LG 9 Flashcards Preview

Civsy > LG 9 > Flashcards

Flashcards in LG 9 Deck (78):
1

A. Interest between Accrual and Judgment

Senior Courts Act 1981, s 35A


35A Power of High Court to award interest on debts and damages
(1) Subject to rules of court, in proceedings (whenever instituted) before the High Court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and—
(a) in the case of any sum paid before judgment, the date of the payment; and
(b) in the case of the sum for which judgment is given, the date of the judgment.
(2) In relation to a judgment given for damages for personal injuries or death which exceed £200 subsection (1) shall have effect—
(a) with the substitution of “shall be included” for “may be included”; and
(b) with the addition of “unless the court is satisfied that there are special reasons to the contrary” after “given”, where first occurring.
(3) Subject to rules of court, where—
(a) there are proceedings (whenever instituted) before the High Court for the recovery of a debt; and
(b) the defendant pays the whole debt to the plaintiff (otherwise than in pursuance of a judgment in the proceedings),
the defendant shall be liable to pay the plaintiff simple interest at such rate as the court thinks fit or as rules of court may provide on all or any part of the debt for all or any part of the period between the date when the cause of action arose and the date of the payment.
(4) Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs.
(5) Without prejudice to the generality of section 84, rules of court may provide for a rate of interest by reference to the rate specified in section 17 of the Judgments Act 1838 as that section has effect from time to time or by reference to a rate for which any other enactment provides.
(6) Interest under this section may be calculated at different rates in respect of different periods.
(7) In this section “plaintiff” means the person seeking the debt or damages and “defendant” means the person from whom the plaintiff seeks the debt or damages and “personal injuries” includes any disease and any impairment of a person’s physical or mental condition.
(8) Nothing in this section affects the damages recoverable for the dishonour of a bill of exchange.

2

County Courts Act 1984

69 Power to award interest on debts and damages

(1) Subject to rules of court, in proceedings (whenever instituted) before a county court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and—
(a) in the case of any sum paid before judgment, the date of the payment; and
(b) in the case of the sum for which judgment is given, the date of the judgment.
(2) In relation to a judgment given for damages for personal injuries or death which exceed £200 subsection (1) shall have effect—
(a) with the substitution of “shall be included” for “may be included”; and
(b) with the addition of “unless the court is satisfied that there are special reasons to the contrary” after “given”, where first occurring.
(3) Subject to rules of court, where—
(a) there are proceedings (whenever instituted) before a county court for the recovery of a debt; and
(b) the defendant pays the whole debt to the plaintiff (otherwise than in pursuance of a judgment in the proceedings),
the defendant shall be liable to pay the plaintiff simple interest, at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt for all or any part of the period between the date when the cause of action arose and the date of the payment.
(4) Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs.
(5) Interest under this section may be calculated at different rates in respect of different periods.
(6) In this section “plaintiff” means the person seeking the debt or damages and “defendant” means the person from whom the plaintiff seeks the debt or damages and “personal injuries” includes any disease and any impairment of a person’s physical or mental condition.
(7) Nothing in this section affects the damages recoverable for the dishonour of a bill of exchange.
(8) In determining whether the amount of any debt or damages exceeds that prescribed by or under any enactment, no account shall be taken of any interest payable by virtue of this section except where express provision to the contrary is made by or under that or any other enactment.

3

CPR, r. 12.6
[Interest accrued before Judgment added to a Default Judgment]

12.6 Interest
(1) A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if –
(a) the particulars of claim include the details required by rule 16.4;
(b) where interest is claimed under section 35A of the Supreme Court Act 1981 or section 69 of the County Courts Act 1984, the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
(c) the claimant’s request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated in the claim form to the date of the request for judgment.
(2) In any case where paragraph (1) does not apply, judgment will be for an amount of interest to be decided by the court.

4

CPR, r. 16.4(2)
[Pleading Interest]

16.4(2) Contents of the Particulars of Claim

(2) If the claimant is seeking interest he must –
(a) state whether he is doing so –
(i) under the terms of a contract;
(ii) under an enactment and if so which; or
(iii) on some other basis and if so what that basis is; and
(b) if the claim is for a specified amount of money, state –
(i) the percentage rate at which interest is claimed;
(ii) the date from which it is claimed;
(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;
(iv) the total amount of interest claimed to the date of calculation; and
(v) the daily rate at which interest accrues after that date.

5

B. Interest on Judgment Debts

Judgments Act 1838

17 Judgment debts to carry interest
(1)] Every judgment debt shall carry interest at the rate of 8 pounds per centum per annum from such time as shall be prescribed by rules of court . . . until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.
(2)Rules of court may provide for the court to disallow all or part of any interest otherwise payable under subsection (1).

6

County Courts Act 1984

74 Interest on judgment debts etc.

(1) The Lord Chancellor may by order made with the concurrence of the Treasury provide that any sums to which this subsection applies shall carry interest at such rate and between such times as may be prescribed by the order.
(2) The sums to which subsection (1) applies are—
(a) sums payable under judgments or orders given or made in a county court, including sums payable by instalments; and
(b) sums which by virtue of any enactment are, if the county court so orders, recoverable as if payable under an order of that court, and in respect of which the county court has so ordered.
(3) The payment of interest due under subsection (1) shall be enforceable as a sum payable under the judgment or order.
(4) The power conferred by subsection (1) includes power—
(a) to specify the descriptions of judgment or order in respect of which interest shall be payable;
(b) to provide that interest shall be payable only on sums exceeding a specified amount;
(c) to make provision for the manner in which and the periods by reference to which the interest is to be calculated and paid;
(d) to provide that any enactment shall or shall not apply in relation to interest payable under subsection (1) or shall apply to it with such modifications as may be specified in the order; and
(e) to make such incidental or supplementary provisions as the Lord Chancellor considers appropriate.
(5) Without prejudice to the generality of subsection (4), an order under subsection (1) may provide that the rate of interest shall be the rate specified in section 17 of the Judgments Act 1838 as that enactment has effect from time to time.
(5A) The power conferred by subsection (1) includes power to make provision enabling a county court to order that the rate of interest applicable to a sum expressed in a currency other than sterling shall be such rate as the court thinks fit (instead of the rate otherwise applicable).
(6) The power to make an order under subsection (1) shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

7

CPR, r. 40.8
[Interest on Judgment Debts]

40.8 Time from which Interest begins to Run

(1) Where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838 or section 74 of the County Courts Act 1984, the interest shall begin to run from the date that judgment is given unless –
(a) a rule in another Part or a practice direction makes different provision; or
(b) the court orders otherwise.
(2) The court may order that interest shall begin to run from a date before the date that judgment is given.

