SGS Slides Flashcards

Question

the claimant's letter to the defendant with concise details of the claim should do what?

Answer 1

* basis on which the claim is made * a summary of the facts * what the claimant wants from the defendant * if money, how the amount is calculated

Answer 2

the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one

Answer 3

* confirmation as to whether the claim is accepted and * if it is not accepted, the reasons why, * together with an explanation as to which facts and parts of the claim are disputed * whether the defendant is making a counterclaim * details of any counterclaim; and

Answer 4

(c) the parties disclosing key documents relevant to the issues in dispute.

Answer 5

* court must give permission before expert evidence can be relied upon (see CPR 35.4(1)) * court may limit the fees recoverable * disputes can be resolved without expert advice or evidence * If it is necessary to obtain expert evidence, particularly in low value claims, the parties should **_consider using a single expert, jointly instructed by the parties, with the costs shared equally._**

Answer 6

* Litigation **_last resort_** * should **_consider_** whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings. * should **_continue to consider_** the possibility of reaching a settlement at all times, including after proceedings have been started. * **_Part 36 offers_** may be made before proceedings are issued.

Answer 7

10. Parties may negotiate to settle a dispute or may use a form of ADR including— (a) mediation, a third party facilitating a resolution; (b) arbitration, a third party deciding the dispute; (c) early neutral evaluation, a third party giving an informed opinion on the dispute; and (d) Ombudsmen schemes.

Answer 8

* If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. * A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.

Answer 9

12. Where a dispute has not been resolved after the parties have followed a pre-action protocol or this Practice Direction, they should review their respective positions. They should consider the papers and the evidence to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings.

Answer 10

* If a dispute proceeds to litigation, the court will * **EXPECTS COMPLIANCE** expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. * **CASE MANAGMENT, COSTS** take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)). * **DE MINIMIS, URGENCY** consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction).

Answer 11

The court may decide that there has been a failure of compliance when a party has— **INSUFFICIENT INFO** (a) not provided sufficient information to enable the objectives in paragraph 3 to be met; **TIME LIMITS** (b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or **ADR REFUSAL** (c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

Answer 12

Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that **RELIEF FROM COMPLIANCE** (a) the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this Practice Direction; **STAY** (b) the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or this Practice Direction; **SANCTIONS** (c) sanctions are to be applied.

Answer 13

The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include— **COSTS** (a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties; **INDEMNITY COSTS** (b) an order that the party at fault pay those costs on an indemnity basis; **DEPRIVATION OF INTEREST FOR YOU** (c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded; **INTEREST AT A HIGHER RATE** **AGAINST YOU** (d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.

Answer 14

If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.

Answer 15

PI, CLINICAL NEG, DISEASE AND ILLNESSS, LOW VALUE PI RTA, LOW VALUE PI EMPLOYERS AND PUBLIC LIABILITY CONSTRUCTION AND ENGINEERING DEFAMATION PROFESSIONAL NEGLIGENCE JR HOUSING DISREPAIR, POSSESSION CLAIMS (SOCIAL LANDLORDS), POSSESSION CLAIMS (MORTGAGE LANDLORDS), DILAPIDATION OF COMMERCIAL PROPERTY

Answer 16

(1) Proceedings are started when the court issues a claim form at the request of the claimant.

Answer 17

(2) A claim form is issued on the date entered on the form by the court.

Answer 18

A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings

Answer 19

* In the claim form * With the claim form * Served on the defendant by the claimant within 14 days after service of the claim form. * No later than the latest time for serving a claim form.

Answer 20

(3) Where the claimant serves particulars of claim, then unless a copy of the particulars has already been filed, the claimant must, within 7 days of service on the defendant, file a copy of the particulars except where –

Answer 21

Where the claim form is served within the jurisdiction, the claimant must complete the step required by the table in Rule 7.5 in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

Answer 22

Posting, leaving with, delivering to or collection by the relevant service provider

Answer 23

Delivering to or leaving the document at the relevant place

Answer 24

Completing the relevant step required by rule 6.5(3)

Answer 25

* (1) Where required by another Part, any other enactment, a practice direction or a court order, a claim form **_must_** be served personally. * (2) In other cases, a claim form **_may_** be served personally **_except_** – * (a) where rule **_6.7 applies (Service on a solicitor or European Lawyer within the United Kingdom or in any other EEA state_****_)_**; or * (b) in any **_proceedings against the Crown_**.

Answer 26

by leaving it with that individual

Answer 27

by leaving it with a person holding a senior position within the company or corporation

Answer 28

by leaving it with – (i) a partner; or (ii) a person who, at the time of service, has the control or management of the partnership business at its principal place of business.

Answer 29

Completing the transmission of the fax

Answer 30

Sending the e-mail or other electronic transmission

Answer 31

(2) Where the claim form is to be served out of the jurisdiction, the claim form must be served in accordance with Section IV of Part 6 within 6 months of the date of issue.

Answer 32

(1) The claimant may apply for an order extending the period for compliance with rule 7.5.

Answer 33

an application to extend the time for compliance with rule 7.5 (time for serving claim form) must be made – (a) within the period specified by rule 7.5; or (b) where an order has been made under this rule, within the period for service specified by that order.

Answer 34

(a) the **_court has failed_** to serve the claim form; or (b) the **_claimant has taken all reasonable steps_** to comply with rule 7.5 but has been unable to do so; and (c) in either case, the **_claimant has acted promptly in making the application_**.

Answer 35

The claim form and every other statement of case, must be headed with the title of the proceedings.

Answer 36

(1) the number of proceedings, (2) the court or Division in which they are proceeding, (3) the full name of each party, (4) each party’s status in the proceedings (i.e. claimant/defendant).

Answer 37

Where there is more than one claimant and/or more than one defendant, the parties should be described in the title as follows: AB CD EF Claimants and GH IJ KL Defendants

Answer 38

5.1 Proceedings are started when the court issues a claim form at the request of the claimant

Answer 39

Where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

Answer 40

5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

Answer 41

5.3 An enquiry as to the date on which the claim form was received by the court should be directed to a court officer.

Answer 42

* recognise the potential importance of establishing the date the claim form was received by the court and * should themselves make arrangements to record the date.

Answer 43

5.5 Where it is sought to start proceedings against the estate of a deceased defendant where probate or letters of administration have not been granted, the claimant should issue the claim against ‘the personal representatives of A.B. deceased’. The claimant should then, before the expiry of the period for service of the claim form, apply to the court for the appointment of a person to represent the estate of the deceased.

Answer 44

...separately: (1) either at the same time as the claim form, or (2) within 14 days after service of the claim form provided that the service of the particulars of claim is within 4 months after the date of issue of the claim form (or 6 months where the claim form is to be served out of the jurisdiction).

Answer 45

6.2 If the particulars of claim are not included in or have not been served with the claim form, the claim form must contain a statement that particulars of claim will follow4.

Answer 46

‘[I believe][the claimant believes] that the facts stated in [this claim form] [these particulars of claim] are true.’

Answer 47

(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Answer 48

requires the claim form and, where they are not included in the claim form, the particulars of claim, to be verified by a statement of truth.

Answer 49

The evidence should state: (1) all the circumstances relied on, (2) the date of issue of the claim, (3) the expiry date of any rule 7.6 extension, and (4) a full explanation as to why the claim has not been served.

Answer 50

a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where service is to take place;

Answer 51

(b) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;

Answer 52

(a) personal service in accordance with rule 6.5; (b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A; (c) leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10; (d) fax or other means of electronic communication in accordance with Practice Direction 6A; or (e) any method authorised by the court under rule 6.15.

Answer 53

(2) A company may be served – (a) by any method permitted under Part 6; or (b) by any of the methods of service permitted under the Companies Act 2006.

Answer 54

(3) A limited liability partnership may be served – (a) by any method permitted under Part 6; or (b) by any of the methods of service permitted under the Companies Act 20063 as applied with modification by regulations made under the Limited Liability Partnerships Act 20004.

Answer 55

(1) Subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties, the **_court will serve the claim form except where –_** a) a rule or practice direction provides that the claimant must serve it; (b) the claimant notifies the court that the claimant wishes to serve it; or (c) the court orders or directs otherwise.

Answer 56

(2) Where the court is to serve the claim form, it is for the court to decide which method of service is to be used.

Answer 57

Where the court is to serve the claim form, the claimant must, in addition to filing a copy for the court, provide a copy for each defendant to be served.

Answer 58

Where the court has sent – (a) a notification of outcome of postal service to the claimant in accordance with rule 6.18; or (b) a notification of non-service by a bailiff in accordance with rule 6.19, the court will not try to serve the claim form again.

Answer 59

(1) Where required by another Part, any other enactment, a practice direction or a court order, a claim form must be served personally.

Answer 60

(a) where rule 6.7 applies; or (b) in any proceedings against the Crown.

Answer 61

(1) The claim form must be served within the jurisdiction except where rule 6.7(2), 6.7(3) (Service on a solicitor or European Lawyer within the United Kingdom or in any other EEA state) or 6.11 (Service of the claim form by contractually agreed method) applies or as provided by Section IV (IV SERVICE OF THE CLAIM FORM AND OTHER DOCUMENTS OUT OF THE JURISDICTION) of this Part.

Answer 62

(2) The claimant must include in the claim form an address at which the defendant may be served. That address must include a full postcode or its equivalent in any EEA state (if applicable), unless the court orders otherwise. ((does not apply where an order made by the court under rule 6.15 (service by an alternative method or at an alternative place) specifies the place or method of service of the claim form.)

Answer 63

Subject to rule 6.5(1) ( personal service mandated by rule or enactment), where – (a) the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or (b) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction, the claim form must be served at the business address of that solicitor.

Answer 64

Subject to rule 6.5(1) and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision, where – (a) the defendant has given in writing the business address in Scotland or Northern Ireland of a solicitor as an address at which the defendant may be served with the claim form; (aa) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within Scotland or Northern Ireland; (b) the defendant has given in writing the business address within any other EEA state of a solicitor as an address at which the defendant may be served with the claim form; or (c) a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within any other EEA state, the claim form must be served at the business address of that solicitor.

Answer 65

Subject to rule 6.5(1) and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision, where – (a) the defendant has given in writing the business address of a European Lawyer in any EEA state as an address at which the defendant may be served with the claim form; or (b) a European Lawyer in any EEA state has notified the claimant in writing that the European Lawyer is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address of the European Lawyer, the claim form must be served at the business address of that European Lawyer. (‘European Lawyer’ has the meaning set out in rule 6.2(e).)

Answer 66

(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings; or (b) in any claim by a tenant against a landlord, the claim form may be served at an address given by the landlord under section 48 of the Landlord and Tenant Act 19875. * \*Subject to rules 6.5(1) (mandated personal service) and 6.7 (*Service on a solicitor or European Lawyer within the United Kingdom or in any other EEA state*) and the provisions of Section IV of this Part (service in foreign jurisdiction), and except where any other rule or practice direction makes different provision*

Answer 67

1. The following rules do not apply: (a) rule 6.5(1) (personal service); (b) rule 6.7 (service of claim form on solicitor or European Lawyer); and (c) rule 6.8 (defendant gives address at which the defendant may be served), do not apply and 2. the claimant does not wish to effect personal service under rule 6.5(2).

Answer 68

Usual or last known residence.

Answer 69

Usual or last known residence of the individual; or principal or last known place of business.

Answer 70

Usual or last known residence of the individual; or principal or last known place of business of the partnership.

Answer 71

Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.

Answer 72

Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.

Answer 73

Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.

Answer 74

Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.

Answer 75

take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

Answer 76

**_ascertains the defendant’s current address_**, the claim form must be served at that address; or **_unable to ascertain the defendant’s current address_**, the claimant must consider whether there is – (i) an alternative place where; or (ii) an alternative method by which, service may be effected. *If there is either of the above two, the claimant must make an application under rule 6.15.*

Answer 77

Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant – (a) cannot ascertain the defendant’s current residence or place of business; and (b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).

Answer 78

Where – (a) a contract contains a term providing that, in the event of a claim being started in relation to the contract, the claim form may be served by a method or at a place specified in the contract; and (b) a claim solely in respect of that contract is started, the claim form may, subject to paragraph (2), be served on the defendant by the method or at the place specified in the contract.

Answer 79

(2) Where in accordance with the contract the claim form is to be served out of the jurisdiction, it may be served – (a) if permission to serve it out of the jurisdiction has been granted under rule 6.36; or (b) without permission under rule 6.32 or 6.33.

Answer 80

(a) one of the child’s parents or guardians; or (b) if there is no parent or guardian, an adult with whom the child resides or in whose care the child is.

Answer 81

Where the defendant is a protected party, the claim form must be served on – (a) one of the following persons with authority in relation to the protected party as – (i) the attorney under a registered enduring power of attorney; (ii) the donee of a lasting power of attorney; or (iii) the deputy appointed by the Court of Protection; or (b) if there is no such person, an adult with whom the protected party resides or in whose care the protected party is.

Answer 82

the person to be served with the claim form on behalf of a child or protected party

Answer 83

(4) The court may make an order permitting a claim form to be served on a child or protected party, or on a person other than the person specified in paragraph (1) or (2).

Answer 84

The court may order that, although a claim form has been sent or given to someone other than the person specified in paragraph (1) or (2), it is to be treated as if it had been properly served.

Answer 85

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

Answer 86

(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

Answer 87

* (4) An order under this rule must specify – * (a) the method or place of service; * (b) the date on which the claim form is deemed served; and * (c) the period for – * (i) filing an acknowledgment of service; * (ii) filing an admission; or * (iii) filing a defence.

Answer 88

Power of court to dispense with service of the claim form 6.16(1) The court may dispense with service of a claim form in exceptional circumstances.

Answer 89

(2) An application for an order to dispense with service may be made at any time and – ... (b) may be made without notice.

Answer 90

(a) must be supported by evidence; and

Answer 91

a document may be served by any of the following methods – (a) personal service, in accordance with rule 6.22; (b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A; (c) leaving it at a place specified in rule 6.23; (d) fax or other means of electronic communication in accordance with Practice Direction 6A; or (e) any method authorised by the court under rule 6.27.

Answer 92

(2) A company may be served – (a) by any method permitted under this Part; or (b) by any of the methods of service permitted under the Companies Act 2006.

Answer 93

3) A limited liability partnership may be served – (a) by any method permitted under this Part; or (b) by any of the methods of service permitted under the Companies Act 2006 as applied with modification by regulations made under the Limited Liability Partnerships Act 2000.

Answer 94

a party to proceedings will serve a document which that party has prepared except where – (a) a rule or practice direction provides that the court will serve the document; or (b) the court orders otherwise.

Answer 95

(2) The court will serve a document which it has prepared except where – (a) a rule or practice direction provides that a party must serve the document; (b) the party on whose behalf the document is to be served notifies the court that the party wishes to serve it; or (c) the court orders otherwise.

Answer 96

(3) Where the court is to serve a document, it is for the court to decide which method of service is to be used.

Answer 97

(4) Where the court is to serve a document prepared by a party, that party must provide a copy for the court and for each party to be served.

Answer 98

* Personal service * 6.22 * (1) Where required by another Part, any other enactment, a practice direction or a court order, a document must be served personally. * (2) In other cases, a document may be served personally except – * (a) where the party to be served has given an address for service under rule 6.23; or * (b) in any proceedings by or against the Crown. * (3) A document may be served personally as if the document were a claim form in accordance with rule 6.5(3).

Answer 99

(1) An application for an order appointing a litigation friend where a child or protected party has no litigation friend must be served in accordance with rule 21.8(1) and (2).

Answer 100

(2) Any other document which would otherwise be served on a child or a protected party must be served on the litigation friend conducting the proceedings on behalf of the child or protected party.

Answer 101

(3) The court may make an order permitting a document to be served on the child or protected party or on some person other than the person specified in rule 21.8 or paragraph (2).

Answer 102

The court may order that, although a document has been sent or given to someone other than the person specified in rule 21.8 or paragraph (2), the document is to be treated as if it had been properly served.

Answer 103

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.

Answer 104

The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.

Answer 105

If it is delivered to or left at the permitted address on a business day before 4.30p.m., on that day; or in any other case, on the next business day after that day.

Answer 106

If the transmission of the fax is completed on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was transmitted.

Answer 107

If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent.

Answer 108

If the document is served personally before 4.30p.m. on a business day, on that day; or in any other case, on the next business day after that day.

Answer 109

Rule 6.15 (Service of the claim form by an alternative method or at an alternative place) applies to any document in the proceedings as it applies to a claim form and reference to the defendant in that rule is modified accordingly.

Answer 110

Power to dispense with service 6. 28 (1) The court may dispense with service of any document which is to be served in the proceedings. (2) An application for an order to dispense with service must be supported by evidence and may be made without notice.

Answer 111

(2) An application for an order to dispense with service must be supported by evidence and may be made without notice.

Answer 112

An application for an order to dispense with service must be supported by evidence and may be made without notice.

Answer 113

Service by document exchange (DX) may take place only where – (1) the address at which the party is to be served includes a numbered box at a DX, or (2) the writing paper of the party who is to be served or of the solicitor acting for that party sets out a DX box number, and (3) the party or the solicitor acting for that party has not indicated in writing that they are unwilling to accept service by DX.

Answer 114

Service by post, DX or other service which provides for delivery on the next business day is effected by – (1) placing the document in a post box; (2) leaving the document with or delivering the document to the relevant service provider; or (3) having the document collected by the relevant service provider.

Answer 115

where a document is to be served by fax or other electronic means – (1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving – (a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and (b) the fax number, e-mail address or other electronic identification to which it must be sent; and (2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) – (a) a fax number set out on the writing paper of the solicitor acting for the party to be served; (b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or (c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court. 4. 2 Where a party intends to serve a document by electronic means (other than by fax) that party **_must first ask the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means_** (for example, the format in which documents are to be sent and the maximum size of attachments that may be received).

Answer 116

4.3 Where a document is served by electronic means, the party serving the document need not in addition send or deliver a hard copy.

Answer 117

Personal service on a registered company or corporation in accordance with rule 6.5(3) is effected by leaving a document with a person holding a senior position.

Answer 118

Each of the following persons is a person holding a senior position – (1) in respect of a registered company or corporation, a director, the treasurer, the secretary of the company or corporation, the chief executive, a manager or other officer of the company or corporation; and (2) in respect of a corporation which is not a registered company, in addition to any of the persons set out in sub-paragraph (1), the mayor, the chairman, the president, a town clerk or similar officer of the corporation.

Answer 119

8.1 Where the court serves a document in accordance with rule 6.4 or 6.21(2), the method will normally be first class post.

Answer 120

(1) the reason why an order is sought; (2) what alternative method or place is proposed, and (3) why the applicant believes that the document is likely to reach the person to be served by the method or at the place proposed.

Answer 121

(1) the reason why the order is sought; (2) what alternative method or alternative place was used; (3) when the alternative method or place was used; and (4) why the applicant believes that the document is likely to have reached the person to be served by the alternative method or at the alternative place.

Answer 122

evidence that if posted or delivered to that address, the document is likely to be brought to the attention of the other party;

Answer 123

that the person serving the document has taken, or will take, appropriate steps to ensure that the party being served is using that telephone number and is likely to receive the message; and

Answer 124

the e-mail address to which the document will be sent is one which is likely to come to the attention of a person holding a senior position in that company.

Answer 125

the following Wednesday (a business day).

Answer 126

the following Monday (a business day).

Answer 127

the following Monday (a business day).

Answer 128

ext day (Monday, a business day).

Answer 129

the following Tuesday (a business day) as the Monday is a bank holiday.

Answer 130

Where the document is posted (by first class post) on a bank holiday Monday, the day of deemed service is

Answer 131

Representation of beneficiaries by trustees etc. 19. 7A (1) A claim may be brought by or against trustees, executors or administrators in that capacity without adding as parties any persons who have a beneficial interest in the trust or estate (‘the beneficiaries’). (2) Any judgment or order given or made in the claim is binding on the beneficiaries unless the court orders otherwise in the same or other proceedings.

Answer 132

Representation of beneficiaries by trustees etc. 19. 7A (1) A claim may be brought by or against trustees, executors or administrators in that capacity without adding as parties any persons who have a beneficial interest in the trust or estate (‘the beneficiaries’). (2) Any judgment or order given or made in the claim is binding on the beneficiaries unless the court orders otherwise in the same or other proceedings.

Answer 133

(a) the claim to proceed in the absence of a person representing the estate of the deceased; or (b) a person to be appointed to represent the estate of the deceased.

Answer 134

the persons who are the personal representatives of the deceased;

Answer 135

(i) the claim must be brought against ‘the estate of’ the deceased; and (ii) the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

Answer 136

(a) the claim is brought against the ‘personal representatives’ of the deceased but a grant of probate or administration has not been made; or (b) the person against whom the claim was brought was dead when the claim was started.

Answer 137

A company or other corporation may be represented at trial by an employee if – (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and (b) the court gives permission.

Answer 138

Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.

Answer 139

1. Claims by and against partnerships within the jurisdiction 1. 5A & 5B apply to claims that are brought by or against two or more persons who –(1) were partners; and (2) carried on that partnership business within the jurisdiction, at the time when the cause of action accrued. 2. ‘partners’ includes persons claiming to be entitled as partners and persons alleged to be partners. 3. Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued. 2. Partnership membership statements 1. ‘partnership membership statement’ is a written statement of the names and last known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued, being the date specified for this purpose in accordance with paragraph 5B.3. 2. If the partners are requested to provide a copy of a partnership membership statement by any party to a claim, the partners must do so within 14 days of receipt of the request. 3. In that request the party seeking a copy of a partnership membership statement must specify the date when the relevant cause of action accrued. 3. Persons carrying on business in another name 1. This paragraph applies where – (1) a claim is brought against an individual; (2) that individual carries on a business within the jurisdiction (even if not personally within the jurisdiction); and (3) that business is carried on in a name other than that individual’s own name (‘the business name’). 2. The claim may be brought against the business name as if it were the name of a partnership.

Answer 140

the court can allow an application to extend time prospectively under r.7.6(2) (Extension of time for serving a claim form) without being satisfied that the claimant has taken all reasonable steps to comply with r.7.5 as is required in a retrospective application

Answer 141

A claimant who is granted an extension of time for service of the claim form without notice to the defendant needs to be aware that the order may be set aside subsequently on an application by the defendant.

Answer 142

In addition, the judge stated that, where successive applications are made, the onus is on the applicant to ensure that on each application all relevant material is drawn to the court’s attention, including whether, and if so how many, earlier extensions have been granted and the evidence upon which they were based.

Answer 143

an application by the claimant for a three month extension of time to serve the claim form had been correctly granted when the claimant needed to excavate premises to investigate a water leak and obtain expert advice to attribute liability for the defect between the defendants and other potentially liable parties, particularly when the defendants had been slow to disclose plans and documents.

Answer 144

Does a reason connected with funding amounted to good reason? Cecil v Byatt Before the four month period expired the court granted an extension of six months for service in a high value contract claim on the basis that the claimant needed time to secure funding for the claim. Within that period, during which limitation expired, the claimant applied for and was granted a further six month extension. Both applications were made ex parte. After a CFA with ATE insurance were agreed, the claim form was served 11 months after issue. The Court of Appeal, overruling the judge, upheld the defendant’s application to set aside the extension

Answer 145

….the claimant should have served the claim form in the period of its initial validity and then, if they were not in a financial position to proceed with the claim immediately, applied inter partes for a stay, or an extension of the time for procedural steps to be taken.

Answer 146

The court found difficulty in effecting service a good reason to refuse to set aside an order to extend the time for service of a claim form on a defendant in Russia, where the process of service under the Hague Convention was indicated by the Foreign Service Section at the Royal Courts of Justice as likely to take eighteen months to two years, even though the extension might deprive the defendant of a limitation defence.

Answer 147

did not fall within CPR r.7.6(3)(a) as the court was not serving the claim form, only acting as a conduit.

Answer 148

the four month period allowed by r.7.5, and steps taken after that time are irrelevant,

Answer 149

(a) contains special provisions which apply in proceedings involving children and protected parties; (b) sets out how a person becomes a litigation friend; and

Answer 150

(i) proceedings under Part 75; (ii) enforcement of specified debts by taking control of goods; or (iii) applications in relation to enforcement of specified debts by taking control of goods, where one of the parties to the proceedings is a child.

Answer 151

‘lacks capacity’ means lacks capacity within the meaning of the 2005 Act;

Answer 152

(a) ‘the 2005 Act’ means the Mental Capacity Act 2005;

Answer 153

(d) ‘protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings;

Answer 154

(e) ‘protected beneficiary’ means a protected party who lacks capacity to manage and control any money recovered by him or on his behalf or for his benefit in the proceedings.

