Case And Costs Managements Flashcards
(117 cards)
1
Q
what is the scope for a small claims track? (CPR 27)
A
this is the normal track for cases with the value of not more than £10,000 and also claims by a Tennant of residential premises against the landlord for repairs where neither the repairs nor any claim for damages total more than £1,000. there are special rules for personal injury claims
2
Q
what are the special rules for a personal injury claim for allocation to the small track?
A
Broadly, the small claims track is the normal track for a personal injury claim if the value of the claim is not more than £10,000 (as with other claims); AND IN ADDITION
- in relation to road traffic claims where the accident occurred before 31 May 2021, or the claimant is a child or protected party, or the claimant was riding a motorcycle, the damages for the personal injuries (pain, suffering and loss of amenity) are valued at not more than £1,000;
- in relation to other road traffic claims, the damages for the personal injuries are valued at not more than £5,000;
- in any other personal injury claim (not road traffic claims), the damages for the personal injuries are valued at not more than £1,500.
3
Q
Scope for the allocation to the fast track (CPR 28)
A
the fast track is the normal track (other than those which the small claims track is the normal track) up to £25,000. provided that:
- the trial is not expected to last longer than a day (5 hours); and
- there will only be oral evidence form one expert per party in each of no more than two expert fields. (CPR 26.6(4) and (5))
4
Q
scope for allocation to the Multi-track (CPR 29)
A
the multi-track is the normal track for all other types of cases (CPRM 26.6(6))
5
Q
what are the three tracks which a case can be allocated to?
A
- small claims
- fast track
- multi-track
6
Q
when will the court allocate the claim to a track?
A
- when all parties have filed their Directions Questionnaires (DQs); or
- when the court is giving directions
7
Q
what may the court do before deciding which track to allocate the claim?
A
the court may consider it needs more information in order to allocate, therefore it may order a party to provide further information about the case or hold an allocation hearing (CPR 26.5(3) and (4)). Allocation hearings are quite rare.
8
Q
what is the general rule for allocation of track?
A
(1) the court will have regard to the matters relevant to the allocation of the track (CPR 26.8)
(2) The court will allocate a claim which has no financial value to the track which it considers most suitable having regard to the relevant matters mentioned
(3) The court will not allocate a claim to the small claims track, if it includes a claim by a tenant of residential premises against his landlord for a remedy in respect of harassment or unlawful eviction.
9
Q
what are the matters which are relevant to the court deciding which track to allocate the claim?
A
a) The financial value of the claim;
b) The nature of the remedy sought;
c) The likely complexity of the facts, law or evidence;
d) The number of parties or likely parties;
e) The value of any counterclaim or other Part 20 claim (the court will not aggregate claims but will look at the value of the largest claim);
f) The amount of oral evidence which may be required;
g) The importance of the claim to any persons who are not parties;
h) The views expressed by the parties; and
i) The circumstances of the parties.
10
Q
when the court is assessing the financial value of the claim for the allocation to track, what factors must the court disregard?
A
(a) any amount not in dispute;
(b) any claim for interest;
(c) costs; and
(d) any contributory negligence.
11
Q
when will the court consider the claim of each claimant separately when assessing the financial value of the claim for the allocation of track?
A
(a) if two or more claimants have started a claim against the same defendant using the same claim form; and
(b) each claimant has a claim against the defendant separate from the other claimants,
12
Q
notice for allocation of track
A
Once the court has made an allocation decision, it will send a notice of allocation to the parties together with a copy of the DQs
13
Q
can there be a re-allocation of track?
A
the court may subsequently re-allocate a claim to a different track, this can be where there is a change of circumstances so it is just to do so
14
Q
the meaning of “the financial value of the claim” when allocating to a track.
A
It is for the court to assess the financial value of a claim.
Where the court believes that the amount the claimant is seeking exceeds what he may reasonably be expected to recover it may make an order directing the claimant to justify the amount.