8

C. Late Payment of Commercial Debts (Interest) Act 1998

Part I Statutory Interest on Qualifying Debts

1 Statutory interest

(1) It is an implied term in a contract to which this Act applies that any qualifying debt created by the contract carries simple interest subject to and in accordance with this Part.
(2) Interest carried under that implied term (in this Act referred to as “statutory interest”) shall be treated, for the purposes of any rule of law or enactment (other than this Act) relating to interest on debts, in the same way as interest carried under an express contract term.
(3) This Part has effect subject to Part II (which in certain circumstances permits contract terms to oust or vary the right to statutory interest that would otherwise be conferred by virtue of the term implied by subsection (1)).

9

2 Contracts to which Act applies

(1) This Act applies to a contract for the supply of goods or services where the purchaser and the supplier are each acting in the course of a business, other than an excepted contract.
(2) In this Act “contract for the supply of goods or services” means—
(a) a contract of sale of goods; or
(b) a contract (other than a contract of sale of goods) by which a person does any, or any combination, of the things mentioned in subsection (3) for a consideration that is (or includes) a money consideration.
(3) Those things are—
(a) transferring or agreeing to transfer to another the property in goods;
(b) bailing or agreeing to bail goods to another by way of hire or, in Scotland, hiring or agreeing to hire goods to another; and
(c) agreeing to carry out a service.
(4) For the avoidance of doubt a contract of service or apprenticeship is not a contract for the supply of goods or services.
(5) The following are excepted contracts—
(a) a consumer credit agreement; and
(b) a contract intended to operate by way of mortgage, pledge, charge or other security.
(6) (repealed)
(7) In this section—
“business” includes a profession and the activities of any government department or local or public authority;
“consumer credit agreement” has the same meaning as in the Consumer Credit Act 1974;
“contract of sale of goods” and “goods” have the same meaning as in the Sale of Goods Act 1979;
“government department” includes any part of the Scottish Administration;
“property in goods” means the general property in them and not merely a special property.

10

C. Late Payment of Commercial Debts (Interest) Act 1998

Part I Statutory Interest on Qualifying Debts

2A Application of the Act to Advocates
The provisions of this Act apply to a transaction in respect of which fees are paid for professional services to a member of the Faculty of Advocates as they apply to a contract for the supply of services for the purpose of this Act.

3 Qualifying debts
(1) A debt created by virtue of an obligation under a contract to which this Act applies to pay the whole or any part of the contract price is a “qualifying debt” for the purposes of this Act, unless (when created) the whole of the debt is prevented from carrying statutory interest by this section.
(2) A debt does not carry statutory interest if or to the extent that it consists of a sum to which a right to interest or to charge interest applies by virtue of any enactment (other than section 1 of this Act).
This subsection does not prevent a sum from carrying statutory interest by reason of the fact that a court, arbitrator or arbiter would, apart from this Act, have power to award interest on it.
(3) A debt does not carry (and shall be treated as never having carried) statutory interest if or to the extent that a right to demand interest on it, which exists by virtue of any rule of law, is exercised.

11

4 Period for which statutory interest runs

(1) Statutory interest runs in relation to a qualifying debt in accordance with this section (unless section 5 applies).
(2) Statutory interest starts to run on the day after the relevant day for the debt, at the rate prevailing under section 6 at the end of the relevant day.
(3) Where the supplier and the purchaser agree a date for payment of the debt (that is, the day on which the debt is to be created by the contract), that is the relevant day unless the debt relates to an obligation to make an advance payment.
A date so agreed may be a fixed one or may depend on the happening of an event or the failure of an event to happen.
(3A) If, in a case where the purchaser is a public authority, the relevant day under subsection (3) would (but for this subsection) be later than the day which would be the relevant day if subsection (5) applied, it is to be treated for the purposes of subsection (3) as being the day which would be the relevant day if subsection (5) applied.
(3B) If, in a case where the purchaser is not a public authority, the relevant day under subsection (3) would (but for this subsection) be more than 30 days after the day which would be the relevant day if subsection (5) applied, it is to be treated for the purposes of subsection (3) as being the day which is 30 days after the day which would be the relevant day if subsection (5) applied.
(3C) Subsection (3B) does not apply if–
(a) the supplier and the purchaser expressly agree in the contract a date for payment of the debt that is later than the day which would otherwise be the relevant day by virtue of that subsection, and
(b) that later date is not grossly unfair to the supplier (see subsection (7A)).
(4) Where the debt relates to an obligation to make an advance payment, the relevant day is the day on which the debt is treated by section 11 as having been created.
(5) In any other case, the relevant day is the last day of the period of 30 days beginning with—
(a) the day on which the obligation of the supplier to which the debt relates is performed;
(b) the day on which the purchaser has notice of the amount of the debt or (where that amount is unascertained) the sum which the supplier claims is the amount of the debt; or
(c) where subsection (5A) applies, the day determined under subsection (5B),
whichever is the later.
(5A) This subsection applies where–
(a) there is a procedure of acceptance or verification (whether provided for by an enactment or by the contract), under which the conforming of goods or services with the contract is ascertained, and
(b) the purchaser has notice of the amount of the debt on or before the day on which the procedure is completed.
(5B) For the purposes of subsection (5)(c), the day in question is the day after the day on which the procedure is completed.
(5C) Where, in a case where subsection (5A) applies, the procedure in question is completed after the end of the period of 30 days beginning with the day on which the obligation of the supplier to which the debt relates is performed, the procedure is to be treated for the purposes of subsection (5B) as being completed immediately after the end of that period.
(5D) Subsection (5C) does not apply if–
(a) the supplier and the purchaser expressly agree in the contract a period for completing the procedure in question that is longer than the period mentioned in that subsection, and
(b) that longer period is not grossly unfair to the supplier (see subsection (7A)).
(6) Where the debt is created by virtue of an obligation to pay a sum due in respect of a period of hire of goods, subsection (5)(a) has effect as if it referred to the last day of that period.
(7) Statutory interest ceases to run when the interest would cease to run if it were carried under an express contract term.
(7A) In determining for the purposes of subsection (3C) or (5D) whether something is grossly unfair, all circumstances of the case shall be considered; and for that purpose, the circumstances of the case include in particular–
(a) anything that is a gross deviation from good commercial practice and contrary to good faith and fair dealing,
(b) the nature of the goods or services in question, and
(c) whether the purchaser has any objective reason to deviate from the result which is provided for by subsection (3B) or (5C).
(8) In this section–
“advance payment” has the same meaning as in section 11;
"enactment" includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978);
"public authority" means a contracting authority (within the meaning of regulation 3 of the Public Contracts Regulations 2006).

