Civ Lit LGS05 Pleading Limitation Flashcards Preview

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Flashcards in Civ Lit LGS05 Pleading Limitation Deck (158):
1

What is a statement of case?

6. Statements of case

These are:

  • Claim form                                                                                          See LGS 1
  • Particulars of Claim
  • Defence
  • Defence and Counterclaim
  • Reply
  • Reply and Defence to Counterclaim
  • “Rejoinder” and subsequent pleadings
  • Part 8 claim form
  • Judicial review claim form
  • Additional claim form (third party proceedings) under Part 20          See LGS 7
  • Pleadings in third party and fourth party claims etc (see PD 20, para 7.10. Examples are given include a Defendant's Additional Claim Against a Third Party; and a Third Party's Defence to Defendant's Counterclaim)
  • Answers to Requests for Further Information

Note: a Request for Further Information does not have a statement of truth (it is just a list of questions).  The Answer to a Request must have a statement of truth.  It in fact has to be read with the relevant pleading, and will appear after that pleading in any trial bundle.

2

purpose of a party’s pleadings

Conticorp SA v The Central Bank of Ecuador [2007] UKPC 40

The ultimate purpose of a party’s pleadings is to inform the other party of the case against him.

3

Drafting statements of case - key rule 

Drafting statements of case

This is covered in the Drafting Course

Key rule is CPR, r. 16.4(1)(a):

Particulars of Claim must include ... a concise statement of the facts on which the claimant relies.

4

rules of drafting

Most of the other rules of drafting flow from this principle:

·         Plead facts

·         Don't plead evidence

·         Don't plead law

·         Must set out all the elements of the cause of action or defence

·         Must set out all material particulars

·         Enable the other side to understand the case they will have to meet

·         Inform the court about all the material facts

·         Sets out the case concisely

·         And precisely

5

What exceptions exist to the rule against pleading law and evidence?

Bullet points 2 and 3 above are subject to apparent exceptions:-

·         A party may give the name of any witness he proposes to call (PD 16, para 13.3(2)). This is limited to the name of the witness: not reciting their evidence

·         A party may refer in his statement of case to any point of law on which his claim or defence is based (PD 16, para 13.3(1)). This is limited to identifying the point. It does not permit arguing the point.

6

Statements of case - statements of truth

Statements of Truth

All statements of case have to be verified by a statement of truth.               r. 22.1(1)

A statement of case without a statement of truth remains effective unless struck out (r. 22.2(1)(a); (2)).

7

The following, which are not statements of case, also have statements of truth:

The following, which are not statements of case, also have statements of truth:

  • Witness statements
  • Experts’ reports
  • Application notices
  • Certificates of service
  • Disclosure reports
  • Electronic documents questionnaires
  • Costs budgets

8

Signing a false statement of truth

Signing a false statement of truth is potentially a contempt of court (CPR, r. 81.18)

9

Structure of Particulars of Claim

Structure of Particulars of Claim

See Drafting Manual. Basically, each different type of case will have its own structure, based on the essential elements of the case of action. Basic structure for most PoC is:-

  • Heading
  • Parties and their relationships
  • Facts
  • Elements of the cause of action
  • Breach
  • Loss and damage / equitable remedies
  • Interest
  • Prayer
  • Statement of Truth

10

What headings of Specific Requirements for PoC do you have to know?

Interest (CPR r. 16.4(1)(b) and (2), see LGS 9):

Damages (CPR r. 16.4(1)(c) and (d)). PoC must specifically include any claim for:

Personal injuries claims (PD 16, para 4.1 to 4.3). PoC must include:

Contract claims (PD 16, para 7.3 to 7.5). PoC must include:

Injunction claims (PD 16, para 7.1). PoC must include:

Claims for possession of goods (PD 16, para 7.2). PoC must include:

11

PoC must specifically include any claim for ... Damages:

Damages (CPR r. 16.4(1)(c) and (d)). PoC must specifically include any claim for:

  • aggravated damages
  • exemplary damages
  • provisional damages (and include by PD 16, para 4.4)

- provisional damages are claimed under SCA 1981, s 32A or CCA 1984 s 51

- that there is a chance that at some future time C will develop some serious disease or suffer some serious deterioration

- specify the disease or type of deterioration

12

Personal injuries claims... PoC must include:

Personal injuries claims (PD 16, para 4.1 to 4.3). PoC must include:

  • C's date of birth
  • Brief details of C's injuries
  • Attach a schedule of past and future expenses and losses
  • Attach or serve a medical report about his injuries
  • Clinical negligence claims must have "clinical negligence" at the top of every statement of case (PD 16, para 9.3)

