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Flashcards in Cheap marks Deck (138):
1

Time limit: Serving a claim form (within the jurisdiction)

 

Must be despatched before 12.00 midnight on the calendar day four months after the date of issue.

 

2

Time limit: Serving a claim form (outside the jurisdiction)

Within six months of the date of issue.

3

Time limit: Particulars of claim - Serving particulars of claim

Contained in or served with the claim form

OR

Served within 14 days after service of the claim form, but no later than the latest time allowed for serving a claim form under CPR7.5 (if earlier).

4

Time limit: Acknowledgment of service - Filing an acknowledgment of service

14 days after service of the claim form

OR

14 days after service of the particulars of claim, if served separately.

5

Time limit: Defence - Filing a defence

14 days after service of the particulars of claim

OR

28 days after service of particulars of claim where the defendant has filed an acknowledgment of service under Part 10.

6

Time limit: Defence - Filing a defence (agreed extension and requirement)

The parties may agree an extension of time for filing a defence by up to a maximum of 28 days (CPR 15.5(1)). The defendant must notify the court in writing (CPR15.5(2)).

7

Time limit: Written evidence in Part 8 claim - Filing and serving claimant's written evidence

When the claim form is filed.

8

Time limit: Written evidence in Part 8 claim - Filing and serving defendant's written evidence

When the acknowledgment of service is filed.

9

Time limit: Written evidence in Part 8 claim -  Filing and serving claimant's further written evidence in reply

Within 14 days of service of the defendant's evidence.

10

Time limit: Admission -Returning an admission to the claimant under CPR 14.4 or filing an admission under CPR 14.5, 14.6 or 14.7

14 days after service of the claim form

OR

14 days after service of the particulars of claim, if served separately.

11

Time limit: Filing an acknowledgment of service, admission or defence (where claim served outside the jurisdiction)

Where permission of the court is not required for service outside the jurisdiction, CPR 6.35 sets out the relevant time limits.

Where permission of the court is required for service outside the jurisdiction and the court has granted permission, it will specify the time limits that are the periods specified in the table in Practice Direction (PD) 6B (CPR6.37(5)).

12

Time limit: Counterclaim - Filing a counterclaim against a claimant

When the defence is filed.

13

Time limit: Defendant's additional claim for contribution or indemnity - Filing and serving defendant's notice of additional claim for contribution or indemnity against a person who is already a party

When the defence is filed

OR

Within 28 days after the party files his defence, if the party against whom the indemnity or contribution is sought was added to the claim later.

May also be done at any other time with the court's permission.

14

Time limit: Other additional claims - Issue of additional claim by defendant

Before or at the same time as the defence is filed.

May also be done at any other time with the court's permission.

15

Time limit: Additional claims - Serving an additional claim

In the case of a counterclaim against an additional party only, when a copy of the defence is served

OR

In the case of other additional claims, within 14 days after the date the additional claim is issued by the court.

16

Time limit: Directions questionnaire - Filing a directions questionnaire

No later than the date specified in the notice of proposed allocation. This shall be at least 14 days after the date when the notice is deemed to be served for small claims track cases, and at least 28 days after the date when the notice is deemed to be served for fast track or multi-track claims.

17

Time limit: Costs budget

Where costs management applies, and unless the court otherwise orders, all parties except litigants in person must file and exchange budgets as required by the rules or as the court otherwise directs.

Each party must do so by the date specified in the notice served under CPR26.3(1) (notice of proposed allocation) or, if no such date is specified, seven days before the first case management conference.

18

Time limit: Reply
Filing and serving a reply

When the directions questionnaire is filed. Other parties must be served at the same time.

19

Time limit: Amendments to statement of case
Amending a statement of case

At any time before it has been served (even if filed)

OR

After it has been served, with the written consent of all the parties or the permission of the court.

20

Time limit: Default judgment
Obtaining judgment in default of acknowledgment of service

If the defendant has not filed an acknowledgment of service or a defence and the relevant time for doing so has expired.

21

Time limit: Obtaining judgment in default of defence

Where the defendant has filed an acknowledgment of service, but has not filed a defence and the relevant time for doing so has expired.

22

Time limit: Summary judgment
Applying for summary judgment (against defendant)

After the defendant has filed an acknowledgment of service or a defence.

23

Time limit: Giving of notice of the date fixed for a summary judgment hearing to the respondent (or the parties, where the hearing is fixed of the court's own initiative)

At least 14 days before the hearing

OR

A different period, if provided for by a PD.

24

Time limit: Filing and serving witness evidence on which the respondent wishes to rely

At least seven days before the hearing.

25

Time limit: Filing and serving witness evidence in reply on which the applicant wishes to rely

At least three days before the hearing.

26

Time limit: Filing and serving written evidence on which a party wishes to rely (where hearing is fixed by the court of its own initiative)

At least seven days before the hearing.

27

Time limit: Filing and serving witness evidence in reply on which a party wishes to rely (where hearing is fixed by the court of its own initiative)

At least three days before the hearing.

28

Time limit: Setting aside order striking out statement of case
Applying to set aside, vary or stay an order striking out all or part of a statement of case made on the court's own initiative

Within such period as the court specifies

OR

If no period is specified, not more than seven days after the date on which the order was served on the party making the application.