15
Q
In deciding whether an amount is in dispute the court will apply the following general principles—
A
(1)Any amount for which the defendant does not admit liability is in dispute,
(2)Any sum in respect of an item forming part of the claim for which judgment has been entered (for example a summary judgment) is not in dispute,
(3)Any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute,
(4)Any sum offered by the defendant which has been accepted by the claimant in satisfaction of any item which forms a distinct part of the claim is not in dispute.
16
Q
when allocating a claim to a track, what is the meaning of the factor “the views expressed by the parties”?
A
The court will treat these views as an important factor, but the allocation decision is one for the court, to be taken in the light of all the circumstances, and the court will not be bound by any agreement or common view of the parties.
17
Q
when allocating a claim to a track, what is the meaning of the factor “the value of any counterclaim or part 20 claim”?
A
Where the case involves more than one money claim (for example where there is a Part 20 claim or there is more than one claimant each making separate claims) the court will not generally aggregate the claims. Instead it will generally regard the largest of them as determining the financial value of the claims.
18
Q
what in particular will the court take into consideration for allocation on the fast track 26 PD para 9
A
- The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether the trial is likely to last more than a day.
- When it is considering the likely length of the trial the court will regard a day as being a period of 5 hours, and will consider whether that is likely to be sufficient time for the case to be heard.
- The court will also take into account the case management directions (including the fixing of a trial timetable) that are likely to be given and the court’s powers to control evidence and to limit cross-examination.
- The possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate or to re-allocate a claim to the multi-track.
- A claim may be allocated to the fast track or ordered to remain on that track although there is to be a split trial.
- Where the case involves a counterclaim or other Part 20 claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track.
19
Q
can a party request a re-allocation of track?
A
(1)Where a party is dissatisfied with an order made allocating the claim to a track they may appeal or apply to the court to re-allocate the claim.
(2)they should appeal if the order was made at a hearing at which he was present or represented, or of which he was given due notice.
(3)In any other case they should apply to the court to re-allocate the claim.
20
Q
variation of time limits by parties. CPR 2.11
A
Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties.
21
Q
what are the courts general powers of management?
A
- extend or shorten the time for compliance with any rule, practice direction or court order.
- adjourn or bring forward a hearing;
- require that any proceedings in the High Court be heard by a Divisional Court of the High Court;
- require a party or a party’s legal representative to attend the court;
- hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;
- direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
- stay the whole or part of any proceedings or judgment either generally or until a specified date or event;
- consolidate proceedings;
- try two or more claims on the same occasion;
- direct a separate trial of any issue;
- decide the order in which issues are to be tried;
- exclude an issue from consideration;
- dismiss or give judgment on a claim after a decision on a preliminary issue;
- order any party to file and exchange a costs budget;
- take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.
22
Q
when the court makes a case management order, it may —
A
- make it subject to conditions, including a condition to pay a sum of money into court; and
- specify the consequence of failure to comply with the order or a condition.
23
Q
When the court gives directions, will take into account whether or not a party has complied with the Practice Direction?
A
Yes.
24
Q
what order may the court make if a party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.
A
The court may order a party to pay a sum of money into court
having regard to:
(a) the amount in dispute; and
(b) the costs which the parties have incurred or which they may incur.
the money shall be security for any sum payable by that party to any other party in the proceedings.
25
may the court make contact the parties from time to time in order to monitor compliance with directions?
Yes. Additionally, the parties must respond promptly to any such enquiries from the court.
26
Case management for unrepresented party
- When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented.
- The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective.
- Both the parties and the court must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions which can be found online at www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to the circumstances of the case.
27
Where the court proposes to make an order of its own initiative, what can it allow a party to do?
(a) it may give any person likely to be affected by the order an opportunity to make representations; and
(b) where it does so it must specify the time by and the manner in which the representations must be made.
the Court may make an order on its own initiative without allowing a hearing.