13

Contract claims... PoC must include:

Contract claims (PD 16, para 7.3 to 7.5). PoC must include:

  • if based on a written agreement, a copy of the contract or the documents constituting the agreement should be attached or served with the PoC
  • any general conditions of sale incorporated into the contract should also be attached
  • if based on conduct, specify the conduct, by whom, when and where
  • if based on an oral agreement, set out

- the contractual words used

- by whom

- to whom

- when

- where

  • if contract is in foreign currency, the sterling equivalent and source of the exchange rate (PD 16, para 9.1)

14

Injunction claims... PoC must include:

Injunction claims (PD 16, para 7.1). PoC must include:

  • whether the injunction relates to residential premises
  • identify the land (by reference to a plan where necessary)

15

Claims for possession of goods...  PoC must include:

Claims for possession of goods (PD 16, para 7.2). PoC must include:

  • a statement of the value of the goods

16

well drafted PoC include fact specific...

Particulars

As a matter of practice, well drafted PoC include fact specific:

  • Particulars of negligence / breach of statutory duty / breach of contract
  • Particulars of loss and damage

17

where the claimant has been given the opportunity to provide those particulars and fails to do so

S v Chapman LTL 20/5/2008, CA

While the court will be slow to strike out for failing to give sufficient particulars of negligence, where the claimant has been given the opportunity to provide those particulars and fails to do so, striking out may be appropriate.

18

There are specific requirements (in PD 16, para 8.2) to provide Particulars in any statement of case (not just PoC) of:-

There are specific requirements (in PD 16, para 8.2) to provide Particulars in any statement of case (not just PoC) of:-

(1) fraud

(2) illegality

(3) misrepresentation

(4) breach of trust

(5) notice or knowledge of any fact

(6) unsoundness of mind or undue influence

(7) wilful default

(8) mitigation of loss

19

Can a judge read anyting into a statement of case

Lawrence v Poorah [2008] UKPC 21, LTL 9/4/2008

While a court should give a fair reading to a pleading, it was not open to the court to read allegations of undue influence or unconscionable bargain into an imprecisely drawn statement of case. There are limits on the degree to which a judge can intervene, even with the scope of the active case management powers granted by CPR, Part 1, in defining a case for a party.  Ultimately, the judge must remain scrupulously impartial.

20

Convictions under CEA 1968, s. 11

Convictions under CEA 1968, s. 11

PD 16, para 8.1:

A claimant who wishes to rely on evidence:

(1) under section 11 of the Civil Evidence Act 1968 of a conviction of an offence, or

(2) under section 12 of the above-mentioned Act of a finding or adjudication of adultery or paternity,

 

must include in his particulars of claim a statement to that effect and give the following details:

(1) the type of conviction, finding or adjudication and its date,

(2) the court or Court-Martial which made the conviction, finding or adjudication, and

(3) the issue in the claim to which it relates.

21

In his defence, the defendant must state ...

Defences

See CPR, r. 16.5:

(1) In his defence, the defendant must state –

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and

(c) which allegations he admits.

22

Where the defendant denies an allegation ...

Defences

See CPR, r. 16.5:

...

 

(2) Where the defendant denies an allegation –

(a) he must state his reasons for doing so; and

(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.

23

A defendant who fails to deal with an allegation  but has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant...

(3) A defendant who –

(a) fails to deal with an allegation; but

(b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,

shall be taken to require that allegation to be proved.

24

Where the claim includes a money claim, a defendant shall be taken to require that...

(4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

25

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

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

26

If the defendant disputes the claimant’s statement of value under rule 16.3 he must...

(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.

27

If the defendant is defending in a representative capacity...

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

28

If the defendant has not filed an acknowledgment of service under Part 10...

 

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

29

Ciccone v Associated Newspapers Ltd [2009] EWHC 1108 (Ch)

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.

30

Responding to Particulars of Breach etc

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.

31

Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:

(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.

32

Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should ...

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.

33

Specific Requirements for Defences - Limitation

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

34

Defence of tender

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.

35

Defence of set-off

Set-off

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.

36

Counterclaim against the Claimant

Counterclaim against the Claimant

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.

37

CPR r. 20.3(1) provides that an additional claim under Part 20 shall be treated for the purposes of the CPR as if it were a claim, "except as provided by this Part". Regarding counterclaims, this means

  • 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))

38

Defence and Counterclaim PD 20, para 6.1

Defence and Counterclaim

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.

