LG5 Flashcards Preview

Civsy > LG5 > Flashcards

Flashcards in LG5 Deck (101):
1

Statements of case
These are:


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.

• 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

2

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
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

CPR r 16.4 (1) (a)
Most of the other rules of drafting flow from this principle:

Exceptions

• 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


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.


5

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

False statement of truth?

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

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

6

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

7

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

8

Specific Requirements for PoC

Interest
Damages

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:
• 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

9

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)

10

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)

11

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)

12

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

• a statement of the value of the goods

13

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

14

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.

15

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

16

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.

17

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.

18

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.

(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.

(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.

(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.

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

(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.

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

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

19

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.

20

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.

21

QUESTION 1
Does the Defence comply?


Specific Requirements for Defences

Limitation

A defendant who is an individual must provide his date of birth (PD 16, para 10.7).

Personal injuries claims (PD 16, para 12.1, 12.2)


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

22

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.

23

Set-off
CPR r. 16.6:

Where a D

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.

24

Counterclaims CPR, r. 15.7
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.

25

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))

26

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.

27

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.

28

Defence to Counterclaim

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

29

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.

(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.

30

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.

31

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.

32

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.

33

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.

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.

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.

34

RFI

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))

35

Response to RFI

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)

36

Objections:

Collateral use:

Objections: PD 18, paras 4.1 to 5.8

Collateral use: CPR r. 18.2

37

Striking out

PR 3.4(1) and (2)

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

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.

38

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)

39

QUESTION 1
Consider the Defence in Lewis v Russell on page 20 of the LGS Workbook

(a) What are the potential consequences of filing such a defence?
(b) At what stage may those consequences have effect?

40

No reasonable grounds for claim or defence CPR, r. 3.4(2)(a)

Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1
This is for plain and obvious cases

It may be used where the statement of case fails to comply with the rules of pleading.

41

PD 3A, para 1.4 provides:

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

42

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.

43

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

221 pages long particulars of claim which was struck out because it was excessively long, contained details which were irrelevant to the cause of action, contained a large number of terms that were incomprehensible, and also contained privileged material.

44

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

(1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or
(2) the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim.

45

Court Official Referring Defective Statement of Case to Judge
PD 3A

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

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

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.

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).

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.

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

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.

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.

46

Striking out 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)

47

QUESTION 2
Margaret Davies, a solicitor, has been served by Patricia Hawkins with a claim form, with particulars of claim attached. The particulars of claim [are full of irrational material]. Advise Margaret.

-

48

Abuse of Process CPR, r. 3.4(2)(b)

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;

49

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

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)

50

Alternative to striking out abuse of process

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.

51

QUESTION 4 Sanctions
Peter Kamya has brought a claim against Desmond Martin, which has been allocated to the multi-track. Among the directions made at the first case management conference was a direc¬tion that the parties should exchange witness statements by 4pm on 25 September. Peter’s solicitor wrote to Desmond’s solicitor on 14 September asking for confirmation that they would be disclosing their witness statements on 25 September. No response was received, and 25 September passed without witness statements being exchanged. Peter’s solicitors have since chased the issue, and Desmond’s solicitors have written saying that they expect to be able to exchange in March next year.
Advise Peter.

Should Peter:
• Serve his own witness statements?
• Make an application now?
• Consent to waiting until March 2016?

-

52

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.

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.”

53

`Sanctions Imposed by the Rules

SEE TABLE LG5 pg 16

54

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.

55

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

56

Implied Sanctions Doctrine

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).

57

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.

58

5 distinct situations to distinguish
(1) 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

59

Sanctions
(2)

(3)

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

(3) 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.

60

(4)
(5)

(4) 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).

(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. 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.

61

Alternatives to striking out claim

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

62

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

Taylor v Anderson?

Taylor v Anderson [2003] RTR 305
A fundamental question is whether it is still possible to have a fair trial (ECHR art. 6(1)). The question is whether there is a considerable risk or impossibility of having a fair trial. [Doubtful if this is still good law].

63

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 –
(a) The error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) The court may make an order to remedy the error.

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.

64

Peter Desmond in Case Study
• Which of the 5 situations applies?
• Does Peter have to write a warning letter to Desmond?
• Should Peter agree to an extension of time? How long?

Practical Advice to Desmond in Case Study
Advice to give the guilty party is to:
• Ask other side or apply to court for an extension of time (CPR, r. 3.1(2)(a))
• Apply to vary or set aside the original order under r. 3.1(7)
• Apply for relief from sanctions (r. 3.9)

65

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)

66

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.

67

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.
From this, such an agreed extension:
• 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)

68

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.