28
how long a notice MUST a court give to parties where it proposes to make a case management order of its own initiative and to hold a hearing to decide whether to make an order?
at least 3 days before the hearing
29
when the court has made an order of its own initiative and without a hearing what can a party to proceedings do?
- a party affected by the order MAY apply to have it set aside, varied or stayed; and
- the order MUST contain a statement of the right to make such an application.
30
when a party affected by the order applies to have it set aside, varied or stayed, the application must be made when?
- within such period as may be specified by the court; or
- if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.
31
when does the courts power to make a judgment without trial after a strike out apply?
This rule applies where—
- the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and
- the party against whom the order was made does not comply with it.
32
what is the genernal power of the court to rectify matters where there has been an error of procedure?
Where there has been an error of procedure such as a failure to comply with a rule or practice direction—
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
33
The costs regime applies to all cases except the following cases (CPR 3.12):
- Small claims track or fast track claims.
- Claims commenced on or after 22 April 2014 where the amount of money claimed as stated on the claim form is £10 million or more.
- Claims commenced on or after 22 April 2014 which are for a monetary claim which is not quantified or not fully quantified or is for a non-monetary claim and the claim form contains a statement that the claim is valued at £10 million or more.
- Claims commenced after 6 April 2016 made by or on behalf of a person under the age of 18.
- Claims that are the subject of fixed costs or scale costs.
34
what is a costs budget?
An estimate of the reasonable and proportionate costs (including disbursements) which a party intends to incur in the proceedings.
35
what must the statement of truth read at the of a costs budget read?
This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation
36
who must file and exchange costs budgets and when must this be done?
Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets—
(a) where the stated value of the claim on the claim form is less than £50,000, with their directions questionnaires; or
(b) in any other case, not later than 21 days before the first case management conference.
when this is done, all other parties, not being litigants in person, must file an agreed budget discussion report no later than 7 days before the first case management conference.
37
what may the court do on its own initiative for a costs budget?
The court—
(a) may, on its own initiative or on application, order the parties to file and exchange costs budgets in a case where the parties are not otherwise required by this Section to do so;
(b) shall (other than in an exceptional case) make an order to file and exchange costs budgets if all parties consent to an application for such an order.
38
what does a costs budget need to contain?
Every budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.
39
despite litigants in person not having to file and exchange a costs budget, what must the other parties do?
Even though a litigant in person is not required to prepare a budget, each other party (other than a litigant in person) must provide the litigant in person with a copy of that party’s budget.
40
what is the sanction for failing to file a costs budget?
Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.
41
what are costs management orders
The court may, at any time, make a costs management order ('CMO').
The court will consider whether the budgeted costs fall within the range of reasonable and proportionate costs, and then the CMO will:
- Record the extent to which the costs budgets are agreed between the parties. Agreed figures cannot be changed by the court.
- Where the figures are not agreed, “record the court's approval of a costs budget, after making appropriate revisions”.
42
If a costs management order has been made...
...the court will thereafter control the parties’ budgets in respect of recoverable costs.
43
Whether or not the court makes a costs management order, the court may...
...record on the face of any case management order any comments it has about the incurred costs which are to be taken into account in any subsequent assessment proceedings.
44
May the court set a timetable or give other directions for future reviews of budgets?
Yes.
45
After a party’s budgeted costs have been approved or agreed, the party must re-file and re-serve the budget—
(a) in the form approved or agreed with re-cast figures; and
(b) annexed to the order approving the budgeted costs or recording the parties’ agreement.
46
when must a party revise/vary costs budget
A party (“the revising party”) must revise its budgeted costs upwards or downwards if **significant developments in the litigation** warrant such revisions.
47
what must a party do to revise/vary its costs budgets?
Any budgets revised must be submitted promptly by the revising party to the other parties for agreement, and subsequently to the court, in accordance with:
- serving particulars of the variation proposed on every other party, using the form prescribed by Practice Direction 3D;
- confine the particulars to the additional costs occasioned by the significant development; and
- certify, in the form prescribed by Practice Direction 3D, that the additional costs are not included in any previous budgeted costs or variation.