29

Time limit: Interim payment
Applying for an interim payment order

After the end of the period for filing an acknowledgment of service.

30

Time limit: Serving a copy of the application notice for an interim payment order and supporting evidence

At least 14 days before the hearing.

31

Time limit: Filing and serving witness evidence on which a respondent to an application for an interim payment order wishes to rely

At least seven days before the hearing.

32

Time limit: Filing and serving witness evidence in reply on which the applicant wishes to rely

At least three days before the hearing.

33

Time limit: Preliminary hearing (small claims track)
Giving notice to the parties of the date of the preliminary hearing (where the court has decided to hold the hearing)

At least 14 days before the hearing.

34

Time limit: Final hearing (small claims track)
Giving of notice to the parties of the date of the final hearing

At least 21 days before the hearing.

The parties can agree to accept less notice.

35

Time limit: Disclosure (small claims track)
Filing and serving copies of all documents (including any expert's report) on which the party intends to rely at the hearing

At least 14 days before the final hearing.

36

Time limit: Disclosure (fast track)
Serving a list of documents

As directed by the court.

This is typically four weeks after notice of track allocation (PD 28.3.12).

37

Time limit: Disclosure (multi-track)
Serving a list of documents

As directed by the court.

38

Time limit: Inspection of documents

Permitting inspection of document requested by written notice

No more than seven days after the date on which notice received.

39

Time limit: Copies of documents
Supplying copies of documents requested by written notice

No more than seven days after the date on which notice received.

40

Time limit: Notice to admit facts
Serving a notice to admit facts

No later than 21 days before trial.

41

Time limit: Notice to admit or produce documents
Serving a notice to prove a document

By the latest date for serving witness statements

OR

Within seven days of disclosure of the document, whichever is later.

42

Time limit: Witness summons
Serving a witness summons

At least seven days before the date on which the witness is required to attend before the court or tribunal.

The court may direct that a summons will be binding, although served less than seven days before that date (CPR34.5(2)).

43

Time limit: Evidence by deposition
Serving a notice of intention to put in evidence a deposition at a hearing

At least 21 days before the hearing.

44

Time limit: Hearsay evidence
Serving a notice of intention to rely on hearsay evidence under section 2(1)(a) of the Civil Evidence Act 1995

No later than the latest date for serving witness statements.

45

Time limit: Applying for permission to cross-examine the maker of an original statement under CPR 33.4

No more than 14 days after service on the applicant of a notice of intention to rely on hearsay evidence.

46

Time limit: Giving notice of intention to call evidence to attack the credibility of a person who made a hearsay statement

No more than 14 days after service of the hearsay notice.

47

Time limit: Discontinuance
Filing and serving a notice of discontinuance on every other party

any time

48

Time limit: Applying to set aside notice of discontinuance

No more than 28 days after service of the notice of discontinuance on the defendant.

49

Time limit: Paying costs of partly discontinued proceedings

Within 14 days of the date on which the parties agreed the sum was payable by the claimant

OR

Within 14 days of the date on which the court ordered the costs to be paid.

50

Time limit: Trial bundles
Filing the trial bundle

No more than seven days, and no less than three days, before the start of the trial.

51

TIme limit: Costs order
Notifying client in writing of costs order against client not present when order made
Payment of costs

No later than seven days after the legal representative received notice of the costs order.

Within 14 days unless court says otherwise.

52

Time limit: Filing an appeal notice against decision of authorised court officer in detailed assessment proceedings

53

Time limit: Third party debt orders
Serving an interim third party debt order, application notice and documents filed in support

On the third party, no less than 21 days before the date fixed for hearing for a final third part debt order.

On the judgment debtor, no less than seven days after a copy has been served on the third party and seven days before the date fixed for the hearing.

54

Time limit: Third party informing the court and the judgment creditor that unable to comply with order.

Within seven days of being served with the order.

55

Time limit Writs and warrants of control, writs of execution, warrants of delivery and warrants of possession
Issuing a writ or warrant

Within six years of the judgment or order. 

A writ of execution, warrant of possession or warrant of delivery may be renewed by court order.

56

Validity of writs of execution, warrants of possession, warrants of delivery (other than writs of execution or warrants that confer a power to use the procedure in Schedule 12 of the Tribunals, Courts and Enforcement Act 2007.)

12 months from the date of issue.

A writ of execution, warrant of possession or warrant of delivery may be renewed by court order.

57

Civil Litigation

Dates and Time Limits

 

Limitation

6 year Limitation periods for claims in contract and tort.

The special Limitation rules applying to personal injury claims (3 years), including ss. 14 and 33, to latent damage cases, and to claims brought by children etc.

6 year Limitation periods for claims in contract and tort.

The special Limitation rules applying to personal injury claims (3 years), including ss. 14 and 33, to latent damage cases, and to claims brought by children etc.

58

Civil Litigation

Dates and Time Limits

Protocols

 

In non-specific protocol cases the defendant may acknowledge the letter of claim, and has a reasonable period to make a formal response by letter: 14 days in a straightforward case and no more than 3 months in a very complex one.

