Civ Lit LGS05 Pleading Limitation Flashcards

Question

*(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation....*

Answer 1

*(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.*

Answer 2

* (6) If the defendant disputes the claimant’s statement of value under rule 16.3 he must –* * (a) state why he disputes it; and* * (b) if he is able, give his own statement of the value of the claim.*

Answer 3

*(7) If the defendant is defending in a representative capacity, he must state what that capacity is.*

Answer 4

## Footnote *(8) If the defendant has not filed an acknowledgment of service under Part 10, the defendant must give an address for service.*

Answer 5

*Ciccone v Associated Newspapers Ltd* [2009] EWHC 1108 (Ch) It was alleged the defendant ‘knowingly and deliberately infringed [certain copyrights]’). If a party can plead to an allegation they should. It is inappropriate to make a non-admission on an allegation like this one where the defendant must have personal knowledge. It must either be admitted or denied with reasons.

Answer 6

_Responding to Particulars of Breach etc_ *Ciccone v Associated Newspapers Ltd* [2009] EWHC 1108 (Ch) Where a paragraph in a statement of case sets up a contention followed by a number of sub-paragraphs, each containing allegations of fact, a general response to the main allegation without responding to the individual sub-paragraphs may be inadequate, depending on the circumstances and how important the allegations are. Further particulars were ordered.

Answer 7

(1) state in his defence whether he – (a) agrees, (b) disputes, or (c) neither agrees nor disputes but has no knowledge of, the matters contained in the medical report, (2) where he disputes any part of the medical report, give in his defence his reasons for doing so, and (3) where he has obtained his own medical report on which he intends to rely, attach it to his defence.

Answer 8

**12.2** Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating: (1) which of those items he – (a) agrees, (b) disputes, or (c) neither agrees nor disputes but has no knowledge of, and (2) where any items are disputed, supplying alternative figures where appropriate.

Answer 9

**Limitation** (**PD 16, para 13.1**): The defendant must give details of the expiry of any relevant limitation period relied on.

Answer 10

**Defence of tender** (**CPR r. 37.3** and **PD 37, para 2**). This is a defence that, before C started proceedings, D unconditionally offered to C the amount due, or, if no specified amount is claimed, an amount sufficient to satisfy the claim. **CPR, r. 37.2(1)**: *Where a defendant wishes to rely on a defence of tender before claim he must make a payment into court of the amount he says was tendered.* **PD 37, para 2****(2)***If the defendant does not make a payment in accordance with [****r. 37.2(1)****]**, the defence of tender before claim will not be available to him until he does so.*

Answer 11

_Set-off_ ## Footnote **CPR r. 16.6:** * Where a defendant –* * (a) contends he is entitled to money from the claimant; and* * (b) relies on this as a defence to the whole or part of the claim,* * the contention may be included in the defence and set off against the claim, whether or not it is also a Part 20 claim.*

Answer 12

_Counterclaim against the Claimant_ ## Footnote **CPR r. 20.4** * (1) A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.* * (2) A defendant may make a counterclaim against a claimant –* * (a) without the court’s permission if he files it with his defence; or* * (b) at any other time with the court’s permission.*

Answer 13

* A counterclaim must be issued by the court, and fee must be paid * A counterclaim must be served on the Claimant * No A/S is required (exception on this in **r. 20.4(3)**) * C must file a Defence to Counterclaim * Otherwise D can enter default judgment (**r. 20.3(3)**)

Answer 14

_Defence and Counterclaim_ ## Footnote **PD 20, para 6.1** *Where a defendant to a claim serves a counterclaim, the defence and counterclaim should normally form one document with the counterclaim following on from the defence.*

Answer 15

_Counterclaim against someone other than the Claimant_ ## Footnote **CPR r. 20.5** * (1) A defendant who wishes to counterclaim against a person other than the claimant must apply to the court for an order that that person be added as an additional party.* * (2) An application for an order under paragraph (1) may be made without notice unless the court directs otherwise.* * (3) Where the court makes an order under paragraph (1), it will give directions as to the management of the case.*

Answer 16

***Defence to Counterclaim*** Required by virtue of **CPR r. 20.3(1)**.

Answer 17

***Reply*** **CPR r. 16.7:** *(1) A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.*

Answer 18

(2) A claimant who – (a) files a reply to a defence; but (b) fails to deal with a matter raised in the defence, shall be taken to require that matter to be proved.

