CH. 1 Part B: - Overview of a C.L. Claim

Question 1

Where can the pre-action protocols be found and what do they set out?

Answer 1

The pre-action protocols set out the best practice that should be adopted by the parties before the court is involved in a dispute. They can be found in Section C of the White Book.

Question 2

What is the aim of the pre-action protocols? And do they achieve this?

Answer 2

The aim is:

• to encourage the parties to resolving the dispute without court action
• to encourage settlement
• to enable proceedings to run efficiently, and to the court’s timetable. They achieve this by enabling the parties to obtain information they reasonably need to settle the matter at the earliest possible opportunity.

Question 3

What are the consequences of non-compliance with a pre-action protocol?

Answer 3

The most likely consequences will relate to costs and interest. The Practice Direction on Pre-Action Conduct also states that the court may stay the proceedings until the relevant steps (which have not been complied with) are taken.

Question 4

List the 3 basic steps for pre-action behaviour (not covered by a specific pre-action protocol).

Answer 4

1. Claimant must write to the other party giving details of the claim, within a reasonable period.
2. Recipient must respond in writing to accept or reject the claim.
3. If the claim is rejected, in all or part, the parties should disclose key documents, negotiate appropriately, then make proposals for settlement.

Question 5

What happens when proceedings are started?

Answer 5

Under CPR 7 a claim form is issued by the court at the request of the claimant.

Question 6

What rule sets out what the claim form must contain?

Answer 6

CPR 16.2.

Question 7

What is the claim form and who is it completed by?

Answer 7

The claim form contains, in brief, the claimant’s case (a clear concise statement of what the claimant wants). It is part of a set of documents called statements of case and is completed by the claimant.

Question 8

When must the claim form be served?

Answer 8

Within 4 months of the date it was issued at court.

Question 9

What is the ‘deemed date of service’?

Answer 9

The date the court considers a document to be served, irrespective of the date it was actually received by the defendant.

Question 10

What is the ‘particulars of claim’ and what rule is relevant?

Answer 10

The particulars of claim is the statement of case which contains full details of the claimant’s claim and their story. CPR 16.

Question 11

What are the 3 ways of dealing with the ‘particulars of claim’?

Answer 11

1. it may be included on the claim form;
2. it may be prepared as a separate document and served with the claim form; or
3. it may be prepared as a separate document and served within 14 days of deemed service1 of the claim form, so long as such service is effected within four months from the date of issue of the claim form.

Question 12

When the particulars of claim is served, what must it be accompanied by?

Answer 12

notes for the respondent (usually the defendant) and the response pack (including an acknowledgment of service, an admission form and a defence and counterclaim form.

Question 13

If the defendant receives the claim form without the particulars of claim, do they have to respond within a certain time period?

Answer 13

no (save in the Commercial Court) they do not need to respond until the particulars of claim is served.

Question 14

When the particulars of claim is served on the defendant, it must respond how quickly?

Answer 14

Within 14 days of the deemed date of service.

Question 15

Once a particulars of claim is served what options does the defendant have?

Answer 15

The defendant has three options:

1. file an acknowledgment of service;
2. file or serve an admission; or
3. file a defence.

Question 16

When, who by, and under what rule is an ‘Acknowledgement of Service’ filed?

Answer 16

Under CPR 10, A defendant may file an acknowledgment of service with the court if it wishes to defend the claim but, for various reasons, has been unable to file a defence within 14 days of deemed service of the particulars of claim, or if it wishes to dispute the court’s jurisdiction.

Question 17

Who by, and under what rule is an ‘Admission’ filed? What is it?

Answer 17

Under CPR 14, the defendant may serve notice in writing to admit the truth of all or part of the claim to bring it to an end.

Question 18

When is an ‘Admission’ filed?

Answer 18

Within 14 days of deemed service of the particulars of claim (if it is served separately from the claim form). Otherwise it must be done within 14 days of deemed service of the claim form.

Question 19

What happens if the defendant wishes to defend the whole or part of a claim? And under which rules?

Answer 19

Under CPR 15 and 16, the defendant must file a defence with the court, known as the ‘defendant’s statement of case’.

Question 20

What must a defence include?

Answer 20

The defendant must state:

1. which allegations it denies;
2. which allegations it is unable to admit or deny, but of which it requires proof; and
3. which allegations it admits.

Question 21

What is the time limit to file a defence? Can an extension be granted?

Answer 21

Within 14 days of deemed service of the particulars of claim, or, if the defendant files an acknowledgment of service, within 28 days of deemed service of the particulars of claim. The defendant and claimant may agree an extension of time for filing the defence of up to 28 days.