59

Civil Litigation

Dates and Time Limits

Service & Responding to Claims

 

  • 4 and 6 month periods of validity for claim forms (for service within and outside the jurisdiction respectively).
  • The rules on deemed dates of service both for claim forms and other types of document set out in CPR, Parts 6 and 7.
  • The rules for calculating time set out in CPR, r. 2.8.
  • The periods for responding to claims by acknowledging service, filing a defence and agreed extensions of time for responding to particulars of claim.
  • The related periods for entering judgment in default.

60

Civil Litigation

Dates and Time Limits

Service & Responding to Claims

Part 8 claim

Part 8 claim: C serves written evidence with the Part 8 claim form.

Part 8 claim: D files & serves written evidence with Acknowledgment of Service.

Part 8 claim: C may file & serve further written evidence 14 days after D's evidence

61

Civil Litigation

Dates and Time Limits

Interim Applications

Calculating service 3 clear days before the hearing in interim applications.

14-day; 7-day and 3-day time limits for serving written evidence in summary judgment and interim payment applications.

7-day period for applying to set aside or vary (i) orders made by the court of its own initiative; and (ii) orders made without notice.

Interim applications must be made as soon as it becomes apparent it is necessary or desirable (PD 23A para 2.7).

62

Civil Litigation

Dates and Time Limits

Case Management

 

Minimum 14-day period for returning directions questionnaires in small claims.

Minimum 28 days for returning directions questionnaires in fast track and multi-track claims.

The 30 week period between allocation and trial in fast track claims.

Maximum 28-day agreed written extension to an ‘unless order’.

63

Civil Litigation

Dates and Time Limits

Civil Evidence

  • Filing disclosure reports in multi-track claims 14 days before the first CMC.
  • 7 day period after disclosure for serving a notice to prove.
  • Applications to cross-examine the maker of a hearsay statement issued not less than 14 days after service of notice of intention to rely on the hearsay.
  • Notice of intention to rely on evidence to attack the credibility of hearsay evidence must be served not less than 14 days after service of notice of intention to rely on the hearsay.
  • Notice to admit must be served no later than 21 days before trial.
  • Notice of intention to rely on a deposition must be served no later than 21 days before trial.
  • Unless the court gives permission for shorter notice, the 7-day before trial period for issuing and serving a witness summons.

64

Civil Litigation

Dates and Time Limits

Costs Documents

 

  • 21 day minimum “relevant period” for offers to settle under Part 36.
  • Filing & serving costs schedules 24 hours before hearings of no more than a day.
  • Filing & serving costs schedules 2 days before fast track trials
  • Filing and exchanging costs budgets 7 days before the first CMC (or as directed in the notice of proposed allocation).
  • 3 months from order to lodge bill of costs in a detailed assessment.

65

Civil Litigation

Dates and Time Limits

Judgments

 

Judgments and orders take effect on the date they are given or made.

Judgments for money, and for paying costs, must be complied with within 14 days.

66

Civil Litigation

Dates and Time Limits

Appeals

 

The 21 day period from the lower court’s decision for bringing an appeal.

67

Part 8: when does it apply

  • Where a C seeks the court’s decision on a question
  • Which is NOT likely to involve a substantial dispute of fact: r.8.1(2)
  • BUT provided there is not PD forbidding the use of Part 8:  r.8.1(4)!
  • Where a rule or PD requires or permits the use of Part
  • For approval of a settlement for a child or protected party (as in Q5)
  • For a claim for provisional damages, settled before proceedings have begun: PD8 para 3.1
  • Where a rule, statute or PD says the claim should be brought by originating summons/application (the RSC version of this) PD 8 para 3.3

68

Differences between Part 8 and Part 7 claims

  • No defence required (Part 15)
  • No default judgment available (Part 12): r.8.1(5)
  • Claim treated as being allocated to the multi track
  • See: r.8.2 for required contents of Part 8 claim form
  • See r.8.5 and PD8 para 7 for the evidential rules
  • Key difference: evidence is provided at the outset
  • (You  need  to make yourselves notes on these)
     

69

What applications could be made where there are problems with service?

  • Apply to extend time for service of/renew the claim form: r.7.6
  • Seek an order that alternative has already been effected under: r.6.15
  • Seek an order for service to be dispensed with under : r.6.16
     

70

 Alternative service of the claim form:

  • Power to order by an alternative method or at an alternative place: r.6.15
  • Test: Is there a good reason?
  • Will it get to the attention of the D? PD6A para 9
  • Procedure: r.6.15(3) and PD6A, para 9
    • application supported by evidence, stating:
    • Reason why order is sought and the proposed alternative method/place of service and why it is believed it will get to the attention of D in this way
    • may be made without notice
       

71

Factors for extending time for service…/

  • A valid/good reason should be advanced
  • As the reason is highly material
  • Generally the reason must be difficulty in effecting service
  • Ds have a right to be sued within the limitation period
  • If there is a good reason, court will balance the hardship between the parties in either granting or refusing the extension of time

72

Default Judgment – the steps from PAP to default judgment
Part 12

  • Pre-action protocol (if any)
  • Issue and serve claim form
  • Serve Particulars of Claim
  • C must file certificate of service if served by C: r.6.17(2)(b)
  • No response to PoC, i.e. no Ackn of Service within 14 days and/or no Defence within 28 days 
  • File a request for (most money cases) or apply (non-money claims)for Judgment in Default

73

Responding to a claim: what happens next after service of the claim form (CF)?