Answer 19

_Reply and Defence to Counterclaim_ **PD 20, para 6.2** Where a claimant serves a reply and a defence to counterclaim, the reply and the defence to counterclaim should normally form one document with the defence to counterclaim following on from the reply.

Answer 20

_Contradictory/inconsistent allegations_ **PD 16, para 9.2**: A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case.

Answer 21

***Beyond a Reply*** Statements of case responding to a Reply and subsequent pleadings are: * Rejoinder * Surrejoinder * Rebutter **CPR r. 15.9:** No statement of case after a Reply without the court's permission.

Answer 22

a defendant's answer to the plaintiff's reply or replication. a plaintiff's reply to the defendant's rejoinder. a defendant's reply to the plaintiff's surrejoinder.

Answer 23

**10. Further Information** Where a party thinks the other side's statement of case does not meet the requirements of Part 16, they may decide to Request Further Information.

Answer 24

**Request for Further Information** An initial RFI should be made by letter (**PD 18, para 1.4**) preferably sent by email (**para 1.7**). The RFI may be actually in the letter, or in a separate document attached to the letter.

Answer 25

**CPR r. 18.1(1):** * The court may at any time order a party to –* * (a) clarify any matter which is in dispute in the proceedings; or* * (b) give additional information in relation to any such matter,* * whether or not the matter is contained or referred to in a statement of case.*

Answer 26

**Format** **PD 18, para 1.6**: * **headed** like a pleading with the court, claim title and claim number * **state** it is a RFI under Part 18 * **identify** the requesting party and answering party * each request must be in a separate numbered **paragraph** * **identify** the document and words that each request deals with * state the date a **response** is expected **Also:** * must be **concise** and strictly confined to matters which are reasonably necessary and proportionate (para 1.2) * to **enable** the requesting party to prepare his own case or to understand the case he has to meet (para 1.2) * as far as possible made in a single **comprehensive** document (para 1.3) * if made in a **letter**, not deal with anything other than the RFI (para 1.5(b))

Answer 27

**Response** * headed with court etc, and state it is the response to the RFI (para 2.3(1)) * repeats the text of each request, followed by each response * verified by a statement of truth (para 3)

Answer 28

**Objections:** PD 18, paras 4.1 to 5.8 General matters **4.1** (1) If the second party _objects to complying with the Request_ or part of it or is unable to do so at all or within the time stated in the Request he must inform the first party promptly and in any event within that time. (2) He may do so in a letter or in a separate document (a formal response), but in either case he must give reasons and, where relevant, _give a date by which he expects to be able to comply_. 4. 2 (1) There is _no need for a second party to apply to the court_ if he objects to a Request or is unable to comply with it at all or within the stated time. He need only comply with paragraph 4.1(1) above. (2) Where a second party considers that a Request can only be complied with at _disproportionate expense_ and objects to comply for that reason he should say so in his reply and explain briefly why he has taken that view.

Answer 29

Applications for Orders under Part 18 5. 1 Attention is drawn to Part 23 (Applications) and to Practice Direction 23A. 5. 2 An application notice for an order under Part 18 should set out or have attached to it the text of the order sought and in particular should specify the matter or matters in respect of which the clarification or information is sought.

Answer 30

Applications for Orders under Part 18 ... 5. 3 (1) If a Request under paragraph 1 for the information or clarification has not been made, the application notice should, in addition, explain why not.

Answer 31

Applications for Orders under Part 18 ... 5.3 ... (2) If a Request for clarification or information has been made, the application notice or the evidence in support should describe the response, if any.

