is necessary for your claim, when it comes time to give evidence, you may be prevented from giving evidence in support of that fact that was not stated in the statement of case.
In particular cases, for example where the claimant is claiming for possession of land or where there is a claim for personal injuries suffered, there are additional requirements that need to be complied with when preparing the statement of case.
In addition to providing a concise statement of facts, a claimant is also required to identify or annex copies of documents that he intends to rely on.
However, it is advisable that you do both, that is, identify the document as well as annex it to the statement of case. If you fail to identify a particular document, again, at the trial of the matter you may be prevented from relying on that document.
Once the statement of case is prepared in accordance with the claimant’s instructions, the claimant is required to ensure that the contents are in keeping with his instructions and he will be required to sign a certificate of truth that is contained in the statement of case, certifying that all the facts stated in the statement of case are true and that he is entitled to the remedy being claimed.
Given this requirement, it is readily apparent the importance of taking great care when giving instructions for the preparation of a statement of case and ensuring that all the facts are properly and clearly stated.
Further, where the claim does not involve a monetary sum, either the claim form or the statement of case must include a certificate stating that the damages being claimed exceed or are likely to exceed the sum of $50,000.
Once all the requirements for preparing a claim form and statement of case are met, the next step is to serve the claim form, statement of case and certain other documents on the defendant.
A claim form and statement of case must be served personally on an individual or by registered mail in the case of a registered company. There are rules that govern service of a claim form and statement of case on different types of entities.
It must be noted that once a claim form and statement of case are filed, the claimant has four months within which to serve the defendant.
In the event there are difficulties with serving the defendant within that four-month period, the claimant can apply to the court for an extension of time within which to serve these documents.
Failure to serve within the four-month period or obtain an extension in order to serve these documents will result in the claimant not being able to proceed with the claim.
Further, if personal service cannot be effected on the defendant, the claimant can apply to the court in order to get permission to serve these documents by alternative methods.
Accordingly, a claim is started by the filing of a claim form and statement of case.
Great care must be taken in drafting these documents and these documents must be promptly served on the defendant.
Ravi Nanga is an attorney-at-law
[Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations.]