- The revising party must submit the particulars of variation promptly to the court, together with the last approved or agreed budget, and with an explanation of the points of difference if they have not been agreed.
48
what may the court do with costs budgets variation/revision?
- The court may approve, vary or disallow the proposed variations, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed, or may list a further costs management hearing.
- Where the court makes an order for variation, it may vary the budget for costs related to that variation which have been incurred prior to the order for variation but after the costs management order.
49
costs management conferences
(1) Any hearing which is convened solely for the purpose of costs management (for example, to approve a revised budget) is referred to as a “costs management conference”.
(2) Where practicable, costs management conferences should be conducted by telephone or in writing.
50
court to have regard to budgets and take into account of costs
- When making any case management decision, the court will have regard to any available budgets of the parties and will take into account the costs involved in each procedural step, whether or not the court has made a costs management order.
- If an interim application is made but is not included in a budget, the court may, if it considers it reasonable not to have included the application in the budget, treat the costs of such interim application as additional to the approved budget.
51
subject to the rule of revising/varying costs budget, the court —
- may not approve costs incurred up to and including the date of any costs management hearing; but
- may record its comments on those costs and take those costs into account when considering the reasonableness and proportionality of all budgeted costs.
52
In any case where a costs management order has been made, when assessing costs on the standard basis, the court will—
(a) have regard to the receiving party’s last approved or agreed budgeted costs for each phase of the proceedings;
(b) not depart from such approved or agreed budgeted costs unless satisfied that there is good reason to do so; and
(c) take into account any comments made in costs management orders or taking into account of costs.
53
documents to be lodged for a costs budgeting orders
- Save in exceptional circumstances or where the court orders otherwise, the parties are not expected to lodge any documents other than Precedent H and the budget discussion report.
- Precedent T, also annexed to this practice direction, is to be used in the event of variation of a budget pursuant to rule 3.15A.
54
what form should the budget be in for costs management?
- Unless the court otherwise orders, a budget must be in the form of Precedent H annexed to this Practice Direction. It must be in landscape format with an easily legible typeface.
- In cases where a party’s total costs (incurred and estimated) do not exceed £25,000 or the value of the claim as stated on the claim form is less than £50,000, the parties must only use the first page of Precedent H.
55
what factors will the court have consideration for when deeding the cots of each phase of the budget?
In deciding the reasonable and proportionate costs of each phase of the budget the court will have regard to the factors set out at Civil Procedure Rules 44.3(5) and 44.4(3) including a consideration of where and the circumstances in which the work was done as opposed to where the case is heard.
56
costs management orders
When reviewing budgeted costs, the court will not undertake a detailed assessment in advance, but rather will consider whether the budgeted costs fall within the range of reasonable and proportionate costs.
57
when do you file and exchange a costs budget for claims with a stated value under £50,000
with the parties' directions questionnaires
58
when do you file and exchange a costs budget for any other claims than with a stated value more than £50,000
21 days before the CMC
59
what form is used for the costs budget?
Precedent H
It requires practitioners to set out any assumptions on which the budget is based and any possible contingencies (things which are anticipated but which may not be necessary, for example, an application for specific disclosure). Note that it must be signed with its own form of statement of truth.
60
where must only the first page of precedent H be filled out for costs budgets?
Where the monetary value of the claim is less than £50,000 or if the party's budgeted costs do not exceed £25,000
61
what form is used for varying/revising a costs budget?
Precedent T
62
if the defendant files a defence, the court officer will —
- provisionally decide what track the claim appears to be suitable for; and
- serve each party a notice of proposed allocation
63
how does the parties receive the Directions Questionnaire?
when they get served the notice from the court officer.
64
what will the notice of proposed allocation from the court officer do?