Answer 32

Applications for Orders under Part 18 ... 5.4 Both the first party and the second party should consider whether evidence in support of or in opposition to the application is required.

Answer 33

Applications for Orders under Part 18 ... 5. 5 (1) Where the second party has made no response to a Request served on him, the first party need not serve the application notice on the second party, and the court may deal with the application without a hearing. (2) Sub-paragraph (1) above only applies if at least 14 days have passed since the Request was served and the time stated in it for a response has expired.

Answer 34

5.6 Unless paragraph 5.5 applies the application notice must be served on the second party and on all other parties to the claim.

Answer 35

5. 8 Costs: (1) Attention is drawn to the Practice Directions 44 to 48 on costs and, in particular, Subsections 8 and 9 of Practice Direction 44, which relate to the court’s power to make a summary assessment of costs. (2) Attention is also drawn to rule 44.10(1) which provides that the general rule is that if an order does not mention costs no party is entitled to costs relating to that order.

Answer 36

Restriction on the use of further information 18.2 The court may direct that information provided by a party to another party (whether given voluntarily or following an order made under rule 18.1) must not be used for any purpose except for that of the proceedings in which it is given

Answer 37

striking out means the court ordering written material to be deleted so that it may no longer be relied upon.

Answer 38

**CPR, r. 3.4(1), (2)** * (1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.* * (2) 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.*

Answer 39

**Procedure** (a) Issue application notice (N244) (b) Whether written evidence in support is required depends on the nature of the application (PD 3A, para 5.2): * no reasonable grounds (r. 3.4(2)((a)) often do not need evidence * abuse of process and breach (r. 3.4(2)((b) and (c)) usually need evidence (c) Serve 3 clear days before the return date (CPR, r. 23.7(1)) (d) Apply as soon as possible and before allocation if possible (PD 3A, para 5.1) (e) Court may make an order striking out of its own initiative (CPR, r. 3.3)

Answer 40

**No reasonable grounds for claim or defence CPR, r. 3.4(2)(a)** *Three Rivers DC v Bank of England (No 3)* [2003] 2 AC 1 This is for plain and obvious cases It may be used where the statement of case fails to comply with the rules of pleading.

Answer 41

**PD 3A, para 1.4** provides: * The following are examples of cases where the court may conclude that **particulars of claim** (whether contained in a claim form or filed separately) fall within r. 3.4(2)(a):* * (1)* *those which set out no facts indicating what the claim is about, for example ‘Money owed £5,000’,* * (2)* *those which are incoherent and make no sense,* * (3)* *those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.*

Answer 42

## Footnote *English, Welsh and Scottish Railway Ltd v Goodman* LTL 9/5/2007 This was a claim against a former employee for breach of restrictive covenants. The particulars of claim pleaded the case in a general and non-specific way. It was struck out as far too broad in its claims and allegations, unfocussed and unparticularised.

Answer 43

*Dunn v Glass Systems (UK) Ltd* LTL 23/7/2007 221 pages long particulars of claim which was struck out because it was excessively long, contained details which were irrelevant to the cause of action, contained a large number of terms that were incomprehensible, and also contained privileged material.

Answer 44

**PD 3A, para 1.6** provides: A ***defence*** may fall within rule 3.4(2)(a) where: (1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or (2) the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim.

Answer 45

**Court Official Referring Defective Statement of Case to Judge** **PD 3A** *2.1* *If a court officer is asked to issue a claim form which he believes may fall within rule 3.4(2)(a) or (b) he should issue it, but may then consult a judge (under rule 3.2) before returning the claim form to the claimant or taking any other step to serve the defendant. The judge may on his own initiative make an immediate order designed to ensure that the claim is disposed of or (as the case may be) proceeds in a way that accords with the rules.*

Answer 46

PD3A *2.3* *The judge may allow the claimant a hearing before deciding whether to make such an order.*