12


Note 1
Technically only ss 1 to 4 are on the curriculum. However, ss 5A, 6 and 16, and the 2002 SI, are needed to understand the way the Late Payment of Commercial Debts (Interest) Act 1998 works.

5A Compensation arising out of late payment

(1) Once statutory interest begins to run in relation to a qualifying debt, the supplier shall be entitled to a fixed sum (in addition to the statutory interest on the debt).
(2) That sum shall be–
(a) for a debt less than £1000, the sum of £40;
(b) for a debt of £1000 or more, but less than £10,000, the sum of £70;
(c) for a debt of £10,000 or more, the sum of £100.
(2A) If the reasonable costs of the supplier in recovering the debt are not met by the fixed sum, the supplier shall also be entitled to a sum equivalent to the difference between the fixed sum and those costs.
(3) The obligation to pay a sum under this section in respect of a qualifying debt shall be treated as part of the term implied by section 1(1) in the contract creating the debt.
(4) Section 3(2)(b) of the Unfair Contract Terms Act 1977 (no reliance to be placed on certain contract terms) shall apply in cases where a contract term is not contained in written standard terms of the purchaser as well as in cases where the term is contained in such standard terms.
(5) In this section "contract term" means a term of the contract relating to a sum due to the supplier under this section.

13

6 Rate of statutory interest


6 Rate of statutory interest
(1) The Secretary of State shall by order made with the consent of the Treasury set the rate of statutory interest by prescribing—
(a) a formula for calculating the rate of statutory interest; or
(b) the rate of statutory interest.
(2) Before making such an order the Secretary of State shall, among other things, consider the extent to which it may be desirable to set the rate so as to—
(a) protect suppliers whose financial position makes them particularly vulnerable if their qualifying debts are paid late; and
(b) deter generally the late payment of qualifying debts.

Note 2
The Late Payment of Commercial Debts (Rate of Interest) (No. 3) Order 2002 (SI 2002/1675) sets the rate at 8% over the Bank of England's official dealing rate. Article 4 provides:

4. The rate of interest for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998 shall be 8 per cent per annum over the official dealing rate in force on the 30th June (in respect of interest which starts to run between 1st July and 31st December) or the 31st December (in respect of interest which starts to run between 1st January and 30th June) immediately before the day on which statutory interest starts to run.

14

16 Interpretation
(1) In this Act—

(1) In this Act—
“contract for the supply of goods or services” has the meaning given in section 2(2);
“contract price” means the price in a contract of sale of goods or the money consideration referred to in section 2(2)(b) in any other contract for the supply of goods or services;
“purchaser” means (subject to section 13(2)) the buyer in a contract of sale or the person who contracts with the supplier in any other contract for the supply of goods or services;
“qualifying debt” means a debt falling within section 3(1);
“statutory interest” means interest carried by virtue of the term implied by section 1(1); and
“supplier” means (subject to section 13(2)) the seller in a contract of sale of goods or the person who does one or more of the things mentioned in section 2(3) in any other contract for the supply of goods or services.
(2) In this Act any reference (however worded) to an agreement or to contract terms includes a reference to both express and implied terms (including terms established by a course of dealing or by such usage as binds the parties).


Note 3
The text of the Late Payment of Commercial Debts (Interest) Act 1998 incorporates changes made by the Late Payment of Commercial Debts (No. 2) Regulations 2013 (SI 2013/908). The amendments made in 2013 implement Directive 2011/7/EU of the European Parliament and of the Council on combating late payment in commercial transactions.

15

QUESTION 1 Consent Order
The trial of a claim for damages for personal injuries is listed to start in 10 days' time. Today you have been acting for the defendant in a counsel-to-counsel negotiation which has resulted in an agreement (which has been approved by both clients) that the defendant will pay the claimant the sum of £20,000 in damages and her standard basis costs to be agreed or if not agreed to be assessed by the court.
Advise your client on how the proceedings should be brought to a conclusion.

-

16

QUESTION 2 Drawing Up Judgment
Rutland Engineering Co Ltd has just obtained judgment in the High Court for damages for breach of contract in the sum of £120,000 against Sturdy Compressors plc. You represent Rutland Engineering Co Ltd at the trial. Rutland Engineering Co Ltd's costs have been summarily assessed in the sum of £54,292 inclusive of VAT. The judge indicated that the claimant should draw up the judgment.
(a) What needs to be done to draw up this judgment?
(b) When will the £120,000 be payable by the defendant?
(c) When will the costs be payable by the defendant?

-

17

QUESTION 3 Interest: Personal Injuries
At the trial of her claim for damages for personal injuries Judith Lewis (LGS 1) is awarded:
(a) damages for pain, suffering and loss of amenity in the sum of £6,000;
(b) damages for past loss of earnings in the sum of £20,000;
(c) damages for future losses amounting to £10,000.
You represent Judith at the trial. Set out your arguments on interest.

-

18

QUESTION 4 Interest: Contract
Rutland Engineering Co Ltd has just obtained judgment for the price of goods sold and delivered in the sum of £120,000 against Sturdy Compressors plc. You represent Rutland Engineering Co Ltd at the trial. Your claim for interest has been fully pleaded. Set out your arguments on interest.

-

19

QUESTION 5 Appeal Routes
After entry of judgment on liability, HHJ Scrooge assessed Thelma Garner’s damages at £17,000. Thelma had expected to recover around £140,000. Advise Thelma on her rights of appeal.