  • D’s obligations to respond do NOT arise until service of the PoC: r 9.1(2)
  • PoC could be with the C: r.7.4(1)(a) 
  • If not,must be served within 14 days of service of the CF: r.7.4(1)(b)
  • And must be served no later than the latest time for serving the CF (ie within the 4 months in  r 7.5): r.7.4(2) 
  • Always  from the deemed date of service

74

Once PoC served on D: D must act

  • Once PoC have been received by D, he must respond in 14 days 
  • 14 days from the deemed date of service of the PoC
  • 3 choices:  file/serve an admission, file a defence, file an acknowledgement of service (A/S):  r 9.2 
    • Admissions: Part 14: r. 14.2
    • A/S: Part 10:  r. 10.3: 
    • Defence: Part 15: r.15.4

75

If a D wishes to defend: steps

  • D must:
    • Either file a defence: within 14 days of the deemed date of service of PoC: r.15.4(1)(a);
    • Or file an acknowledgement of service within 14 days of  the deemed date of service of PoC
    • And file a defence within 28 days of the deemed date of service of the PoC r.15.4(1)(b)
    • But  parties may agree extra 28 days for D to file defence: r.15.5, D must notify the court of the agreement
       

76

Test for setting aside default judgment: 
CPR r 13.3 (exact wording)

Does the D have real prospects of successfully defending the claim?
Or, is there some other good reason why the judgment should be set aside or varied, or D should be allowed to defend?
real prospects of success: real = not fanciful, a case which is better than merely arguable

77

Discretion to set aside default judgment: r.13.3

  • D must act promptly (or if not, explain why) 
  • the court will look at the overall justice of the case – apply the overriding objective
  • relief from sanctions r.3.9: it seems that this is likely to be/must considered

78

Time for serving the Particulars of Claim: r.7.4

  • If the PoC are not served with the Claim Form, they must be served within 14 days of service of the CF:  r.7.4(1)(b)
  • But this is subject to r.7.4(2):
  • PoC must be served no later than the latest time for serving the CF
  • This is no later than midnight 4 calendar months after the issue of the CF: 7.5(1)
  • ie within the period of validity of the Claim Form.

79

“Standard Disclosure” – What has to be disclosed?: Q 2(a)

Parties must disclose documents
that party relies upon
which adversely affect his own case
which adversely affect another party’s case
which support another party’s case

as required by any  Practice Direction – PD 31B – electronic disclosure is the relevant one
See: r 31.6 
See WB commentary paras 31.6.2-31.6.4 on the syllabus and the Note on Moodle

80

Who signs the list of documents (disclosure statement)?

The parties themselves - declaring that they have made all the necessary checks in the appropriate places for the documents

81

Question 2(c): specific disclosure, r.31.12

Procedure

  • Application Notice  under Part 23
  • Application Notice must specify the terms of the order sought PD 31A para 5
  • set out documents or classes of documents for which disclosure sought WB para 31.12.1
  • be supported by evidence, which should include the grounds, if these are not in the Application Notice 
     

82

Specific disclosure test:Q2(c)

  • (iii) Test:
    • all the circumstances of the case taken into account 
    • in particular the overriding objective  (r.1.1)
    • are documents necessary for the just disposal of the case? 
    • has the D failed to comply with his obligation to disclose?
    • if so, court will usually make the order
  • Obligation under standard disclosure:
    • documents: he relies on, adversely affect his case, or another’s case or support another’s case r.31.6 (and WB para 31.6.3)
    • Relevance/significance of the documents?
    • are the documents in the control of the D?
    • likelihood of existence of documents
    • expense/cost of  searching
    • proportionality of search 
  • court must balance one party’s right to a fair hearing (ECHR art 6) with the other party’s right to respect for private life (ECHR art 8) 

83

Standard disclosure

  • Standard disclosure is the default order for disclosure, where menu option disclosure does not apply (see below):  r 31.5(1)(a)
  • But the court may dispense with or limit standard disclosure, in any event: r3.15(1)(b)
  • And the parties may agree to dispense with or limit standard disclosure: r3.15(1)(c)

84

Menu option disclosure: r.31.5(2)-(9)

  • This means that the court has a choice of what kind of disclosure to order
  • From the ‘menu’ at r.31.5(7)
  • It applies to all multi track cases
  • Except personal injury (pi) multi track cases
  • But ‘unless the court otherwise orders’,  
  • r 31,5(2),  means that the court may choose to direct menu option disclosure in a multi track pi case or in a fast track case 
     

85

Overview of Pre-action disclosure r. 31.16 (statutory)

2 stage test: 
Jurisdiction first
r.31.16(3) and
S 33(2) SCA 1981
Then should discretion be exercised?