Answer 47

* 2.4* *Orders the judge may make include: (1) an order that the claim be stayed until further order, (2) an order that the claim form be retained by the court and not served until the stay is lifted, (3) an order that no application by the claimant to lift the stay be heard unless he files such further documents (for example a witness statement or an amended claim form or particulars of claim) as may be specified in the order.*

Answer 48

***_3.1_*** *A court officer may **_similarly_** consult a judge about any document filed which purports to be a defence and which he believes may fall within rule 3.4(2)(a) or (b).*

Answer 49

*3.2* *If the judge decides that the document falls within rule 3.4(2)(a) or (b) he may on his own initiative make an order striking it out. Where he does so he may extend the time for the defendant to file a proper defence.*

Answer 50

*3.3* *The judge may allow the defendant a hearing before deciding whether to make such an order.*

Answer 51

*3.4* *Alternatively the judge may make an order under rule 18.1 requiring the defendant within a stated time to clarify his defence or to give additional information about it. The order may provide that the defence will be struck out if the defendant does not comply.*

Answer 52

*3.5* *The fact that a judge does not strike out a defence on his own initiative does not prejudice the right of the claimant to apply for any order against the defendant.*

Answer 53

**WB para 3.4.2** gives the following examples: * an unwinnable case may be struck out * it is not appropriate to strike out a claim in a developing area of law * it is not appropriate to strike out a claim with a serious live issue of fact * striking out should not be granted unless the claim is bound to fail * whether the claim can be saved by permitting an amendment * right to a fair trial under ECHR art 6 means some caution is required * but striking out is not inherently contrary to art 6 * whether the claim is genuine and serious * Note: *Jones v Kaney* has gone to the Supreme Court [2011] 2 AC 398, which abolished expert witness immunity (see **APA Civil para 3.63**)

Answer 54

**Abuse of Process** **CPR, r. 3.4(2)(b)** provides: * (2)* *The court may strike out a statement of case if it appears to the court –* * (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;* **PD 3A, para 1.5** provides: * A claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded.* * Attorney-General v Barker* [200] 1 FLR 759, Lord Bingham Abuse of process is "using that process for a purpose or in a way significantly different from its ordinary and proper use". * striking out for abuse needs to support the overriding objective * striking out a valid claim has to be the last option

Answer 55

(2) The court may strike out a statement of case if it appears to the court – (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;

Answer 56

**PD 3A, para 1.5** provides: *A claim may fall within rule 3.4(2)(b) where it is vexatious, scurrilous or obviously ill-founded.*

Answer 57

Attorney-General v Barker [200] 1 FLR 759, Lord Bingham Abuse of process is "using that process for a purpose or in a way significantly different from its ordinary and proper use". · striking out for abuse needs to support the overriding objective · striking out a valid claim has to be the last option

Answer 58

Examples A time-barred claim may be struck out as an abuse of process (but not as disclosing "no reasonable grounds" for bringing the claim). · bringing an individual claim when a group litigation order was in place · a claim that "could and should" have been brought in earlier litigation (Henderson v Henderson (1843) 3 Hare 100; WB 3.4.3.2). Henderson has been described as the most cited Victorian case. A broad merits-based approach is taken, taking into account all the circumstances of the case · a claim that is a collateral attack on a previous decision (Hunter v Chief Constable of the West Midlands Police [1982] AC 529; WB 3.4.3.3)

Answer 59

Conditions as an alternative to striking out CPR r. 3.1(3) allows the court to make an order subject to conditions. CPR r. 3.1(5)-(6A) a particular condition is to require the party in breach to pay money into court as security for the value of the claim.

Answer 60

**Breach of Directions Timetable** PD 29, para 7.1 *Where a party fails to comply with a direction given by the court any other party may apply for an order that he must do so or for a sanction to be imposed or both of these.* PD 29, para 7.2 *The party entitled to apply for such an order must do so without delay but should first warn the other party of his intention to do so.*

Answer 61

**Jackson Approach to Non-compliance** *Fred Perry v Brands Plaza Trading* [2012] EWCA Civ 224 Lewison LJ: “... Courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed.”