39

Counterclaim against someone other than the Claimant

Counterclaim against someone other than the Claimant

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.

40

Defence to Counterclaim

Defence to Counterclaim

Required by virtue of CPR r. 20.3(1).

41

Replying to defence - Claimant...

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.

 

42

A claimant who files a reply to a defence; but fails to deal with a matter raised in the defence, shall be

(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.

43

Reply and Defence to Counterclaim

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.

44

Statements of case - Contradictory/inconsistent allegations

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.

45

Statements of case responding to a Reply and subsequent pleadings are:

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.

46

  • Rejoinder
  • Surrejoinder
  • Rebutter

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.

47

10.  Further Information

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.

48

Request for Further Information

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.

49

Further niformation - The court may at any time order a party to ...

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.

50

Format of a request for further information

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))

51

Format of request for further information

 

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)

52

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...

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.

53

An application notice for an order under Part 18 should set out or have attached to it...

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.

54

If a Request under paragraph 1 for the information or clarification has not been made, the application notice should...

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.

55

If a Request for clarification or information has been made, the application notice or the evidence in support should

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.

56

Both the first party and the second party should consider...

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.

57

Where the second party has made no response to a Request served on him, the first party need .................. and the court may ....................

Sub-paragraph (1) above only applies if......

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.

 

58

What must be done unless 5.5 of PD 18 applies?

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.

 

59

PD 18 para 5.8 costs

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.

60

cpr 18.2 Collateral use

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

61

What does striking out mean?

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

62

CPR, r. 3.4(1), (2) [striking out]

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.

63

Procedure for striking out

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)

64

No reasonable grounds for claim or defence            

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.

65

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):

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.

66

English, Welsh and Scottish Railway Ltd v Goodman LTL 9/5/2007

 

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.

67

Dunn v Glass Systems (UK) Ltd LTL 23/7/2007

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.

68

PD 3A, para 1.6 provides: A defence may fall within rule 3.4(2)(a) where:

 

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.

69

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... The judge may ....

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.

70

PD3A

2.3 The judge may .... before deciding whether to make such an order [in para 2.1].

PD3A

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

71

2.4 Orders the judge may make under rule 3.4  include:
 

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.

72

3.1 A court officer may similarly consult a judge about [??????????????] filed which purports to be a defence and which he believes may fall within rule 3.4(2)(a) or (b).

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).

73

Pd 3a - If the judge decides that the document falls within rule 3.4(2)(a) or (b) he may ........ Where he does so he may ........

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.

74

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

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

75

pd 3a

3.4 Alternatively the judge may ...

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.

76

pd 3a

3.5 The fact that a judge does not strike out a defence on his own initiative does not ...

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.

77

WB para 3.4.2 gives the following examples:

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)

78

Abuse of Process   

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

79

CPR, r. 3.4(2)(b) provides (abuse of process)

(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;

80

PD 3A, para 1.5 provides (abuse of process):

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.

 

81

Attorney-General v Barker [200] 1 FLR 759, Lord Bingham (abuse of process)

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

82

Examples of abuse of process

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)

83

Conditions as an alternative to striking out

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.

84

Breach of Directions Timetable

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.

85

Jackson Approach to Non-compliance

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.”

86

What is the sanction imposed in respect of breaches relating to     Pre-action protocols

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

87

What is the sanction imposed in respect of breaches relating to    Serving a claim form

No extension = claim defeated

88

What is the sanction imposed in respect of breaches relating to    Serving the particulars of claim

None

89

What is the sanction imposed in respect of breaches relating to  the requirement to  Acknowledge service / serve defence

No automatic sanction, but claimant able to enter default judgment

90

What is the sanction imposed in respect of breaches relating to   the requirement to Further information

None

91

What is the sanction imposed in respect of breaches relating to    Directions questionnaires County Court money claims?

Statement of case struck out

92

What is the sanction imposed in respect of breaches relating to    Directions questionnaires High Court specified money claims against individuals?

Court may:

(a) order directions;

(b) strike out the claim;

(c) strike out the defence; or

(d) list for a CMC.