86

Norwich Pharmacal 

  • Where C does not know the identity of the proposed D
  • C may apply against  someone who has innocently become mixed up in the wrong doing
  • And who has facilitated it
  • For information as to the identity of the wrongdoer
  • So the proceedings may be brought against the proper D
  • The respondent to such an application is more than a mere witness
     

87

Disclosure against a non party under r 31.17

  • Disclosure against a non party is exceptional
  • Court must be satisfied:
  • The documents (or class of documents) exist
  • The documents would be disclosable under standard disclosure
  • Disclosure is necessary in order to dispose fairly of the claim/save costs

88

“Legal Advice” Privilege
 

confidential communications
between a legal adviser and client
for the purpose of giving/seeking legal advice

89

“Litigation” Privilege
 

confidential communications 
between legal adviser and a third party
for the dominant purpose of conducting litigation
at the time pending, or reasonably in prospect
 

90

‘Without prejudice’on a letter

  • The sender of the letter is asserting that the letter is not admissible in evidence because it is part of the negotiations
  • The negotiations (here, in the letter) must actually form part of negotiations (or other ADR) which constitute a genuine attempt to settle the dispute  

91

How does without prejudice work?
Notes from WB 31.3.40 (1)

  1. The public policy is to encourage parties to settle rather than litigate*
  2. Each party will be protected from embarrassment by any admissions or acknowledgements made during the negotiations
  3. The protection extends to prevent negotiations from being disclosable to third parties 
  4. If the letter is a mere assertion of someone’s rights, or arguing the case, it will not attract the privilege
  5. The use of ‘without prejudice’ is useful, but not a conclusive indicator
  6. And omitting the words is not fatal
  7. There must be a sufficient proximity to the litigation
  8. So, the privilege can attach to pre litigation disputes
  9. However, the without prejudice material will be admissible on the issue of whether or not an agreement was actually reached (ie where one party is disputing the settlement)
  10. Without prejudice communications can also be used to interpret the terms of a negotiated settlement, where those are part of the factual matrix or surrounding circumstances
  11. Without prejudice privilege is effectively a joint privilege and cannot be waived by one party alone
  12. If one party wishes to change the basis of the negotiations to an open negotiation, the burden is on that party to bring the change to the attention of the other party
  13. The privilege will be lost if there is unambiguous impropriety and a very clear case of the privilege being abused

92

Interim applications: Documentation: Part 23 

  • Application notice (App N) (N244)
  • which states what order is sought and briefly why r.23.6
  • Draft order (if complex and if one was attached to App N)
  • Supported by written evidence, which can be: 
    • in a witness statement (this is the usual method)
    • in an affidavit (sworn witness statement - rare, other than for freezing orders)
    • on the application notice (if with a statement of truth) r. 32.6(2)(a) and see WB para 22.1.14 and  r.22.1(3)
    • in a statement of case
  • skeleton argument 
  • application bundle
  • statement of costs

93

When can an application be made without notice

  • if exceptionally urgent
  • to further the overriding objective
  • if all parties consent
  • with the court’s permission
  • when there is already a hearing date
  • When permitted by an order, rule or PD PD23A, para 3
  • when there is a good reason for not giving notice:  r.25.3
  • but, unless secrecy is essential, informal notice should be given: WB commentary 25.3.2

94

 Time Limits for filing evidence:


App Notice served as soon as practicable after it is filed: r 23.7(1)
In any event, at least 3 days before hearing r.23.7(1)
Written evidence, must be served at the same time r.23.7(3)

95

Summary judgment test : Q 2(a) [exact words]

D has no real prospect of successfully defending the claim; [1 mark]
and
there is no other compelling reason why the case should be disposed of at trial [1 mark]
Exact words required
 r 24.2
 

96

Real prospects of success

  • Real as opposed to fanciful: Swain v Hillman [2001] 1 All ER 91
  • Real means a case which is better than merely arguable, a case which carries a real conviction: ED&F Man Liquid Products Ltd v Patel  [2003] CP Rep 5
  • may be fanciful if entirely without substance: Three Rivers DC v Bank of England (No 3) [2003] 2AC 1 [para 95]
  • may be fanciful if contradicted by contemporaneous documentation: [para 95] Three Rivers 
  • no real prospects: the absence of reality: Three Rivers etc WB 24.2.3

97

Summary Judgment:  When?

  • Pre-action Protocol (if any)
  • Issue claim form
  • Serve claim form and PoC
  • Defendant Ackn Service (Ack S) or files and serves Defence (Def)
  • Claimant or Defendant can apply for summary judgment (or court)
  • So, not until after Ackn S has been filed, but you could wait until after Def has been filed: r 24.4(1)
  • Most sensible time: between D filing Ack S and C filing its directions questionnaire: WB  24.4.1

98


Summary Judgment  v Default Judgment
 

  • Sum Judgment: Test = No real prospect of success and no  other compelling reason for a trial. Burden on Applicant.
  • Judicial act -  disposal on the papers and submissions (no live witness evidence); but D is participating (either filed Ack S or Def)
  • Compare with: Default Judgment: administrative act, when D has not responded to the PoC – D played no part in the process
  • Both are judgment without trial

99

When is Summary Judgment not available?