Answer 62

Range of sanctions, including staying proceedings until prescribed steps are taken, and costs and interest penalties

Answer 63

No extension = claim defeated

Answer 64

No automatic sanction, but claimant able to enter default judgment

Answer 65

Statement of case struck out

Answer 66

Court may: (a) order directions; (b) strike out the claim; (c) strike out the defence; or (d) list for a CMC.

Answer 67

Limit costs to court fees

Answer 68

Normally a wasted costs order

Answer 69

Cannot rely on the documents unless the court gives permission

Answer 70

Witness may not be called to give oral evidence unless the court gives permission

Answer 71

Report may not be used or expert may not be called unless the court gives permission

Answer 72

Automatically struck out

Answer 73

Includes: (a) depriving of right to raise or contest issue or to rely on evidence (b) disallowing costs (c) refusing adjournment

Answer 74

Proceed in absence of the party, or strike out

Answer 75

May strike out proceedings

Answer 76

Taken into account in deciding what order to make about costs

Answer 77

*Chartwell Estate Agents Ltd v Fergies Properties SA* [2014] EWCA Civ 506, Davis LJ at [24] There can be no available argument that the sanction prescribed by the CPR is of itself unjust or disproportionate.

Answer 78

Unless Orders A party in breach of directions will often be required to take the necessary steps, with an “unless order” providing for striking out or some other suitable sanction if a time limit is not met. Unless orders must specify an exact deadline for compliance, and a precise sanction for non-compliance eg “Unless the Defendant serves on the Claimant witness statements from the witnesses of fact he intends to call at the trial of this claim by 4pm on Friday 30 January 2016, the Defendant shall be debarred from calling any witnesses at the trial.”

Answer 79

The implied sanctions doctrine probably applies to: (a) applications to appeal out of time (or to file a respondent's notice out of time) and (b) setting aside default judgments (possibly).

Answer 80

**Striking out for Non-compliance** CPR, r. 3.4(2)(c) provides: * (2)* *The court may strike out a statement of case if it appears to the court –* * (c)* *that there has been a failure to comply with a rule, practice direction or court order.*

Answer 81

1. Other side have broken a rule that has no prescribed sanction. 2. Where the CPR / PDs impose a specific sanction for breach. 3. Where a party cannot comply in time, but issues an application to extend time for compliance before the deadline. 4. A party breaches an "unless order". 5. No express sanction in either the CPR or any unless order, but the defaulting party fails to take a step which they have to take if they are to continue.

Answer 82

Other side have broken a rule that has no prescribed sanction. WB 3.4.1 says striking out in this situation "would seem unduly harsh" unless the defaulting party was warned in advance. Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607, also WB 3.4.1 says: · the Denton principles also have a direct bearing · but in this situation the court must take into account the proportionality of the strike out sanction · whereas in situation (4) below the court has to proceed on the basis the sanction has been properly imposed

Answer 83

Where the CPR / PDs impose a specific sanction for breach. On breach, the sanction takes effect. The sanction is presumed to be proportionate. The defaulting party may apply for relief from the sanction under CPR, r. 3.9

Answer 84

Where a party cannot comply in time, but issues an application to extend time for compliance before the deadline. It does not matter if the application is not heard before the deadline (CPR, r. 23.5). Time applications are made under r. 3.1(23)(a), which does not impose any restrictions on the court. These applications are therefore decided applying the overriding objective, and considering all the circumstances of the case.

Answer 85

A party breaches an "unless order". The sanction immediately takes effect; the sanction is deemed to be proportionate; defaulting party may apply for relief from the sanction under r. 3.9. Result is the same as (2) above).

Answer 86

No express sanction in either the CPR or any unless order, but the defaulting party fails to take a step which they have to take if they are to continue. Examples are allowing a default judgment to be entered, or failing to appeal in time. The implied sanctions doctrine applies. The principles governing relief from sanctions under r. 3.9 are applied by analogy on the application to set aside the default judgment or to extend time for appealing.