93

What is the sanction imposed in respect of breaches relating to    Directions questionnaires cases other than High Court specified money claims against individuals

none

94

What is the sanction imposed in respect of breaches relating to    Disclosure reports

none

95

What is the sanction imposed in respect of breaches relating to    Costs budgets

Limit costs to court fees

96

What is the sanction imposed in respect of breaches relating to    Inadequate attendance at CMC

Normally a wasted costs order

97

What is the sanction imposed in respect of breaches relating to    Disclosure of documents relied upon

Cannot rely on the documents unless the court gives permission

98

What is the sanction imposed in respect of breaches relating to    Disclosure of documents helpful to other parties

none

99

What is the sanction imposed in respect of breaches relating to    Witness statements

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

100

What is the sanction imposed in respect of breaches relating to    Experts' reports

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

101

What is the sanction imposed in respect of breaches relating to    Short notice of interim application

None

102

What is the sanction imposed in respect of breaches relating to    Non-payment of hearing fees

Automatically struck out

103

What is the sanction imposed in respect of breaches relating to    Failing to lodge trial bundles

none

104

What is the sanction imposed in respect of breaches relating to    Not ready for trial

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

105

What is the sanction imposed in respect of breaches relating to    Non-attendance of one party at trial

Proceed in absence of the party, or strike out

106

What is the sanction imposed in respect of breaches relating to    Non-attendance of all parties at trial

May strike out proceedings

107

What is the sanction imposed in respect of breaches relating to    Appeal out of time

None

108

What is the sanction imposed in respect of breaches relating to    Schedule of costs for summary assessment

Taken into account in deciding what order to make about costs

109

Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506, Davis LJ at [24]

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.

110

A party in breach of directions ... unless order 

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.”
 

111

The implied sanctions doctrine probably applies to:

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).

112

Striking out for Non-compliance

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.

113

Which 5 distinct situations should you distinguish

  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.

114

Other side have broken a rule that has no prescribed sanction.

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

115

Where the CPR / PDs impose a specific sanction for breach

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

116

Where a party cannot comply in time, but issues an application to extend time for compliance before the deadline

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.

117

A party breaches an "unless order". what happens

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).

118

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... what happens

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.

119

Alternatives to sanctions

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

 

120

Total disregard of court orders

UCB Corporate Services Ltd v Halifax Ltd [1999] CPLR 691      

Total disregard of court orders amounting to an abuse of process:  immediate striking out

121

Irregularities

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.

122

Serving PoC by email

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.

123

Extension of Time

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)

124

Seeking to extend time before breach 

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.

125

Consent to extend time

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.

126

an agreed extension under CPR, r. 3.8(4) must

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)

127

Applications to Vary or Revoke

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.

128

Tibbles v SIG plc [2012] 1 WLR 2591

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.

129

Breach of order imposing a sanction       

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.”

130

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...

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).

131

In cases where an application has to be made for entry of judgment after a sanction takes effect, the court is...

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.

132

Avoiding the consequences of sanctions

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.

133

Relief from sanctions CPR r. 3.9 provides:

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.

134

Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537

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.

135

Denton v TH White Ltd [2014] EWCA Civ 906

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.

136

1. Serious or significant breach (denton)

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

137

2. Reasons (Denton)

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.

138

3. All the circumstances (Denton)

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

139

Merits of the Claim and Relief from Sanctions

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]).

140

Tactical advantage

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.

141

 If the limitation period has expired, then what?

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

142

It is for who plead the defence of limitation ?

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

143

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

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

144

For Simple contract, what is the 

Starting point

Length of period

Relevant section of Limitation Act

Simple contract

Accrual of cause of action (the date of breach of contract).

Six years.

Section 5

145

Six years from accrual of cause of action (the date the damage is suffered) is the limitatino for tort actions other than...

personal injury;

actions under the Consumer Protection Act 1987;

latent damage;

defamation

146

What is the limitation period for  Personal injuryor death?

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).

147

What is the limitatino for  Defamation ormalicious falsehood

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).

148

What is the limitatino period in respect of an Action brought against a partyin relation to a promissory note (or bill of exchange)

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).

 

149

Limitation period for Informal loan contracts (loan agreements which do not provide a fixed date for repayment and which do not effectively provide for repayment on demand)

The date of written demand for repayment.

Six years.

150

Limitation period for 

Action to recover a sum recoverable by virtue of any statute

Action to recover a sum recoverable by virtue of any statute

Accrual of cause of action.

Six years.

151

Limitation period for Action for contribution

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.

152

Limitation period for Action under the Consumer Protection Act 1987

 

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.

153

Limitation period for Latent damageother than personal injury (in the tort of negligence)

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).

154

  • 14BOverriding time limit for negligence actions not involving personal injuries.

  • (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.]

155

Postponement of limitation period in the case of fraud

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

156

Extension of limitation period in case of disability.

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.

157

33Discretionary exclusion of time limit for actions in respect of personal injuries or death.

(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.

158