-

20

QUESTION 6 Appeal Routes and Permission Robert McLean has brought a claim against Joseph Murphy in the Queen’s Bench Division. Joseph applies to strike out Robert’s particulars of claim as disclosing no reasonable grounds for bringing the claim. Master Daniels grants the application and strikes out Robert’s claim. Advise Robert:
(a) on where an appeal should be taken;
(b) whether permission to appeal is required, and, if so, the test applied;
(c) any time limits; and
(d) the documents required.

-

21

QUESTION 7 Appeal Hearings
Consider the facts of Question 6.
(a) Is Robert allowed to introduce additional evidence on his appeal which was not adduced at the hearing before Master Daniels?
(b) What is the test applied by the appeal court in deciding whether to allow the appeal?

-

22

21 Judgments and Orders


Decisions of the court are recorded in a document bearing the seal of the court.

• Orders are generally interim decisions by the court
• Judgments are generally final decisions at trial

Nothing really turns on the distinction. Summary judgment has elements of both.

23

Drawing Up

LGS Workbook

QUESTION 2 Drawing Up Judgment

Rutland Engineering Co Ltd has just obtained judgment in the High Court for damages for breach of contract in the sum of £120,000 against Sturdy Compressors plc. You represent Rutland Engineering Co Ltd at the trial. Rutland Engineering Co Ltd's costs have been summarily assessed in the sum of £54,292 inclusive of VAT. The judge indicated that the claimant should draw up the judgment.

(a) What needs to be done to draw up this judgment?
(b) When will the £120,000 be payable by the defendant?
(c) When will the costs be payable by the defendant?

24

Responsibility for drawing up orders
CPR, r. 40.3(1):
Except as provided at para (4) below or by any practice direction, every judgment or order will be drawn up by the court unless-

(a) the court orders a party to draw it up;
(b) a party, with the permission of the court, agrees to draw it up;
(c) the court dispenses with the need to draw it up; or
(d) it is a consent order under r. 40.6.

25

There are 6 exceptions to the general rule that orders are drawn up by the court:

(1) QBD orders are generally drawn up by the parties (r. 40.3(4))
(2) Where provided by a Practice Direction (opening line r. 40.3(1))
(3) to (6) The four exceptions listed in r. 40.3(1) (a) to (d)

26


QBD orders in the Royal Courts of Justice (r. 40.3(4))
These will (= must) be drawn up by the parties, except for:

• orders made by the court of its own initiative
• where the court orders otherwise
• Administrative Court orders (= in judicial review cases)

27


Practice Directions about judgments and orders

PD 40B is the general PD about judgments and orders. Read paras 4 and 8.

28

Formalities in Drawing Up Orders
CPR, r. 40.2 provides:
(1) Every judgment or order must state the name and judicial title of the person who made it, unless it is –

(a) default judgment entered under rule 12.4(1) ...
(c) a consent order under rule 40.6(2) (consent orders made by court officers) ...

(2) Every judgment or order must –
(a) bear the date on which it is given or made; and
(b) be sealed by the court.

(3) Paragraph (4) applies where a party applies for permission to appeal against a judgment or order at the hearing at which the judgment or order was made.

(4) Where this paragraph applies, the judgment or order shall state –
(a) whether or not the judgment or order is final;
(b) whether an appeal lies from the judgment or order and, if so, to which appeal court;
(c) whether the court gives permission to appeal; and
(d) if not, the appropriate appeal court to which any further application for permission may be made.

29

Failure by a Party to Draw up as Required
CPR, r. 40.3(3) provides:
Where a judgment or an order is to be drawn up by a party –

(a) he must file it no later than 7 days after the date on which the court ordered or permitted him to draw it up so that it can be sealed by the court; and
(b) if he fails to file it within that period, any other party may draw it up and file it.

30

Time for Compliance

CPR, r. 40.7(1) provides:
A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify.
This general rule means:

• if a judge makes an order today, the parties are immediately bound by the decision (not when it is drawn up)
• time for appealing runs from the date the order is made (again, not from when the order is drawn up)

31

Time for compliance with order to pay money
CPR, r. 40.11 provides:

A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless –
(a) the judgment or order specifies a different date for compliance (including specifying payment by installments);
(b) any of these Rules specifies a different date for compliance; or
(c) the court has stayed the proceedings or judgment.

32

Stay of execution
CPR, r. 40.8A provides:
Without prejudice to rule 83.7(1), a party against whom a judgment has been given or an order made may apply to the court for—

(a) a stay of execution of the judgment or order; or
(b) other relief,
on the ground of matters which have occurred since the date of the judgment or order, and the court may by order grant such relief, and on such terms, as it thinks just.

33

Order to pay costs
CPR, r. 44.7 provides:
A party must comply with an order for the payment of costs within 14 days of –

(a) the date of the judgment or order if it states the amount of those costs;
(b) if the amount of those costs (or part of them) is decided later in accordance with Part 47, the date of the certificate which states the amount; or
(c) in either case, such other date as the court may specify.

34

Methods of Recording Settlements (ADR LGS 3)
From APA to ADR Table 23.1 (p 364) it was seen there are several methods of recording a settlement within litigation. The one chosen depends on what has been agreed / negotiation between the parties. The main choices are:

Entry of final judgement

Judgement with stay of Execution

Stay of Proceedings

No order save as to costs

Discontinuance of the claim

Dismissal of the claim/CC

• Entry of final judgment. Appropriate where D has lost. Has the advantage to C that they have a clear victory, and judgments are very easy to enforce, both here and abroad. Disadvantage to D is that this is recorded against them, enforcement through the court may follow very quickly, and will be available to credit scoring agencies (although the registration of the judgment will be cancelled if paid within a month). See BCP para 63.49. For these reasons the lawyers for D are very unlikely to agree to this.
• Judgment with Stay of Execution pending payment of instalments. Still a judgment (with the problems from D's perspective as above), except that immediate court enforcement is postponed while instalments are paid.
• Stay of proceedings. This is used in Consent Orders (including Tomlin Orders) rather than judgments. A judgment brings the proceedings to an end (C wins). A stay of proceedings means the proceedings can go no further, unless the stay is lifted. If D complies with the terms of the Consent Order, the stay is as permanent an end as a judgment (but without the disadvantages to D). It also gives some flexibility to C to apply to lift the stay (used where D fails to comply).
• "No Order" save as to costs. Untidy as it leaves the status of the proceedings unclear, and unlikely to get past the judge under the CPR.
• Discontinuance of the claim (or counterclaim). See APA to ADR para 23.39, second bullet point. This ends the proceedings (which is clean and clear), but has the often unintended consequence that unless the costs are also agreed, CPR, r. 38.6 says C must pay D's costs. This is often the opposite of what the parties intended. Be careful!
• Dismissal of the claim (or counterclaim). Means the claim (or counterclaim) has been defeated, and is the opposite to entering judgment. Except there is no registration of judgment for credit scoring purposes.