Answer 87

**Alternatives** (a) Striking out the entire claim or defence; (b) Striking out part of the claim or defence; (c) Debarring from calling witnesses; (d) Increasing the rate of interest (if the default comprises non-compliance with a Pre-action Protocol); (e) Paying all or some of the other party’s costs of the proceedings; (f) Paying the costs of and occasioned by the application in which the default is considered; (g) Costs on the indemnity basis. * Biguzzi v Rank Leisure plc* [1999] 1 WLR 1926 The court is seeking to both: * Punish, in a proportionate manner, the past breach * Encourage the future compliance with its directions / requirements of the CPR

Answer 88

UCB Corporate Services Ltd v Halifax Ltd [1999] CPLR 691 Total disregard of court orders amounting to an abuse of process: immediate striking out

Answer 89

**Irregularities** CPR, r. 3.10 provides: *Where there has been an error of procedure such as a failure to comply with a rule or practice direction –* 1. *The error does not invalidate any step taken in the proceedings unless the court so orders; and* 2. *The court may make an order to remedy the error.*

Answer 90

*Integral Petroleum SA v SCU-Finanz* [2014] EWHC 702 (Comm) **WB 3.9.5** Serving PoC by email was a failure of procedure which by r. 3.10 meant service was **not invalid**. Entry of default judgment under Part 12 was effective despite the error.

Answer 91

**Extension of Time** CPR, r. 3.1(2)(a) provides: * Except where these Rules provide otherwise, the court may –* * (a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)*

Answer 92

Seeking to extend time before breach (situation (3)) *Hallam Estates Ltd v Baker* [2014] EWCA Civ 661 * Completely different from seeking relief from sanctions (see below). * Court generally grants more time, unless there is prejudice to the other side. * Main questions are whether the request for more time is reasonable; and whether an extension will imperil a hearing date for the trial. * Application is on-time if the application notice is issued before time expires.

Answer 93

**Consent to extend time** Consent can normally only be given if there is no “unless” order If there is an “unless” order, subject to r. 3.8(4), an extension cannot be granted by agreement between the parties (r. 3.8(3)) CPR, r. 3.8(4): *In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.*

Answer 94

From this, such an agreed extension under CPR, r. 3.8(4): * must be in writing * must be before the original deadline expires ("prior") * no more than 28 days * must not put any hearing date at risk * Court may order otherwise (preventing the parties consenting to extend time)

Answer 95

**Applications to Vary or Revoke** CPR, r. 3.1(7) provides: *A power of the court under these Rules to make an order includes a power to vary or revoke the order.*

Answer 96

**Applications to Vary or Revoke** *Tibbles v SIG plc* [2012] 1 WLR 2591 Considerations of finality, the undesirability of allowing litigants two bites at the cherry, and the need to avoid undermining the appeal process, mean the apparently open discretion under r. 3.1(7) is in fact normally restricted to cases: 1. Where there has been a material change of circumstances since the original order was made; 2. Where the facts on which the original order was made were misstated; or 3. Where there has been a manifest mistake by the judge in formulating the order.

Answer 97

Breach of order imposing a sanction (situation (4)) CPR, r. 3.8(1). Where a party fails to comply with a rule, court order etc, any sanction “has effect unless the party in default applies for and obtains relief from the sanction.” CPR, r. 3.5. This applies where the court makes an order which includes a term that a statement of case shall be struck out if the party fails to comply (r. 3.5(1)). In such a case the innocent party “may obtain judgment with costs by filing a request.”

Answer 98

Where a rule, practice direction or order uses the terms: * “shall be struck out or dismissed”; or * “will be struck out or dismissed”, these terms mean that the striking out or dismissal takes effect automatically, and no further order from the court is necessary (PD 3A, para 1.9).