Answer 155

(1) A protected party must have a litigation friend to conduct proceedings on his behalf.

Answer 156

(2) A child must have a litigation friend to conduct proceedings on his behalf unless the court makes an order under paragraph (3).

Answer 157

(3) The court may make an order permitting a child to conduct proceedings without a litigation friend.

Answer 158

(4) An application for an order under paragraph (3) – (a) may be made by the child; (b) if the child already has a litigation friend, must be made on notice to the litigation friend; and (c) if the child has no litigation friend, may be made without notice.

Answer 159

(b) if the child already has a litigation friend, must be made on notice to the litigation friend; and (c) if the child has no litigation friend, may be made without notice.

Answer 160

(5) Where – (a) the court has made an order under paragraph (3); and (b) it subsequently appears to the court that it is desirable for a litigation friend to conduct the proceedings on behalf of the child, the court may appoint a person to be the child's litigation friend.

Answer 161

Compromise etc. by or on behalf of a child or protected party 21. 10 (1) Where a claim is made – (a) by or on behalf of a child or protected party; or (b) against a child or protected party, no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.

Answer 162

Compromise etc. by or on behalf of a child or protected party 21. 10 (1) Where a claim is made – (a) by or on behalf of a child or protected party; or (b) against a child or protected party, no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.

Answer 163

(i) be made using the procedure set out in Part 8 (alternative procedure for claims); and (ii) include a request to the court for approval of the settlement or compromise.

Answer 164

(1) Where in any proceedings – (a) money is recovered by or on behalf of or for the benefit of a child or protected party; or (b) money paid into court is accepted by or on behalf of a child or protected party, the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.

Answer 165

21. 11 (1) Where in any proceedings – (a) money is recovered by or on behalf of or for the benefit of a child or protected party; or (b) money paid into court is accepted by or on behalf of a child or protected party, the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.

Answer 166

(2) Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with.

Answer 167

Where money is recovered by or on behalf of a protected party or money paid into court is accepted by or on behalf of a protected party, before giving directions in accordance with this rule, the court will first consider whether the protected party is a protected beneficiary.

Answer 168

Settlement or compromise by or on behalf of a child or protected party before the issue of proceedings .... * (1) subject to paragraph 5.3, the terms of the settlement or compromise or have attached to it a **_draft consent order_** in Practice Form N292; * (2) details of whether and to what extent the **_defendant admits liability_**; * (3) the **_age and occupation_** (if any) of the child or protected party; * (4) the litigation friend’s **_approval_** of the proposed settlement or compromise, * (5) a copy of any **_financial advice_** relating to the proposed settlement; and * (6) in a personal injury case arising from an accident – * (a) details of the circumstances of the accident, * (b) medical and quantum reports and joint statements material to the opinion required by paragraph 5.2, * (c) where appropriate, a schedule of any past and future expenses and losses claimed and any other relevant information relating to the personal injury as set out in Practice Direction 16 (statements of case), and * (d) where considerations of liability are raised – * (i) any evidence or reports in any criminal proceedings or in an inquest, and * (ii) details of any prosecution brought.

Answer 169

* (6) in a personal injury case arising from an accident – * (a) details of the **_circumstances of the accident_**, * (b) **_medical and quantum reports_** and joint statements material to the opinion required by paragraph 5.2, * (c) where appropriate, a **_schedule of any past and future expenses_** and losses claimed and any other relevant information relating to the personal injury as set out in Practice Direction 16 (statements of case), and * (d) where considerations of liability are raised – * (i) any evidence or reports in any criminal proceedings or in an inquest, and * (ii) details of any prosecution brought.

Answer 170

(1) An opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party must, except in very clear cases, be obtained. (2) A copy of the opinion and, unless the instructions on which it was given are sufficiently set out in it, a copy of the instructions, must be supplied to the court.

Answer 171

* The court must be satisfied that the parties have considered whether the damages should wholly or partly take the form of periodical payments. * Where the settlement includes provision for periodical payments, the claim must – * (1) set out the terms of the settlement or compromise; or * (2) have attached to it a draft consent order, * which must satisfy the requirements of rules 41.8 and 41.9 as appropriate.

Answer 172

## Footnote 5. 6 Applications for the approval of a settlement or compromise will normally be heard by – (1) a Master or a district judge in proceedings involving a child; and (2) a Master, designated civil judge or his nominee in proceedings involving a protected party.

Answer 173

Where in any personal injury case a claim for damages for future pecuniary loss, by or on behalf of a child or protected party, is dealt with by agreement after proceedings have been issued, an application must be made for the court’s approval of the agreement.

Answer 174

In a Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued, The court must be satisfied that the parties have considered whether the damages should wholly or partly take the form of periodical payments.

Answer 175

(1) set out the terms of the settlement or compromise; or (2) have attached to it a draft consent order, which must satisfy the requirements of rules 41.8 and 41.9 as appropriate.

Answer 176

(1) an opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party, except in very clear cases; and (2) a copy of any financial advice; and (3) documentary evidence material to the opinion referred to at paragraph 6.4(1).

Answer 177

Applications for the approval of a settlement or compromise, except at the trial, will normally be heard by – a Master or a district judge in proceedings involving a child; and a Master, designated civil judge or his nominee in proceedings involving a protected party.

Answer 178

(2) A claimant may use the Part 8 procedure where – (a) he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact; or (b) paragraph (6) applies. * (6) A rule or practice direction may, in relation to a specified type of proceedings –* * (a) require or permit the use of the Part 8 procedure; and* * (b) disapply or modify any of the rules set out in this Part as they apply to those proceedings.* * (Rule 8.9 provides for other modifications to the general rules where the Part 8 procedure is being used)* * (Part 78 provides procedures for European orders for payment and for the European small claims procedure. It also provides procedures for applications for mediation settlement enforcement orders in relation to certain cross-border disputes.)*

Answer 179

In the County Court, a claim under the Part 8 procedure may be made at any County Court hearing centre unless an enactment, rule or practice direction provides otherwise.

Answer 180

In the County Court, a claim under the Part 8 procedure may be made at any County Court hearing centre unless an enactment, rule or practice direction provides otherwise.

Answer 181

* (a) that this Part applies; * (b) * (i) the question which the claimant wants the court to decide; or * (ii) the remedy which the claimant is seeking and the legal basis for the claim to that remedy; * (c) if the claim is being made under an enactment, what that enactment is; * (d) if the claimant is claiming in a representative capacity, what that capacity is; and * (e) if the defendant is sued in a representative capacity, what that capacity is.

Answer 182

In Part 8 claims, the claimant must file any written evidence on which he intends to rely when he files his claim form.

Answer 183

with the claim form.

Answer 184

A Part 8 defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.

Answer 185

(3) A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service. (4) If he does so, he must also, at the same time, serve a copy of his evidence on the other parties.

Answer 186

(1) The claimant must file any written evidence on which he intends to rely when he files his claim form. (2) The claimant’s evidence must be served on the defendant with the claim form. (3) A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service. (4) If he does so, he must also, at the same time, serve a copy of his evidence on the other parties. (5) The claimant may, within 14 days of service of the defendant’s evidence on him, file further written evidence in reply. (6) If he does so, he must also, within the same time limit, serve a copy of his evidence on the other parties. (7) The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth.

Answer 187

1. Claimant files written evidence when he files his claim form 2. Claimant serves it on D with the claim form 3. Defendant files when filing acknowledgment of service (serving a copy on all other parties at the same time) 4. Claimant can file further written evidence within 14 days (serving a copy on all other parties at the same time)

Answer 188

The claimant may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth.

Answer 189

(a) it has been served in accordance with rule 8.5 (Filing and serving written evidence); or (b) the court gives permission.

Answer 190

(2) The court may require or permit a party to give oral evidence at the hearing.

Answer 191

(3) The court may give directions requiring the attendance for cross-examination of a witness who has given written evidence.

Answer 192

(a) there is a substantial dispute of fact; and (b) the use of the Part 8 procedure is not required or permitted by a rule or practice direction,

Answer 193

he must state his reasons when he files his acknowledgment of service.

Answer 194

(2) When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case.

Answer 195

Multi-track

Answer 196

(1) a claim by or against a child or protected party, as defined in rule 21.1(2), which has been settled before the commencement of proceedings and the sole purpose of the claim is to obtain the approval of the court to the settlement; or (2) a claim for provisional damages which has been settled before the commencement of proceedings and the sole purpose of the claim is to obtain a consent judgment.

Answer 197

The Part 8 procedure must also be used for any claim or application in relation to which an Act, rule or practice direction provides that the claim or application is brought by originating summons, originating motion or originating application.

Answer 198

Where it appears to a court officer that a claimant is using the Part 8 procedure inappropriately, he may refer the claim to a judge for the judge to consider the point.

Answer 199

The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court will allocate the claim to a track and give such directions as it considers appropriate.

Answer 200

7.2 Evidence will normally be in the form of a witness statement or an affidavit but a claimant may rely on the matters set out in his claim form provided that it has been verified by a statement of truth.

Answer 201

A party may apply to the court for an extension of time to serve and file evidence under rule 8.5 or for permission to serve and file additional evidence under rule 8.6(1).

Answer 202

(1) The parties may, subject to the following provisions, agree in writing on an extension of time for serving and filing evidence under rule 8.5(3) or rule 8.5(5).

Answer 203

(2) An agreement extending time for a defendant to file evidence under rule 8.5(3)- (a) must be filed by the defendant at the same time as he files his acknowledgement of service; and (b) must not extend time by more than 14 days after the defendant files his acknowledgement of service.

Answer 204

An agreement extending time for a claimant to file evidence in reply under rule 8.5(5) must not extend time to more than 28 days after service of the defendant's evidence on the claimant.

Answer 205

This Part does not apply where the claimant uses the procedure set out in Part 8 (alternative procedure for claims).

Answer 206

(a) contain a concise statement of the nature of the claim;

Answer 207

(b) specify the remedy which the claimant seeks;

Answer 208

(c) where the claimant is making a claim for money, contain a statement of value in accordance with rule 16.3;

Answer 209

(cc) where the claimant’s only claim is for a specified sum, contain a statement of the interest accrued on that sum; and

Answer 210

(1) The claim form must –(d) contain such other matters as may be set out in a practice direction.

Answer 211

(a) the names of the government departments and officers of the Crown concerned; and (b) brief details of the circumstances in which it is alleged that the liability of the Crown arose.

Answer 212

If the particulars of claim specified in rule 16.4 are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow.

Answer 213

(3) If the claimant is claiming in a representative capacity, the claim form must state what that capacity is.

Answer 214

(4) If the defendant is sued in a representative capacity, the claim form must state what that capacity is.

Answer 215

(5) The court may grant any remedy to which the claimant is entitled even if that remedy is not specified in the claim form.

Answer 216

(a) the amount of money claimed; (b) that the claimant expects to recover – (i) not more than £10,000; (ii) more than £10,000 but not more than £25,000; or (iii) more than £25,000; or (c) that the claimant cannot say how much is likely to be recovered.

Answer 217

(a) not more than £1,000; or (b) more than £1,000.

Answer 218

(a) whether the estimated costs of those repairs or other work is – (i) not more than £1,000; or (ii) more than £1,000; and (b) whether the value of any other claim for damages is – (i) not more than £1,000; or (ii) more than £1,000.

Answer 219

(a) state that the claimant expects to recover more than £100,000; (b) state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment; (c) if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or (d) state that the claim is to be in one of the specialist High Court lists and state which list.

Answer 220

(a) a concise statement of the facts on which the claimant relies; (b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2); (c) if the claimant is seeking aggravated damages(GL) or exemplary damages a statement to that effect and his grounds for claiming them; (d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and (e) such other matters as may be set out in a practice direction.

Answer 221

* (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.

Answer 222

(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.

Answer 223

(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.

Answer 224

require that allegation to be proved

Answer 225

require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

Answer 226

admit that allegation.

Answer 227

(a) state why he disputes it; and (b) if he is able, give his own statement of the value of the claim.

Answer 228

what that capacity is.

Answer 229

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

Answer 230

A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.

Answer 231

require that matter to be proved.

Answer 232

If a claim form has been – (a) issued in accordance with rule 7.2; and (b) served in accordance with rule 7.5, the court may make an order that the claim will continue without any other statement of case.

Answer 233

1.2 Where special provisions about statements of case are made by the rules and practice directions applying to particular types of proceedings, the provisions of Part 16 and of this practice direction apply only to the extent that they are not inconsistent with those rules and practice directions.

Answer 234

1.4 If exceptionally a statement of case exceeds 25 pages (excluding schedules) an appropriate short summary must also be filed and served.

Answer 235

The claim form must include an address at which the claimant resides or carries on business. This paragraph applies even though the claimant's address for service is the business address of his solicitor.

Answer 236

If the claim form does not show a full address, including postcode, at which the claimant(s) and defendant(s) reside or carry on business, the claim form will be issued but will be retained by the court and will not be served until the claimant has supplied a full address, including postcode, or the court has dispensed with the requirement to do so. The court will notify the claimant.

Answer 237

, his full unabbreviated name and title by which he is known;

Answer 238

the full unabbreviated name of the individual, together with the title by which he is known, and the full trading name (for example, John Smith ‘trading as’ or ‘T/as’ ‘JS Autos’);

Answer 239

(i) where partners are being sued in the name of the partnership, the full name by which the partnership is known, together with the words ‘(A Firm)’; or (ii) where partners are being sued as individuals, the full unabbreviated name of each partner and the title by which he is known;

Answer 240

, the full registered name, including suffix (plc, limited, LLP, etc), if any;

Answer 241

the full name by which it is known, including suffix where appropriate.

Answer 242

Particulars of claim served separately from the claim form must also contain: (1) the name of the court in which the claim is proceeding, (2) the claim number, (3) the title of the proceedings, and (4) the claimant’s address for service.

Answer 243

Personal injury claims 4. 1 The particulars of claim must contain: (1) the claimant’s date of birth, and (2) brief details of the claimant’s personal injuries. 4. 2 The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims. 4. 3 Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.

Answer 244

In a soft tissue injury claim, the claimant may not proceed unless the medical report is a fixed cost medical report.

Answer 245

Where the claimant files more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal (website at: www.medco.org.uk) and any further report from an expert in any of the following disciplines must also be a fixed cost medical report:

Answer 246

(a) Consultant Orthopaedic Surgeon; (b) Consultant in Accident and Emergency Medicine; (c) General Practitioner registered with the General Medical Council; (d) Physiotherapist registered with the Health and Care Professions Council.

Answer 247

In a provisional damages claim the claimant must state in his particulars of claim: (1) that he is seeking an award of provisional damages under either section 32A of the Senior Courts Act 1981 or section 51 of the County Courts Act 1984, (2) that there is a chance that at some future time the claimant will develop some serious disease or suffer some serious deterioration in his physical or mental condition, and (3) specify the disease or type of deterioration in respect of which an application may be made at a future date.

Answer 248

In a fatal accident claim the claimant must state in his particulars of claim: (1) that it is brought under the Fatal Accidents Act 1976, (2) the dependants on whose behalf the claim is made, (3) the date of birth of each dependant, and (4) details of the nature of the dependency claim.

Answer 249

5.2 A fatal accident claim may include a claim for damages for bereavement.

Answer 250

5.3 In a fatal accident claim the claimant may also bring a claim under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased.

Answer 251

(1) the date of the agreement, (2) the parties to the agreement, (3) the number or other identification of the agreement, (4) where the claimant was not one of the original parties to the agreement, the means by which the rights and duties of the creditor passed to him, (5) whether the agreement is a regulated agreement, and if it is not a regulated agreement, the reason why, (6) the place where the agreement was signed by the defendant, (7) the goods claimed, (8) the total price of the goods, (9) the paid-up sum, (10) the unpaid balance of the total price, (11) whether a default notice or a notice under section 76(1) or 98(1) of the Consumer Credit Act 1974 has been served on the defendant, and if it has, the date and method of service, (12) the date when the right to demand delivery of the goods accrued, (13) the amount (if any) claimed as an alternative to the delivery of goods, and (14) the amount (if any) claimed in addition to – (a) the delivery of the goods, or (b) any claim under (13) above, with the grounds of each claim.

Answer 252

6. 2 Where the claim is not for the delivery of goods, the claimant must state in his particulars of claim: (1) the matters set out in paragraph 6.1(1) to (6) above, (2) the goods let under the agreement, (3) the amount of the total price, (4) the paid-up sum, (5) the amount (if any) claimed as being due and unpaid in respect of any instalment or instalments of the total price, and (6) the nature and amount of any other claim and how it arises.

Answer 253

(1) state whether or not the injunction or declaration relates to residential premises, and (2) identify the land (by reference to a plan where necessary).

Answer 254

Where a claim is brought to enforce a right to recover possession of goods the particulars of claim must contain a statement showing the value of the goods.

Answer 255

Where a claim is based upon a written agreement: (1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and (2) any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents).

Answer 256

Where a claim is brought to enforce a right to recover possession of goods the particulars of claim must contain a statement showing the value of the goods.

Answer 257

7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out the contractual words used and state by whom, to whom, when and where they were spoken.

Answer 258

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

Answer 259

7.6 In a claim issued in the High Court relating to a Consumer Credit Agreement, the particulars of claim must contain a statement that the action is not one to which section 141 of the Consumer Credit Act 1974 applies.

Answer 260

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.

Answer 261

The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim: (1) any allegation of fraud, (2) the fact of any illegality, (3) details of any misrepresentation, (4) details of all breaches of trust, (5) notice or knowledge of a fact, (6) details of unsoundness of mind or undue influence, (7) details of wilful default, and (8) any facts relating to mitigation of loss or damage.

Answer 262

In clinical negligence claims, the words ‘clinical negligence' should be inserted at the top of every statement of case.

Answer 263

Where the defendant is an individual, and the claim form does not contain an address at which he resides or carries on business, or contains an incorrect address, the defendant must provide such an address in the defence.

Answer 264

Where a defendant to a claim or counterclaim is an individual, he must provide his date of birth (if known) in the acknowledgment of service, admission, defence, defence and counterclaim, reply or other response.

Answer 265

Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should: (1) state in his defence whether he – (a) agrees, (b) disputes, or (c) neither agrees nor disputes but has no knowledge of, the matters contained in the medical report,

Answer 266

(2) where he disputes any part of the medical report, give in his defence his reasons for doing so, and

Answer 267

Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should: (3) where he has obtained his own medical report on which he intends to rely, attach it to his defence.

Answer 268

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

Answer 269

14 A party who wishes to rely on a finding of the Office of Fair Trading as provided by section 58 of the Competition Act 1998 must include in his statement of case a statement to that effect and identify the Office's finding on which he seeks to rely.

Answer 270

* A party who seeks to rely on any provision of or right arising under the Human Rights Act 1998 or seeks a remedy available under that Act – * (1) must state that fact in his statement of case; and * (2) must in his statement of case – * (a) give precise details of the Convention right which it is alleged has been infringed and details of the alleged infringement; * (b) specify the relief sought; * (c) state if the relief sought includes– * (i) a **_declaration of incompatibility_** in accordance with section 4 of that Act, or * (ii) damages in respect of a **_judicial act_** to which section 9(3) of that Act applies; * (d) where the relief sought includes a **_declaration of incompatibility_** in accordance with section 4 of that Act, give precise details of the legislative provision alleged to be incompatible and details of the alleged incompatibility; * (e) where the claim is founded on a **_finding of unlawfulness by another court or tribunal_**, give details of the finding; and * (f) where the claim is founded on a **_judicial act_** which is alleged to have infringed a Convention right of the party as provided by section 9 of the Human Rights Act 1998, the judicial act complained of and the court or tribunal which is alleged to have made it.

Answer 271

A party who seeks to amend his statement of case to include the matters referred to in paragraph 15.1 must, unless the court orders otherwise, do so as soon as possible.

Answer 272

A defendant may file an acknowledgment of service if – (a) he is unable to file a defence within the period specified in rule 15.4; or (b) he wishes to dispute the court’s jurisdiction.

Answer 273

If – (a) a defendant fails to file an acknowledgment of service within the period specified in rule 10.3; and (b) does not within that period file a defence in accordance with Part 15 or serve or file an admission in accordance with Part 14, the claimant may obtain default judgment if Part 12 allows it.

Answer 274

The general rule is that the period for filing an acknowledgment of service is – (a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and (b) in any other case, 14 days after service of the claim form.

Answer 275

The general rule that the period for filing an acknowledgment of service is – is subject to the following rules – (a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33); (b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and (c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).

Answer 276

Where a defendant to a claim serves a counterclaim under Part 20, the defence and counterclaim should normally form one document with the counterclaim following on from the defence.

Answer 277

Where a claimant serves a reply and a defence to counterclaim, the reply and defence to counterclaim should normally form one document with the defence to counterclaim following on from the reply.

Answer 278

Rule 15.8(a) provides that a claimant must file any reply with his directions questionnaire. Where the date by which he must file his directions questionnaire is later than the date by which he must file his defence to counterclaim (because the time for filing the directions questionnaire under rule 26.3(6) is more than 14 days (small claims track) or more than 28 days (fast track and multi-track) after the date on which it is deemed to be served), the court will normally order that the defence to counterclaim must be filed by the same date as the reply. Where the court does not make such an order the reply and defence to counterclaim may form separate documents.

Answer 279

Rule 15.8(a) provides that a claimant must file any reply with his directions questionnaire. Where the date by which he must file his directions questionnaire is later than the date by which he must file his defence to counterclaim (because the time for filing the directions questionnaire under rule 26.3(6) is more than 14 days (small claims track) or more than 28 days (fast track and multi-track) after the date on which it is deemed to be served), the court will normally order that the defence to counterclaim must be filed by the same date as the reply. Where the court does not make such an order the reply and defence to counterclaim may form separate documents.

Answer 280

In these Rules, ‘default judgment’ means judgment without trial where a defendant – (a) has failed to file an acknowledgment of service; or (b) has failed to file a defence.

Answer 281

A claimant may not obtain a default judgment – (a) on a claim for delivery of goods subject to an agreement regulated by the Consumer Credit Act 19741; (b) where he uses the procedure set out in Part 8 (alternative procedure for claims); or (c) in any other case where a practice direction provides that the claimant may not obtain default judgment.

Answer 282

The claimant may obtain judgment in default of an acknowledgment of service only if – (a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and (b) the relevant time for doing so has expired. ... and, in either case, the relevant time limit for doing so has expired.

Answer 283

Judgment in default of defence may be obtained only – (a) where an acknowledgement of service has been filed but a defence has not been filed; (b) in a counterclaim made under rule 20.4, where a defence has not been filed, and, in either case, the relevant time limit for doing so has expired.

Answer 284

* The claimant may not obtain a default judgment if – * (a) the defendant has applied – * (i) to have the claimant’s statement of case struck out under rule 3.4; or * (ii) for summary judgment under Part 24, * and, in either case, that application has not been disposed of; * (b) the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment; * (c) * (i) the claimant is seeking judgment on a claim for money; and * (ii) the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all of the money claimed) together with a request for time to pay; or * (d) notice has been given under rule 82.21 of a person’s intention to make an application for a declaration under section 6 of the Justice and Security Act 2013 in relation to the proceedings, and that application has not been disposed of.

Answer 285

Subject to paragraph (2), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for – (a) a specified amount of money; (b) an amount of money to be decided by the court; (c) delivery of goods where the claim form gives the defendant the alternative of paying their value; or (d) any combination of these remedies.

Answer 286

(1) Subject to paragraph (2), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for – (a) a specified amount of money; (b) an amount of money to be decided by the court; (c) delivery of goods where the claim form gives the defendant the alternative of paying their value; or (d) any combination of these remedies.

Answer 287

The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment – (a) on a claim which consists of or includes a claim for any other remedy; or (b) where rule 12.9 or rule 12.10 so provides, and where the defendant is an individual, the claimant must provide the defendant's date of birth (if known) in Part C of the application notice.

Answer 288

Where a claimant – (a) claims any other remedy in his claim form in addition to those specified in paragraph (1); but (b) abandons that claim in his request for judgment, he may still obtain a default judgment by filing a request under paragraph (1).

Answer 289

(4) In civil proceedings against the Crown, as defined in rule 66.1(2), a request for a default judgment must be considered by a Master or district judge, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown in accordance with section 18 of the Crown Proceedings Act 1947 and rule 6.10.

Answer 290

Where the claim is for a specified sum of money, the claimant may specify in a request filed under rule 12.4(1) – (a) the date by which the whole of the judgment debt is to be paid; or (b) the times and rate at which it is to be paid by instalments.

Answer 291

Except where paragraph (4) applies, a default judgment on a claim for a specified amount of money obtained on the filing of a request, will be judgment for the amount of the claim (less any payments made) and costs – (a) to be paid by the date or at the rate specified in the request for judgment; or (b) if none is specified, immediately.