35

In Practice
Lawyers tend to gravitate towards agreeing to Stay the Proceedings, because it avoids the extremes, maintains a level of flexibility for the future, and avoids an unwanted judgment if acting for D. Tends to result in either:

• A traditional Consent Order (APA to ADR Figure 23.6); or
• A Tomlin Order (APA to ADR Figure 23.7)

36

Tomlin Orders WB 40.6.2
We saw these in the ADR LGS 3. These were first formulated by Tomlin J in Practice Note [1927] WN 290. The key provision can be seen in para 1 of APA to ADR Figure 23.7:

"The Claimant and the Defendant having agreed to the terms set out in the schedule to this order, it is ordered that all further proceedings in this claim be stayed, except for the purpose of carrying such terms into effect."

The basic idea is that terms which have to be dealt with by the court appear on the front of the order, but the detailed settlement terms are kept secret in the Schedule.

37

Tomlin orders

The result is:

Front of the order
These provisions are public, and immediately enforceable because they are normal court orders. They are restricted to orders available in the litigation. Typically:

• the stay;
• payment of money; and
• liability for costs, including the agreed amount of costs, or the basis (standard or indemnity basis) and method of assessment (to be agreed, or failing agreement, by detailed assessment)

Schedule
These provisions are the terms of the settlement contract, and not part of the formal order.
• They can deal with anything, whether within the litigation or not.
• They are secret, so are not available for inspection by the public.
• They are not available for credit scoring purposes.

Being contractual, they can only be varied / set aside as any other contract (fraud, duress etc), and can only be rectified on the same basis as a contract, WB 40.6.2.

38

Formalities: Consent Orders
A consent order must:-

• bear date it is made (r. 40.2(2)(a))
• be sealed (r. 40.2(2)(b))
• be drawn up in the terms agreed (r. 40.6(7)(a))
• be expressed to be "By Consent" (r. 40.6(7)(b))
• be signed by the legal representative acting for each party (r. 40.6(7)(c))
• in a Tomlin order, the following provisions must appear in the body of the order, and not in the schedule (PD 40B, para 3.5; WB 40.6.2):
• the stay of the proceedings
• payment of money out of court
• payment and assessment of costs

39

Technical wording issues WB 40.6.2

The court cannot order a party to "accept" a compromise. What it can do is to record what the parties have agreed. So wording "The claimant will accept £50,000" cannot be used, but wording "The defendant do pay £50,000" works.

The court cannot order C to discontinue the proceedings. Instead, an order will record what the claimant has agreed to do. So "Upon the claimant discontinuing the claim ..." works.

40


Entry of Consent Orders
Where the detailed provisions of r. 40.6 apply, a Consent Order is entered administratively by a "court officer" (see r. 40.6(2), opening words), without the order being "made" by a judge.

CPR, r. 40.6(1) to (4) provide:

(1) This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.

(2) A court officer may enter and seal an agreed judgment or order if –
(a) the judgment or order is listed in paragraph (3);
(b) none of the parties is a litigant in person; and
(c) the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.

(3) The judgments and orders referred to in paragraph (2) are –
(a) a judgment or order for –
(i) the payment of an amount of money (including a judgment or order for damages or the value of goods to be decided by the court); or
(ii) the delivery up of goods with or without the option of paying the value of the goods or the agreed value.
(b) an order for –
(i) the dismissal of any proceedings, wholly or in part;
(ii) the stay of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere;
(iii) the stay of enforcement of a judgment, either unconditionally or on condition that the money due under the judgment is paid by installments specified in the order;
(iv) the setting aside under Part 13 of a default judgment which has not been satisfied;
(v) the payment out of money which has been paid into court;
(vi) the discharge from liability of any party;
(vii) the payment, assessment or waiver of costs, or such other provision for costs as may be agreed.

(4) Rule 40.3 (drawing up and filing of judgments and orders) applies to judgments and orders entered and sealed by a court officer under paragraph (2) as it applies to other judgments and orders.

Note: CPR, r 40.6(3) above restricts administrative entry to orders to common law relief.

41

Applying to Enter a Consent Order
The restrictions on administrative consent orders mean a court order is needed where:


Note:
• although there need not be a hearing
• a formal application under Part 23 is required
• it is necessary for equitable relief etc to be decided by a judge
• a judge does not have power to make an order in different terms [WB 40.6.2]
• if unenforceable or not properly drafted, the order will be returned to the parties

(a) Equitable relief is claimed; or
(b) One or more of the parties is a litigant in person;
(c) One of the parties is under a disability (eg. a child)

CPR, r. 40.6(5), (6) provide:
(5) Where paragraph (2) does not apply, any party may apply for a judgment or order in the terms agreed.
(6) The court may deal with an application under paragraph (5) without a hearing.

42

Enforcement of Consent Orders
Enforcement may be by:

• Direct enforcement of the relevant provision. This is available if the provision is in the substantive part of the judgment, Consent Order, or Tomlin Order
• Application to remove a stay (of enforcement or the proceedings) followed by enforcement
• 2-stage (Tomlin Order schedule) WB 40.6.2
o first with restoration under the "liberty to apply" and obtaining an order (eg specific performance) for compliance. This is permissible even if the relevant term goes outside the ambit of the litigation, and
o secondly enforcement of the new order if that is breached

• Starting fresh proceedings (Consent Order granting a stay upon agreed terms)

43

Claim and Counterclaim Judgments

CPR, r. 40.13 provides:

(1) This rule applies where the court gives judgment for specified amounts both for the claimant on his claim and against the claimant on a counterclaim.
(2) If there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance.
(3) In a case to which this rule applies, the court may make a separate order as to costs against each party.