Answer 99

*Marcan Shipping (London) Ltd v Kefelas* [2007] 1 WLR 1864 In cases where an application has to be made for entry of judgment after a sanction takes effect, the court is restricted to considering the order that ought to be made to give effect to the fact the case has already been struck out etc.

Answer 100

**Avoiding the consequences of sanctions** **Technical Note** There are two procedures: 1. Where judgment has been entered under r. 3.5, the defaulting party can apply to set aside the judgment under r. 3.6. This should be applied for within 14 days of being served with the judgment (r. 3.6(2)) 2. Where the sanction takes effect under r. 3.8, the defaulting party may, pursuant to r. 3.8(1), apply for relief from the sanction. Both types of application are dealt with applying the principles in r. 3.9: Under (a) by virtue of r. 3.6(4); and Under (b) by virtue of rr. 3.8 and 3.9.

Answer 101

Relief from sanctions CPR r. 3.9 provides: (1) 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.** (2) An application for relief must be supported by evidence.

Answer 102

*Mitchell v News Group Newspapers Ltd* [2013] EWCA Civ 1537 Intended to send out a "clear message" to the profession that a lax approach to compliance with time limits would no longer be tolerated. It said that relief from sanctions was unlikely to be granted unless either: (a) the breach is trivial and the application for relief is made promptly; or (b) there is a good reason for the non-compliance, the burden being on the defaulting party to persuade the court to grant relief.

Answer 103

*Denton v TH White Ltd* [2014] EWCA Civ 906 Said *Mitchell* had been widely misunderstood and misapplied. In place of the triviality and good reasons principles, the Court of Appeal at [24] said a judge should approach an application for relief from sanctions in three stages: (a) 'The first stage is to identify and assess the seriousness and significance of the "failure to comply with any rule, practice direction or court order" which engages CPR r. 3.9(1). (b) The second stage is to consider why the default occurred. (c) The third stage is to evaluate "all the circumstances of the case, so as to enable [the court] to deal justly with the application including [the factors in r. 3.9(1)(a) and (b)]"'. If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. It is possible that despite adverse findings at stages 1 and 2, that relief from sanctions may be granted when considering all the circumstances at stage 3.

Answer 104

**1. Serious or significant breach** * the key question is whether the breach imperils future hearing dates or otherwise disrupts the conduct of the litigation * also relevant is the effect of the breach on other court users * previous breaches are not relevant at stage 1 (they are at stage 3) * failures of form rather than substance are not serious * cases where a deadline has been narrowly missed * non-payment of court fees is always serious

Answer 105

**2. Reasons** Good reasons are most likely to arise from circumstances outside the control of the party in default. Bad reasons include overlooking a deadline and failing to meet a deadline through other pressures of work.

Answer 106

**3. All the circumstances** The factors in r. 3.9(1)(a) and (b) need to be considered in every case, and must be given particular importance when compared with such other factors as might be present (see [32]). Other factors are: * whether relief from sanctions was applied for promptly * defaulting party's history of non-compliance * whether the sanction is proportionate (the CA is inconsistent on this) * the more serious or significant the breach, the less likely relief will be granted

Answer 107

**Merits of the Claim and Relief from Sanctions** Generally, the underlying merits of the substantive claim are irrelevant on an application under r. 3.9 for relief from sanctions: *Global Torch Ltd v Apex Global Management Ltd (No 2)* [2014] 1 WLR 4495 However, Lord Neuberger PSC suggested that it is arguable that there is a possible exception where the "innocent" party's case has no real prospect of success, the test for summary judgment (at [29]).

Answer 108

**Tactical advantage** Where a court finds that a party has attempted to take tactical advantage of a default which is neither serious nor significant, or if there is a good reason for the default, or where it is obvious that relief will be granted, the court may impose 'heavy costs sanctions' (*Denton v TH White Ltd* [2014] EWCA Civ 906 at [43]). These might include: * indemnity basis costs * taking the misconduct into account in the final costs order under r. 44.11, and * freeing the winning party from the operation of r. 3.18 in relation to costs budgets.