Answer 292

(3) Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for an amount to be decided by the court and costs.

Answer 293

(4) Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be judgment requiring the defendant to – (a) deliver the goods or (if he does not do so) pay the value of the goods as decided by the court (less any payments made); and (b) pay costs.

Answer 294

(5) The claimant’s right to enter judgment requiring the defendant to deliver goods is subject to rule 40.14 (judgment in favour of certain part owners relating to the detention of goods).

Answer 295

If a claimant files a request for judgment in the County Court which includes an amount of money to be decided by the court in accordance with rules 12.4 and 12.5, the claim will be sent to the preferred hearing centre.

Answer 296

(2) If a claim is sent to a preferred hearing centre pursuant to paragraph (1), any further correspondence should be sent to, and any further requests should be made at, the hearing centre to which the claim was sent.

Answer 297

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 19812 or section 69 of the County Courts Act 19843, 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.

Answer 298

In any case where paragraph (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) does not apply, judgment will be for an amount of interest to be decided by the court.

Answer 299

A claimant may obtain a default judgment on request under this Part on a claim for money or a claim for delivery of goods against one of two or more defendants, and proceed with his claim against the other defendants.

Answer 300

Where a claimant applies for a default judgment against one of two or more defendants – (a) if the claim can be dealt with separately from the claim against the other defendants – (i) the court may enter a default judgment against that defendant; and (ii) the claimant may continue the proceedings against the other defendants; (b) if the claim cannot be dealt with separately from the claim against the other defendants – (i) the court will not enter default judgment against that defendant; and (ii) the court must deal with the application at the same time as it disposes of the claim against the other defendants.

Answer 301

(3) A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless – (a) he has obtained a judgment for possession or delivery (whether or not obtained under this Part) against all the defendants to the claim; or (b) the court gives permission.

Answer 302

The claimant must make an application in accordance with Part 23 where – (a) the claim is – (i) a claim against a child or protected party; or (ii) a claim in tort by one spouse or civil partner against the other. (b) the claimant wishes to obtain a default judgment where the defendant has failed to file an acknowledgment of service – (i) against a defendant who has been served with the claim out of the jurisdiction under rule 6.32(1), 6.33(1), 6.33(2) or 6.33(2B); (service where permission of the court is not required under the Civil Jurisdiction and Judgments Act 19824); (ii) against a defendant domiciled in Scotland or Northern Ireland or in any other Convention territory or Member State; (iii) against a State; (iv) against a diplomatic agent who enjoys immunity from civil jurisdiction by virtue of the Diplomatic Privileges Act 19645; or (v) against persons or organisations who enjoy immunity from civil jurisdiction pursuant to the provisions of the International Organisations Acts 1968 and 19816.

Answer 303

A default judgment is judgment without a trial where a defendant has failed to file either: (1) an acknowledgment of service, or (2) a defence.

Answer 304

(1) the procedure set out in Part 8 (Alternative Procedure for Claims) is being used, or (2) the claim is for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974, or

Answer 305

Other rules and practice directions provide that default judgment under Part 12 cannot be obtained in particular types of proceedings. Examples are: (1) admiralty proceedings; (2) arbitration proceedings; (3) contentious probate proceedings; (4) claims for provisional damages; (5) possession claims.

Answer 306

A default judgment on: (1) the claims referred to in rules 12.9(1)(b) and 12.10, and (2) claims other than those described in rule 12.4(1), can only be obtained if an application for default judgment is made and cannot be obtained by filing a request.

Answer 307

The following are some of the types of claim which require an application for a default judgment: (1) against children and protected parties1, (2) for costs (other than fixed costs) only2, (3) by one spouse or civil partner against the other3 on a claim in tort4, (4) for delivery up of goods where the defendant will not be allowed the alternative of paying their value; and (5) Omitted. (6) against persons or organisations who enjoy immunity from civil jurisdiction under the provisions of the International Organisations Acts 1968 and 1981.

Answer 308

Both on a request and on an application for default judgment the court must be satisfied that: (1) the particulars of claim have been served on the defendant (a certificate of service on the court file will be sufficient evidence), (2) either the defendant has not filed an acknowledgment of service or has not filed a defence and that in either case the relevant period for doing so has expired, (3) the defendant has not satisfied the claim, and (4) the defendant has not returned an admission to the claimant under rule 14.4 or filed an admission with the court under rule 14.6.

Answer 309

On an application against a child or protected party5: (1) a litigation friend6 to act on behalf of the child or protected party must be appointed by the court before judgment can be obtained, and (2) the claimant must satisfy the court by evidence that he is entitled to the judgment claimed.

Answer 310

(a) the claim is one that the court has power to hear and decide, (b) no other court has exclusive jurisdiction under the Act, the 2005 Hague Convention, the Lugano Convention or Judgments Regulation to hear and decide the claim, and (c) the claim has been properly served in accordance with Article 20 of Schedule 1 to the Act, Article 9(c) of the 2005 Hague Convention, Article 26 of the Lugano Convention, paragraph 15 of Schedule 4 to the Act, or Article 26 of the Judgments Regulation.

Answer 311

4. 4 On an application against a State10 the evidence must: (1) set out the grounds of the application, (2) establish the facts proving that the State is excepted from the immunity conferred by section 1 of the State Immunity Act 1978, (3) establish that the claim was sent through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State or, where the State has agreed to another form of service, that the claim was served in the manner agreed; and (4) establish that the time for acknowledging service (which is extended to two months by section 12(2) of the Act when the claim is sent through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State) has expired.

Answer 312

4.5 Evidence in support of an application referred to in paragraphs 4.3 and 4.4 above must be by affidavit.

Answer 313

4.6 On an application for judgment for delivery up of goods where the defendant will not be given the alternative of paying their value, the evidence must identify the goods and state where the claimant believes the goods to be situated and why their specific delivery up is sought.

Answer 314

Where default judgment is given on a claim for a sum of money expressed in a foreign currency, the judgment should be for the amount of the foreign currency with the addition of ‘or the Sterling equivalent at the time of payment’.

Answer 315

The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because– (a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied; (b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or (c) the whole of the claim was satisfied before judgment was entered.

Answer 316

* sending CC money claims to the claimant's preferred hearing centre where the claim is undefended and the court needs to assess the amount payable or the rate of payment * sending CC claims for specified sums of money to the defendant's home court where the defendant is an individual. This happens when all parties have filed their directions questionnairs, or when a stay to attempt mediation has expired, _or if an application is made to set aside DJ_ * transferring high court claims for specified sums of moneyto the defendant's home court if a defence is filed or if an _application is made to set aside default judgment_

Answer 317

Where – (a) the claimant claimed a remedy in addition to one specified in rule 12.4(1) (claims in respect of which the claimant may obtain default judgment by filing a request); (b) the claimant abandoned his claim for that remedy in order to obtain default judgment on request in accordance with rule 12.4(3); and (c) that default judgment is set aside(GL) under this Part, the abandoned claim is restored when the default judgment is set aside.

Answer 318

the defendant must show that they have “a real prospect of successfully defending the claim”

Answer 319

the only significant difference between the provisions of CPR 24.2 and 13.3(1), is that _under the former_ the overall burden of proof rests upon the claimant to establish that there are grounds for his belief that the respondent has no real prospect of success whereas, _under the latter_, the burden rests upon the defendant to satisfy the court that there is good reason why a judgment regularly obtained should be set aside

Answer 320

The discretionary power to set aside is unconditional.

Answer 321

The purpose of the power is to avoid injustice.

Answer 322

The major consideration on an application to set aside is whether the defendant has shown a real prospect of successfully defending the claim or some other good reason why judgment should be set aside or they should be allowed to defend the claim.

Answer 323

In El Diwany v Hansen [2011] EWHC 2077 (QB), July 29, 2011, unrep. (Sharp J.) a foreign defendant in a defamation claim filed an acknowledgment of service which was defective because it did not contain an address for service (rr.6.23 & 10.5) and the claimant entered default judgment under r.12.3. In determining the defendant’s application to set aside the judgment under r.13.3, the judge found and had regard to (amongst other things) the fact that defendant had no notice of the claim until service of the claim form.

Answer 324

In Berezhovsky v Russian Television and Radio Broadcasting Co [2009] EWHC 1733 (QB), Eady J. held, in a defamation claim, that the court’s discretion to set aside judgment under CPR r.13.3 was a broad one, which may be exercised if there was considered to be “some other good reason” why a defendant should be allowed to defend the claim. Where an allegation was a serious one, involving the suggestion that someone had been granted asylum on a false basis and in light of evidence obtained by threats and by drugging a relevant witness, it was plainly desirable (and indeed in the public interest) that the allegation should be given as full and fair a hearing as the circumstances permitted. Although the defendant had not acted promptly in his attempt to set aside the judgment, that may have been attributable to a genuine perception on his part that he needed to remain in hiding. It was also important to note that the primary object of most libel actions was to achieve vindication of the relevant claimant’s reputation. If the claimant relied purely on a judgment obtained in default, it would be easy for those ill disposed towards them, for whatever reason, to undermine the effectiveness of that vindication. It was in the interests of both sides that a proposed plea of justification should properly be addressed.

Answer 325

The failure to serve a response pack could potentially constitute “some other good reason” for the court to exercise its discretion to set judgment aside

Answer 326

However, in certain cases the court may conclude that judgment may be set aside even where there has been excessive delay; see Barons Bridging Finance PLC v Nnadiekwe QBD (Comm) September 6, 2012, unrep., where HHJ Mackie QC allowed a defendant to set aside a judgment entered several years earlier, on the basis that: (i) There were very serious conflicts of evidence between the parties, and the defendant alleged that she was the victim of fraud; (ii) the case had not lain buried since judgment was entered, it had continued for some time. Given the importance of the issue and the facts, justice required that the judgment be set aside.

Answer 327

a judge’s discretionary power was not to be exercised to punish a party for incompetence, but to further the overriding objective.

Answer 328

Nolanv Devonport [2006] EWHC 2025 (QB), unrep.: a debtor who did nothing until the creditor sought to enforce the judgment, then applied to set aside, was refused permission to set aside, it being held that the debtor’s conduct amounted to an abuse of process.

Answer 329

An application to set aside must be supported by evidence (see r.13.4(3)). If a defendant has not acted promptly they would be well advised to address the reason for this in their witness statement or affidavit having regard to r.13.3(2).

Answer 330

In Harrison v Hockey [2007] All E.R. (D.) 336 (Mar), Mann J. refused the defendant’s application to set aside judgment after a trial in his absence on the basis of his inability to attend the hearing. It was held that four and half months was too great a delay in making the application.

Answer 331

Investments v Fidler [2006] EWHC 2857, (see Note at 13.3.2 above) where the judge concluded that a delay of 59 days in making an application under CPR Pt 13 was “very much at the outer limit of what could possibly be acceptable”

Answer 332

In Mullock v Price [2009] EWCA Civ 1222, October 15, 2009, CA, unrep.. it was held that Pt 13.3, unlike an application for relief from sanction under Pt 3.9, did not permit a defendant to rely on the default of his representatives (in that case his insurance brokers rather than his legal representatives) as a reason for not acting promptly. It was said that the explicit language of Pt 13.3 imposed the duty to act promptly upon the defendant personally.

Answer 333

Under r.40.9 a person who is not a party but who is “directly affected” by a judgment or order may apply to have it set aside. It would seem that this rule applies to default judgments; see further para.40.9.1 below.

Answer 334

In contrast, in Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm) the court adopted a generous interpretation of Rule 3.10, and held that electronic service of particulars of claim 5 days late and failing to comply with Practice Direction 6A governing service by electronic means could be treated as valid by CPR 3.10 and refused to set aside a default judgment on the basis of invalid service of the particulars of claim.

Answer 335

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); (b) adjourn or bring forward a hearing; (c) require a party or a party’s legal representative to attend the court; (d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication; (e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings; (f) stay(GL) the whole or part of any proceedings or judgment either generally or until a specified date or event; (g) consolidate proceedings; (h) try two or more claims on the same occasion; (i) direct a separate trial of any issue; (j) decide the order in which issues are to be tried; (k) exclude an issue from consideration; (l) dismiss or give judgment on a claim after a decision on a preliminary issue; (ll) order any party to file and exchange a costs budget; (m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case.

Answer 336

When the court makes an order, it may – (a) make it subject to conditions, including a condition to pay a sum of money into court; and (b) specify the consequence of failure to comply with the order or a condition.

Answer 337

Where the court gives directions it will take into account whether or not a party has complied with the Practice Direction (Pre-Action Conduct) and any relevant pre-action protocol

Answer 338

The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.

Answer 339

(a) the amount in dispute; and (b) the costs which the parties have incurred or which they may incur.

Answer 340

Where a party pays money into court following an order under paragraph (3) or (5), the money shall be security for any sum payable by that party to any other party in the proceedings.

Answer 341

(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.

Answer 342

The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court.

Answer 343

Where the court proposes to make an order of its own initiative – (a) it may give any person likely to be affected by the order an opportunity to make representations; and (b) where it does so it must specify the time by and the manner in which the representations must be made.

Answer 344

Where the court proposes – (a) to make an order of its own initiative; and (b) to hold a hearing to decide whether to make the order, it must give each party likely to be affected by the order at least 3 days’ notice of the hearing.

Answer 345

(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations. ... (5) (a) a party affected by the order may apply to have it set aside(GL), varied or stayed(GL); and (b) the order must contain a statement of the right to make such an application.

Answer 346

(a) within such period as may be specified by the court; or (b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

Answer 347

(a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Answer 348

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.

Answer 349

(2) There are three tracks – (a) the small claims track; (b) the fast track; and (c) the multi-track.

Answer 350

If a defendant files a defence – (a) a court officer will – (i) provisionally decide the track which appears to be most suitable for the claim; and (ii) serve on each party a notice of proposed allocation

Answer 351

(i) specify any matter to be complied with by the date specified in the notice; (ii) require the parties to file a completed directions questionnaire and serve copies on all other parties; (iii) state the address of the court or the court office to which the directions questionnaire must be returned; (iv) inform the parties how to obtain the directions questionnaire; and (v) if a case appears suitable for allocation to the fast track or multi-track, require the parties to file proposed directions by the date specified in the notice.

Answer 352

The court will always serve on any unrepresented party the appropriate directions questionnaire.

Answer 353

(a) when all the defendants have filed a defence; or (b) when the period for the filing of the last defence has expired, Whichever is sooner

Answer 354

If a notice is served under rule 26.3(1) – (a) each party must file, and serve on all other parties, the documents required by the notice by no later than the date specified in it; and (b) the date specified will be – (i) if the notice relates to the small claims track, at least 14 days; or (ii) if the notice relates to the fast track or multi-track, at least 28 days, after the date when it is deemed to be served on the party in question.

Answer 355

The date for complying with a notice served under rule 26.3(1) may not be varied by agreement between the parties.

Answer 356

a party who was in default will not normally be entitled to an order for the costs of any application to set aside or vary that order nor of attending any case management conference and will, unless the court thinks it unjust to do so, be ordered to pay the costs that the default caused to any other party.

Answer 357

A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed(GL) while the parties try to settle the case by alternative dispute resolution(GL) or other means.

Answer 358

(2) If all parties request a stay the proceedings will be stayed for one month and the court will notify the parties accordingly.

Answer 359

(2A) If the court otherwise considers that such a stay would be appropriate, the court will direct that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it considers appropriate.

Answer 360

(3) The court may extend the stay until such date or for such specified period as it considers appropriate.

Answer 361

tell the court

Answer 362

(4) Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached.

Answer 363

(5) If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached, the court will give such directions as to the management of the case as it considers appropriate.

Answer 364

) This rule applies to claims started in the County Court which would normally be allocated to the small claims track pursuant to rule 26.6.

Answer 365

(a) road traffic accident, personal injury or housing disrepair claims; or (b) any claim in which any party to the proceedings does not agree to referral to the Mediation Service.

Answer 366

(3) In this rule, 'the Mediation Service' means the Small Claims Mediation Service operated by Her Majesty’s Courts and Tribunals Service.

Answer 367

Where all parties indicate on their directions questionnaire that they agree to mediation, the claim will be referred to the Mediation Service.

Answer 368

(5) If a claim to which this rule applies is settled, the proceedings will automatically be stayed with permission to apply for— (a) judgment for the unpaid balance of the outstanding sum of the settlement agreement; or (b) the claim to be restored for hearing of the full amount claimed, unless the parties have agreed that the claim is to be discontinued or dismissed.

Answer 369

(5) If a claim to which this rule applies is settled, the proceedings will automatically be stayed with permission to apply for— (a) judgment for the unpaid balance of the outstanding sum of the settlement agreement; or (b) the claim to be restored for hearing of the full amount claimed, unless the parties have agreed that the claim is to be discontinued or dismissed.

Answer 370

The court will allocate the claim to a track – (a) when all parties have filed their directions questionnaires; or (b) when giving directions pursuant to rule 26.3(8), unless it has stayed the proceedings under rule 26.4.

Answer 371

If the court has stayed(GL) the proceedings under rule 26.4, it will allocate the claim to a track at the end of the period of the stay.

Answer 372

If— (a) a claim is referred to the Mediation Service pursuant to rule 26.4A; and (b) the court has not been notified in writing that a settlement has been agreed, the claim will be allocated to a track in accordance with this rule no later than four weeks from the date on which the last directions questionnaire is filed.

Answer 373

(3) Before deciding the track to which to allocate proceedings or deciding whether to give directions for an allocation hearing to be fixed, the court may order a party to provide further information about his case.

Answer 374

(4) The court may hold an allocation hearing if it thinks it is necessary.

Answer 375

If a party fails to file an allocation questionnaire, the court may give any direction it considers appropriate.

Answer 376

5 If a party fails to file an allocation questionnaire, the court may give any direction it considers appropriate.

Answer 377

* The small claims track is the normal track for– * (a) any claim for personal injuries where – * (i) the value of the claim is not more than £10,000; and * (ii) the value of any claim for damages for personal injuries is not more than £1,000; * (b) any claim which includes a claim by a tenant of residential premises against a landlord where – * (i) the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises (whether or not the tenant is also seeking some other remedy); * (ii) the cost of the repairs or other work to the premises is estimated to be not more than £1,000; and * (iii) the value of any other claim for damages is not more than £1,000. * (2) For the purposes of paragraph (1) ‘damages for personal injuries’ means damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed. * (3) Subject to paragraph (1), the small claims track is the normal track for any claim which has a value of not more than £10,000.

Answer 378

* Subject to paragraph (5), the fast track is the normal track for any claim – * (a) for which the small claims track is not the normal track; and * (b) which has a value – * (i) for proceedings issued on or after 6th April 2009, of not more than £25,000; and * (ii) for proceedings issued before 6th April 2009, of not more than £15,000.

Answer 379

* The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that – * (a) the trial is likely to last for no longer than one day; and * (b) oral expert evidence at trial will be limited to– * (i) one expert per party in relation to any expert field; and * (ii) expert evidence in two expert fields.

Answer 380

(6) The multi-track is the normal track for any claim for which the small claims track or the fast track is not the normal track.

Answer 381

In considering whether to allocate a claim to the normal track for that claim under rule 26.6, the court will have regard to the matters mentioned in rule 26.8(1) (Matters relevant to allocation to a track)

Answer 382

(2) The court will allocate a claim which has no financial value to the track which it considers most suitable having regard to the matters mentioned in rule 26.8(1).

Answer 383

The court will not allocate a claim to the small claims track, if it includes a claim by a tenant of residential premises against his landlord for a remedy in respect of harassment or unlawful eviction.

Answer 384

When deciding the track for a claim, the matters to which the court shall have regard include – 1. financial value 2. nature of the remedy 3. complexity of the facts, law or evidence 4. number of parties 5. value and complexity of any counterclaim or Part 20 6. amount of oral evidence 7. importance of the claim to persons who are not parties 8. views expressed by the parties 9. circumstances of the parties

Answer 385

two or more claimants have started a claim against the same defendant using the same claim form; and (b) each claimant has a claim against the defendant separate from the other claimants, the court will consider the claim of each claimant separately when it assesses financial value under paragraph (1).

Answer 386

When it has allocated a claim to a track, the court will serve notice of allocation on every party. 2 When the court serves notice of allocation on a party, it will also serve – a a copy of the allocation questionnaires filed by the other parties; and b a copy of any further information provided by another party about his case (whether by order or not).

Answer 387

26.10 The court may subsequently re-allocate a claim to a different track.

Answer 388

(1) Rule 26.6 sets out the scope of each track, (2) Rule 26.7 states the general rule for allocation, and (3) Rule 26.8 sets out the matters relevant to allocation to a track.

Answer 389

Rule 26.8 sets out the matters relevant to allocation to a track.

Answer 390

(2) Where the court believes that the amount the claimant is seeking exceeds what he may reasonably be expected to recover it may make an order under rule 26.5(3) directing the claimant to justify the amount.

Answer 391

In deciding, for the purposes of rule 26.8(2), whether an amount is in dispute the court will apply the following general principles: (1) Any amount for which the defendant does not admit liability is in dispute, (2) Any sum in respect of an item forming part of the claim for which judgment has been entered (for example a summary judgment) is not in dispute, (3) Any specific sum claimed as a distinct item and which the defendant admits he is liable to pay is not in dispute, (4) Any sum offered by the defendant which has been accepted by the claimant in satisfaction of any item which forms a distinct part of the claim is not in dispute.

Answer 392

It follows from these provisions that if, in relation to a claim the value of which is above the small claims track limit of £10,000, the defendant makes, before allocation, an admission that reduces the amount in dispute to a figure below £10,000 (see CPR Part 14), the normal track for the claim will be the small claims track.

Answer 393

The court will treat these views as an important factor, but the allocation decision is one for the court, to be taken in the light of all the circumstances, and the court will not be bound by any agreement or common view of the parties.

Answer 394

FALSE Where the case involves more than one money claim (for example where there is a Part 20 claim or there is more than one claimant each making separate claims) the court will not generally aggregate the claims. Instead it will generally regard the largest of them as determining the financial value of the claims.

Answer 395

Where the court is to decide whether to allocate to the fast track or the multi-track a claim for which the normal track is the fast track, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track. The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether the trial is likely to last more than a day.

Answer 396

When it is considering the likely length of the trial the court will regard a day as being a period of 5 hours, and will consider whether that is likely to be sufficient time for the case to be heard. (b) The court will also take into account the case management directions (including the fixing of a trial timetable) that are likely to be given and the court’s powers to control evidence and to limit cross-examination.

Answer 397

(c) The possibility that a trial might last longer than one day is not necessarily a conclusive reason for the court to allocate or to re-allocate a claim to the multi-track.

Answer 398

(d) A claim may be allocated to the fast track or ordered to remain on that track although there is to be a split trial.

Answer 399

(e) Where the case involves a counterclaim or other Part 20 claim that will be tried with the claim and as a result the trial will last more than a day, the court may not allocate it to the fast track.

Answer 400

Directions for the case management of claims which have been allocated to the fast track will be given at the allocation stage or at the listing stage (in either case with or without a hearing) or at both, and if necessary at other times. The trial judge may, at or before the trial, give directions for its conduct.

Answer 401

The matters to be dealt with by directions under rule 28.2(1) include – (a) disclosure of documents; (b) service of witness statements; and (c) expert evidence.

Answer 402

If the court decides not to direct standard disclosure, it may – (a) direct that no disclosure take place; or (b) specify the documents or the classes of documents which the parties must disclose.

Answer 403

When drafting case management directions both the parties and the court should take as their starting point any relevant model directions and standard directions which can be found online at www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to the circumstances of the particular case.

Answer 404

* When it allocates a case to the multi-track, the court will – * (a) give directions for the management of the case and set a timetable for the steps to be taken between the giving of directions and the trial; or may * (b) fix – * (i) a case management conference; or * (ii) a pre-trial review, * or both, and give such other directions relating to the management of the case as it sees fit. * (2) The court will fix the trial date or the period in which the trial is to take place as soon as practicable. * (3) When the court fixes the trial date or the trial period under paragraph (2), it will – * (a) give notice to the parties of the date or period; and * (b) specify the date by which the parties must file a pre-trial check list.

Answer 405

The court may fix – (a) a case management conference; or (b) a pre-trial review, at any time after the claim has been allocated.

Answer 406

(2) If a party has a legal representative, a representative – (a) familiar with the case; and (b) with sufficient authority to deal with any issues that are likely to arise, must attend case management conferences and pre-trial reviews.

Answer 407

* The parties must endeavour to * **_agree appropriate directions_** for the management of the proceedings and * **_submit agreed directions_**, or their respective proposals to the court * **_at least seven days before_** any case management conference.