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:
(a) Where there has been a material change of circumstances since the original order was made;
(b) Where the facts on which the original order was made were misstated; or
(c) Where there has been a manifest mistake by the judge in formulating the order.

69

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.”

70

Technical Note
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).

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.

71

Avoiding the consequences of sanctions
Technical Note
There are two procedures:

(a) 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))
(b) 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.

72

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.

73

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.

74

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.

75

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

76

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.

77

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

78

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]).

79

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.

80

2. Limitation
The Limitation Act 1980 lays down various time limits for bringing proceedings. The policy is that old claims should not be entertained, because:


White Book Vol 2, section 8 for limitation
Required provisions are also in CIVIL LGS05B LA1980
APA Civil chapter 21

• there comes a point when defendants should be allowed to move on without worrying about whether they will be sued, and
• because memories fade, and documents get destroyed, making it harder to have a fair trial.

81

Accrual
Time starts running when all the elements of the cause of action exist

• contract = breach
• negligence = damage
Why the difference between contract and negligence?


Parts of a day
The law ignores parts of a day.

Answer: claims in contract are established without proof of damage, whereas damage is an essential element for claims in negligence.
(To have a valid claim in contract you have to prove offer, acceptance, terms, performance of conditions precedent and breach.
To have a valid claim in negligence you have to prove duty of care, breach, causation and damage.)

"Breach" in contract cases depends on the nature of the claim. APA Civil para 21.20
• Non-payment of price. Time runs from the contractual date for payment
• Breach of implied terms as to quality. Time runs from delivery

82

Accrual in Fatal Accident Claims
Limitation Act 1980, s. 12(2)(a)

No such action shall be brought after the expiration of three years from the date of death.

83

Time stops running when the claim is “brought”
Limitation Act 1980, s. 5.

Thompson v Brown

Barnes v St Helens MBC

Thompson v Brown [1981] 1 WLR 747, HL
• Court will date stamp letters received seeking to issue claim forms by post
• The Court may not get around to issuing the claim form straight away

Barnes v St Helens MBC (Practice Note) [2007] 1 WLR 879
The CA drew a distinction between “issue” (for the purposes of the CPR) and when a claim is “brought” for the purposes of the Limitation Act 1980. Technically, time stops running for limitation when the claim form and issue fee are delivered to the court. This is the last event actually in the Claimant’s control

84

Disability

Limitation Act 1980, s. 28
Time does not run while the claimant was under a legal disability. This applies to:
• children
• mental disability

85

Fraud, concealment and mistake
These are governed by LA 1980, s. 32, see APA Civil paras 21.41 to 21.44
Fraud
Limitation Act 1980, s. 32(1)(a)

Where the claim is based on fraud, time does not begin to run until C discovers the fraud, or could with reasonable diligence have discovered it.

86

Concealment
Limitation Act 1980, s. 32(1)(b)

Where D deliberately conceals their wrongdoing from C, time does not begin to run until C discovers the concealment, or could with reasonable diligence have discovered it.

87

Mistake
Limitation Act 1980, s. 32(1)(c)

Where the proceedings seek relief from the consequences of a mistake (eg certain claims in restitution), time does not begin to run until C discovers the mistake, or could with reasonable diligence have discovered it.

88

QUESTION 5
Rutland Engineering v Sturdy Compressors
By a claim form issued on 27 July 2015 Rutland Engineering Co Ltd brought proceedings against Sturdy Compressors plc to recover damages amounting to £120,000 in respect of equipment delivered on 9 September 2009. The claim form was served on 14 October 2015.
(a) What is the limitation period in this claim?
(b) When did time start to run?
(c) When did time stop running?

-

89

Contribution claims LA 1980 s 10
Claim by person who was a defendant found liable in earlier litigation, seeking a percentage contribution from someone who would have been liable for the same damage.
2 years from:

• judgment on the original claim
• date of the award (if arbitrated)
• settlement

90

Tort LA 1980 s 2
General limitation period is 6 years.
Exceptions are

(a) Personal injury claims = 3 years (LA 1980, s 11(4))
(b) Fatal accident claims = 3 years (LA 1980, s 12(2))
(c) Latent damage: see LA 1980, ss 14A, 14B (see below)

91

Consider the statements of case in Lewis v Russell at pages 5 to 10. Does Phillip Russell have a limitation defence to this claim?

What is the primary limitation period?

-

92

Fatal Accident

Fatal Accident Act claim barred before death LA 1980 s. 12(1)
A FAA claims cannot be brought if it was already time barred before the deceased died (LA 1980, s. 12(1)). This rule cannot be evaded by using the discretion in LA 1980, s. 33, see proviso to LA 1980, s 12(1).