In other words, the court can order the amounts to be set-off against each other.

44


14 Injunction Orders

Main Provisions
PD 25A, para 5.3: Any order for an injunction must set out clearly what the respondent must and must not do.

Undertakings
PD 25A, para 5.1:

Any order for an injunction, unless the court orders otherwise, must contain:
(1) subject to paragraph 5.1B, an undertaking by the applicant to the court to pay any damages which the respondent sustains which the court considers the applicant should pay.
(2) if made without notice to any other party, an undertaking by the applicant to the court to serve on the respondent the application notice, evidence in support and any order made as soon as practicable,
(3) if made without notice to any other party, a return date for a further hearing at which the other party can be present,
(4) if made before filing the application notice, an undertaking to file and pay the appropriate fee on the same or next working day, and
(5) if made before issue of a claim form –
(a) an undertaking to issue and pay the appropriate fee on the same or next working day, or
(b) directions for the commencement of the claim.

45

Penal notices in interim injunction orders APA Civil Procedure, para 42.89

Form

Who is bound?

PD 81, para 1: A judgment or order which restrains a party from doing an act or requires an act to be done must, if disobedience is to be dealt with by proceedings for contempt of court, have a penal notice endorsed on it as follows (or in words to substantially the same effect) –

Form of penal notice

"If you the within named John Smith do not comply with this Order you may be held to be in contempt of court and imprisoned or fined, or [in the case of a company or corporation] your assets may be seized."

The penal notice is appended to the front of the injunction order, and unless the court dispenses with service, must be served (with the order) by personal service.

Who is bound?
• The party against whom the order is addressed
• Anyone else with notice of the order (who must not do anything intended to frustrate the order)

Penalties
Individuals:
• imprisonment up to two-years
• unlimited fine
Companies: sequestration of assets

46

12 and 21 Unless Orders

Form of order requiring act to be done
PD 40B, paras 8.1 and 8.2 provide:
8.1 An order which requires an act to be done (other than a judgment or order for the payment of an amount of money) must specify the time within which the act should be done.

8.2 The consequences of failure to do an act within the time specified may be set out in the order. In this case the wording of the following examples suitably adapted must be used:

(1) Unless the [claimant][defendant] serves his list of documents by 4.00 p.m. on Friday, January 22, 1999 his [claim][defence] will be struck out and judgment entered for the [defendent][claimant], or

(2) Unless the [claimant][defendant] serves his list of documents within 14 days of service of this order his [claim][defence] will be struck out and judgment entered for the [defendant][claimant].

Example (1) should be used wherever possible.

47

21 Slip Rule
CPR, r 40.12 provides:


(1) The court may at any time correct an accidental slip or omission in a judgment or order.
(2) A party may apply for a correction without notice.

Amplified by PD 40, paras 4.1 to 4.5.

48

7 Interest up to Judgment

Interest is awarded for being kept out of your money.

It usually runs from the date you should have been paid until the date you are paid.

However, the entry of judgment is a watershed:

• We will consider first the rules about interest on sums awarded at the point the claim is finally determined (eg at trial)
• The last item in this topic is about interest payable on late payment of the judgment

49

Legal basis for the award of interest
In contract claims, interest may be awarded on one of 3 different bases:

• Under contract
• Under the Late Payment of Commercial Debts (Interest) Act 1998
• Under Senior Courts Act 1981, s. 35A or County Courts Act 1984, s. 69

50

Contract term for interest



Commercial debts

Contract term for interest
Contractual interest is payable as a matter of right. Only applies if there is an express term for the payment of interest, usually in the small print. It will usually specify:

(a) When interest will start running;
(b) The rate of interest payable; and
(c) Whether interest is "simple interest" or "compound interest"

Commercial Debts
The 1998 Act only applies to commercial debts. It does not apply to damages claims. Nor does it apply to claims involving consumers. It imposes an implied term to pay interest at 8% above base rate.


51

SCA s. 35A and CCA s. 69

• The fall back position if the other two do not apply
• Discretionary as to whether payable, the period it is payable, and the rate.

Interest under ss. 35A and 69 is often claimed at the Judgments Act rate (currently 8% pa). A default judgment can include interest at up to 8% without seeking the court's permission (CPR, r. 12.6(1)(b)).

Interest awarded at trial in breach of contract claims is more typically at 1% above base rate (Blackstone's Civil Practice, paras 64.22, 64.23).

52

Commercial Claims
Late Payment of Commercial Debts (Interest) Act 1998, s. 1, imposes an implied term that any qualifying debt created by the contract carries interest
• at 8% over Bank of England official dealing rate
• from agreed date for payment, or 30 days after invoice, or 30 days after performance

Qualifying debt
Late Payment of Commercial Debts (Interest) Act 1998, s. 2(1) provides:
This Act applies to a contract for the supply of goods or services where the purchaser and the supplier are each acting in the course of a business, other than an excepted contract.

Section 3(1) says:
A debt created by virtue of an obligation under a contract to which this Act applies to pay the whole or any part of the contract price is a “qualifying debt” for the purposes of this Act, unless (when created) the whole of the debt is prevented from carrying statutory interest by this section.

53

Period of statutory interest under the Act
Late Payment of Commercial Debts (Interest) Act 1998, s. 4(2) provides:
Statutory interest starts to run on the day after the relevant day for the debt, at the rate prevailing under section 6 at the end of the relevant day.

The "relevant day" depends on the contractual basis of the obligation to pay. For example:

• supplier and the purchaser agree a date for payment of the debt, that is the day (s. 4(3))
• obligation to make an advance payment for the whole contract price, the relevant day is the day on which the supplier’s obligation is performed (ss. 4(4) and 11(3))
• in various situations the relevant day is the last day of the period of 30 days beginning with the day on which the obligation of the supplier to which the debt relates is performed (s. 4(5))

Statutory interest ceases to run when the interest would cease to run if it were carried under an express contract term (s. 4(7)).