Answer 408

Where the court approves agreed directions, or issues its own directions, the parties will be so notified by the court and the case management conference will be vacated.

Answer 409

A party must apply to the court if he wishes to vary the date which the court has fixed for – (a) a case management conference; (b) a pre-trial review; (c) the return of a pre-trial check list under rule 29.6; (d) the trial; or (e) the trial period.

Answer 410

(2) Any date set by the court or these Rules for doing any act may not be varied by the parties if the variation would make it necessary to vary any of the dates mentioned in paragraph (1). 29. 5(1) (a) a case management conference; (b) a pre-trial review; (c) the return of a pre-trial check list under rule 29.6; (d) the trial; or (e) the trial period.

Answer 411

(1) The court will send the parties a pre-trial check list (listing questionnaire) for completion and return by the date specified in directions given under rule 29.2(3) unless it considers that the claim can proceed to trial without the need for a pre-trial check list.

Answer 412

Each party must file the completed pre-trial check list by the date specified by the court.

Answer 413

The court will send the parties a pre-trial check list (listing questionnaire) for completion and return by the date specified in directions given under rule 29.2(3)

Answer 414

If no party files the completed pre-trial checklist by the date specified, the court will order that unless a completed pre-trial checklist is filed within 7 days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court.

Answer 415

If – (a) a party files a completed pre-trial checklist but another party does not; (b) a party has failed to give all the information requested by the pre-trial checklist; or (c) the court considers that a hearing is necessary to enable it to decide what directions to give in order to complete preparation of the case for trial, the court may give such directions as it thinks appropriate.

Answer 416

If, on receipt of the parties’ pre-trial check lists, the court decides – (a) to hold a pre-trial review; or (b) to cancel a pre-trial review which has already been fixed, it will serve notice of its decision at least 7 days before the date fixed for the hearing or, as the case may be, the cancelled hearing.

Answer 417

(i) set a timetable for the trial unless a timetable has already been fixed, or the court considers that it would be inappropriate to do so; (ii) confirm the date for trial or the week within which the trial is to begin; and (iii) notify the parties of the trial timetable (where one is fixed under this rule) and the date or trial period.

Answer 418

Case management of a claim which is proceeding at the Royal Courts of Justice will be undertaken there.

Answer 419

Case management of any other claim which has been allocated to the multi-track will normally be undertaken at a Civil Trial Centre.

Answer 420

The hallmarks of the multi-track are: (1) the ability of the court to deal with cases of widely differing values and complexity, and (2) the flexibility given to the court in the way it will manage a case in a way appropriate to its particular needs.

Answer 421

(1) On allocating a claim to the multi-track the court may give directions without a hearing, including fixing a trial date or a period in which the trial will take place,

Answer 422

* (1) On allocating a claim to the multi-track the court may give directions without a hearing, including fixing a trial date or a period in which the trial will take place, * (2) Alternatively, whether or not it fixes a trial date or period, it may either – * (a) give directions for **_certain steps to be taken_** and fix a date for a **_case management conference_** or a **_pre-trial review_** to take place after they have been taken, or * (b) fix a date for a case management conference.

Answer 423

Attention is drawn to rule 29.2(2) which requires the court to fix a trial date or period as soon as practicable.

Answer 424

The court may give or vary directions at any hearing which may take place on the application of a party or of its own initiative.

Answer 425

5 When any hearing has been fixed it is the duty of the parties to consider what directions the court should be asked to give and to make any application that may be appropriate to be dealt with then.

Answer 426

The court will hold a hearing to give directions whenever it appears necessary or desirable to do so, and where this happens because of the default of a party or his legal representative it will usually impose a sanction.

Answer 427

3.6 The court will hold a hearing to give directions whenever it appears necessary or desirable to do so, and where this happens because of the default of a party or his legal representative it will usually impose a sanction.

Answer 428

3.7 When the court fixes a hearing to give directions it will give the parties at least 3 days’ notice of the hearing unless rule 29.7 applies (7 days' notice to be given in the case of a pre-trial review).

Answer 429

Where a party needs to apply for a direction of a kind not included in the case management timetable which has been set (for example to amend his statement of case or for further information to be given by another party) he must do so as soon as possible so as to minimise the need to change that timetable.

Answer 430

Case management will generally be dealt with by: (a) a Master in cases proceeding in the Royal Courts of Justice, (b) a district judge in cases proceeding in a District Registry of the High Court, and (c) a district judge or a Circuit Judge in cases proceeding in a county court.

Answer 431

Attention is drawn to Practice Direction 41B supplementing Part 41 and in particular to the direction that in a personal injury claim the court should consider and indicate to the parties as soon as practicable whether periodical payments or a lump sum is likely to be the more appropriate form for all or part of an award of damages for future pecuniary loss.

Answer 432

At this stage the court’s first concern will be to ensure that the issues between the parties are identified and that the necessary evidence is prepared and disclosed.

Answer 433

4.4 The court may have regard to any document filed by a party with his directions questionnaire containing further information, provided that the document states either that its contents has been agreed with every other party or that it has been served on every other party, and when it was served.

Answer 434

On the allocation of a claim to the multi-track the court will consider whether it is desirable or necessary to hold a case management conference straight away, or whether it is appropriate instead to give directions on its own initiative.

Answer 435

To obtain the court’s approval the agreed directions must – (a) set out a timetable by reference to calendar dates for the taking of steps for the preparation of the case, (b) include a date or a period (the trial period) when it is proposed that the trial will take place, (c) include provision about disclosure of documents, and (d) include provision about both factual and expert evidence.

Answer 436

(a) limit disclosure to standard disclosure or less than that, and/or (b) direct that disclosure will take place by the supply of copy documents without a list, but it must in that case say either that the parties must serve a disclosure statement with the copies or that they have agreed to disclose in that way without such a statement.

Answer 437

Directions agreed by the parties should also where appropriate contain provisions about: (1) the filing of any reply or amended statement of case that may be required, (2) dates for the service of requests for further information under Practice Direction 18 and of questions to experts under rule 35.6 and by when they are to be dealt with, (3) the disclosure of evidence, (4) the use of a single joint expert, or in cases where it is not agreed, the exchange of expert evidence (including whether exchange is to be simultaneous or sequential) and without prejudice discussions between experts.

Answer 438

4.9 If the court does not approve the agreed directions filed by the parties but decides that it will give directions of its own initiative without fixing a case management conference, it will take them into account in deciding what directions to give.

Answer 439

(1) to give directions for the filing and service of any further information required to clarify either party’s case, (2) to direct standard disclosure between the parties, (3) to direct the disclosure of witness statements by way of simultaneous exchange, (4) to give directions for a single joint expert on any appropriate issue unless there is a good reason not to do so, (5) unless paragraph 4.11 (below) applies, to direct disclosure of experts’ reports by way of simultaneous exchange on those issues where a single joint expert is not directed, (6) if experts’ reports are not agreed, to direct a discussion between experts for the purpose set out in rule 35.12(1) and the preparation of a statement under rule 35.12(3), (7) to list a case management conference to take place after the date for compliance with those directions, (8) to specify a trial period; and (9) in such cases as the court thinks appropriate, the court may give directions requiring the parties to consider ADR.

Answer 440

* The parties shall by [date] consider whether the case is capable of resolution by ADR. * If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make. * The party considering the case unsuitable for ADR shall, not less than 28 days before the commencement of the trial, file with the court a witness statement without prejudice save as to costs, giving reasons upon which they rely for saying that the case was unsuitable.

Answer 441

4.11 If it appears that expert evidence will be required both on issues of liability and on the amount of damages, the court may direct that the exchange of those reports that relate to liability will be exchanged simultaneously but that those relating to the amount of damages will be exchanged sequentially.

Answer 442

(1) If it appears to the court that it cannot properly give directions on its own initiative and no agreed directions have been filed which it can approve, the court will direct a case management conference to be listed. (2) The conference will be listed as promptly as possible.

Answer 443

Where the court is proposing on its own initiative to make an order under rule 35.7 (which gives the court power to direct that evidence on a particular issue is to be given by a single expert) or under rule 35.15 (which gives the court power to appoint an assessor), the court must, unless the parties have consented in writing to the order, list a case management conference.

Answer 444

The court will at any case management conference: (1) **review** the steps which the parties have taken in the preparation of the case, and in particular their compliance with any directions that the court may have given, (2) **decide** and give directions about the steps which are to be taken to secure the progress of the claim in accordance with the overriding objective, and (3) **ensure** as far as it can that all agreements that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded.

Answer 445

Rule 29.3(2) provides that where a party has a legal representative, a representative familiar with the case and with sufficient authority to deal with any issues that are likely to arise must attend case management conferences and pre-trial reviews. (2) That person should be someone who is personally involved in the conduct of the case, and who has the authority and information to deal with any matter which may reasonably be expected to be dealt with at such a hearing, including the fixing of the timetable, the identification of issues and matters of evidence. (3) Where the inadequacy of the person attending or of his instructions leads to the adjournment of a hearing, the court will expect to make a wasted costs order.

Answer 446

The topics the court will consider at a case management conference are likely to include: (1) whether the claimant has made clear the claim he is bringing, in particular the amount he is claiming, so that the other party can understand the case he has to meet, (2) whether any amendments are required to the claim, a statement of case or any other document, (3) what disclosure of documents, if any, is necessary, (4) what expert evidence is reasonably required in accordance with rule 35.1 and how and when that evidence should be obtained and disclosed, (5) what factual evidence should be disclosed, (6) what arrangements should be made about the giving of clarification or further information and the putting of questions to experts, and (7) whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.

Answer 447

The court will not at this stage give permission to use expert evidence unless it can identify each expert by name or field in its order and say whether his evidence is to be given orally or by the use of his report. A party who obtains expert evidence before obtaining a direction about it does so at his own risk as to costs, except where he obtained the evidence in compliance with a pre-action protocol.

Answer 448

To assist the court, the parties and their legal advisers should: (1) ensure that all documents that the court is likely to ask to see (including witness statements and experts’ reports) are brought to the hearing, (2) consider whether the parties should attend, (3) consider whether a case summary will be useful, and (4) consider what orders each wishes to be made and give notice of them to the other parties.

Answer 449

A case summary: (a) should be designed to assist the court to understand and deal with the questions before it, (b) should set out a brief chronology of the claim, the issues of fact which are agreed or in dispute and the evidence needed to decide them, (c) should not normally exceed 500 words in length, and (d) should be prepared by the claimant and agreed with the other parties if possible.

Answer 450

Where a party wishes to obtain an order not routinely made at a case management conference and believes that his application will be opposed, he should issue and serve the application in time for it to be heard at the case management conference.

Answer 451

If the time allowed for the case management conference is likely to be insufficient for the application to be heard he should inform the court at once so that a fresh date can be fixed.

Answer 452

costs sanction

Answer 453

At a case management conference the court may also consider whether the case ought to be tried by a High Court judge or by a judge who specialises in that type of claim and how that question will be decided. In that case the claim may need to be transferred to another court.

Answer 454

Variation of directions 6. 1 This paragraph deals with the procedure to be adopted: (1) where a party is dissatisfied with a direction given by the court, (2) where the parties have agreed about changes they wish made to the directions given, or (3) where a party wishes to apply to vary a direction.

Answer 455

It is essential that any party who wishes to have a direction varied takes steps to do so as soon as possible.

Answer 456

The court will assume for the purposes of any later application that a party who did not appeal, and who made no application to vary within 14 days of service of the order containing the directions, was content that they were correct in the circumstances then existing.

Answer 457

* (1) Where a party is dissatisfied with a direction given or other order made by the court he may appeal or apply to the court for it to reconsider its decision. * (2) Unless paragraph 6.4 applies, **_a party should appeal if_** the direction was given or the order was made at a hearing at which he was present, or of which he had due notice. * (3) **_In any other case_** he should apply to the court to reconsider its decision.

Answer 458

(4) If an application (where a party is dissatisfied with a direction given or other order made by the court) is made for the court to reconsider its decision: (a) it will usually be heard by the judge who gave the directions or another judge of the same level, (b) the court will give all parties at least 3 days notice of the hearing, and (c) the court may confirm its directions or make a different order.

Answer 459

Where there has been a change in the circumstances since the order was made the court may set aside or vary a direction it has given. It may do so on application or on its own initiative.

Answer 460

* Where the parties agree about changes they wish made to the directions given: * the parties **_need not file the written agreement_** if * rule 2.11 (variation by agreement of a date set by the court for doing any act other than those stated in the note to that rule), * rule 3.8(4) (extensions of time by written agreement in circumstances within rule 3.8(3)) or * rule 31.5, 31.10(8) or 31.13 (agreements about disclosure) applies * (a) **_In any other case the parties must apply for an order by consent_**. * (b) The parties must file a draft of the order sought and an agreed statement of the reasons why the variation is sought. * (c) The court may make an order in the agreed terms or in other terms without a hearing, but it may direct that a hearing is to be listed.

Answer 461

* 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. * 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. * 7.3 The court may take any such delay into account when it decides whether to make an order imposing a sanction or to grant relief from a sanction imposed by the rules or any other practice direction.

Answer 462

The court will not allow a failure to comply with directions to lead to the postponement of the trial unless the circumstances are exceptional.

Answer 463

* (1) **_The court will not allow_** a failure to comply with directions to lead to the postponement of the trial unless the circumstances are exceptional. * (2) **_If it is practical_** to do so the court will exercise its powers in a manner that enables the case to come on for trial on the date or within the period previously set. * (3) **_In particular_** the court will * **assess** what steps each party should take to prepare the case for trial * **direct** that those steps are taken in the shortest possible time and * **impose** a sanction for non-compliance, for example" * to rely on evidence to which the direction relates. * deprive a party of the right to raise or contest an issue or

Answer 464

* (4) Where it appears that one or more issues are or can be made ready for trial at the time fixed while others cannot, the court may direct that * the _trial will proceed on the issues which are then ready_, and * direct that _no costs will be allowed for any later trial of the remaining issues_ or * that _those costs will be paid by the party in default_.

Answer 465

* (5) Where the court has no option but to postpone the trial it will * postpone so for the shortest possible time and * give directions for the taking of the necessary steps in the meantime as rapidly as possible.

Answer 466

(6) Litigants and lawyers must be in no doubt that the court will regard the postponement of a trial as an order of last resort. Where it appears inevitable the court may exercise its power to require a party as well as his legal representative to attend court at the hearing where such an order is to be sought.

Answer 467

(7) The court will not postpone any other hearing without a very good reason, and for that purpose the failure of a party to comply on time with directions previously given will not be treated as a good reason.

Answer 468

(2) Unless it dispenses with pre-trial check lists and orders an early trial on a fixed date, the court will specify the date for filing completed pre-trial check lists when it fixes the trial date or trial period under rule 29.2(2).

Answer 469

The date for filing the completed pre-trial check list will be not later than 8 weeks before the trial date or the start of the trial period.

Answer 470

The date for filing the completed pre-trial check list will be not later than 8 weeks before the trial date or the start of the trial period. The court will serve the pre-trial check lists on the parties at least 14 days before that date.

Answer 471

(5) Although the rules do not require the parties to exchange copies of the check lists before they are filed they are encouraged to do so to avoid the court being given conflicting or incomplete information.

Answer 472

(6) The file will be placed before a judge for his directions when all the check lists have been filed or when the time for filing them has expired and where a party has filed a checklist but another party has not done so.

Answer 473

(1) Where no party files a pre-trial checklist the court will order that unless a completed pre-trial checklist is filed within 7 days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court.

Answer 474

(2) Where a party files a pre-trial check list but another party (the defaulting party) does not do so, the court will fix a hearing under rule 29.6(4)\*. Whether or not the defaulting party attends the hearing, the court will normally fix or confirm the trial date and make other orders about the steps to be taken to prepare the case for trial. \* (4) If – (a) a party files a completed pre-trial checklist but another party does not; (b) a party has failed to give all the information requested by the pre-trial checklist; or (c) the court considers that a hearing is necessary to enable it to decide what directions to give in order to complete preparation of the case for trial, the court may give such directions as it thinks appropriate.

Answer 475

8.4 Where the court decides to hold a hearing under rule 29.6(4) the court will fix a date which is as early as possible and the parties will be given at least 3 days notice of the date.

Answer 476

8.5 Where the court decides to hold a pre-trial review (whether or not this is in addition to a hearing under rule 29.6(4)) the court will give the parties at least 7 days notice of the date.

Answer 477

8.5 Where the court decides to hold a pre-trial review (whether or not this is in addition to a hearing under rule 29.6(4)) the court will give the parties at least 7 days notice of the date.

Answer 478

The court must fix the trial date or week, give a time estimate and fix the place of trial.

Answer 479

The parties should seek to agree directions and may file an agreed order. The court may make an order in those terms or it may make a different order.

Answer 480

Agreed directions should include provision about: (a) evidence especially expert evidence, (b) a trial timetable and time estimate, (c) the preparation of a trial bundle, and (d) any other matter needed to prepare the case for trial.

Answer 481

* (4) Unless a direction doing so has been given before, a direction giving permission to use expert evidence will say * whether it gives permission to use oral evidence * or reports * or both; and * will name the experts concerned.

Answer 482

10.1 The trial will normally take place at a Civil Trial Centre but it may be at another court if it is appropriate having regard to the needs of the parties and the availability of court resources.

Answer 483

10.2 The judge will generally have read the papers in the trial bundle and may dispense with an opening address.

Answer 484

10.3 The judge may confirm or vary any timetable given previously, or if none has been given set his own.

Answer 485

10.6 Once the trial of a multi-track claim has begun, the judge will normally sit on consecutive court days until it has been concluded.

Answer 486

II COSTS MANAGEMENT Application of this Section and the purpose of costs management 3.12 (1) This Section and Practice Direction 3E apply to all Part 7 multi-track cases, except— * (a) where the claim is commenced on or after 22nd April 2014 and the amount of money claimed as stated on the claim form is £10 million or more; or * (b) where the claim is commenced on or after 22nd April 2014 and is for a monetary claim which is not quantified or not fully quantified or is for a non-monetary claim and in any such case the claim form contains a statement that the claim is valued at £10 million or more; or * (c) where in proceedings commenced on or after 6th April 2016 a claim is made by or on behalf of a person under the age of 18 (a child) (and on a child reaching majority this exception will continue to apply unless the court otherwise orders); or * (d) where the proceeding are the subject of fixed costs or scale costs; or * (e) the court otherwise orders.

Answer 487

Application of this Section and the purpose of costs management 3.12.... (1A) This Section and Practice Direction 3E will apply to any other proceedings (including applications) where the court so orders.

Answer 488

(2) The purpose of costs management is that the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings so as to further the overriding objective.

Answer 489

(1) Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets

Answer 490

* Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets— * (a) where the claim's stated value \<£50,000, with their directions questionnaires; or * (b) in any other case, not later than 21 days before the first CMC

Answer 491

no later than 7 days before the first case management conference.

Answer 492

Failure to file a budget 3.14 Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.

Answer 493

The court may at any time make a ‘costs management order’.

Answer 494

Where costs budgets have been filed and exchanged the court will make a costs management order unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without such an order being made.

Answer 495

By a costs management order the court will— (a) record the extent to which the budgets are agreed between the parties; (b) in respect of budgets or parts of budgets which are not agreed, record the court’s approval after making appropriate revisions.

Answer 496

(3) If a costs management order has been made, the court will thereafter control the parties’ budgets in respect of recoverable costs.

Answer 497

Any hearing which is convened solely for the purpose of costs management (for example, to approve a revised budget) is referred to as a ‘costs management conference’.

Answer 498

(2) Where practicable, costs management conferences should be conducted by telephone or in writing.

Answer 499

* (1) When making any case management decision, the court will * have regard to any available budgets of the parties and will * take into account the costs involved in each procedural step. * (2) Paragraph (1) applies whether or not the court has made a costs management order.

Answer 500

In any case where a costs management order has been made, when assessing costs on the standard basis, the court will – (a) have regard to the receiving party’s last approved or agreed budget for each phase of the proceedings; and (b) not depart from such approved or agreed budget unless satisfied that there is good reason to do so.

Answer 501

1. The Rules require the parties in most Part 7 multi-track claims with a value of less than £10 million to file and exchange costs budgets

Answer 502

Application of the Costs Management section of Part 3 and the purpose of costs management Filing and exchanging budgets and budget discussion reports

Answer 503

* In any case where the parties are not required by rules 3.12 and 3.13 to file and exchange costs budgets, the court has a discretion to make an order requiring them to do so. * That power may be exercised by the court on its own initiative or on the application of a party. * Where costs budgets are filed and exchanged, the court will be in a position to consider making a costs management order: see Section D below. * In all cases the court will have regard to the need for litigation to be conducted justly and at proportionate cost in accordance with the overriding objective.

Answer 504

In cases where the Claimant has a limited or severely impaired life expectation (5 years or less remaining) the court will ordinarily disapply cost management under Section II of Part 3.

Answer 505

3. At an early stage in the litigation the parties should consider and, where practicable, discuss whether to apply for an order for the provision of costs budgets, with a view to a costs management order being made.

Answer 506

(a) unfair prejudice petitions under section 994 of the Companies Act 2006; (b) disqualification proceedings pursuant to the Company Directors Disqualification Act 1986; (c) applications under the Trusts of Land and Appointment of Trustees Act 1996; (d) claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975; (e) any Part 8 or other claims or applications involving a substantial dispute of fact and/or likely to require oral evidence and/or extensive disclosure; and (f) personal injury and clinical negligence cases where the value of the claim is £10 million or more.

Answer 507

(a) Unless the court otherwise orders, a budget must be in the form of Precedent H annexed to this Practice Direction. It must be in landscape format with an easily legible typeface.

Answer 508

In substantial cases, the court may direct that budgets be limited initially to part only of the proceedings and subsequently extended to cover the whole proceedings. A budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.

Answer 509

A budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.

Answer 510

In cases where a party’s budgeted costs do not exceed £25,000 or the value of the claim as stated on the claim form is less than £50,000, the parties must only use the first page of Precedent H .

Answer 511

The budget discussion report required by rule 3.13(2) must set out— (a) those figures which are agreed for each phase; (b) those figures which are not agreed for each phase; and (c) a brief summary of the grounds of dispute.

Answer 512

Where costs budgets are filed and exchanged, the court will generally make a costs management order under rule 3.15. If the court makes a costs management order under rule 3.15, the following paragraphs shall apply.

Answer 513

Where costs budgets are filed and exchanged

Answer 514

(a) the recoverable costs of initially completing Precedent H shall not exceed the higher of £1,000 or 1% of the approved or agreed budget; and

Answer 515

all other recoverable costs of the budgeting and costs management process other than the recoverable costs of initially completing Precedent H shall not exceed 2% of the approved or agreed budget.

Answer 516

7.3 If the budgets or parts of the budgets are agreed between all parties, the court will record the extent of such agreement.

Answer 517

In so far as the budgets are not agreed, the court will review them and, after making any appropriate revisions, record its approval of those budgets.

Answer 518

The court’s approval will relate only to the total figures for each phase of the proceedings, although in the course of its review the court may have regard to the constituent elements of each total figure.

Answer 519

When reviewing budgets, the court will not undertake a detailed assessment in advance, but rather will consider whether the budgeted costs fall within the range of reasonable and proportionate costs.

Answer 520

7.4 As part of the costs management process the court may not approve costs incurred before the date of any budget. The court may, however, record its comments on those costs and will take those costs into account when considering the reasonableness and proportionality of all subsequent costs.

Answer 521

The court may set a timetable or give other directions for future reviews of budgets.

Answer 522

* Each party shall revise its budget in respect of future costs upwards or downwards, if significant developments in the litigation warrant such revisions. * Such amended budgets shall be submitted to the other parties for agreement. * In default of agreement, the amended budgets shall be submitted to the court, together with a note of * (a) the changes made and the reasons for those changes and * (b) the objections of any other party. * The court may approve, vary or disapprove the revisions, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed.

Answer 523

7.7 After its budget has been approved or agreed, each party shall re-file and re-serve the budget in the form approved or agreed with re-cast figures, annexed to the order approving it or recording its agreement.

Answer 524

A litigant in person, even though not required to prepare a budget, shall nevertheless be provided with a copy of the budget of any other party.

Answer 525

7.9 If interim applications are made which, reasonably, were not included in a budget, then the costs of such interim applications shall be treated as additional to the approved budgets.

Answer 526

* 7.10 The making of a costs management order under rule 3.15 concerns the totals allowed for each phase of the budget. * It is not the role of the court in the cost management hearing to fix or approve the hourly rates claimed in the budget. * The underlying detail in the budget for each phase used by the party to calculate the totals claimed is provided for reference purposes only to assist the court in fixing a budget.

Answer 527

Scope of this Part 31. 1 (1) This Part sets out rules about the disclosure and inspection of documents. (2) This Part applies to all claims except a claim on the small claims track.