93

Date of Knowledge: Personal Injuries claims APA Civil para 21.28
Limitation Act 1980, s. 14.
[Note: similar provisions apply in latent damage claims: Limitation Act 1980, s. 14A and 14B, see below]
Conditions?

Time runs against a PI claimant when the claimant knows:
(a) That their injury is significant
(b) That the injury was attributable to the alleged default
(c) The identity of the defendant
(d) Vicarious liability: identity of wrongdoer etc

Note:
(1) Knowledge that acts were negligent as a matter of law is irrelevant (s. 14(1))
(2) Absolute knowledge is not the test: rather it is knowing matters as a real possibility
(3) Claimant is fixed with constructive knowledge of facts that could reasonably have been acquired from observable facts or seeking expert advice (s. 14(3)).


Condition (a): significant injury
An injury is ‘significant’ for the purposes of LA 1980, s. 14(1)(a), if the claimant would reasonably have considered it sufficiently serious to justify proceedings against a defendant who does not dispute liability and is able to satisfy any judgment (s. 14(2)).


Constructive Knowledge under s. 14(3)
A v Hoare [2008] 1 AC 844
LA 1980, s. 14(3) turns on what the claimant ought reasonably have done. Under s. 14(3) the court must take into account the injury the claimant has suffered. For example, the court will not assume a claimant who has been blinded could reasonably have acquired knowledge by seeing things.


94

Adams v Bracknell Forest BC [2005] 1 AC 76
C's claim against D for failing to provide him with a suitable education was held to be time-barred. C alleged he did not know his depression resulted from dyslexia, which he only discovered in 1999, 9 years after he reached full age.

It was held that the reasonable claimant who has suffered significant injuries will seek professional advice into the cause of their problems, even if they have serious difficulties in reading and writing.

95

Date of Knowledge: Fatal Accidents LA 1980, s. 12(2)(b)

Time does not start to run until the date of knowledge of the person for whose benefit the action is brought.

96

Discretionary “disapplication” of the PI limitation period
Limitation Act 1980, s. 33

NOTE: please do NOT call this "extending time"

97

Main Test
Under the Limitation Act 1980, s. 33(1), the court may disapply the primary 3-year limitation period in personal injury claims:

(a) Where it is equitable to do so
(b) On taking a balance between the prejudice suffered by C (if time-barred as a result of the 3-year limitation period) and
(c) The prejudice to D (if the claim is allowed to proceed).

98

In assessing the balance of prejudice:

• The court must consider “all the circumstances of the case” (s. 33(3))
• With particular regard to the 6 factors in s. 33(3) (see APA Civil para 21.55)


Time in s. 33(3)(a), (b) is the time after expiry of limitation, as increased by any date of knowledge
"disability" in s. 33(3)(d) is legal disability (children and mental disability)

99

Deliberate Trespass to the Person

A v Hoare [2008] 1 AC 844. Just the same as negligent PI claims, so the 3 year period applies (and also date of knowledge and discretion in LA 1980, ss 14 and 33).

100

Latent Damage

Limitation Act 1980 s. 14A, 14B

Latent damage arises where a claimant, who could have sued in negligence, was unaware that they had actually suffered damage.
Only applies to tort claims. Not to claims in "contractual negligence" (Societe Commerciale de Reassurance v ERAS (International) Ltd [1992] 2 All ER 82).
Typical examples where the provisions might apply are:
• Claimant employs a builder to construct a new building. It looks good on completion. Unknown to anyone there are problems with the foundations which only become known years later.
• Claimant retains a financial adviser who advises the claimant to invest in certain pension funds. Obviously, markets can go down as well as up. Claimant now says the advice was negligently bad, but did not realise it was this bad until recently.
This is treated in a similar way to "knowledge" (LA 1980, s. 14) in PI claims (see LA 1980, ss. 14A and 14B). However, there is no equivalent to LA 1980, s. 33, giving the court a discretion to disapply limitation.

101

Latent damage 2

Consequently,
• the primary limitation period is 6 years from damage (non-PI tort claim)
• time will not run until the "starting date", which is when the claimant "knows" (s. 14A(6)(8)):
(a) claimant has suffered "material" damage
(b) damage is attributable to the allegedly negligent act or omission
(c) identity of the defendant
(d) vicarious liability identity
• time will nevertheless run from when the claimant has "constructive knowledge" (s. 14A(10))
• knowledge as a matter of law is irrelevant (s. 14A(9))
• there is a "longstop" of 15 years from the relevant act or omission (s. 14B)