  • see r 24.3
  • no restrictions against a C
  • against a D 
    • possession proceedings of residential property against a mortgagor or a protected tenant under RA 1977 or HA 1988
    • proceedings for an admiralty action in rem 
       

100

Who may apply for Summary Judgment?

a C:  to speed up the obtaining of judgment in a defence without merit  
or a D to attack a weak claim
or it may be used by the court of its own initiative

101

Procedure for summary judgment

  • Application notice stating that summary judgment is sought supported by written evidence/a witness statement
  • Application notice and any evidence to be served  at least 14 days before the hearing
  •  D’s evidence in reply to be served  at least 7 days before the hearing
  • Any further evidence by C  at least 3 days before the hearing

102

  • the tests for these interim applications
    • Setting aside default judgment
    • Summary judgment
    • Interim payment
  • GIVE THE EXACT WORDING ON EACH ONE
  • AND THE BUREN

  • Setting aside default judgment: D has  a real prospect of success (ie real, not fanciful) or there is some other good reason to do so. Burden on D. [r.13.3]
  • Summary judgment: R has no real prospect of success in his claim/defence and there is no other compelling reason why case should be disposed of at trial. Burden on A.  r.24.2
  • Interim payment: If claim went to trial, C would  recover substantial damages
    Balance of probabilities Would, not might Burden on A [r. 25.7]

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Counterclaims and Set offs (1)

  • Any claim by D against C can be pleaded as a Counterclaim (c/c).
  • Counterclaims are not restricted to money:
  •   need not be connected with claim
  •   can be for any form of relief  
  • Counterclaim is not a defence to the claim unless it is a set off. 
  • All set-offs are counterclaims, but not all counterclaims are set-offs.
  • See:  r 16.6 – defence of set off 
  • If D’s only answer to the Summary Judgment appn is a counterclaim, court will enter Summary Judgment and D must bring his c/c by separate proceedings
  • But not if c/c is a set off: this operates as a defence
  • Complete defence if value of set off matches or exceeds claim
  • Partial defence if set off has value less than claim; Summary Judgment then entered for undisputed balance
  • If c/c not a set off, but linked: possibly Summary Judgment but with a stay pending determination of c/c WB para 24.2.6
  • See:  APA Civil 24.30
     

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Nature of Set off

  • Set off can only arise where
    • C is claiming money
    • D counterclaims a sum of money from C
  • Set off must usually be connected to or arise out of the claim – note specific categories recognised by the courts 
  • A recognised set off is a defence to the claim (if successful)
  • A set off can be defence to part or all of claim, depending on amount, and so, Q: is set off less than the value of C’s claim?
  • If set off is greater than value of C’s claim
    • (i) the set off is complete defence (if successful);
    • (ii) D can recover the difference on his Counterclaim
       

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Categories of Set Off
 

  • Mutual debts: owed between C and D.  (Note: This type of set off can be  unrelated to the facts of the claim.)
  • Price of goods sold.  Counterclaim for breach of SGA implied terms is a set off:  s.53. 
  • Price of service delivered.  Counterclaim for damages for poor workmanship is a set off.
  • Claim by a tenant for  damages for breach of covenant in lease is a set off, where Landlord is claiming arrears of rent under same lease.
  • Equitable set-off.  “Inseparably connected”.

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Limitation Periods in General Contract & Tort (non PI) Claims

Contract: 
Q1 Time runs from? accrual of cause of action – i.e. breach
Q2 Limitation period?  6 Years

Tort
Q1 Time runs from? Accrual of cause of action – in negligence = from damage
Q2 Limitation period? 6 years

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How to stop time running

  • Limitation runs until the claim is brought (as opposed to issued or served)
  • Date of issue i.e. when form is date stamped is usually best evidence of when claim brought
  • If C sends a letter with claim form requesting issue (plus issue fee) – date of receipt of letter (which may precede by a few days the date of issue) will stop time running
  • When a Cl delivers all relevant docs to court for issue (even if court office closed) claim deemed brought
  • If court office closed on final day of limitation, proceedings deemed to be in time if issued next day court office open

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LIMITATION: SPECIAL CASES

  • Personal Injury: Limitation Period 3 years from injury or date of knowledge
  • Fatal Accident: Limitation Period 3 years from death or date of knowledge
  • Negligence actions (not PI) where facts relevant to cause of action not known (Latent Damage): 6 years from accrual OR 3 years from starting date (Knowledge of: 1. relevant damage sufficiently serious to justify proceedings; 2. damage attributable to alleged negligence; 3. D’s identity)
  •  Contribution Claims: 2 years from judgment or settlement; in a split trial, time runs from judgment on quantum: see WB Vol 2 8-22, Aer Lingus v Gildacroft Ltd

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Section 33 Limitation Act 1980 –
disapplying the limitation period


Equitable to allow action to proceed
Balancing the prejudice to the C in not granting the application and
The prejudice to the D in granting the application
s 33(1)
 

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Section 33 Limitation Act 1980 –
disapplying the limitation period - Section 33(3) factors