Answer 528

Meaning of disclosure 31.2 A party discloses a document by stating that the document exists or has existed.

Answer 529

* (a) the document is **_no longer in the control_** of the party who disclosed it; * (b) the party disclosing the document has a **_right or a duty to withhold_** inspection of it; * (c) paragraph (2 - Where a party considers that it would be **_disproportionate_** to the issues in the case to permit inspection of documents within a category or class of document disclosed under standard disclosure) applies; or * (d) **_rule 78.26_** applies (rules in relation to the disclosure and inspection of evidence arising out of mediation of certain cross-border disputes)

Answer 530

(a) he is **_not required to permit inspection of documents within that category or class_**; but (b) he **_must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate_**. (Rule 31.6 provides for standard disclosure) (Rule 31.10 makes provision for a disclosure statement) (Rule 31.12 provides for a party to apply for an order for specific inspection of documents)

Answer 531

‘document’ means anything in which information of any description is recorded; and ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

Answer 532

* 31.5 * (1) In all claims to which rule 31.5(2) does not apply – * (a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise; * (b) the court may dispense with or limit standard disclosure; and * (c) the parties may agree in writing to dispense with or to limit standard disclosure.

Answer 533

(2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multi-track claims, other than those which include a claim for personal injuries.

Answer 534

Disclosure 31.5 * (1) In all claims to which rule 31.5(2) does not apply – * (a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise; * (b) the court may dispense with or limit standard disclosure; and * (c) the parties may agree in writing to dispense with or to limit standard disclosure. * (2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multi-track claims, other than those which include a claim for personal injuries.

Answer 535

* (3) Not less than 14 days before the first CMC each party must file and serve a report verified by a statement of truth, which – * (a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case; * (b) describes where and with whom those documents are or may be located; * (c) in the case of electronic documents, describes how those documents are stored; * (d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and * (e) states which of the directions under paragraphs (7) or (8) are to be sought.

Answer 536

* (3) Not less than 14 days before the first CMC each party must file and serve a report verified by a statement of truth, which – * (a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case; * (b) describes where and with whom those documents are or may be located; * (c) in the case of electronic documents, describes how those documents are stored; * (d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and * (e) states which of the directions under paragraphs (7) or (8) are to be sought.

Answer 537

At the same time as: (3) Not less than 14 days before the first CMC each party must file and serve a report verified by a statement of truth, which –

Answer 538

(5) Not less than seven days before the first CMC, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

Answer 539

(5) Not less than seven days before the first CMC, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

Answer 540

(a) the parties agree proposals for the scope of disclosure; and (b) the court considers that the proposals are appropriate in all the circumstances,

Answer 541

_Dispense - reciprocal disclosure - issue by issue - long bit - standard disclosure - any other order_ * (a) an order **_dispensing_** with disclosure; * (b) an order that a party **_disclose_** the documents on which it relies, and at the same time request any specific disclosure it requires from any other party; * (c) an order that directs, where practicable, the disclosure to be given by each party on an **_issue by issue_** basis; * (d) an order that **_each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party_**, or which leads to an enquiry which has either of those consequences; * (e) an order that a party give **_standard disclosure_**; * (f) **_any other order_** in relation to disclosure that the court considers appropriate.

Answer 542

* (a) what **_searches_** are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents; * (b) whether **_lists_** of documents are required; * (c) how and when the disclosure **_statement_** is to be given; * (d) in what **_format_** documents are to be disclosed (and whether any identification is required); * (e) what is required in relation to documents that **_once existed_** but no longer exist; and * (f) whether disclosure shall take place in **_stages_**.

Answer 543

(9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8).

Answer 544

* (a) the documents on which he relies; and * (b) the documents which – * (i) adversely affect his own case; * (ii) adversely affect another party’s case; or * (iii) support another party’s case; and * (c) the documents which he is required to disclose by a relevant practice direction.

Answer 545

* Duty of search * 31.7 * (1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c): Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction.

Answer 546

* (a) the **number** of documents involved; * (b) the nature and complexity of the proceedings; * (c) the ease and expense of retrieval of any particular document; and * (d) the significance of any document which is likely to be located during the search.

Answer 547

(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.

Answer 548

* Duty of disclosure limited to documents which are or have been in a party’s control * 31.8 * (1) A party’s duty to disclose documents is limited to **documents which are or have been in his control.** * (2) For this purpose a party has or has had a document in his control if – * (a) it is or was in his physical possession; * (b) he has or has had a right to possession of it; or * (c) he has or has had a right to inspect or take copies of it.

Answer 549

* Duty of disclosure limited to documents which are or have been in a party’s control * 31.8 * (1) A party’s duty to disclose documents is limited to documents which are or have been in his control. * (2) For this purpose a party has or has had a document in his control if – * (a) it is or was in his physical possession; * (b) he has or has had a right to possession of it; or * (c) he has or has had a right to inspect or take copies of it.

Answer 550

* Disclosure of copies * 31.9 * (1) A party need not disclose more than one copy of a document. * (2) A copy of a document that contains a modification, obliteration or other marking or feature – * (a) on which a party intends to rely; or * (b) which adversely affects his own case or another party’s case or supports another party’s case; * shall be treated as a separate document.

Answer 551

* Disclosure of copies * 31.9 * (1) A party need not disclose more than one copy of a document. * (2) A copy of a document that contains a modification, obliteration or other marking or feature – * (a) on which a party intends to rely; or * (b) which adversely affects his own case or another party’s case or supports another party’s case; * shall be treated as a separate document.

Answer 552

* Each party must make and serve on every other party, a **_list of documents_** in the relevant practice form which must * identify the documents in a convenient order and manner and as concisely as possible. * indicate those documents in respect of which the party claims a right or duty to withhold inspection; and * those documents which are no longer in the party’s control; and * what has happened to those documents. * a statement in the list of documents relating to any documents inspection of which a person claims he has a right or duty to withhold * The list must include a **_disclosure statement_**. * setting out the extent of the search that has been made to locate documents which he is required to disclose; * certifying that he understands the duty to disclose documents; and * certifying that to the best of his knowledge he has carried out that duty. * Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also– * identify the person making the statement; and * explain why he is considered an appropriate person to make the statement. * The parties may agree in writing – * to disclose documents without making a list; and * to disclose documents without the disclosing party making a disclosure statement. * A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.

Answer 553

* setting out the extent of the search that has been made to locate documents which he is required to disclose; * certifying that he understands the duty to disclose documents; and * certifying that to the best of his knowledge he has carried out that duty. * Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also– * identify the person making the statement; and * explain why he is an appropriate person to make the statement.

Answer 554

* The parties may agree **_in writing_** – * to disclose documents without making a list; and * to disclose documents without the disclosing party making a disclosure statement.

Answer 555

(9) A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.

Answer 556

Duty of disclosure continues during proceedings 31. 11 (1) Any duty of disclosure continues until the proceedings are concluded. (2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.

Answer 557

Disclosure in stages 31.13 The parties may agree in writing, or the court may direct, that disclosure or inspection or both shall take place in stages.

Answer 558

* Documents referred to in statements of case etc. * 31.14 * (1) A party may inspect a document mentioned in – * (a) a statement of case; * (b) a witness statement; * (c) a witness summary; or * (d) an affidavit. * ... * (2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.

Answer 559

Inspection and copying of documents 31.15 Where a party has a right to inspect a document– * (a) that party must give the party who disclosed the document written notice of his wish to inspect it; * (b) the party who disclosed the document must permit inspection not more than **_7 days_** after the date on which he received the notice; and * (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than **_7 days_** after the date on which he received the request.

Answer 560

31. 19 (1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest. (2) Unless the court orders otherwise, an order of the court under paragraph (1) – (a) must not be served on any other person; and (b) must not be open to inspection by any person.

Answer 561

(3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing – (a) **that he has such a right or duty**; and (b) the **grounds** on which he claims that right or duty. (4) The **_statement referred to in paragraph (3) must be made_**– (a) _in the list in which the document is disclosed_; or (b) if there is no list, _to the person wishing to inspect the document_.

Answer 562

A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.

Answer 563

(6) For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may – (a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and (b) invite any person, whether or not a party, to make representations.

Answer 564

(8) This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.

Answer 565

31.20 Where a party inadvertently allows a privileged(GL) document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.

Answer 566

Consequence of failure to disclose documents or permit inspection 31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

Answer 567

where – (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree.

Answer 568

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public. (3) An application for such an order may be made – (a) by a party; or (b) by any person to whom the document belongs

Answer 569

(4) For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant to Practice Direction 31B is to be treated as if it is a document which has been disclosed.

Answer 570

False disclosure statements 31. 23 (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth.

Answer 571

an order that the parties give standard disclosure.

Answer 572

1.2 In order to give standard disclosure the disclosing party must make a reasonable search for documents falling within the paragraphs of rule 31.6.

Answer 573

Having made the search the disclosing party must (unless rule 31.10(8) applies) make a list of the documents of whose existence the party is aware that fall within those paragraphs and which are or have been in the party’s control (see rule 31.8).

Answer 574

1.4 The obligations imposed by an order for standard disclosure may be dispensed with or limited either by the court or by written agreement between the parties. Any such written agreement should be lodged with the court.

Answer 575

* The extent of the search which must be made will depend upon the circumstances of the case including, in particular, the factors referred to in rule 31.7(2). * (a) the **number** of documents involved; (b) the **nature** and **complexity** of the **proceedings**; (c) the **ease** and **expense** of **retrieval** of any particular document; and (d) the **significance** of any document which is likely to be located during the search

Answer 576

The parties should bear in mind the overriding principle of proportionality (see rule 1.1(2)(c)). It may, for example, be reasonable to decide not to search for documents coming into existence before some particular date, or to limit the search to documents in some particular place or places, or to documents falling into particular categories.

Answer 577

This extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata.

Answer 578

Form N265.

Answer 579

3.2 In order to comply with rule 31.10(3) [The list must identify the documents in a convenient order and manner and as concisely as possible.] it will normally be necessary to **_list the documents in date order, to number them consecutively and to give each a concise description_** (e.g. letter, claimant to defendant). Where there is a large number of documents all falling into a particular category the disclosing party may list those documents as a category rather than individually e.g. 50 bank statements relating to account number _ at _ Bank, \_20\_ to \_20\_; or, 35 letters passing between _ and _ between \_20\_ and \_20\_.

Answer 580

The obligations imposed by an order for disclosure will continue until the proceedings come to an end.

Answer 581

If, after a list of documents has been prepared and served, the existence of further documents to which the order applies comes to the attention of the disclosing party, the party must prepare and serve a supplemental list.

Answer 582

4.1 A list of documents **must** (unless rule 31.10(8)(b) applies - agree to disclose without disclosure statement) contain a disclosure statement complying with rule 31.10.

Answer 583

(1) expressly state that the disclosing party believes the extent of the search to have been reasonable in all the circumstances, and (2) in setting out the extent of the search (see rule 31.10(6)) draw attention to any particular limitations on the extent of the search which were adopted for proportionality reasons and give the reasons why the limitations were adopted, e.g. the difficulty or expense that a search not subject to those limitations would have entailed or the marginal relevance of categories of documents omitted from the search.

Answer 584

4. 3 Where rule 31.10(7) applies, the details given in the disclosure statement about the person making the statement must include his name and address and the office or position he holds in the disclosing party or the basis upon which he makes the statement on behalf of the party. 31. 10 (7) Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also– (a) identify the person making the statement; and (b) explain why he is considered an appropriate person to make the statement.

Answer 585

4.4 If the disclosing party has a legal representative acting for him, the legal representative must endeavour to ensure that the person making the disclosure statement (whether the disclosing party or, in a case to which rule 31.10(7) applies, some other person) understands the duty of disclosure under Part 31.

Answer 586

4. 5 If the disclosing party wishes to claim that he has a right or duty to withhold a document, or part of a document, in his list of documents from inspection (see rule 31.19(3)), he must state in writing: (1) that he has such a right or duty, and (2) the grounds on which he claims that right or duty. 4. 6 The statement referred to in paragraph 4.5 above should normally be included in the disclosure statement and must indicate the document, or part of a document, to which the claim relates.

Answer 587

5.1 If a party believes that the disclosure of documents given by a disclosing party is inadequate he may make an application for an order for specific disclosure (see rule 31.12).

Answer 588

5.2 The application notice must specify the order that the applicant intends to ask the court to make and must be supported by evidence (see rule 31.12(2) which describes the orders the court may make).

Answer 589

5.3 The grounds on which the order is sought may be set out in the application notice itself but if not there set out must be set out in the evidence filed in support of the application.

Answer 590

* all the circumstances of the case and, * in particular, the overriding objective described in Part 1. * But if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise) the court will usually make such order as is necessary to ensure that those obligations are properly complied with.

Answer 591

if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise) the court will usually make such order as is necessary to ensure that those obligations are properly complied with.

Answer 592

* (1) carry out a search for any documents which it is reasonable to suppose may contain information which may– * (a) enable the party applying for disclosure either to advance his own case or to damage that of the party giving disclosure; or * (b) lead to a train of enquiry which has either of those consequences; and * (2) disclose any documents found as a result of that search.

Answer 593

A claim to withhold inspection of a document, or part of a document, disclosed in a list of documents does not require an application to the court.

Answer 594

7.1 If a party wishes to inspect documents referred to in the expert report of another party, before issuing an application he should request inspection of the documents informally, and inspection should be provided by agreement unless the request is unreasonable.

Answer 595

7.2 Where an expert report refers to a large number or volume of documents and it would be burdensome to copy or collate them, the court will only order inspection of such documents if it is satisfied that it is necessary for the just disposal of the proceedings and the party cannot reasonably obtain the documents from another source.

Answer 596

A document which of itself does not “adversely affect” a case, but which may provide lines of inquiry leading to other information having a negative effect, is not covered by this provision.

Answer 597

Adverse effect is normally primarily assessed by reference to the material allegations in the statements of case.

Answer 598

Parties probably do not need to give disclosure of documents relating to non-material allegations in pleadings, i.e. those which even if substantiated would not affect the result

Answer 599

The confidentiality of a particular document does not of itself justify non-disclosure

Answer 600

Masking irrelevant parts of a document by way of redaction is in principle possible under r.31.6 but care must be taken, as the deletion of parts that are relevant could give rise to a specific disclosure order under r.31.12

Answer 601

Documents which relate purely to cross-examination as to credit and to no other issue in the trial are outside the scope of standard disclosure

Answer 602

Documents may be divided into the following four categories: (1) **_The parties’ own documents_**: these are documents which a party relies upon in support of their contentions in the proceedings. (2) **_Adverse documents_**: these are documents which to a material extent adversely affect a party’s own case or support another party’s case. (3) **_The relevant documents_**: these are documents which are relevant to the issues in the proceedings, but which do not fall into categories 1 or 2 because they do not obviously support or undermine either side’s case. They are part of the “story” or background. The category includes documents which, though relevant, may not be necessary for the fair disposal of the case. (4) **_Train of inquiry documents_**: these are documents which may lead to a train of inquiry enabling a party to advance their own case or damage that of their opponent (as referred to by Brett L.J. Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882–83) L.R. 11 Q.B.D. 55, CA.

Answer 603

(1) The parties’ own documents: these are documents which a party relies upon in support of their contentions in the proceedings. (2) Adverse documents: these are documents which to a material extent adversely affect a party’s own case or support another party’s case.

Answer 604

Whether a document falls into sub-paras (a) or (b) of r.31.6 is to be judged against the statements of case and not by reference to matters raised elsewhere, including in witness statements

Answer 605

* Documents relevant to quantum are normally disclosable, at least where quantum is in issue, * in an injury claim where quantum in issue, all medical records relevant to loss of future earnings had to be disclosed, not just those relating to the injury, the subject of the litigation * In split trials, where quantum of damages is only determined if liability is established, there is no need to disclose documents relevant purely to quantum, and this should only be ordered if and when liability is determined

Answer 606

Train of inquiry documents have traditionally been accepted as potentially appropriate for disclosure in cases involving allegations of fraud, dishonesty or misrepresentation. However it would not be appropriate to order such enhanced disclosure before standard disclosure have been completed: Berezovsky v Abromavich [2010] EWHC 2010 (Comm).

Answer 607

The obligation to disclose adverse material applies even when a defendant has been debarred from defending a claim due to non-compliance with an unless order: Thevarajah v Riordan [2013] EWHC 3179 (Ch), paras 39, 47.

Answer 608

(1) electronic documents should be managed efficiently in order to minimise the cost incurred; (2) technology should be used in order to ensure that document management activities are undertaken efficiently and effectively; (3) disclosure should be given in a manner which gives effect to the overriding objective; (4) electronic documents should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure; and (5) disclosure of electronic documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given.

Answer 609

as soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents, including electronic documents which would otherwise be deleted in accordance with a document retention policy or in the ordinary course of business

Answer 610

where it becomes apparent that the parties are unable to reach agreement in relation to the disclosure of electronic documents, they should seek directions from the court at the earliest practical date.

Answer 611

Failure to deliver up computers and deliberate deletion of files from a computer in contravention of a search order may amount to a contempt of court leading to committal: LTE Scientific Ltd v Thomas [2005] EWHC 7 (QB) (“deletion of the files, which lies at the heart of the case against him, is a serious criminal contempt”).

Answer 612

Searches documents held electronically should be meaningful and effective. The court has jurisdiction, in accordance with its overriding objective, to make an order that such a search be carried out using a suitably qualified information technology consultant, if such a requirement is necessary for the search to be effective: Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2012] EWHC 3417 (TCC); [2013] T.C.L.R. 2 (Coulson J.). The cost had to be proportionate and subsequent costs issues might turn on whether or not the exercise had led to concrete results.

Answer 613

It is not a ground for refusing disclosure that the document would not be admissible in evidence, and so the existence of potentially inadmissible documents should still be disclosed.

Answer 614

31.3—Right of inspection of a disclosed document * 31.3(1) A party to whom a document has been disclosed has a right to inspect that document except where— * (a) the document is **_no longer in the control of the party who disclosed it_** (Rule 31.8 sets out when a document is in the control of a party.); * (b) the **_party disclosing the document has a right or a duty to withhold inspection of it_**; (Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection.) * (c) **_paragraph (2)_** applies; or * (d) rule 78.26 applies; (Rule 78.26 contains rules in relation to the **_disclosure and inspection of evidence arising out of mediation of certain cross-border disputes_**.)

Answer 615

31.3—Right of inspection of a disclosed document * 31.3(1) A party to whom a document has been disclosed has a right to inspect that document except where— * ... * (c) paragraph (2) applies * (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b)— * (a) he is not required to permit inspection of documents within that category or class; but * (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

Answer 616

* Legal professional privilege - It is necessary to divide into two classes the documents that are protected on this ground, namely * (a) those that are privileged whether or not litigation was contemplated or pending (legal advice privilege), and * (b) those that are only privileged if litigation was contemplated or pending when they were made or came into existence (litigation privilege).

Answer 617

Where legal professional privilege exists and is not waived or abrogated, it is paramount and absolute and not subject to the balancing exercise of weighing competing public interests against each other as in the field of public interest immunity

Answer 618

Disclosure of this type of privileged document for a limited purpose does not without more constitute a general waiver or loss of privilege

Answer 619

The question of whether waiver is limited has to be determined by reference to the circumstances of the waiver and in particular what was expressly or impliedly communicated between the parties sending and receiving the material, and what they must or ought reasonably to have understood

Answer 620

Letters and other communications passing between a party, or their predecessors in title, and his, or their solicitors are privileged from production, provided they are, and are sworn or statemented to be, confidential, and written to, or by, the solicitor in their professional capacity, and for the purpose of getting legal advice or assistance for the client

Answer 621

* the fact that documents contained confidential information was not in itself a reason for not providing such documents on disclosure for inspection * the court, in deciding whether to give disclosure, had to have regard both to whether a document was confidential and also to whether discovery would be a breach of confidence. * The fact that a document was relevant was not determinative of the issue of disclosure. * The ultimate test was whether disclosure and inspection was necessary for disposing fairly of the proceedings. * The court would also consider whether any special measures, such as redaction or hearing in private, should be adopted.

Answer 622

is whether the communication or other document is made confidentially for the purposes of legal advice.

Answer 623

* ...**_broadly_**. * Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. * It does not follow, however, that all other communications between solicitor and client lack privilege. * Where information is passed by the solicitor or client to the other as part of a process aimed at **_keeping both informed_**, so that advice may be sought and given, privilege will attach. * Legal advice privilege extends to **_advice given as to what should or should not be prudently and sensibly done in a “relevant legal context”_** * not confined to advice concerning legal rights and obligations

Answer 624

* whether communications between lawyers and employees for their client should be treated as communications between lawyers and client * such communications like communication between the lawyers and third parties are not within the privilege

Answer 625

This privilege extends to documents otherwise within it, although they contain statements of fact as to matters in the public domain, such as statements as to proceedings in private in the presence of the other party

Answer 626

The privilege extends to information which the solicitor receives in a professional capacity from a third party and which they convey to their client (Re Sarah C. Getty Trust, Getty v Getty [1985] 3 W.L.R. 302; [1985] 2 All E.R. 809).

Answer 627

The principle that a client should be able to obtain legal advice in confidence requires that, where professional privilege applies to lawyer-client communications, internally circulated documents or parts of documents revealing such communications are also privileged, whatever the purpose, other than fraud, for which such documents are brought into existence

Answer 628

This applies to information such as a surveyor’s report obtained by a solicitor with a view to giving a client legal advice, and such information is not privileged unless obtained with a view to contemplated or existing litigation

Answer 629

Documents obtained by a solicitor with a view to enabling them to prosecute or defend a claim, or give advice with reference to existing or contemplated litigation, are privileged

Answer 630

_not_ privileged, and do not subsequently become privileged simply because they are sent to a lawyer as part of their instructions.

Answer 631

... privileged

Answer 632

Documents _do not_ become privileged by the mere fact that they have at some time been submitted to a solicitor

Answer 633

Thus legal professional privilege does not extend to cover an original document, even if obtained by a party to litigation or their legal adviser for purposes of the litigation, if the document has not come into existence for the purposes of the litigation, but is already in existence before the litigation is contemplated or commenced.

Answer 634

A pre-existing document not entitled to privilege does not become privileged merely because it is handed to a solicitor for the purposes of litigation

Answer 635

original or copy documents obtained or prepared by the party for the purpose of obtaining their solicitor’s advice in view of pending or anticipated litigation, or by their solicitor for the purposes of pending or anticipated litigation, are privileged

Answer 636

The privilege is in all cases the privilege of the client and not of the solicitor or legal adviser

Answer 637

the client, not the solicitor or legal rep

Answer 638

If part of a document is put in evidence, or read to the court, privilege will be waived for the whole document, unless the remaining part deals with an entirely different subject-matter

Answer 639

* The answer to the question as to whether or not waiver has occurred depends upon _considering both what has been disclosed and the circumstances in which disclosure has occurred_. * The fundamental question is **_whether, in the light of these matters considered together, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material_** * The English principle is based on _fairness rather than inconsistency of conduct_

Answer 640

* CPR r.35.10(3) an expert’s report must state the substance of all material _instructions_, whether written or oral, _on the basis of which the report was written_. * Subsection (4) of r.35.10 provides that the: * “instructions referred to in paragraph (3) _shall not be privileged_ against disclosure but the _court will not_, in relation to those instructions— * (a) _order disclosure_ of any specific document; or * (b) _permit any questioning in court_, other than by the party who instructed the expert, * _unless_ it is satisfied that there are **_reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete_**.”

Answer 641

The mere fact that a party may have waived the professional privilege which exists between solicitor and client does not result in the waiver of the further privilege which protects documents brought into existence for the purpose of litigation, pending or contemplated; consequently the opposite party is entitled to the discovery of documents relating to the matters as to which professional privilege has been waived up to the date that litigation was contemplated but not thereafter.

Answer 642

Where legal professional privilege was waived in respect of advice given in relation to one transaction fairness did not require as a necessary consequence the waiver to extend to all advice given relating to the dispute: see Fulham Leisure Holdings Ltd v Nicholson Graham & Jones (a firm) [2006] EWHC 158 (Ch); [2006] 2 All E.R. 599, Ch D in which the court identified the relevant process to be followed as: “(i) One should first identify the transaction in respect of which the disclosure has been made. (ii) That transaction might be identifiable simply from the nature of the disclosure made; for example, advice given by counsel on a single occasion. (iii) However, it might be apparent from that material, or from other available material, that the transaction was wider than that which was immediately apparent. If it did, then the whole of the wider transaction had to be disclosed. (iv) When that had been done, further disclosure would be necessary if that was necessary in order to avoid unfairness or misunderstanding of what had been disclosed.”