54

Compensation arising out of late payment
Section 5A(1) Once statutory interest begins to run in relation to a qualifying debt, the supplier shall be entitled to a fixed sum (in addition to the statutory interest on the debt).

(2) That sum shall be–
(a) for a debt less than £1000, the sum of £40;
(b) for a debt of £1000 or more, but less than £10,000, the sum of £70;
(c) for a debt of £10,000 or more, the sum of £100.

(2A) If the reasonable costs of the supplier in recovering the debt are not met by the fixed sum, the supplier shall also be entitled to a sum equivalent to the difference between the fixed sum and those costs.

55

6 Pleading interest
CPR r. 16.4(1)(b) and (2) provide that Particulars of Claim must include:

• statement that interest is claimed
• whether interest is claimed under the terms of a contract
• or pursuant to a stated statute (such as SCA 1981, s. 35A; CCA 1984, s. 69, or Late Payment of Commercial Debts (Interest) Act 1998
• or on some other stated basis
• if the claim is for a specified sum:
- the percentage rate of interest claimed
- date from which interest is claimed
- date to which interest is calculated (up to issue of claim form)
- total interest to date of issue
- continuing interest at a stated daily rate

56

General damages for PSLA
Wright v British Railways Board [1983] 1 AC 352
Interest on damages for PSLA is conventionally awarded:

• at 2% p.a.
• from date of service of claim form to final disposal of the claim

57

Past special damages
Basic and special rates of interest are set by the Lord Chancellor and applied by the Court Funds Office.


Date (from) Judgments Act 1838 rate Special Account rate Basic Account rate
1.7.2009 8% 0.5% 0.3%

58

One off losses

Continuing losses

Future losses

One-off losses
On one-off losses: full special account rate from time of expense to trial

Continuing losses
Assuming a loss was at a consistent rate from the date of the accident through to the date of the trial, interest is calculated at half the special account rate.

This is because:
(a) interest on the part of the loss suffered immediately after the accident should be at the full rate, for the full period
(b) interest on the most recent part of the loss, which again should be at the full rate, runs for next to no time

Applying interest at half the normal rate for the full period averages this out.

Future losses
No interest

59

21 Interest on Judgment Debts

• Judgments Act 1838, s. 17 (High Court)
• County Courts Act 1984, s. 74 (County Court)


These statutes impose statutory interest at 8% pa on unpaid judgment debts. Interest runs from the date of judgment. (This is the reason why the other interest provisions, above, only run to the date of judgment).

60

Interest on a money judgement


Money payable in the Schedule to a Tomlin Order

Interest on a money judgment
CPR, r. 40.8 provides:
(1) Where interest is payable on a judgment pursuant to section 17 of the Judgments Act 1838 or section 74 of the County Courts Act 1984, the interest shall begin to run from the date that judgment is given unless –
(a) a rule in another Part or a practice direction makes different provision; or
(b) the court orders otherwise.

(2) The court may order that interest shall begin to run from a date before the date that judgment is given.


Money payable in the Schedule to a Tomlin Order
An obligation to pay money set out in the schedule to a Tomlin Order does not bear Judgments Act 1838, s. 17, interest, because there is no money judgment (WB 40.6.2).

61

Appeal court
Routes of appeal are laid down by various statutes, but principally by the Access to Justice Act 1999 (Destination of Appeals) Order 2000, SI 2000/1071.

Lower court Appeal court
CC DJ CC Circuit Judge
HC Master HC Judge
CC Judge HC Judge
HC Judge CA
CA Supreme Court

62

Exceptions to the basic appeal routes

1. Final decisions in multi-track and specialist claims
Appeal to CA

APA Civil Procedure para 50.08 to 50.11

• This affects County Court trials
• It applies to claims actually allocated to the multi-track
Clark v Perks [2000] 4 All ER 1
Assessment of damages in the CC following entry of default judgment in a claim worth a great deal more than £25,000. Appeal was to the HC, not CA, because the claim had never been allocated to any track
• It applies to claims in specialist lists, eg patent, TCC, mercantile etc
• It applies whether the trial was by a Circuit Judge, Recorder or District Judge
• It applies to all "final" decisions

63

Final or interim

• A decision is only "final" if it would be the end of the case (or part of the case) whichever way it went
• Final decisions include:
o Full trial decisions
o Decision on liability on a split trial
o Assessment of quantum
o Preliminary issues (eg. relating to limitation)
o Costs orders at trial

• A decision does not become "final" just because someone loses the case
• Eg. a summary judgment decision is not "final", because if the application had failed the claim would have continued
• Nor is a striking out decision, for the same reason
• Likewise, an interim injunction decision is also “interim”

64

2. Second appeals APA Civil Procedure para 50.12 to 50.13
• Appeal route: always to CA
• Permission to bring a second appeal: more onerous test, see below

What is a second appeal? Example:
Interim application is made to the CC DJ
First appeal is to the CC CJ (the usual route of appeal)
Any further appeal from CC CJ goes to CA (being a second appeal)

65

OFF THE SYLLABUS

3. Contempt of Court Appeals
Not covered by PD 52A are special statutory provisions dealing with appeals. The main example is the Administration of Justice Act 1960, s. 13, which says appeals against findings of contempt from the County Court are made direct to the Court of Appeal.

4. Leapfrog appeals
There are two types of leapfrog appeals:
• Leapfrog from (say) decision of a HC Master to the Court of Appeal. Governed by the Access to Justice Act 1999, s. 57
• Leapfrog from (say) decision of HC judge to the Supreme Court. Governed by the Administration of Justice Act 1969, ss. 12, 13 and 15.

There are severe restrictions in obtaining permission for leapfrog appeals, which are broadly for appeals raising significant points of principle where the basic appeal route appeal court is bound by previous authority.

An example of the first type (Master to CA) is Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, the first main decision on sanctions following the Jackson Reforms in 2013.

66

Permission to Appeal
See APA Civil Procedure para 50.18 to 50.23

• Usually permission is required (CPR, r. 52.3(1))
• (There are 4 exceptions. 3 relate to appellants being in custody [obviously fairly unusual in civil proceedings], and a 4th is on costs assessments [in relation to one type of decision where the decision is made by a civil servant as opposed to a judge])

67

Test for granting permission (CPR, r. 52.3(6))
Permission to appeal may be given only where -

(a) the court considers that the appeal has a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.