  • The court shall have regard to all the circumstances of the case, in particular the:
  • length of and reasons for C’s delay
  • extent to which the evidence will be less cogent as a result of the delay
  • conduct of the D after the cause of action arose, including the reasonableness of D’s response to c’s requests for information etc
  • duration of any disability of C (arising after the cause of action accrued) 
  • promptness and reasonableness of C after he knew he might have an action against the D
  • steps taken by C to obtain expert advice and the nature of that  advice
  • Other important factors  for s 33 applications
    • Is there a potential claim against the C’s first solicitors: (Thompson v Brown [1981] 1WLR 747)
    • Was the D notified of the claim early? (Donovan v Gwentoys  [1990] 1 All ER 1018)
    • What is the degree of forensic prejudice to the D? (Cain v Francis [2009] QB 754)

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Procedure for interim injunction

  • Issue claim form
  • Application notice
  • Draft order
  • With evidence in support (witness statement)
  • 3 clear days’ notice to be given  r 23.7 
  • Skeleton argument
  • Statement of costs, 24 hours before hearing
  • See Part  23  and  r 25.1(a), PD 25A para 3, WB para 25.1.9.  and 25.1.12

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With Notice cases: when is injunction sought?

Tend to apply between service of proceedings and track allocation

Issue claim form
Serve claim form and PoC
Apply for interim injunction
Defence
Or apply for interim injunction now
Allocation questionnaires

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Without Notice cases (INJ)

URGENCY: where no time to wait 3 clear days from serving application (but informal notice should be given) and/or
SECRECY: where secrecy is essential (freezing and search orders; some other interim injunctions)
Apply as soon as possible after issue

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Application before issue (INJUNCT.)

Can apply even before issue: r 25.2(2)(b),
if it is urgent, or 
otherwise necessary in the interests of justice

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Duties of full and frank disclosure

  • All material evidence must be before the court: PD 25A para 3.3
  • See WB commentary 25.3.5: disclosure duties on a without notice application
    • High duty
    • Applicant must make full, fair and accurate disclosure of material information 
    • Including matters which are or may be adverse to it
    • Which are known to the applicant or could have been discovered on making reasonable enquiries
  • Also WB commentary 25.1.9
  • See LG 4A notes, p 11

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Undertakings on a without notice application

Undertaking in damages
Undertaking to rectify any procedural anomalies arising because of the urgency of the application (eg issue and serve CF,  file and serve application notice, written evidence)
 

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‘Exceptions’ to American Cyanamid
(on the syllabus)

Mandatory injunctions
Final disposal injunctions (ie which finally dispose of the case)
(Negative covenants )
In some restraint of trade cases
No arguable defence  
 

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Interim payment: Procedure

Application notice
Supported by evidence r 25.3(2), r. 25.3(6)
Must be served on D at least 14 days before the hearing r 25.6(3)
any evidence from D in reply  7 days before the hearing r 25.6(4)
Any further WS in reply from C 3 days before the hearing r 25.6(5)

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Time limits in Interim Payment and Summary Judgment

  • Note: the timetable for notice and evidence for interim payments  and summary judgment  applications is different from that for general interim applications.
  • 14 day’s notice before hearing; 
  • D’s WS - 7 days before hearing; 
  • any reply by C - 3 days before hearing.
    • Interim payment: see r.25.6(3), (4) and (5)
    • Summary judgment: see r.24.4(3), 24.5(1) and (2)
    • Happily, the same timetable for interim payment and summary judgment 

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Principles to be applied: r.25.7
iNTERIM PAYMENT

  • Principles to be applied: r.25.7
    • C would obtain judgment against either  one D r.25.7(1)(c) 
    • or if against both Ds, against at least one of them, but the court can’t determine which r.25.7(1)(e)(i)
    • If against both: show all Ds are insured, or liability would be met under RTA or by MIB, or D is a public body r.25.7(e)(ii)
    • C must establish will succeed, not might  succeed
    • On balance of probabilities 
    • Obtain judgment for a substantial amount of money (other than costs)

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What will the court take into account on quantum of interim payment

IntP must not be more than a reasonable proportion of likely amount of final judgment r.25.7(4)
Contributory negligence, relevant set-off or counterclaim must be taken into account  r.25.7(5)
 not required to show need
Generally, the amount of the interim payment should not fetter the hands of the trial judge

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Interim payment: disclosed to judge?
Judge’s powers to adjust

  • Do not disclose to the judge;
  • Until all issues on liability and quantum have been finally determined: r 25.9
  • Post judgment powers:
  • Wide powers to adjust amount, order repayment of part or all, vary, discharge, order one D to reimburse another D: r 25.8(2)
  • Between Ds: reimbursement, only if D to be reimbursed has made a claim for a contribution, indemnity or some other remedy (ie under Part 20): r25.8(3)
  • Interest may be ordered in favour of a D on any overpaid interim payment: r 25.8(5) 

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Amendment within the limitation period:
Can I ever amend my statement of case without permission of the court?