Answer 643

The institution of civil proceedings against a solicitor by their client constituted an implied waiver of professional privilege in relation to all relevant documents concerned with the suit to the extent necessary to enable the court to adjudicate the dispute fully and fairly.

Answer 644

The mere service of a witness statement under an order of the court does not waive privilege in connected documents. There is no waiver unless and until statement is deployed in court.

Answer 645

Showing privileged documents to a mediator in the course of a mediation does not waive the privilege

Answer 646

Where a party deploys material in court on an interlocutory application, privilege that can otherwise be claimed in relation to that and associated material will be treated as waived altogether, with the result that the party cannot then assert privilege for the same material at the subsequent trial.

Answer 647

Where a party merely refers in interlocutory proceedings to the fact that they have obtained legal advice, and states the effect of that advice without disclosing the substance of it or the extent of the instructions given to the legal adviser, they do not thereby waive the right to claim privilege at the trial in respect of the legal advice itself

Answer 648

Afidavit evidence in without notice proceedings exhibiting opinions from counsel and solicitors was not in the public domain and neither party to the claim waived any rights they had to assert against third parties a claim for privilege in respect of such documents

Answer 649

The question whether, if privilege has been waived in relation to part of a document or evidence by production of a tape recording or transcript of part of a conversation, fairness requires that the other party should be entitled to adduce in evidence the whole of the document or evidence of the whole of the conversation to ensure that the court is not misled by seeing or hearing part out of context, is a question that can only be answered by the judge after they have read the whole of the document or transcript or heard the tape recording in full

Answer 650

There is a statutory requirement for a claimant for costs to disclose privileged documents to the court on taxation, and, when this is done, part of the privilege attaching to such documents is temporarily relaxed.

Answer 651

Though a costs judge can require production of privileged documents they cannot order such production.

Answer 652

Where documents which are clearly privileged when made are disclosed by a party to the police in accordance with their public duty to assist in a criminal investigation, and where such disclosure is for the limited purpose of such investigation and any subsequent criminal trial, no waiver of privilege in relation to civil proceedings is made or implied

Answer 653

Privileged documents mistakenly disclosed could generally be used by the receiving party on the basis that they were no longer the subject of legal professional privilege where it was not obvious to a reasonable solicitor that a mistake had been made, subject always to the court’s powers of case management

Answer 654

1. jurisdiction to restrain the use of privileged documents is based on the equitable jurisdiction to restrain breach of confidence … 2. after a privileged document has been seen by the opposing party, the _court may intervene by way of injunction in exercise of the equitable jurisdiction if the circumstances warrant such intervention on equitable grounds_. 3. if the party in whose hands the document has come (or his solicitor) either (a) has **procured inspection of the document by fraud** or (b) on inspection, realises that he has been permitted to see the document only by reason of an obvious _**mistake**,_ the *_court has the power to_* intervene by the grant of an injunction in exercise of the equitable jurisdiction. 4. in such cases the court should ordinarily intervene, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy, e.g. on the ground of delay.”

Answer 655

Legal privilege may also give way to a contractual obligation to disclose... “that in the Lloyd’s market there has at all relevant times been a term to be implied in the insurance contracts between underwriters and insureds to this effect: that placing and claims documents which have been previously shown to underwriters, and premium accounting documents which are necessary to the operation of the contract, where retained by the insureds’ Lloyd’s brokers, **_should be available to underwriters in case of reasonable necessity_**. Availability includes the right to take copies.”

Answer 656

The “without prejudice” rule governs the admissibility of evidence and is founded upon both the public policy of encouraging litigants to settle their differences rather than litigate them to a finish, and the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence

Answer 657

The rule applies to exclude all negotiations genuinely aimed at a settlement, whether oral or in writing, from being given in evidence.

Answer 658

The purpose of the rule is to protect a litigant from being embarrassed by any admission or acknowledgment made purely in an attempt to achieve a settlement.

Answer 659

There must be a dispute which is under settlement discussion and not merely the seeking of a concession as to payment of an undisputed debt sought by a debtor

Answer 660

“Without prejudice” material will be admissible if the issue is whether or not negotiations resulted in an agreed settlement (Walker v Wilsher (1889) L.R. 23 Q.B.D. 335), but **_in relation to any other issue_** an admission or acknowledgment made in order to achieve a compromise should not be held against the maker of the admission or received in evidence

Answer 661

an admission or acknowledgment made to reach a settlement with a party is not admissible in proceedings between the maker of the admission or acknowledgment and a different party, even if such proceedings are within the same litigation

Answer 662

Likewise, an admission or acknowledgment regarding an unresolved issue raised in prior proceedings will not be admissible in subsequent proceedings between the same parties

Answer 663

Any discussions between the parties for the purpose of resolving the dispute between them are not admissible, even if the words “without prejudice” or their equivalent are not expressly used

Answer 664

Any discussions between the parties for the purpose of resolving the dispute between them are not admissible, even if the words “without prejudice” or their equivalent are not expressly used

Answer 665

The without prejudice rule is not absolute and resort may be had to the without prejudice material for a variety of reasons when the justice of the case requires it, always giving due weight to the purpose of the rule itself

Answer 666

Gnitrow Ltd v Cape Plc [2000] 1 W.L.R. 2327; [2000] 3 All E.R. 763 CA, where subject to conditions on use and timing of disclosure to the trial court, it was held that where a claimant has settled for a fixed sum a specific claim against them and sought only an indemnity or contribution with respect to that sum, they could not invoke the privilege attaching to without prejudice negotiating to deny disclosure to the defendant in the contribution proceedings of the terms of a settlement between the claimant’s insurers and a third party in respect of apportionment of that liability

Answer 667

There is an exception to the without prejudice rule allowing admission of facts communicated between parties in the course of without prejudice negotiations which are part of the factual matrix or surrounding circumstances, and are relevant as an aid to construction of an agreement which resulted from the negotiations:

Answer 668

legal privilege could be waived unilaterally, without prejudice privilege was effectively a joint privilege and could not be waived by one party alone

Answer 669

Conversely the heading “without prejudice” does not conclusively or automatically render privileged a document so marked. If privilege is claimed, but challenged, the court has to examine the document in question and determine its nature

Answer 670

The rule which confers privilege on “without prejudice” communications is not limited to documents which constitute offers; privilege may also attach to “without prejudice” documents written in the opening stages of negotiations (ibid.).

Answer 671

A letter, stated by a party to be written without prejudice, which amounts not to an offer to negotiate, but merely to an assertion of that party’s rights, or an attempt to argue that the case is well founded, is not privileged (Buckinghamshire CC v Moran [1989] 2 All E.R. 225, CA).

Answer 672

Transcripts of tape recordings of conversations between the parties, made by one party without the knowledge of the other, where there is a bona fide and reasonably tenable charge of crime or fraud, and where there is a prima facie case that the communications in question are made in preparation for, or in furtherance or as part of it, are not covered by “without prejudice” privilege

Answer 673

A note made by a claimant’s solicitor of a telephone conversation between them and the defendant’s solicitor, which merely records the substance of the conversation and contains nothing in the nature of a communication to the claimant, is not a document privileged from disclosure as between claimant and defendant even if the subject matter of the conversation is “without prejudice”

Answer 674

Where a judge sees privileged or inadmissible material does not raise issues of partiality or bias but if recusation is sought the judge should consider subjectively whether they are disabled from fairly continuing with the case and objectively whether viewed from the standpoint of a fair minded and informed observer there was a real possibility or a real danger of there being seen to be an unfair trial.

Answer 675

in a case where privilege over without prejudice material has not been waived, neither side should unilaterally or orally without notice refer to the contents of such communication without first ascertaining the views of the other side to such intended disclosure and notifying the court of its intended course and seeking the court’s views on whether and how the matter should be adduced,

Answer 676

A letter containing an offer to settle may be written as an open letter and used by the party writing it during the trial, providing it has relevance and does not form part of continuing without prejudice negotiations

Answer 677

When a solicitor writes “threats” letters on behalf of a client, they have no confidence or legal professional privilege therein, whatever the position as regards their client. If such a “threats” letter is inaccurate the solicitor has a duty to put that right, though there may be difficulties when the solicitor has ceased to act for that client or when questions arise as to whether they should write such a correcting letter of their own accord (CHC Software Care Ltd v Hopkins and Wood [1993] F.S.R. 241).

Answer 678

Where there is a conflict between the without prejudice rule and the requirement that those who make without prejudice applications make full and frank disclosure, the court will make a judgment as to whether the public policy in favour of confidence is overridden by the possibility of the court being misled: Linsen International Ltd v Humpuss Sea Transport Pte Ltd [2010] EWHC 303 (Comm).

Answer 679

Specific disclosure or inspection * 31.12 * ...(2) An order for specific disclosure is an order that a party must do one or more of the following things – * (a) disclose documents or classes of documents specified in the order; * (b) carry out a search to the extent stated in the order; * (c) disclose any documents located as a result of that search.

Answer 680

(3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

Answer 681

An application under this rule may be made at any stage of the proceedings, and particularly at times when the court is likely to be giving directions in any event, such as allocation, case management conference, with the listing questionnaire, or at the pre-trial review.

Answer 682

In Multi-Track cases and in the Commercial Court, applications are usually dealt with at a case management conference: see the Admiralty and Commercial Courts Guide, 7th edn (2006), para.E2.1. In contrast the Queen’s Bench Guide para.7.8.5 states that this is not a matter that would be routinely dealt with at the case management conference; a separate application for specific disclosure should be made in accordance with Pt 23

Answer 683

The lateness of an application may undermine its claim that the documents are in fact necessary for the forthcoming proceedings: Harris v The Society of Lloyd’s [2008] EWHC 1433 (Comm)(application for disclosure on eve of hearing of case).

Answer 684

In Fast Track cases the appropriate time to apply for specific disclosure may be on allocation to the track and on filing of listing questionnaires, which is when case management takes place: CPR Pt 28, Practice Direction, The Fast Track, para.2.1. Applications may be made during the trial itself: Favor Easy Management Ltd v Wu [2010] EWCA Civ 1630, [2011] 1 W.L.R. 1803.

Answer 685

The court will take into account all the circumstances of the case and in particular the overriding objective in Pt 1 (see Practice Direction supplementing Pt 31, para.5.4(para.31APD.5) and the concept of proportionality).

Answer 686

The rationale for the discretion to order specific disclosure is that the overriding objective obliges the parties to give access to those documents which will assist the other’s case:Commissioners of Inland Revenue v Exeter City AFC Ltd [2004] B.C.C. 519.

Answer 687

It may make an order at any time, regardless of whether standard disclosure has already occurred

Answer 688

and it may make orders for specific disclosure against a claimant before the service of the defence where it would assist the defendant to plead a full defence rather than an initial bare denial

Answer 689

The court will need to satisfy itself as to the relevance of the documents sought, and that they are or have been in the party’s control, or at least that there is a prima facie case that these requirements will be met

Answer 690

The relevance of documents is analysed by reference to the pleadings, and the factual issues in dispute on the pleadings

Answer 691

In personal injury cases the court can stay proceedings if the claimant refuses to be medically examined or to give consent to hospitals or doctors to disclose otherwise confidential matters

Answer 692

Nicholson v Halton General Hospital NHS Trust [1999] EWCA Civ 1664 the defendant sought an order that unless the claimant provide the defendant with authority for her treating surgeon to discuss her medical condition and operation with the defendant’s solicitors and their medical adviser within seven days, the proceedings be stayed. The Court of Appeal held that the only restriction which a claimant can reasonably seek is that the information which is requested should be confined to that which is relevant to the issues then existing between the parties and that unless the claimant consents to waive her right to confidentiality so that her treating doctor can answer relevant questions, the action be stayed.

Answer 693

The power to order disclosure for the purpose of interlocutory proceedings should be exercised sparingly and then only for such documents as can be shown to be necessary for the just disposal of the application

Answer 694

The court does have jurisdiction under CPR r.31.12 to order disclosure of documents relating only to credibility, but this will only be ordered in an exceptional case

Answer 695

(1) On the application of any person in accordance with rules of court, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say— (a) the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject-matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings; and (b) the taking of samples of any such property as is mentioned in paragraph (a), and the carrying out of any experiment on or with any such property.

Answer 696

Disclosure before proceedings start 31. 16 (1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1. (2) The application must be supported by evidence.

Answer 697

* (3) The court may make an order under this rule only where– * (a) the respondent is likely to be a party to subsequent proceedings; * (b) the applicant is also likely to be a party to those proceedings; * (c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and * (d) disclosure before proceedings have started is desirable in order to – * (i) dispose fairly of the anticipated proceedings; * (ii) assist the dispute to be resolved without proceedings; or * (iii) save costs.

Answer 698

* (4) An order under this rule must – * (a) specify the documents or the classes of documents which the respondent must disclose; and * (b) require him, when making disclosure, to specify any of those documents – * (i) which are no longer in his control; or * (ii) in respect of which he claims a right or duty to withhold inspection.

Answer 699

(5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.

Answer 700

Destruction of disclosable data in breach of an unless order can lead to the striking out of a party’s case, e.g. Rybak v Langbar International Ltd [2010] EWHC 2015 (Ch).

Answer 701

Section 33(2) of the Senior Courts Act 1981 applies to documents in a party’s “possession, custody or power”

Answer 702

Section 33(2) of the Senior Courts Act 1981 applies to documents in a party’s **“possession, custody or power”,** which was the terminology applicable under the former RSC discovery rules: see the former RSC Ord.24 rr.1(1), 2(1), 3(1) and 7(1). This is different to the scope of standard disclosure under the CPR, which uses a test of **“control”** as set out in r.31.8.

Answer 703

* However it is doubtful what difference there is between the tests in any event. * “**Possession**” in s.33(2) accords with “right to possession” in r.31.8(2)(b). * “**Custody**” in s.33(2) accords with “physical possession” in r.31.8(2)(a). * “**Power**” broadly accords with “right to inspect or take copies” in r.31.8(2)(c), though the CPR concept may be broader: see Matthews and Malek, Disclosure, 3rd edn (2007), para.5.53.

Answer 704

* The structure of r.31.16 formally requires a two-stage approach. * The first stage is to establish whether the jurisdictional thresholds prescribed by heads (a) to (d) in subrule (3) are satisfied; * (a) the respondent is likely to be a party to subsequent proceedings; * (b) the applicant is also likely to be a party to those proceedings; * (c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and * (d) disclosure before proceedings have started is desirable in order to— * (i) dispose fairly of the anticipated proceedings; * (ii) assist the dispute to be resolved without proceedings; or * (iii) save costs. * if they are, the court proceeds as a second stage to consider whether, as a matter of discretion, an order for disclosure should be made (Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585, December 5, 2013, CA, unrep., para.10)

Answer 705

For the purpose of satisfying the jurisdictional criteria in heads (a) and (b) in sub-rule (3) an applicant does not have to demonstrate an “arguable” or “prima facie” case; there is no jurisdictional “arguability threshold”

Answer 706

For the purposes of r.31.16(3)(a) and (b) the respondent/applicant is “likely to be a party to subsequent proceedings” where it is established that they may well be a party if subsequent proceedings are issued

Answer 707

There is no additional requirement to establish that the initiation of proceedings is itself likely

Answer 708

Pre-action disclosure will not be orderedwhere the dispute comes within the terms of an arbitration agreement such that any subsequent proceedings will be referred to arbitration rather than litigated in court:

Answer 709

Attempting to obtain pre-action disclosure of documents that would not in due course be subject to standard disclosure by simply calling for classes or categories of documents in which some documents would be disclosable is not permissible

Answer 710

It is, further, inappropriate to require a respondent to identify which of its documents are within the scope of standard disclosure

Answer 711

All the documents within a class or category sought under r.31.16 must be within standard disclosure and cannot encompass categories of documents that might prove to be relevant only as “background”

Answer 712

Whether disclosure is “desirable” within r.31.16(3)(d) involves a two stage process comprising a jurisdictional and a discretionary aspect. “… for jurisdictional purposes the court is only permitted to consider the granting of pre-action disclosure where there is a real prospect in principle of such an order being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event. If there is such a real prospect, then the court should go on to consider the question of discretion, which has to be considered on all the facts and not merely in principle but in detail.”

Answer 713

a prima facie case of entitlement to substantive relief

Answer 714

Power of High Court to order disclosure of documents, inspection of property etc. in proceedings for personal injuries or death. F132(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) On the application, in accordance with rules of court, of a party to any proceedings [F133to which this section applies], the High Court shall, in such circumstances as may be specified in the rules, **have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim—** (a) to disclose whether those documents are in his possession, custody or power; and (b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order— (i) to the applicant’s legal advisers; or (ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant. (3) On the application, in accordance with rules of court, of a party to any proceedings [to which this section applies], the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say— (a) the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject-matter of the proceedings or as to which any question arises in the proceedings; (b) the taking of samples of any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property. (4) The preceding provisions of this section are without prejudice to the exercise by the High Court of any power to make orders which is exercisable apart from those provisions.]

Answer 715

Orders for disclosure against a person not a party 31.17 ... (3) The court may make an order under this rule only where– (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

Answer 716

* Orders for disclosure against a person not a party * 31.17 * ... * (4) An order under this rule must – * (a) specify the documents or the classes of documents which the respondent must disclose; and * (b) require the respondent, when making disclosure, to specify any of those documents – * (i) which are no longer in his control; or * (ii) in respect of which he claims a right or duty to withhold inspection.

Answer 717

Orders for disclosure against a person not a party 31.17 ... (5) Such an order may – (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and (b) specify the time and place for disclosure and inspection.

Answer 718

The making of this type of order may engage ECHR art.8, although depending on the scope of the order, any interference may be justified under ECHR art.8(2) as necessary “for the protection of the rights and freedoms of others”.

Answer 719

Where the material is sought not, at present at least, for use in specific proceedings, but for the taking of preliminary steps to enable a party to receive legal advice and, if so advised, to make an appropriate application in the proceedings, the court will take into account that to refuse permission in respect of such a course of action would be to deny the applicant the opportunity of making an application in the present proceedings, and that may be contrary to ordinary principles of justice and fairness: Tchenguiz and others v Director of the Serious Fraud Office [2014] EWHC 2379 (Comm). Affirmed by the Court of Appeal: [2014] EWCA Civ 1471.

Answer 720

CPR r.31.17 may be used to order disclosure for the purposes of identifying an unknown party: Kerner v WX [2015] EWHC 1247(QB). The court would balance the interests of the applicant in the fair disposal of the litigation against the rights, including the rights under art.8 of the European Convention of Human Rights, of those whose identities might be disclosed pursuant to such an order. There was ample scope for deciding, in an appropriate case, that disclosure would represent an unnecessary and disproportionate intrusion into personal privacy, or should not be ordered for some other reason.

Answer 721

the relevant test must be met for each of the documents to be disclosed. The party seeking the order must show that all the documents fall within r.31.17(3). The court should not leave it to the non-party to determine which documents to disclose in this manner.

Answer 722

Rules not to limit other powers of the court to order disclosure 31. 18 Rules 31.16 and 31.17 do not limit any other power which the court may have to order – (a) disclosure before proceedings have started; and (b) disclosure against a person who is not a party to proceedings.

Answer 723

Disclosing identity of wrongdoer (Norwich Pharmacal principle) Rule 31.18 merely preserves the Norwich Pharmacal jurisdiction and does not modify it:

Answer 724

A person innocently caught up in the wrongdoing of another so that they are more than a mere witness can be compelled to disclose the identity of the wrongdoer so that proceedings may be brought against the proper defendant: Norwich Pharmacal

Answer 725

* “(i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; * \(ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and * (iii) the person against whom the order is sought must: * (a) be mixed up in so as to have facilitated the wrongdoing; and * (b) be able or likely to be able to provide the information necessary to enable the ultimate wrong-doer to be sued.”

Answer 726

Nature of wrongs covered * The first requirement of the Norwich Pharmacal jurisdiction is that a wrong must have been carried out, or believed to be carried out. * ...not limited to torts: * The jurisdiction is one of general application, existing in equity wherever the person against whom disclosure was ordered had got “mixed up” in wrongful conduct which infringed a claimant’s legal rights, whether civil or criminal. e.g. * breach of confidence or contract (as in Ashworth Hospital (above)); * breach of confidence or copyright (British Steel Corporation v Granada Television Ltd [1981] A.C. 1096, HL); * breach of contract only (Carlton Film Distributors Ltd v VCI Plc [2003] EWHC 616; [2003] F.S.R. 47, Ch); * tracing action for money had and received or in deceit and/or conspiracy to defraud (Bankers Trust v Shapira [1980] 1 W.L.R. 1274, CA).

Answer 727

The applicant does not need to prove the wrong, but must at least show some reasonable basis for claiming that a wrong has been committed.

Answer 728

It is not a requirement that the applicant will be bringing court proceedings

Answer 729

Norwich Pharmacal relief is a remedy of last resort and should not be available where the information required could be obtained in some other way, for instance under r.31.16

Answer 730

The person against whom the order is sought must be mixed up in the wrongdoing. A claim solely for disclosure and production does not lie against a defendant who is not a wrongdoer and has no connection with the wrongdoing, i.e. has neither committed nor facilitated the committal of the wrongdoing

Answer 731

Contempt of Court Act 1981 c. 49 10. Sources of information. No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

Answer 732

Section 10 of the Contempt of Court Act 1981 may provide a defence, unless disclosure is “necessary” in the interests of national security, the interests of justice, or for the prevention of disorder or crime. As to the scope of these terms, see X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 A.C. 1, HL; Re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] A.C. 660, HL; Ashworth Hospital Authority v MGN Ltd [2001] 1 W.L.R. 515, CA at 533–537.

Answer 733

Applying the privilege against self-incrimination, a party has a defence to disclosure of the identity of a wrongdoer where that disclosure would tend to incriminate the disclosing party. In such a case it must be the disclosure of the identity of another person which causes the risk; compare British Steel v Granada (ibid.), where this was not the case.

Answer 734

* 2.8 * (1) This rule shows how to calculate any period of time for doing any act which is specified – * (a) by these Rules; * (b) by a practice direction; or * (c) by a judgment or order of the court. * (2) A period of time expressed as a number of days shall be computed as clear days. * (3) In this rule ‘clear days’ means that in computing the number of days – * (a) the day on which the period begins; and * (b) if the end of the period is defined by reference to an event, the day on which that event occurs * are not included.

Answer 735

GENERAL RULES ABOUT APPLICATIONS FOR COURT ORDERS

Answer 736

‘application notice’ means a document in which the applicant states his intention to seek a court order; and

Answer 737

‘respondent’ means – (a) the person against whom the order is sought; and (b) such other person as the court may direct.

Answer 738

Where to make an application 23. 2 (1) The general rule is that an application must be made to the court or County Court hearing centre where the claim was started.

Answer 739

(2) If a claim has been transferred to another court, or transferred or sent to another County Court hearing centre since it was started, an application must be made to the court or the County Court hearing centre to which the claim has been transferred or sent, unless there is good reason to make the application to a different court.

Answer 740

(3) If the parties have been notified of a fixed date for the trial, an application must be made to the court where the trial is to take place.

Answer 741

(4) Subject to paragraph (4A), if an application is made before a claim has been started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reason to make the application to a different court. (4A) An application made in the County Court before a claim has been started may be made at any County Court hearing centre, unless any enactment, rule or practice direction provides otherwise.

Answer 742

(5) If an application is made after proceedings to enforce judgment have begun, it must be made to the court or County Court hearing centre which is dealing with the enforcement of the judgment unless any enactment rule or practice direction provides otherwise.

Answer 743

Application notice to be filed 23. 3 (1) The general rule is that an applicant must file an application notice. (2) An applicant may make an application without filing an application notice if – (a) this is permitted by a rule or practice direction; or (b) the court dispenses with the requirement for an application notice.

Answer 744

Notice of an application 23. 4 (1) The general rule is that a copy of the application notice must be served on each respondent. (2) An application may be made without serving a copy of the application notice if this is permitted by – (a) a rule; (b) a practice direction; or (c) a court order.

Answer 745

Time when an application is made 23.5 Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time.

Answer 746

What an application notice must include 23. 6 An application notice must state – (a) what order the applicant is seeking; and (b) briefly, why the applicant is seeking the order. (Part 22 requires an application notice to be verified by a statement of truth if the applicant wishes to rely on matters set out in his application notice as evidence)

Answer 747

* Service of a copy of an application notice * 23.7 * (1) A copy of the application notice – * (a) must be served as soon as practicable after it is filed; and * (b) except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application.

Answer 748

(2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.

Answer 749

(3) When a copy of an application notice is served it must be accompanied by – (a) a copy of any written evidence in support; and (b) a copy of any draft order which the applicant has attached to his application.