Question 22

‘Judgement on default/.

What is it? When is it obtained? and under which rule?

Answer 22

This is judgment on the claimant’s claim without the need to proceed any further with the litigation process.
It is obtained when the defendant has not filed an acknowledgment of service or filed a defence and the time for doing so has expired.
CPR 12.

Question 23

Under what rule can a counterclaim be made? Is the court’s permission required?

Answer 23

CPR 20.
If the defendant files a counterclaim at the same time as its defence, court permission is not required. Any other time, permission must be sought.

Question 24

What happens after a counterclaim is filed?

Answer 24

The claimant must file and serve a defence to the counterclaim within 14 days of deemed service of the counterclaim, failing which, the defendant may obtain judgment in default on the counterclaim.

Question 25

Under what rule, and why might a reply be filed?

Answer 25

Under CPR 15, If a claimant wishes to allege facts in answer to a defence which were not included in the particulars of claim, they may file a reply.

Question 26

Under what rule, and how might a party seek further information?

Answer 26

Under CPR 18, If a party requires clarification of a statement of case, it should make a reasonable written request to the other party.

Question 27

What is an ‘interim application’ and when can it be made, under which rule?

Answer 27

CPR 23-25, an application to the court to make an order which binds the parties. It can be made before or during the course of an action.

Question 28

Give 2 examples of an ‘interim application’?

Answer 28

An application for an extension of time for taking a particular step in the action or, to amend a statement of case.

Question 29

What is ‘allocation’ and under which rule, and when does it occur?

Answer 29

Under CPR 26, once the defence has been filed, a defended claim will be allocated to either to the small claims track, the fast track or the multi-track and a notice of proposed allocation will be served on the parties.
Allocation will depend on monetary value & complexity of the claim.

Question 30

What will a ‘notice of proposed allocation’ specify?

Answer 30

Any matters to be complied with and the time limit for compliance. It will further require the parties to file a completed directions questionnaire and serve this on the other parties.

Question 31

Fast-track or multi-track cases also require? Under which rule?

Answer 31

The parties must file the proposed directions (steps setting out, with dates, of how the case will proceed to trial) by a specified date (CPR 26.3(6)).

Question 32

When and for long can a ‘stay’ be requested?

Answer 32

After notice of allocation, the parties can request a court order to stay the proceedings for 1 month.

Question 33

What are ‘model directions’ and under which CPR Rules are they found?

Answer 33

Under CPR 26-29, a set of model directions for multi-track cases acts as a starting point for directions to agree a timetable to trial

Question 34

What is the purpose of a ‘case management conference’?

Answer 34

This is a hearing attended by both solicitors where the judge discusses the proposed directions and provides a directions order which both parties will be bound by, taking into account cost management.

Question 35

Under what rule, explain disclosure and when it will be ordered?

Answer 35

Under CPR 31, where a stay as not been requested, the court will order disclosure as its first direction. This is where both parties exchange documents for inspection according to the type of order.

Question 36

Under a disclosure order what must the parties do?

Answer 36

Parties are required to file and serve a report, 14 days before the first case management conference, which describes: (i) what documents exist (ii) where such documents are located (iii) how they are stored if they are electronic documents (iv) estimates as to the broad range of costs that could be involved in giving standard disclosure and (v) which directions relating to disclosure the party is seeking.

Question 37

After disclosure and inspection what happens next, and under which rule?

Answer 37

Exchange of witness statement under CPR 32.

Question 38

What is required to use expert evidence, and under which rule.?

Answer 38

CPR 35 A court order.

Question 39

Experts will consider which two things before finalising their reports?

Answer 39

Disclosure and witness statements.

Question 40

What does CPR 36 provide?

Answer 40

a special mechanism to promote settlement at any point before or during proceedings.

Question 41

What happens if a Part 36 offer is rejected?

Answer 41

If the offer is rejected but the level of damages awarded at trial shows that the rejecting party would have got a better deal agreeing to settle, then the judge can impose serious costs consequences on the party that unreasonably rejected the Part 36 offer.

Question 42

At trial who does the burden lie with?

Answer 42

The claimant.

Question 43

What 3 things will be decided on judgement?

Answer 43

liability for the claimant’s loss, award of damages to make (quantum), and who should pay the costs of proceedings.

Question 44

If damages/ costs are not settled within the timeframe, what happens next?

Answer 44

The party can apply to the court for enforcement of the judgement eg. an order to take control of some of the defaulting party’s assets.