- specify any matter to be complied with by the date specified in the notice;
- require the parties to file a completed directions questionnaire and serve copies on all other parties;
- state the address of the court or the court office to which the directions questionnaire must be returned;
- inform the parties how to obtain the directions questionnaire; and
- if a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposed directions by the date specified in the notice.
65
how does an unrepresented party receive the correct directions questionnaire?
the court will serve this on them.
66
Where there are two or more defendants and at least one of them files a defence, when will the court will serve a notice?
(a) when all the defendants have filed a defence; or
(b) when the period for the filing of the last defence has expired,
whichever is the sooner.
67
what must parties do with the direct questionnaires when served with a notice from the court officer allocating the claim to the small claims track?
they must fill them out and serve on all the other parties within 14 days
68
what must parties do with the direct questionnaires when served with a notice from the court officer allocating the claim to the fast track or multi-track?
must fill them out and serve on other parties within 28 days
69
what process does the court go through when allocating the track for the claim?
1. identify the normal track: court considers primarily the value of he claim
2 Consider whether the claim should be allocated to a track other than the normal track: the court considers the broader list of factors highlighted in 26.8(1)
3. then the claim is allocated the track.
70
can a stay be allowed for settlement of the case?
Yes. A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means.
71
what must the claimant do if the court stays proceedings in an aim to settle?
Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached.
If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached, the court will give such directions as to the management of the case as it considers appropriate
72
how long will a be allowed for settlement of the case?
If all parties request a stay or the court sees otherwise, the proceedings will be stayed for one month and the court will notify the parties accordingly.
The court may extend the stay until such date or for such specified period as it considers appropriate.
73
which cases cannot be referred to the mediation service under CPR 26.4A?
- fast track claims;
- multi track claims;
- high court claims;
- road traffic accident, personal injury or housing disrepair claims; or
- any claim in which any party to the proceedings does not agree to referral to the Mediation Service.
74
when will claims be referred to mediation service?
Where all parties indicate on their directions questionnaire that they agree to mediation, the claim will be referred to the Mediation Service.
75
what happens if a claim referred to the mediation service is settled?
the proceedings will automatically be stayed with permission to apply for—
(a) judgment for the unpaid balance of the outstanding sum of the settlement agreement; or
(b) the claim to be restored for hearing of the full amount claimed,
unless the parties have agreed that the claim is to be discontinued or dismissed.
76
when thew case has been allocated to the fast track, what will the court do?
- give directions to the management of the case
- set a timetable
77
what matters will be dealt with by the directions in a fast track claim?
- disclosure of documents
- service of witness statements;
- expert evidence
78
if the court decides not to direct standard disclosure in a fast track claim, it may —
(a) direct that no disclosure take place; or
(b) specify the documents or the classes of documents which the parties must disclose.
79
when a party wants to vary the case management timetable in a fast track claim, do they need to apply to the court?
Yes.
80
variation of case management timetable for fast track claims
(1) A party must apply to the court if he wishes to vary the date which the court has fixed for—
(a) the return of a pre-trial check list;
(b) the trial; or
(c) the trial period.
81
If the notice of proposed allocation indicates that the case will be allocated to the multi-track, the most likely next steps are either
The **Court Giving Directions:** more likely in less complex cases/where parties have agreed directions at the time of filing their DQs.
OR
Convening a **Case Management Conference (CMC) or a Pre-Trial Review:** this is a hearing, by telephone or face to face, to determine the future conduct of the case
82
When the court fixes the trial date or the trial period, it will—
(a) give notice to the parties of the date or period; and
(b) specify the date by which the parties must file a pre-trial check list.
83
for a multi-track claim, when may the court fix a CMC or pre-trial review?
any time the claim has been allocated
84
In a multi-track claim, if a party has a legal representative must attend case management conferences and pre-trial reviews if they are —
(a) familiar with the case; and
(b) with sufficient authority to deal with any issues that are likely to arise,
85
what are the steps that need to be taken by the parties in a multi track case?
The parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least seven days before any case management conference. Where the court approves agreed directions, or issues its own directions, the parties will be so notified by the court and the case management conference will be vacated.
86
for multi track case management timetable variation, a party must apply to the court if he wishes to vary the date which the court has fixed for—
(a) a case management conference;
(b) a pre-trial review;
(c) the return of a pre-trial check list under rule 29.6;
(d) the trial; or
(e) the trial period.
87
a multi track case and pre-trial checklist
The court will send the parties a pre-trial check list (listing questionnaire) for completion and return by the date specified in directions given, unless it considers that the claim can proceed to trial without the need for a pre-trial check list.
Each party must file the completed pre-trial check list by the date specified by the court.
88
what happens if a parties dont file the pre-trial checklist by the date specified by the court?
If no party files the completed pre-trial check list by the date specified, the court will order that unless a completed pre-trial check list is filed within 7 days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court.
89
If —
- a party files a completed pre-trial check list but another party does not;
- a party has failed to give all the information requested by the pre-trial check list; or
- the court considers that a hearing is necessary to enable it to decide what directions to give in order to complete preparation of the case for trial,
what will the court do?
the court may give such directions as it thinks appropriate.
90
in a multi track case, If, on receipt of the parties’ pre-trial check lists, the court decides—
(a) to hold a pre-trial review; or
(b) to cancel a pre-trial review which has already been fixed,
what will the court do?
it will serve notice of its decision at least 7 days before the date fixed for the hearing or, as the case may be, the cancelled hearing.
91
in a multi-track case, As soon as practicable after—
(a) each party has filed a completed pre-trial check list;
(b) the court has held a listing hearing; or
(c) the court has held a pre-trial review,
what will the court do?
do the trail timetable
(i) set a timetable for the trial unless a timetable has already been fixed, or the court considers that it would be inappropriate to do so;
(ii) confirm the date for trial or the week within which the trial is to begin; and
(iii) notify the parties of the trial timetable (where one is fixed under this rule) and the date or trial period.
92
case managements in the multi-track will usually be dealt with by —
- a Master in cases proceeding in the Royal Courts of Justice
- a District Judge in cases proceeding in a District Registry of the High Court
- a District Judge or a Circuit Judge in cases proceeding in the County Court
93
what do agreed directions need to contain to be approved by the court?
(a)set out a timetable by reference to calendar dates for the taking of steps for the preparation of the case,
(b)include a date or a period (the trial period) when it is proposed that the trial will take place,
(c)include provision about disclosure of documents, and
(d)include provision about both factual and expert evidence.
94
what will the court refer to when there is an application from relief from sanctions?
On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
95
effect of denton in applications of relief from sanctions
it comes after the application of the CPR rules.
96
The court may strike out a statement of case if it appears to the court—
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
97
Where—
(a) the court has struck out a claimant’s statement of case;
(b) the claimant has been ordered to pay costs to the defendant; and
(c) before the claimant pays those costs, the claimant starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,
what may the court do?
the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid.
98
If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit, what must the court do?
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.
99
power to strike out statement of case. effect of the rule. Commentary 3.4.1
- There is no power to strike out a statement of case or a claim after judgment has been given in the claim.
- Grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent, vexatious, scurrilous or obviously ill-founded and other cases which do not amount to a legally recognisable claim or defence.
- Ground (c) covers cases where the abuse lies not in the statement of case itself but in the way the claim or defence (as the case may be) has been conducted.
- On the facts, applying the Denton three-stage test, it was held that the judge had been entitled to dismiss the strike out application
- Court of Appeal stressed that the ultimate question for the court in deciding whether to impose the sanction of strikeout is materially different from that in deciding whether to grant relief from a sanction that has already been imposed.
- applications made under CPR 3.4 should be made as soon as possible.