Answer 750

(4) If – (a) an application notice is served; but (b) the period of notice is shorter than the period required by these Rules or a practice direction, the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.

Answer 751

Applications which may be dealt with without a hearing 23. 8 The court may deal with an application without a hearing if – (a) the parties agree as to the terms of the order sought; (b) the parties agree that the court should dispose of the application without a hearing, or (c) the court does not consider that a hearing would be appropriate.

Answer 752

* Service of application where application made without notice * 23.9 * (1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice. * (2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person – * (a) against whom the order was made; and * (b) against whom the order was sought. * (3) The order must contain a statement of the right to make an application to set aside(GL) or vary the order under rule 23.10.

Answer 753

Application to set aside or vary order made without notice **_23.10_** (1) A person who was not served with a copy of the application notice before an order was made under rule **_23.9_**, may apply to have the order set aside(GL) or varied. (2) An application under this rule must be made within **_7 days_** after the date on which the order was served on the person making the application.

Answer 754

* Power of the court to proceed in the absence of a party * 23.11 * (1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence. * (2) Where – * (a) the applicant or any respondent fails to attend the hearing of an application; and * (b) the court makes an order at the hearing, * the court may, on application or of its own initiative, re-list the application.

Answer 755

(a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Answer 756

2. 1 An application notice must, in addition to the matters set out in rule 23.6, be signed and include: (1) the title of the claim, (2) the reference number of the claim, (3) the full name of the applicant, (4) where the applicant is not already a party, his address for service, including a postcode. Postcode information may be obtained from www.royalmail.com or the Royal Mail Address Management Guide, and (5) either a request for a hearing or a request that the application be dealt with without a hearing.

Answer 757

On receipt of an application notice containing a request for a hearing the court will notify the applicant of the time and date for the hearing of the application.

Answer 758

On receipt of an application notice containing a request that the application be dealt with without a hearing, the application notice will be sent to a Master or District Judge so that he may decide whether the application is suitable for consideration without a hearing.

Answer 759

2.4 Where the Master or District Judge agrees that the application is suitable for consideration without a hearing, the court will so inform the applicant and the respondent and may give directions for the filing of evidence. (Rules 23.9 and 23.10 enable a party to apply for an order made without a hearing to be set aside or varied.)

Answer 760

2.5 Where the Master or District Judge does not agree that the application is suitable for consideration without a hearing, the court will notify the applicant and the respondent of the time, date and place for the hearing of the application and may at the same time give directions as to the filing of evidence.

Answer 761

2.6 If the application is intended to be made to a judge, the application notice should so state. In that case, paragraphs 2.3, 2.4 and 2.5 will apply as though references to the Master or District Judge were references to a judge.

Answer 762

2.7 Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

Answer 763

Applications should wherever possible be made so that they can be considered at any other hearing for which a date has already been fixed or for which a date is about to be fixed. This is particularly so in relation to case management conferences, allocation and listing hearings and pre-trial reviews fixed by the court.

Answer 764

2.9 The parties must anticipate that at any hearing the court may wish to review the conduct of the case as a whole and give any necessary case management directions. They should be ready to assist the court in doing so and to answer questions the court may ask for this purpose.

Answer 765

2.10 Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but he does not have sufficient time to serve an application notice he should inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it. He should then make the application orally at the hearing.

Answer 766

* Applications without service of application notice * 3 An application may be made without serving an application notice only: * (1) where there is exceptional urgency, * (2) where the overriding objective is best furthered by doing so, * (3) by consent of all parties, * (4) with the permission of the court, * (5) where paragraph 2.10 above applies, or * (6) where a court order, rule or practice direction permits.

Answer 767

4.1 Unless the court otherwise directs or paragraph 3 or paragraph 4.1A of this practice direction applies the application notice must be served as soon as practicable after it has been issued and, if there is to be a hearing, at least 3 days before the hearing date (rule 23.7(1)(b)).

Answer 768

4.1A Where there is to be a telephone hearing the application notice must be served as soon as practicable after it has been issued and in any event at least 5 days before the date of the hearing.

Answer 769

4.2 Where an application notice should be served but there is not sufficient time to do so, informal notification of the application should be given unless the circumstances of the application require secrecy.

Answer 770

The requirement for evidence in certain types of applications is set out in some of the rules and practice directions.

Answer 771

Where there is no specific requirement to provide evidence it should be borne in mind that, as a practical matter, the court will often need to be satisfied by evidence of the facts that are relied on in support of or for opposing the application.

Answer 772

## Footnote 9.2 The court may give directions for the filing of evidence in support of or opposing a particular application. The court may also give directions for the filing of evidence in relation to any hearing that it fixes on its own initiative. The directions may specify the form that evidence is to take and when it is to be served.

Answer 773

Where it is intended to rely on evidence which is not contained in the application itself, the evidence, if it has not already been served, should be served with the application.

Answer 774

Where a respondent to an application wishes to rely on evidence which has not yet been served he should serve it as soon as possible and in any event in accordance with any directions the court may have given

Answer 775

9.5 If it is necessary for the applicant to serve any evidence in reply it should be served as soon as possible and in any event in accordance with any directions the court may have given.

Answer 776

Evidence must be filed with the court as well as served on the parties. Exhibits should not be filed unless the court otherwise directs.

Answer 777

The contents of an application notice may be used as evidence (otherwise than at trial) provided the contents have been verified by a statement of truth1.

Answer 778

12.1 Except in the most simple application the applicant should bring to any hearing a draft of the order sought. If the case is proceeding in the Royal Courts of Justice and the order is unusually long or complex it should also be supplied on disk for use by the court office.

Answer 779

25. 2 (1) An order for an interim remedy may be made at any time, including – (a) before proceedings are started; and (b) after judgment has been given. (2) However – (a) paragraph (1) is subject to any rule, practice direction or other enactment which provides otherwise

Answer 780

(b) the court may grant an interim remedy before a claim has been made only if – (i) the matter is **_urgent; or_** **_(ii) it is otherwise desirable to do so in the interests of justice; and_**

Answer 781

(c) unless the court otherwise orders, a defendant may not apply for any of the orders listed in rule 25.1(1) before he has filed either an acknowledgment of service or a defence. 25. 1 (1) The court may grant the following interim remedies – (a) an interim injunction(GL); (b) an interim declaration; (c) an order – (i) for the detention, custody or preservation of relevant property; (ii) for the inspection of relevant property; (iii) for the taking of a sample of relevant property; (iv) for the carrying out of an experiment on or with relevant property; (v) for the sale of relevant property which is of a perishable nature or which for any other good reason it is desirable to sell quickly; and (vi) for the payment of income from relevant property until a claim is decided; (d) an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph (c); (e) an order under section 4 of the Torts (Interference with Goods) Act 19771 to deliver up goods; (f) an order (referred to as a ‘freezing injunction(GL)’) – (i) restraining a party from removing from the jurisdiction assets located there; or (ii) restraining a party from dealing with any assets whether located within the jurisdiction or not; (g) an order directing a party to provide information about the location of relevant property or assets or to provide information about relevant property or assets which are or may be the subject of an application for a freezing injunction(GL); (h) an order (referred to as a ‘search order’) under section 7 of the Civil Procedure Act 19972(order requiring a party to admit another party to premises for the purpose of preserving evidence etc.); (i) an order under section 33 of the Supreme Court Act 19813 or section 52 of the County Courts Act 19844 (order for disclosure of documents or inspection of property before a claim has been made); (j) an order under section 34 of the Supreme Court Act 19815 or section 53 of the County Courts Act 19846 (order in certain proceedings for disclosure of documents or inspection of property against a non-party); (k) an order (referred to as an order for interim payment) under rule 25.6 for payment by a defendant on account of any damages, debt or other sum (except costs) which the court may hold the defendant liable to pay; (l) an order for a specified fund to be paid into court or otherwise secured, where there is a dispute over a party’s right to the fund; (m) an order permitting a party seeking to recover personal property to pay money into court pending the outcome of the proceedings and directing that, if he does so, the property shall be given up to him; (n) an order directing a party to prepare and file accounts relating to the dispute; (o) an order directing any account to be taken or inquiry to be made by the court; and (p) an order under Article 9 of Council Directive (EC) 2004/48 on the enforcement of intellectual property rights (order in intellectual property proceedings making the continuation of an alleged infringement subject to the lodging of guarantees).

Answer 782

Where it grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced.

Answer 783

The court may grant an interim remedy on an application made without notice if it appears to the court that there are **_good reasons for not giving notice._**

Answer 784

An application for an interim remedy must be supported by evidence, unless the court orders otherwise.

Answer 785

(3) If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given.

Answer 786

An application for a court order in the form of an order for an interim remedy may be made without notice “**_if it appears to the court that there are good reasons for not giving notice_**” (r.25.3(1))

Answer 787

The court should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a freezing or search order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act (National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Practice Note) [2009] UKPC 16; [2009] 1 W.L.R. 1405, PC).

Answer 788

Interim remedy order hearings in private 25.3.4Rule 39.2(1) states that the general rule is that a hearing (including a hearing other than at trial) is to be in public. However, a hearing, or any part of it, may be in private in the circumstances listed in r.39.2(3) ... (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; (d) a private hearing is necessary to protect the interests of any child or [protected party] 1 ; (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or (g) the court considers this to be necessary, in the interests of justice.

Answer 789

* that publicity would defeat the object of the hearing; * that it is a hearing on an application without notice and it would be unjust to any respondent for there to be a public hearing; * that the hearing involves confidential information (including information relating to personal financial matters) and * publicity would damage that confidentiality.

Answer 790

* an applicant who applies for an interim remedy without notice to the respondent is under a duty to investigate the facts and fairly to present the evidence on which they rely. * The applicant must disclose fully to the court all matters relevant to the application, including all matters, whether of fact or of law, which are, or may be, adverse to it * full, fair and accurate disclosure of material information to the court and to draw the court’s attention “to significant factual, legal and procedural aspects of the case”

Answer 791

Siporex Trade SA v Comdel Commodities [1986] 2 Lloyd’s Rep. 428 at 437. * (1) The applicant must show the utmost good faith and disclose their case fully and fairly. * (2) They must, for the protection and information of the defendant, in the evidence in support of the application summarise their case and the evidence on which it is based. * (3) They must identify the crucial points for and against the application, and not rely on general statements and the mere exhibiting of numerous documents. * (4) They must investigate the nature of the claim asserted and the facts relied on before applying and must identify any likely defences. * (5) They must disclose all facts which reasonably could or would be taken into account by the judge in deciding whether to grant the application.

Answer 792

Further, where the duty is not observed, the court may discharge the injunction even if after full inquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.

Answer 793

The obligation of full disclosure is an obligation owed to the court itself, which exists in order to secure the integrity of the court’s process and to protect the interests of those potentially affected by whatever order the court makes.

Answer 794

Such is the importance of the duty that, in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given them (Re OJSC Ank Yugraneft [2008] EWHC 2614 (Ch); [2009] 1 B.C.L.C. 298(Christopher Clarke J.)).

Answer 795

Where serious and culpable non-disclosure sufficient to result in the court discharging an interim injunction granted without notice has been exposed and established, the question whether a fresh injunction should be granted is likely to arise. In these circumstances the judge has a balancing task to perform. On the one hand, if justice requires that a fresh injunction should be granted to protect the applicant from harm that might befall them, it might be thought unjust to refuse it on the ground of non-disclosure. On the other hand, such is the importance of the duty that, in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given them.

Answer 796

Urgent applications and applications without notice 4. 1 These fall into two categories: (1) applications where a claim form has already been issued, and (2) applications where a claim form has not yet been issued, and, in both cases, where notice of the application has not been given to the respondent.

Answer 797

Urgent applications and applications without notice 4.2 These applications are normally dealt with at a court hearing but cases of extreme urgency may be dealt with by telephone.

Answer 798

Applications dealt with at a court hearing after issue of a claim form: (1) the application notice, evidence in support and a draft order (as in 2.4 above) should be filed with the court two hours before the hearing wherever possible,

Answer 799

a draft order (as in 2.4 above) should be provided at the hearing, and the application notice and evidence in support must be filed with the court on the same or next working day or as ordered by the court, and (3) except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application.

Answer 800

Applications made before the issue of a claim form: (1) in addition to the provisions set out at 4.3 unless the court orders otherwise, either the applicant must undertake to the court to issue a claim form immediately or the court will give directions for the commencement of the claim5, (2) where possible the claim form should be served with the order for the injunction,

Answer 801

(3) an order made before the issue of a claim form should state in the title after the names of the applicant and respondent ‘the Claimant and Defendant in an Intended Action’.

Answer 802

Applications made by telephone: (1) where it is not possible to arrange a hearing, application can be made between 10.00 a.m. and 5.00 p.m. weekdays by telephoning the Royal Courts of Justice on 020 7947 6000 and asking to be put in contact with a High Court Judge of the appropriate Division available to deal with an emergency application in a High Court matter. The appropriate district registry may also be contacted by telephone. In county court proceedings, the appropriate County Court hearing centre should be contacted,

Answer 803

(2) where an application is made outside those hours the applicant should either – (a) telephone the Royal Courts of Justice on 020 7947 6000 where he will be put in contact with the clerk to the appropriate duty judge in the High Court (or the appropriate area Circuit Judge where known), or (b) the Urgent Court Business Officer of the appropriate Circuit who will contact the local duty judge,

Answer 804

where the facility is available it is likely that the judge will require a draft order to be faxed to him

Answer 805

(4) the application notice and evidence in support must be filed with the court on the same or next working day or as ordered, together with two copies of the order for sealing,

Answer 806

(5) injunctions will be heard by telephone only where the applicant is acting by counsel or solicitors.

Answer 807

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.

Answer 808

(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_,

Answer 809

an undertaking to file and pay the appropriate fee on the same or next working day

Answer 810

(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.

Answer 811

when the court makes an order for an injunction, it should consider whether to require an undertaking by the applicant to pay any damages sustained by a person other than the respondent, including another party to the proceedings or any other person who may suffer loss as a consequence of the order.

Answer 812

An order for an injunction made in the presence of all parties to be bound by it or made at a hearing of which they have had notice, may state that it is effective until trial or further order.

Answer 813

Any order for an injunction must set out clearly what the respondent must do or not do.

Answer 814

24.1 This Part sets out a procedure by which the court may decide a claim or a particular issue without a trial.

Answer 815

24. 2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.

Answer 816

24. 3 (1) The court may give summary judgment against a claimant in any type of proceedings.

Answer 817

2) The court may give summary judgment against a defendant in any type of proceedings except – (a) proceedings for possession of residential premises against – (i) a mortgagor; or (ii) a tenant or a person holding over after the end of his tenancy whose occupancy is protected within the meaning of the Rent Act 19772 or the Housing Act 19883 and; (b) proceedings for an admiralty claim in rem. (c) Omitted

Answer 818

24. 4 (1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed – (a) an acknowledgement of service; or (b) a defence, unless – (i) the court gives permission; or (ii) a practice direction provides otherwise.

Answer 819

In civil proceedings against the Crown, as defined in rule 66.1(2), a claimant may not apply for summary judgment until after expiry of the period for filing a defence specified in rule 15.4.

Answer 820

If a claimant applies for summary judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing.

Answer 821

Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least **_14_** days’ notice of – (a) the date fixed for the hearing; and (b) the issues which it is proposed that the court will decide at the hearing (4) A practice direction may provide for a different period of notice to be given.

Answer 822

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must – (a) file the written evidence; and (b) serve copies on every other party to the application, at least **_7 days_** before the summary judgment hearing.

Answer 823

(2) If the applicant wishes to rely on written evidence in reply, he must – (a) file the written evidence; and (b) serve a copy on the respondent, at least 3 days before the summary judgment hearing.

Answer 824

* (3) Where a summary judgment hearing is fixed by the court of its own initiative – * (a) any party who wishes to rely on written evidence at the hearing must – * (i) file the written evidence; and * (ii) unless the court orders otherwise, serve copies on every other party to the proceedings, * at least **_7 days_** before the date of the hearing; * (b) any party who wishes to rely on written evidence at the hearing in reply to any other party’s written evidence must – * (i) file the written evidence in reply; and * (ii) unless the court orders otherwise serve copies on every other party to the proceedings, * at least **_3 days_** before the date of the hearing.

Answer 825

Court’s powers when it determines a summary judgment application 24. 6 When the court determines a summary judgment application it may – (a) give directions as to the filing and service of a defence; (b) give further directions about the management of the case. (Rule 3.1(3) provides that the court may attach conditions when it makes an order)

Answer 826

(1) a part of a claim, and (2) an issue on which the claim in whole or part depends.

Answer 827

1. 3 An application for summary judgment under rule 24.2 may be based on: (1) a point of law (including a question of construction of a document), (2) the evidence which can reasonably be expected to be available at trial or the lack of it, or (3) a combination of these.

Answer 828

(2) The application notice must include a statement that it is an application for summary judgment made under Part 24.

Answer 829

(a) identify concisely any point of law or provision in a document on which the applicant relies, and/or (b) state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates, and in either case state that the applicant knows of no other reason why the disposal of the claim or issue should await trial.

Answer 830

Unless the application notice itself contains all the evidence (if any) on which the applicant relies, the application notice should identify the written evidence on which the applicant relies. This does not affect the applicant’s right to file further evidence under rule 24.5(2).

Answer 831

(5) The application notice should draw the attention of the respondent to rule 24.5(1).

Answer 832

(6) Where the claimant has failed to comply with Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol, an action for summary judgment will not normally be entertained before the defence has been filed or, alternatively, the time for doing so has expired.

Answer 833

(1) The hearing of the application will normally take place before a Master or a district judge.

Answer 834

(2) The Master or district judge may direct that the application be heard by a High Court Judge (if the case is in the High Court) or a circuit judge (if the case is in a county court).

Answer 835

4 Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order, as described below.

Answer 836

The orders the court may make on an application under Part 24 include: (1) judgment on the claim, (2) the striking out or dismissal of the claim, (3) the dismissal of the application, (4) a conditional order.

Answer 837

A conditional order is an order which requires a party: (1) to pay a sum of money into court, or (2) to take a specified step in relation to his claim or defence, as the case may be, and provides that that party’s claim will be dismissed or his statement of case will be struck out if he does not comply.

Answer 838

If a remedy sought by a claimant in his claim form includes, or necessarily involves, taking an account or making an inquiry, an application can be made under Part 24 by any party to the proceedings for an order directing any necessary accounts or inquiries to be taken or made.

Answer 839

7. 1 (1) If a remedy sought by a claimant in his claim form includes a claim – (a) for specific performance of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or charge of any property, or for the grant or assignment of a lease or tenancy of any property, with or without an alternative claim for damages, or (b) for rescission of such an agreement, or (c) for the forfeiture or return of any deposit made under such an agreement, the claimant may apply under Part 24 for judgment. (2) The claimant may do so at any time after the claim form has been served, whether or not the defendant has acknowledged service of the claim form, whether or not the time for acknowledging service has expired and whether or not any particulars of claim have been served.

Answer 840

The application notice by which an application under paragraph 7.1 (Part 24 specific performance) is made must have attached to it the text of the order sought by the claimant.

Answer 841

7.3 The application notice and a copy of every affidavit or witness statement in support and of any exhibit referred to therein must be served on the defendant not less than 4 days before the hearing of the application. (Note – the 4 days replaces for these applications the 14 days specified in rule 24.4(3). Rule 24.5 cannot, therefore apply.)

Answer 842

Where the court dismisses the application or makes an order that does not completely dispose of the claim, the court will give case management directions as to the future conduct of the case.

Answer 843

* In order to defeat the application for summary judgment it is sufficient for the respondent to show some “prospect”, i.e. some chance of success. * That prospect must be “real”, i.e. the court will disregard prospects which are false, fanciful or imaginary. * The inclusion of the word realmeans that the respondent has to have a case which is better than merely arguable * The respondent is not required to show that their case will probably succeed at trial. * A case may be held to have a “real prospect” of success even if it is improbable. * However, in such a case the court is likely to make a conditional order (as to which, see the commentary to r.24.6).

Answer 844

The court at the summary judgment application will consider the merits of the respondent’s case only to the extent necessary to determine whether it has sufficient merit to proceed to trial.

Answer 845

“The criterion which the judge has to apply under CPR Pt 24is not one of probability; it is absence of reality.”

Answer 846

Where a summary judgment application gives rise to a short point of law or construction, the court should decide that point if it has before it all the evidence necessary for a proper determination and it is satisfied that the parties have had an adequate opportunity to address the point in argument.

Answer 847

In ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472; [2003] EWCA Civ 472, it was said that under r.24.2 the overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial.

Answer 848

If the applicant for summary judgment adduces credible evidence in support of their application, the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial. The standard of proof required of the respondent is not high. It suffices merely to rebut the applicant’s statement of belief. The language of r.24.2 (“no real prospect … no other reason …”) indicates that, in determining the question, the court must apply a negative test.

Answer 849

When deciding whether the respondent has some real prospect of success the court should not apply the standard which would be applicable at the trial, namely the balance of probabilities on the evidence presented; on an application for summary judgment the court should also consider the evidence that could reasonably be expected to be available at trial (Royal Brompton Hospital NHS Trust v Hammond (No.5) , [2001] EWCA Civ 550, CA).

Answer 850

* The court may refuse summary judgment if the facts relied upon in respect of the set off or counterclaim are closely connected to the facts relied upon in respect of the claim * If the facts of the claim and cross claim are not so linked the court may decide to grant summary judgment but with a stay on enforcement pending trial of the defendant’s counterclaim * In some cases a set off, even one which raises a triable issue, will not prevent the claimant obtaining a summary judgment which is enforceable immediately

Answer 851

If the value of the set off exceeds the value of the claim, the application for summary judgment may be dismissed or a stay of execution may be granted, as the case may be. If the value of the set off is less than the value of the claim, the claimant may be awarded judgment for the difference.

Answer 852

If a counterclaim is to be used as a set off it must particularise the financial loss alleged or the debts claimed, as the case may be

Answer 853

“[A seller] may demand payment in cash; but if the buyer cannot provide this at once, he may agree to take bills of exchange payable at future dates. These are taken as equivalent to deferred instalments of cash. Unless they are to be treated as unconditionally payable instruments … which the seller can negotiate for cash, the seller might just as well give credit. And it is for this reason that English law … does not allow cross claims, or defences, except such limited defences as those based on fraud, invalidity, or failure of consideration, to be made.”(per Lord Wilberforce at 721 in Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 1 W.L.R. 713; [1977] 2 All E.R. 463, HL).

Answer 854

Defence of set-off 16. 6 Where a defendant – (a) contends he is entitled to money from the claimant; and (b) relies on this as a defence to the whole or part of the claim, the contention may be included in the defence and set off against the claim, whether or not it is also a Part 20 claim.

Answer 855

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. * (2) Paragraph (1) is subject to any rule of law to the contrary. * **(3) Where the court makes an order under paragraph (1), the party against whom it is made must –** * **(a) file his response; and** * **(b) serve it on the other parties,** * **within the time specified by the court.** * (Part 22 requires a response to be verified by a statement of truth) * (Part 53 (defamation) restricts requirements for providing further information about sources of information in defamation claims)

Answer 856

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

Answer 857

* Before making an application to the court for an order under Part 18, the party seeking clarification or information (the first party) should first * serve on the party from whom it is sought (the second party) a written request for that clarification or information (a Request) stating * a date by which the response to the Request should be served. * The date must allow the second party a reasonable time to respond.

Answer 858

must allow the second party a reasonable time to respond.

Answer 859

A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.

Answer 860

Requests must be made as far as possible in a single comprehensive document and not piecemeal.

Answer 861

A Request may be made by letter if the text of the Request is brief and the reply is likely to be brief; otherwise the Request should be made in a separate document.

Answer 862

If a Request is made in a letter, the letter should, in order to distinguish it from any other that might routinely be written in the course of a case, (1) state that it contains a Request made under Part 18, and (2) deal with no matters other than the Request.

Answer 863

* (a) be headed with the name of the court and the title and number of the claim, * (b) in its heading state that it is a Request made under Part 18, identify the first party and the second party and state the date on which it is made, * (c) set out in a separate numbered paragraph each request for information or clarification, * (d) where a Request relates to a document, identify that document and (if relevant) the paragraph or words to which it relates, * (e) state the date by which the first party expects a response to the Request.

Answer 864

(a) A Request which is not in the form of a letter may, if convenient, be prepared in such a way that the response may be given on the same document. (b) To do this the numbered paragraphs of the Request should appear on the left hand half of each sheet so that the paragraphs of the response may then appear on the right. (c) Where a Request is prepared in this form an extra copy should be served for the use of the second party.

Answer 865

Subject to the provisions of rule 6.23(5) and (6) and paragraphs 4.1 to 4.3 of Practice Direction 6A, a request should be served by e-mail if reasonably practicable.

