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Names, notice and the demands of due process

Cutts, Tatiana (2021) Names, notice and the demands of due process. Civil Justice Quarterly, 40 (1). 18 - 40. ISSN 0261-9261

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Our apex court has recently given renewed support for a general rule that requires the claimant to name her defendant at the outset of a civil action; exceptionally, she may prove that the defendant will discover the proceedings in the process of enforcing an ensuing court order. The purpose of this article is to consider the justification for a general identification threshold, and to develop a corresponding blueprint for this part of our procedural framework. I argue that the role of procedural identification is two-fold: first, it serves the distributive goal of ensuring that judicial resources are not directed towards fruitless actions; second, it serves the corrective goal of ensuring that the defendant can participate in the decision-making process through which her adversary seeks redress, which is a crucial aspect of the law’s commitment to procedural fairness. I argue that we should distinguish two kinds of case, which correspond to these goals: if the efficacy of the order sought depends upon provision of the defendant’s name, the claimant should be required to provide a name; if it does not, the claimant should be required to prove – whether or not she can name her defendant – that she can give notice.

Item Type: Article
Official URL:
Additional Information: © 2020 Thomson Reuters
Divisions: Law
Subjects: K Law
Date Deposited: 04 May 2020 15:15
Last Modified: 01 Jan 2022 00:00

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