  • At any time before it has been served: r 17.1(1)
  • Or with the written consent of the parties, after its has been served: r 17.1(2)(a)
    • But not if limitation has expired: r 17.4 and  19.5 
    • Nor if you are seeking to remove, add or substitute a party:  r 19.4

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Amendment of Statement of Case within the limitation period: court’s approach
 

    Generally, this will be allowed assuming it is furthers the overriding objective:

  • is it just and proportionate?
  • And has some/real prospects of success.  See WB 17.3.5 and 17.3.6 (APA Civil 22.16)
  • It is a very commonplace occurrence. 
  • The person seeking the amendment will usually have to pay the costs of and arising from/caused by/occasioned by the amendment. 
  • If the document in question has already been served, permission of the court (or consent of other parties) is required: r 17.1(2). 

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Adding/Substituting/Removing New Party [EXACT WORDS]

  • To add/substitute/remove a party after service of the claim form (CF) always needs court’s permission: r 19.4(1)
    • Is it desirable to add a party, so the court can resolve all matters in dispute:  r 19.2(2)(a); or
    • Is there an issue between a party and the new party connected to the matters in dispute and it is desirable to add the party so the court can resolve that issue: r 19.2(2)(b)
       

126

After limitation has expired?: see s 35 Limitation Act 1980

  • Generally, not allowed, as it will deprive the D of his limitation defence
  • Because the amendment takes effect from the date of the original statement of case: s 35(1) LA 1980
  • 3 main categories of exceptions:
    • Adding a new cause of action
    • Adding a new party
    • Where it affects accrued limitation rights 
       

127

New cause of action  - Court will permit this after limitation has expired if

  • Court will permit this after limitation has expired if
  • It arises out of the same or substantially the same facts as are already in issue in the original action:  s 35(5)(a) LA 1980, r 17.4(2)
  • It arises in a personal injury case in which the  court has exercised its discretion  under s 33 LA 1980: s 35(3) LA 1980
  • It is an original counterclaim or set off: s 35(3) LA 1980

128

Amendment affecting accrued limitation rights/D adding a new defence - Will a D be able to amend his defence after the limitation period has expired? 

  • Will a D be able to amend his defence after the limitation period has expired? 
  • Generally Yes, unless
  • The effect of the amendment is to blame another party whom C cannot now sue, AND
  • It is D’s fault in not seeking to amend earlier
  • But, the courts may allow D to amend if C had access to the relevant facts in any event
  • See APA 22.44 – 22.45; WB 17.3.5, p506: Cluey v R L Dix Heating [2003]

129

Adding a new party: permitted after limitation has expired: see s 35  LA 1980:

  • Where the court has exercised its discretion under s 33 LA 1980 in a personal injury case
  • Where the amendment simply alters the capacity  in which a party claims, provided the party already had that capacity at the outset of proceedings, or has since acquired it: r 17.4(4) – e.g. after grant of probate person has capacity as executor 
     

130

New party where it is necessary to add or substitute 


Eg where the original party has died or been declared bankrupt and his interest or liability has passed to the new party: r 19.5(3)(c)
Where it is legally necessary in order to maintain the action  r 19.5(3)(b)

131

Adding or substituting where there has been a mistake in naming a party

  • r 17.4(3)
    • Mistake going to name but not to identity: r 17.4(3)
    • Restricted to genuine mistakes which would not cause a reasonable doubt about the identity of the party. You are simply altering/correcting the  name, not substituting a new party:  see WB 19.5.6, (helpful notes on the differences between 19.5 and 17.4).
  • r 19.5(3)
    • Mistake going to identity: r 19.5(3)(a)
    • Substituting a new party, in place of the one wrongly named
    • Here the test is: is it possible to identify the intended D by reference to a description specific to the case?  WB 19.5.7
    • So here, the description is right, but the name wrong and so a new party is substituted, who has already been properly described

132

Extension of time to comply with an unless order?

  • Parties may not extend the time for complying with an unless order: r 3.8(3)
  • Except as provided in r 3.8(4)
  • r 3.8(4): 
    • written agreement
    • agreement made before time expires
    • up to 28 days maximum
    • extension does not put hearing at risk
    • provided court does not order otherwise
       

133

Consequences of Unless order

  • Unless D serves the  witness statements on which he intends to rely by 4pm on Friday 29 January  2016, his Defence will be struck out. 
  • If order not complied with, no need to apply for a further order to confirm that the Defence has been struck out: PD 3A para 1.9
  • C may obtain judgment by filing a request in most cases – see  r 3.5(2)
  • See LGS 5A Notes: this procedure mirrors the procedure in relation to default judgment

134

Not able to comply with the unless order:

Appeal is not the right route
Could apply to vary or revoke the order: r 3.1(7): need to show a material change of circumstances; or facts forming basis of original order were misstated; or manifest mistake by the judge

135

Failure to comply with an unless order:

  • Apply for relief from sanctions under r 3.8
  • If judgment as already been entered under  r 3.5, apply for that judgment to be set aside:  r 3.6
  •  In either case the court applies the principles/test for relief from sanctions:  r 3.9
  • The starting point is that the original order was properly made
     

136

Court’s approach: apply the 3 stage test in Denton v White

  • stage (i): identify and assess the seriousness and significance of the failure to comply with any rule, PD or court order;
  • stage (ii): consider why the default occurred;
  • stage (iii): evaluate all the circumstances of the case so as to deal justly with the application, including the factors at (a) and (b);
     

137

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