68

Procedure for seeking permission to appeal

• Permission is initially sought from the judge below, immediately after the decision is given
• Can renew the application for permission to the appeal court
• Renewed applications for permission are made in the Appellant’s Notice
• Normally dealt with on the papers without a hearing
• If refused, the appellant can ask for this to be reviewed at a hearing
• Generally, respondents should not attend, and will not usually be awarded costs if they do (PD 52B, para 8.1)

69

Restriction on second appeals: permission to appeal
APA Civil Procedure para 50.24
• Permission to make a second appeal can only be sought from the CA (CPR, r 52.13(1); PD 52A, para 4.7)
• Permission for a second appeal will only be granted if:

1. the appeal has a real prospect of success (r. 52.3(6))
2. either it raises an important point of principle/practice or there is some other compelling reason for the CA hearing the appeal (r. 52.13(2))
• This applies both where the appellant:
1. Lost both at the initial hearing and on the appeal to the CC CJ
2. Won at the initial hearing, but lost the appeal to the CC CJ

70

Time limit
APA Civil Procedure para 50.30

21 days from the date of the decision of the lower court (CPR, r. 52.4(2)(b))

• Applications to extend the 21-day period are made in the Appellant's Notice
• Not a good idea to rely on this
• APA Civil Procedure para 50.32

Applications for extensions of time to appeal are considered applying the principles on relief from sanctions under CPR, r. 3.9 as set out in Denton v TH White Ltd [2014] 1 WLR 3926

See Salford Estates (No 2) Ltd v Altomart Ltd [2015] EWCA 1825

71

Appellant’s Notice
APA Civil Procedure para 50.34
Form N161.

It must set out the grounds of the appeal. PD 52C, para 5(1) says these must identify as concisely as possible the respects in which the judgment of the court below was either

• wrong; or
• unjust because of a serious procedural or other irregularity

72

Appellant’s Skeleton Argument
The reasons why the decision under appeal is wrong or unjust must NOT be included in the grounds of appeal and must be confined to the skeleton argument (PD 52C, para 5(2)).

Skeleton arguments in the CA (PD 52C, para 31) must:
• normally not exceed 25 pages
• be on A4 paper, not less than 12-point font, 1.5 line spacing

All skeleton arguments must (PD 52A, para 5.1):

• be concise;
• both define and confine the areas of controversy;
• be set out in numbered paragraphs;
• be cross-referenced to any relevant document in the bundle;
• be self-contained and not incorporate by reference material from previous skeleton arguments;
• not include extensive quotations from documents or authorities.

By PD 52A, para 5.1(4), where it is necessary to refer to an authority, a skeleton argument must—
(a) state the proposition of law the authority demonstrates; and
(b) identify the parts of the authority that support the proposition.
If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why.

73

Respondent’s Skeleton Argument
Broadly the same requirements, but aimed in the opposite direction.


Respondent’s Notice
APA Civil Procedure para 50.43
• Is required unless the respondent is simply relying on the reasons of the court below
• Where the respondent is in effect counter-appealing, the respondent also needs permission to appeal etc

Appeal hearing
APA Civil Procedure para 50.55
Grounds for Allowing an Appeal
An appeal can be allowed if the decision below was:
• Wrong
• Unjust through some serious procedural or other irregularity


Review, not Rehearing
Appeal hearing usually reviews the lower court's decision: APA para 50.59

74


CPR, r. 52.11(1):
Every appeal will be limited to a review of the decision of the lower court unless –
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

Exceptions where an Appeal is by Rehearing WB 52.11.1
Auderson v La Baguette Ltd [2002] EWCA Civ 10
(1) The general rule is that all appeals are by review
(2) Rehearing only if in all the circumstances of the individual appeal it is in the interests of justice to do so
(3) Undesirable to attempt to formulate criteria
(4) Material where it is alleged the lower court's decision is unjust because of serious procedural or other irregularity

To have a rehearing rather than a review:-
• Some injustice must have occurred
• For example, asking the lower court to give reasons, and none are given
• Or the reasons are so inadequate the losing party does not know why they lost

75

Difference between Review and Rehearing
EI Du Pont Nemours & Co v ST Du Pont [2003] EWCA Civ 1368

• The precise meaning of 'review' and 'rehearing' depends on the circumstances of each case
• A review involves looking at the documentary materials seen by the lower court and asking the appeal court to find something in the lower court's decision which is seriously wrong. An appeal will not be allowed just because the appeal court disagrees with the lower court's decision
• On a review appropriate respect will be given to the lower court's decision
• The degree of respect given is a spectrum. At one extreme are decisions (i) of primary fact where credibility is in issue and (ii) purely discretionary decisions, both of which are given the greatest respect. It means that it is very difficult to overturn a lower court's decision if based on the exercise of a discretion: APA para 50.63
• At the other end of the spectrum, appeal courts are more ready to interfere with (i) inferences from primary fact and (ii) analysis of documentary evidence
• A rehearing means a re-hearing in the fullest sense of the word. The appeal court considers the materials (usually in documentary form) afresh, and makes its own decision on them
• The power to receive fresh evidence applies both on reviews and rehearings

76

Fresh Evidence
APA Civil Procedure para 50.71 WB 52.11.2

Appeals are reviews, so the usual rule is that the appeal court only looks at the materials that were before the lower court. Appeals are not an opportunity to have "another bite at the cherry". The basic rule is: deploy your whole case at the first instance hearing. You cannot bring out extra material on the appeal.

Appeal courts do have an exceptional power to allow in fresh evidence.

77

Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 (and other cases)

• The Ladd v Marshall principles survive into the CPR as guidelines
• 'Special grounds' are required before fresh evidence will be allowed
• Exercised in accordance with the overriding objective
• Due regard is given to the need for finality in litigation
• And the proportionality in costs terms of investigating the point

78

Ladd v Marshall [1954] 1 WLR 1489
On an appeal from a final decision, fresh evidence will only be permitted if:

• Evidence could not have been obtained with reasonable diligence
• Evidence would have had an important influence on the result, though it need not be decisive
• Evidence is apparently credible
On an appeal from an interim decision, fresh evidence may be permitted if there has been a material change of circumstances:
R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982