100
Strike out. Statement of case discloses no reasonable grounds for bringing or defending a claim. Commentary 3.4.2
- examples of cases where the court may conclude that particulars of claim disclose no reasonable grounds for bringing the claim: those claims which set out no facts indicating what the claim is about; those claims which are incoherent and make no sense; and those claims which contain a coherent set of facts but those facts even if true, do not disclose any legally recognisable claim against the defendant.
- defence may fall within r.3.4(2)(a) where it consists of a bare denial or otherwise sets out no coherent statement of facts, or the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim.
101
Strike out. Statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of proceedings. Commentary 3.4.3
- The court has power to strike out a prima facie valid claim where there is abuse of process. However there has to be an abuse, and striking out has to be supportive of the overriding objective. It does not follow from this that in all cases of abuse the correct response is to strike out the claim.
102
Strike out. Attempt to re-litigate issues which were raised or should have been raised in previous proceedings. Commentary 3.4.5
- Whether relitigation of a decided issue is an abuse depends upon all of the circumstances. It does not follow that a matter should have been raised in earlier proceedings simply because it could have been raised in those proceedings. A broad, merits-based judgment should be adopted, taking account of all the public and private interests involved and all the facts of the case
- In all the circumstances of that case it was held not to be an abuse for a claimant to commence proceedings seeking remedies in respect of matters which had formed the subject matter of previous proceedings brought by a company which he controlle
103
is c claimant who discontinues one or more of their remedies but carries on a claim for another remedy seen to be discontinuing his clam?
No.
104
who can discontinue a claim
ONLY the claimant
105
if a claimant wishes to discontinue all or part of a claim, when do they need permission from the court?
(i) the court has granted an interim injunction; or
(ii) any party has given an undertaking to the court;
106
where the claimant has received an interim payment in relation to a claim, they may discontinue that claim only if—
(i) the defendant who made the interim payment consents in writing; or
(ii) the court gives permission;
107
where there is more than one claimant, a claimant may not discontinue unless—
(i) every other claimant consents in writing; or
(ii) the court gives permission.
108
Where there is more than one defendant, the claimant may discontinue all or part of a claim...
... against all or any of the defendants.
109
To discontinue a claim or part of a claim, a claimant must—
- file a notice of discontinuance;
- serve a copy of it on every other party to the proceedings; and
- state in the notice of discontinuance which he files that he has served notice of discontinuance on every other party to the proceedings.
110
Where the claimant needs the consent of some other party, what must be attached to the notice of discontinuance?
a copy of the necessary consent
111
Where there is more than one defendant, the notice of discontinuance must specify what?
against which defendants the claim is discontinued.
112
can the defendant apply against the discontinuance of a claim?
Yes. The defendant may apply to have the notice of discontinuance set aside.
The defendant may not make an application under this rule more than 28 days after the date when the notice of discontinuance was served on him.
113
when does the discontinuance take effect?
(1) Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on them.
(2) the proceedings are brought to an end as against them on that date.
(3) However, this does not affect proceedings to deal with any question of costs.
114
is a claimant who discontinues a claim liable for costs?
Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.
If proceedings are only partly discontinued—
(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and
(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.
This rule does not apply to claims allocated to the small claims track.
115
A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if—
(a) he discontinued the claim after the defendant filed a defence; and
(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.
116
what happens if a claimant does not pay costs in time when the claim has been discontinued?
the court may stay the remainder of the proceedings until the claimant pays the whole of the costs which the claimant is liable to pay under rule 38.6 or makes the payment pursuant to an order under section 194(3) of the Legal Services Act 2007.
117
when the claimant has discontinued a part of a claim, but wishes to continue the rest, the court will stay the proceedings if —
the claim is partly discontinued
the claimant is liable for those costs; and
the claimant fails to pay those costs or make the payment within 14 days of—
(i) the date on which the parties agreed the sum payable by the claimant; or
(ii) the date on which the court ordered the costs to be paid or the payment to be made.