Answer 109

If the limitation period has expired, then the defendant has a complete defence to the claim.

Answer 110

It is for the defendant to plead the defence of limitation as the courts will not take the point against the claimant.

Answer 111

Once the defendant has raised the defence of limitation, the burden is on the claimant to prove that time has not expired.

Answer 112

Simple contract Accrual of cause of action (the date of breach of contract). Six years. Section 5

Answer 113

personal injury; actions under the Consumer Protection Act 1987; latent damage; defamation

Answer 114

3 years from... Later of: Accrual of cause of action. Date of knowledge of the person injured. (The definition of "date of knowledge" for the purposes of sections 11 and12 can be found in section 14 of the Limitation Act.) The court has discretion to exclude this time limit if it would be equitable to do so (section 33, Limitation Act).

Answer 115

Defamation ormalicious falsehood Accrual of cause of action. One year. The court has discretion to exclude this time limit if it would be equitable to do so (section 32A, Limitation Act).

Answer 116

Six years. The time that the payee's right of action first arose. Time does not run from the date when the payee acquired the right of action (Whitehead v Walker (1842) 152 ER 214). No right of action can accrue until the instrument has been delivered (section 21(1), Bills of Exchange Act 1882). For on demand notes, the limitation period may run from the date of the instrument itself or its delivery, not the time when demand is made (section 10(1), Bills of Exchange Act 1882 and Megginson v Harper (1834) 149 ER 784).

Answer 117

The date of written demand for repayment. Six years.

Answer 118

Action to recover a sum recoverable by virtue of any statute Accrual of cause of action. Six years.

Answer 119

The date of judgment (the date on which quantum is determined) or settlement (the date on which the amount of compensation is agreed). Two years.

Answer 120

Later of: Accrual of cause of action (the date the damage is suffered). Date of knowledge of the claimant. Three years. Overriding time limit: ten years from the date on which the defective product was supplied by someone to whom section 2(2) of theConsumer Protection Act 1987 applies.

Answer 121

Later of: (a) accrual of cause of action (the date when the damage occurred), or (b) starting date (the date on which the claimant first had both the knowledge required for bringing the action and the right to bring such an action). (a) Six years. (b) Three years. Overriding time limit: 15 years from the date on which the negligent act or omission occurred (section 14B, Limitation Act).

Answer 122

* (1)An action for damages for negligence, other than one to which section 11 of this Act applies, shall not be brought after the **_expiration of fifteen years from the date_** (or, if more than one, from the last of the dates) **_on which there occurred any act or omission_**— * (a) which is alleged to constitute negligence; and * (b) to which the damage in respect of which damages are claimed is alleged to be attributable (in whole or in part). * (2)This section bars the right of action in a case to which subsection (1) above applies notwithstanding that— * (a)the cause of action has not yet accrued; or * (b)where section 14A of this Act applies to the action, the date which is for the purposes of that section the starting date for reckoning the period mentioned in subsection (4)(b) of that section has not yet occurred; * before the end of the period of limitation prescribed by this section.]

Answer 123

Postponement of limitation period in the case of fraud See Practice note, Limitation periods: an overview: Fraud. Time will start to run when the claimant discovers the fraud, or when he could, with reasonable diligence, have discovered it. N/A

Answer 124

28 Extension of limitation period in case of disability. (1) Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at **_any time before the expiration of six years from the date when he ceased to be under a disability or died_** (whichever first occurred) notwithstanding that the period of limitation has expired. (2) This section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims. (3) When a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under a disability, no further extension of time shall be allowed by reason of the disability of the second person. (4) No action to recover land or money charged on land shall be brought by virtue of this section by any person after the expiration of thirty years from the date on which the right of action accrued to that person or some person through whom he claims.

Answer 125

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which— (a) the provisions of section 11 [F45or 11A] or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

Civ Lit LGS05 Pleading Limitation Flashcards

(158 cards)