Answer 866

A response to a Request must be in writing, dated and signed by the second party or his legal representative.

Answer 867

Where the Request is made in a letter the second party may give his response in a letter or in a formal reply. Such a letter should identify itself as a response to the Request and deal with no other matters than the response

Answer 868

* (1) Unless the Request is in the format described in paragraph 1.6(2) [RFI where response can be in the same doc] and the second party uses the document supplied for the purpose, a response must: * (a) be headed with the name of the court and the title and number of the claim, * (b) in its heading identify itself as a response to that Request, * (c) repeat the text of each separate paragraph of the Request and set out under each paragraph the response to it, * (d) refer to and have attached to it a copy of any document not already in the possession of the first party which forms part of the response. * (2) A second or supplementary response to a Request must identify itself as such in its heading.

Answer 869

A second or supplementary response to a Request must identify itself as such in its heading.

Answer 870

The second party must when he serves his response on the first party serve on every other party and file with the court a copy of the Request and of his response

Answer 871

a response should be verified by a statement of truth.

Answer 872

* (1) If the second party objects to complying with the Request or part of it or is unable to do so at all or within the time stated in the Request he must inform the first party promptly and in any event within that time. * (2) He may do so in a letter or in a separate document (a formal response), but in either case he must give reasons and, where relevant, give a date by which he expects to be able to comply. * (1) There is no need for a second party to apply to the court if he objects to a Request or is unable to comply with it at all or within the stated time. He need only comply with paragraph 4.1(1) above. * (2) Where a second party considers that a Request can only be complied with at disproportionate expense and objects to comply for that reason he should say so in his reply and explain briefly why he has taken that view.

Answer 873

Where a second party considers that a Request can only be complied with at disproportionate expense and objects to comply for that reason he should say so in his reply and explain briefly why he has taken that view.

Answer 874

* An application notice for an order under Part 18 should set out or have attached to it the text of the order sought and in particular should specify the matter or matters in respect of which the clarification or information is sought. * (1) _If a Request under paragraph 1 for the information or clarification has not been made_, the application notice should, in addition, explain why not. * (2) _If a Request for clarification or information has been made_, the application notice or the evidence in support should describe the response, if any. * 5.4 Both the first party and the second party should consider _whether evidence in support of or in opposition to the application is required._

Answer 875

Where the second party has made no response to a Request served on him, the first party need not serve the application notice on the second party, and the court may deal with the application without a hearing. ...above only applies if at least 14 days have passed since the Request was served and the time stated in it for a response has expired.

Answer 876

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

Answer 877

An order made under Part 18 must be served on all parties to the claim.

Answer 878

* Amendments to statements of case * 17.1 * (1) A party may amend his statement of case at any time before it has been served on any other party. * (2) If his statement of case has been served, a party may amend it only – * (a) with the written consent of all the other parties; or * (b) with the permission of the court. * (3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4. * (Part 22 requires amendments to a statement of case to be verified by a statement of truth unless the court orders otherwise)

Answer 879

A party may amend his statement of case at any time before it has been served on any other party

Answer 880

If his statement of case has been served, a party may amend it only – (a) with the written consent of all the other parties; or (b) with the permission of the court.

Answer 881

If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.

Answer 882

Power of court to disallow amendments made without permission 17. 2 (1) If a party has amended his statement of case where permission of the court was not required, the court may disallow the amendment. (2) A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on him.

Answer 883

Where the court gives permission for a party to amend his statement of case, it may give directions as to – (a) amendments to be made to any other statement of case; and (b) service of any amended statement of case.

Answer 884

(2) The power of the court to give permission under this rule is subject to – (a) rule 19.1 (change of parties – general); (b) rule 19.4 (special provisions about adding or substituting parties after the end of a relevant limitation period(GL)); and (c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period).

Answer 885

* (a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and * (b) a period of limitation has expired under – * (i) the Limitation Act 19801; * (ii) the Foreign Limitation Periods Act 19842; or * (iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.

Answer 886

(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

Answer 887

The court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

Answer 888

(4) The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.

Answer 889

Applications to amend where the permission of the court is required 1.1 The application may be dealt with at a hearing or, if rule 23.8 applies, without a hearing.

Answer 890

When making an application to amend a statement of case, the applicant should file with the court: (1) the application notice, and (2) a copy of the statement of case with the proposed amendments.

Answer 891

Where permission to amend has been given, the applicant should within 14 days of the date of the order, or within such other period as the court may direct, file with the court the amended statement of case.

Answer 892

If the substance of the statement of case is changed by reason of the amendment, the statement of case should be re-verified by a statement of truth1.

Answer 893

A copy of the order and the amended statement of case should be served on every party to the proceedings, unless the court orders otherwise.

Answer 894

Amended [Particulars of Claim or as may be] by Order of [Master ............][District Judge .............. or as may be] dated...............

Answer 895

Amended [Particulars of Claim or as may be] under CPR [rule 17.1(1) or (2)(a)] dated..................

Answer 896

The statement of case in its amended form need not show the original text.

Answer 897

However, where the court thinks it desirable for both the original text and the amendments to be shown, the court may direct that the amendments should be shown either: (1) by coloured amendments, either manuscript or computer generated, or (2) by use of a numerical code in a monochrome computer generated document.

Answer 898

coloured amendments, either manuscript or computer generated, or (2) by use of a numerical code in a monochrome computer generated document. 2. 3 Where colour is used, the text to be deleted should be struck through in colour and any text replacing it should be inserted or underlined in the same colour. 2. 4 The order of colours to be used for successive amendments is: (1) red, (2) green, (3) violet and (4) yellow.

Answer 899

* In the Cobbold case, the facts were that on August 5, 1999, a county court judge refused a housing authority’s application to amend their defence in a repair action brought against them by a tenant and due to be tried on August 10. * On August 9, a two-judge court of the Court of Appeal gave the defendants permission to appeal and granted the appeal. T * he Court said that the judge had erred in, amongst other things, coming to the conclusion that the defendants would suffer no prejudice were the amendment not allowed. * In allowing the appeal Peter Gibson L.J. said (with Sedley L.J. concurring):

Answer 900

* “The overriding objective (of the CPR) is that the court should deal with cases justly. * That includes, so far as is practicable, ensuring that each case is dealt with not only expeditiously but also fairly. * **_Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon_** provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed”.

Answer 901

This elision has had the unfortunate effect of lending weight to the erroneous argument that, where there is prejudice to a party seeking an amendment, it should be allowed, when the true position is that the existence and weight of such prejudice is just one the factors to be taken into account.

Answer 902

it is incorrect to assume that late amendments should always be allowed if the opposing party can be compensated in costs without injustice; instead, the court should pay greater regard to all the circumstances which are now summed up in the Overriding Objective

Answer 903

Need to show some prospects of success 17.3.6An application for permission to amend a defence will be refused if it is clear that the proposed amendment has no prospect of success court may reject an amendment seeking to raise a version of the facts of the case which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation

Answer 904

a party will not be permitted to raise by amendment an allegation which is unsupported by any evidence and is therefore pure speculation or invention

Answer 905

A claimant should not be granted permission to amend their claim in order to raise a claim which is not maintainable in established law; the possibility that the House of Lords may develop or change the law was not sufficient to afford the claimant a real prospect of success at trial; the duty of the court is to apply the law as it stands

Answer 906

whether the amendment will put the parties on an unequal footing or will place or add an excessive burden to the respondent’s task of preparing for trial so as to jeopardise the trial date or so as to inevitably cause a postponement of the trial.

Answer 907

A very late amendment is one made when the trial date has been fixed and where the grant of permission to amend would cause the trial date to be lost

Answer 908

A heavy burden lies upon a party seeking a very late amendment. He must provide a good explanation as to why he did not apply earlier and must show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it

Answer 909

In Swain-Mason v Mills & Reeve LLP (Practice Note) [2011] EWCA Civ 14; [2011] 1 W.L.R. 2735, CA, the claimants had been permitted to amend their claim in negligence at the start of the trial in order to raise a different case to that originally pleaded. Allowing the defendants’ appeal against that amendment, the Court of Appeal held that the court should be less ready to allow a very late amendment than it used to be in former times and ruled that a **heavy onus lies upon a party seeking to make a very late amendment to justify it, not only as regards his own position, but also as regards that of the other parties to the litigation and other litigants in other cases before the court.**

Answer 910

Worldwide Corporation Ltd v GPT Ltd , December 2, 1998, CA, unrep. including this passage from the decision of Waller L.J.: “Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor appearing from some disclosure only recently made, why, one asks rhetorically, should he be entitled to cause the trial to be delayed so far as his opponent is concerned and why should he be entitled to cause inconvenience to other litigants?”

Answer 911

* The relevant authorities on late amendment were examined and applied in Brown v Innovatorone Plc [2011] EWHC 3221 (Comm), November 28, 2011, unrep. (Hamblen J.): * relevant factors include the history as regards the amendment and the explanation as to why it was being made late; * the prejudice which would be caused to the applicant if the amendment was refused; * the prejudice which would be caused to the resisting party if the amendment was allowed; * whether the text of the amendment was satisfactory in terms of clarity and particularity

Answer 912

In Dany Lions Ltd v Bristol Cars Ltd [2014] EWHC 928 (QB) (amendment sought two days before trial) Andrews J refused to allow amendments prompted by a reappraisal of the merits of the case by newly instructed counsel and stated that the practice on late amendments should also take account of the stricter views as to defaults in compliance with rules which were indicated by the Court of Appeal in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; [2014] 1 WLR 795; [2014] 2 All ER 430.

Answer 913

Amendment after evidence heard at trial At the trial of a claim for assault, battery and false imprisonment, both sides called evidence as to the circumstances of the claimant’s arrest and removal to a police station. The claimant then sought permission to amend her claim in order to allege that she had been assaulted at an earlier stage of her journey to the police station: such permission should have been granted

Answer 914

* One week before trial the claimant raised allegations of negligence which were different from the allegations in her particulars of claim. * At the trial both sides called evidence on the case pleaded and on the new case. * Before the defence evidence was concluded the claimant’s counsel produced a note which the judge treated as amendment to the particulars of claim which included the new case. * The claimant succeeded on the new case. In those circumstances the amendment to the claim did not amount to an unfair advantage to the claimant. * The defendant had been able to make submissions as to it and it was not shown that the defendant would have called further evidence had it been able to see the note in advance

Answer 915

In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

Answer 916

* (2) The court may strike out(GL) a statement of case if it appears to the court – * (a) that the statement of case discloses **_no reasonable grounds for bringing or defending the claim_**; * (b) that the statement of case is an **_abuse of the court’s process_** or is **_otherwise likely to obstruct the just disposal of the proceedings_**; or * (c) that there has been a **_failure to comply with a rule, practice direction or court order._**

Answer 917

When the court strikes out a statement of case it may make any consequential order it considers appropriate.

Answer 918

on the application of the defendant, stay(GL) that other claim until the costs of the first claim have been paid.

Answer 919

(6) If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit – (a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Answer 920

Judgment without trial after striking out 3. 5 (1) This rule applies where – (a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and (b) the party against whom the order was made does not comply with it.

Answer 921

* (2) A party may obtain judgment with costs by filing a request for judgment if – * (a) the order referred to in paragraph (1)(a) [the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order and the party against whom the order was made does not comply with it] **_relates to the whole of a statement of case_**; and * (b) **_where the party wishing to obtain judgment is the claimant, the claim is for_** – * (i) a specified amount of money; * (ii) an amount of money to be decided by the court; * (iii) delivery of goods where the claim form gives the defendant the alternative of paying their value; or * (iv) any combination of these remedies.

Answer 922

Where judgment is obtained under this rule in a case to which paragraph (2)(b)(iii) applies, it will be judgment requiring the defendant to deliver goods, or (if the defendant does not do so) pay the value of the goods as decided by the court (less any payments made).

Answer 923

The request must state that the right to enter judgment has arisen because the court’s order has not been complied with.

Answer 924

A party must **_make an application in accordance with Part 23_** if they wish to obtain judgment under this rule in a case to which paragraph (2) does not apply.

Answer 925

Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction.

Answer 926

Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs

Answer 927

...provided in paragraph (4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by **_prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date._**

Answer 928

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.

Answer 929

An application for relief must be supported by evidence.

Answer 930

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.

Answer 931

Statement of case means “a claim form, particulars of claim where these are not included in the claim form, defence, Pt 20 claim, or a reply to a defence; and includes any further information given in relation to them voluntarily or by court order under rule 18.1” see r.2.3(1).

Answer 932

Strike out is defined in the Glossary as “Striking out means the court ordering written material to be deleted so that it may no longer be relied upon”

Answer 933

Generally, an application for an order striking out of a statement of case will be made during the pre-trial stages of proceedings (often together with an application for summary judgment). However the court may exercise the power immediately before trial or even during the course of trial (and may do so whether or not an application was made before trial and adjourned to be dealt with at the trial).

Answer 934

Grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent, vexatious, scurrilous or obviously ill-founded and other cases which do not amount to a legally recognisable claim or defence.

Answer 935

This power can be exercised by a judge acting on their own initiative at the stage of issuing a claim (perhaps with a court officer referring the case to the judge under r.3.2) and thus defendants against whom an ill-founded action is sought to be brought will be spared needless expense in having to initiate “strike out” proceedings

Answer 936

Ground (c) covers cases where the abuse lies not in the statement of case itself but in the way the claim or defence (as the case may be) has been conducted.

Answer 937

In the case of non-compliance with a rule or practice direction the court may instead order the non-complying party to pay a sum of money into court (see r.3.1(5) and (6))

Answer 938

In the case of non-compliance with a court order the court may instead repeat its order, this time imposing conditions and/or specifying the consequences of failure to comply with the order or condition (r.3.1(3)).

Answer 939

* In Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926; [1999] 4 All E.R. 934, the Court of Appeal drew attention to several alternatives to a strike out under r.3.4 which may be appropriate to deal with non-compliance with time limits laid down by rules or orders: * awarding costs on the indemnity basis payable forthwith, * ordering a party to pay money into court and * awarding interest at a higher or lower rate (and see Asiansky Television plc v Bayer Rosin [2001] EWCA Civ 1792 and the cases cited therein).

Answer 940

on an application under r.3.4 for a strike-out for non-compliance, the Mitchell/ Denton principles (which apply to applications under r.3.9; and see further, paras 3.9.3 and 3.9.4, below) have a direct bearing even though they relate to applications for relief from sanctions rather than applications to impose a sanction.

Answer 941

Applications under r.3.4 should be made as soon as possible and before allocation if possible (Practice Direction supplementing r.3.4, para.5.1, see para.3APD.5). If the application is made by the defendant against the claimant’s statement of case, the claimant cannot obtain a default judgment until that application is disposed of (r.12.3(3)(a)).

Answer 942

* para.3APD.1, gives examples of cases where the court may conclude that particulars of claim disclose no reasonable grounds for bringing the claim: * those claims which set out no facts indicating what the claim is about; * those claims which are incoherent and make no sense; * and those claims which contain a coherent set of facts but those facts even if true, do not disclose any legally recognisable claim against the defendant.

Answer 943

Paragraph 1.6 of the Practice Direction, para.3APD.1, states that a defence may fall within r.3.4(2)(a) where it consists of a bare denial or otherwise sets out no coherent statement of facts, or the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim.

Answer 944

Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend

Answer 945

English courts have taken the view that art.6(1) does not prevent the striking out of claims in appropriate cases since it applies only to “genuine and serious” disputes about civil rights and obligations, although a claim submitted to a tribunal for determination must be presumed to be genuine and serious unless there are indications to the contrary.

Answer 946

In Osman v United Kingdom (2000) 29 E.H.R.R 245, the ECtHR held that the striking out by the Court of Appeal of the applicant’s statement of claim on the basis that it was contrary to public policy for the police to be under a duty of care in the circumstances of the case was a breach of the art.6(1) right of access to a court. The ECtHR found that the **_court had proceeded on the basis that the police had a blanket immunity from civil liability in respect of their acts and omissions in the investigation and suppression of crime._** The force of Osman was weakened by a subsequent judgment of the ECtHR in Z v United Kingdom [2002] 34 E.H.R.R. 3; [2001] 2 F.L.R. 612, ECtHR. The court affirmed that striking out a claim was not inherently contrary to the right of access to a court. It upheld a decision to strike out a claim in negligence on the basis that the strike out resulted not from a blanket immunity but from the application of domestic law principles governing the constituent elements of a cause of action.

Answer 947

A statement of case which discloses no reasonable grounds may also be an abuse of the court’s process, and, in respect of it, the opposing party may be entitled to summary judgment under Pt 24. Thus, there is no exact dividing line between ground (a) and ground (b) (as to which see para.3.4.3 or between either of them and Pt 24 (as to which see para.3.4.6).

Answer 948

using that process for a purpose or in a way significantly different from its ordinary and proper use

Answer 949

The court has power to strike out a prima facie valid claim where there is abuse of process. However there has to be an abuse, and striking out has to be supportive of the overriding objective. It does not follow from this that in all cases of abuse the correct response is to strike out the claim. The striking out of a valid claim should be the last option. If the abuse can be addressed by a less draconian course, it should be

Answer 950

It is an abuse to bring vexatious proceedings, i.e. two or more sets of proceedings in respect of the same subject matter which amount to harassment of the defendant in order to make them fight the same battle more than once with the attendant multiplication of costs, time and stress

Answer 951

In addition to striking out the statements of case in such proceedings the court may make a civil restraint order

Answer 952

Attempts to re-litigate decided issues 3.4.3.2As a general rule a party should not be allowed to litigate issues which have already been decided by a court of competent jurisdiction.

Answer 953

However, whether litigation of a decided issue is an abuse depends upon all of the circumstances. It is wrong to hold that simply because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. A broad, merits-based judgment should be adopted, taking account of all the public and private interests involved and all the facts of the case

Answer 954

Collateral attacks upon earlier decisions InHunter v Chief Constable of the West Midlands Police [1982] A.C. 529 it was said that it was an abuse of process to initiate: “proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending (claimant) which had been made by another court of competent jurisdiction in previous proceedings in which the intending (claimant) had full opportunity of contesting the decision in the court in which it was made.”

Answer 955

However, it was recognised in Hunter that it might not be an abuse of process if the claimant could show that they had fresh evidence which entirely changed the previous case and that the further evidence could not by reasonable diligence have been obtained beforehand

Answer 956

This rule sets out the court’s general discretion to give relief from any sanction imposed for failure to comply with any rule, practice direction or court order.

Answer 957

Rule 3.9(1) applies in cases where a party applies for an extension of time in order to negate a procedural sanction already suffered because of their failure to comply with a time limit set by rule, practice direction or order (see para.3.1.2 above)

Answer 958

r.3.9 comes into play, not merely where a party has failed to comply with any rule, etc., but only where a sanction is imposed as a result of that failure.

Answer 959

Mitchell/Denton principles

Answer 960

Formulation of rule since April 2013 3.9.3Under the new r.3.9(1) the court is required to consider “all the circumstances of the case, so as to enable it to deal justly with the application”. Two circumstances are specifically mentioned (factors (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules, practice directions and court orders).

Answer 961

how strictly should the courts now enforce compliance with rules, practice directions and court orders?

Answer 962

* If a breach is trivial, the court will usually grant relief provided that an application is made promptly. * Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: * for example, * where there has been a failure of form rather than substance; or * where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms.

Answer 963

* If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. * The court will want to consider why the default occurred. * If there is a good reason for it, the court will be likely to decide that relief should be granted. * For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason.

Answer 964

Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal

Answer 965

Mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason.

Answer 966

(5) ## Footnote Solicitors may be under pressure and have too much work. That will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all.

Answer 967

Applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event.

Answer 968

(7) ## Footnote If there is a very good reason for the failure then relief will usually be granted. The weaker the reason, the more likely the court will be to refuse to grant relief. (Adopting the approach taken in Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206 in the context of applications for an extension to the period of validity of a claim form under r.7.6)

Answer 969

* An application for relief from a sanction presupposes that the sanction has in principle been properly imposed

Answer 970

An application for relief from a sanction presupposes that the sanction has in principle been properly imposed. If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under r.3.1(7).

Answer 971

* considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion. * The discretion might be appropriately exercised normally only * (i) where there had been a material change of circumstances since the order was made; * (ii) where the facts on which the original decision was made had been misstated; or * (iii) where there had been a manifest mistake on the part of the judge in formulating the order. Moreover, as the court emphasised, the application must be made promptly. * _This reasoning has equal validity in the context of an application under r.3.9._

Answer 972

9) ## Footnote Rule 3.14 sets out a stark and simple default sanction which will usually apply unless the breach in question is trivial or there was good reason for it. The grant of partial relief from the sanction will not often be appropriate. If partial relief were to be encouraged, that would give rise to uncertainty and complexity and stimulate satellite litigation.

Answer 973

although the court is still required to consider “all the circumstances of the case, so as to enable it to deal justly with the application”, circumstances other than the two considerations which are specifically mentioned (factors (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules, practice directions and court orders) should now be given less weight

Answer 974

Summary of guidance given in Denton * 3.9.4The guidance given in Denton may be summarised as follows: a judge should address an application for relief from sanctions in three stages. * 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 r.3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. * The second stage is to consider why the default occurred. * 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 r.3.9 (1)(a)(b). * The court also gave guidance as to the importance of penalising parties who unreasonably oppose applications for relief from sanctions.

Answer 975

* ...whether the breach has been serious or significant. * ...in many circumstances whether or not a breach imperilled future hearing dates or otherwise disrupts the conduct of litigation (including litigation generally) would be the most useful measure of whether a breach has been serious or significant. * ...there were breaches which are serious although they are incapable of affecting the efficient progress of the litigation: e.g., the failure to pay court fees. * ...concepts of seriousness and significance are not hard-edged and that there are degrees of seriousness and significance. * At the first stage, the assessment of the seriousness or significance of the breach should concentrate on the very breach in respect of which relief from sanction is sought. * Considerations of the defaulter’s previous conduct in the litigation (for example, if the breach is the latest in a series of failures to comply) should be left to the third stage. * If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. * If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance.

Answer 976

The second stage is particularly important where the breach is serious or significant. The court declined to give any examples of good and bad reasons for a failure to comply with rules, practice directions or court orders. Mitchell gave examples, at [41], but they are no more than examples.

Answer 977

* it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. * In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. * The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new r.3.8(4). * The court will be more ready in the future to penalise opportunism. * ...unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. * **_Heavy costs sanctions_** should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions.

Answer 978

party is not required to agree to an extension of time in every case where the extension will not disrupt the time-table for the appeal or will not cause him to suffer prejudice

Answer 979

...The Court of Appeal held that, plainly, B’s delay had been serious or significant. However there was a reasonable excuse for the delay up to February 6, 2014 (when he had first become aware of the proceedings and the default judgment) and there was also good reason explaining his subsequent delay of 36 days before making the set aside application (during this period B had sought to trace a former solicitor and had applied for legal aid). ...Applying [the third stage in Denton], I have no hesitation in concluding that the default judgment should in this case be set aside. [B] was faced unexpectedly with a very difficult situation. Even having particular regard to the need for litigation to be conducted efficiently and at proportionate cost and to the need to enforce compliance with the rules, his delay was explicable and excusable in his very special circumstances. It would be unjust … for the judgment to stand against him, whilst his co-defendants were allowed to proceed with their defence

Answer 980

In Integral Petroleum SA v SCU-Finanz AG [2014] EWHC 702 (Comm), Popplewell J heard an application to set aside a default judgment under rr.13.2 or 13.3. As to the application under r.13.2 it was held that the claimant’s error of procedure in serving particulars of claim by e-mail was “a failure to comply with a rule or practice direction” under r.3.10 and therefore the defendant’s request that the judgment be set aside as of right was refused (see [42]). As to the application under r.13.3 it was held, after referring to Mitchell (at [77]) that the application had not been promptly made (see [78]) but having regard to the strong prospects of success shown by the defendant and other factors (see [79]) the default judgment should be set aside (and see further, para.3.9.6.10, below).

Answer 981

Singh v Thoree ....the time for filing the defence had expired on January 28, 2014 but, on that day, the defendant had received amended particulars of claim. The defendant (Mr Singh) did not serve a defence until February 14, 2014 and did not file a defence until February 27, 2014 at the earliest. Judgment in default was entered on February 24, 2014. Allowing the defendant’s appeal from a deputy master’s refusal to set aside that default judgment, the learned judge held that the defendant had established a realistic defence and had applied promptly to set aside the default judgment (i.e., within one day of first becoming aware of it). Although the default of defence in this case had endured for several weeks it was nevertheless right to grant relief; that delay had occurred because the defendant had assumed, wrongly, that the service of amended particulars of claim had recommenced the time limit for his defence.

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