SGS Slides Flashcards Preview

Civil Litigation > SGS Slides > Flashcards

Flashcards in SGS Slides Deck (1038):
1

What are the new Civil Procedure Rules?

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

2

Dealing with a case justly and at proportionate cost includes, so far as is practicable

(ECP) EQUAL - CHEAP - PROPORTIONATE

  • a) ensuring that the parties are on an equal footing;
  • (b) saving expense;
  • (c) dealing with the case in ways which are proportionate –
  • VALUE (i) to the amount of money involved;
  • IMPORTANCE (ii) to the importance of the case;
  • COMPLEXITY (iii) to the complexity of the issues; and
  • RICH MAN POOR MAN (iv) to the financial position of each party;
  • QUICK AND FAIR (d) ensuring that it is dealt with expeditiously and fairly;
  • COURT RESOURCES (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
  • COMPLIANCE (f) enforcing compliance with rules, practice directions and orders.

3

The court must seek to give effect to the overriding objective when it does what?

The court must seek to give effect to the overriding objective when it –

(a) exercises any power given to it by the Rules; or

(b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.

4

Is the OO just something for the court to concern itself with?

No

1.3

The parties are required to help the court to further the overriding objective.

5

The court must further the overriding objective by actively managing cases, which includes...

 

By active case management

  • SORTING THE WHEAT FROM CHAFF QUICKLY IN AN ORDERLY WAY
    • Early Identification of the issues 
    • Prompt decisions on which issues need full investigation 
    • Disposing summarily of the others 
    • Deciding the order of resolving issues 
  • CO-OPERATION, SETTLEMENT AND REDOC
    • Encouraging parties to co-operate 
    • Encouraging parties to use ADR and facilitating its use 
    • Helping parties to settle whole or part of case 
  • HOUSEKEEPING AND LOGISTICS
    • Fixing timetables and controlling the progress of the case
    • Cost benefit analysis of taking particular step
    • Dealing with as many matters as possible on same occasion
    • Dealing with matters in the absence of the parties
    • Using technology
    • Giving directions so trial proceeds quickly and efficiently

 

6

Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than £....

Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than £100,000.

7

Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £........... or more.

2.2  Proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is £50,000 or more.

8

Can statute determine whether a certain claim is to be issued in the HC or CC?

A claim must be issued in the High Court or the County Court if an enactment so requires.

9

For which reasons may a claim be started in the HC even if it does not meet the monetary value thresholdds 

money, complexity and public interest

(1) the financial value of the claim and the amount in dispute, and/or

(2) the complexity of the facts, legal issues, remedies or procedures involved, and/or

(3) the importance of the outcome of the claim to the public in general,

the claimant believes that the claim ought to be dealt with by a High Court judge.

10

A claim in the County Court under Part 7 may be made at which hearing centre?

(1) A claim in the County Court under Part 7 may be made at any County Court hearing centre, unless any enactment, rule or practice direction provides otherwise.

11

What happens if a claim which is required to be made at a particular County Court hearing centre is made at the wrong hearing centre?

(2) If a claim which is required to be made at a particular County Court hearing centre is made at the wrong hearing centre, a court officer will send the claim to the correct hearing centre before it is issued.

12

Where may a claim relating to Chancery business be dealt with?

A claim relating to Chancery business may, subject to any enactment, rule or practice direction, be dealt with in the High Court or in the County Court.
 

13

How should a Chancery claim form be marked?

The claim form should, if issued in the High Court, be marked in the top right hand corner ‘Chancery Division’ and, if issued in the County Court, be marked ‘Chancery Business’.

14

Proceedings in which both the HC and CC have jursidiction may be commenced where?

Either in the HC or CC

15

A claim for money in which the CC has jurisdiction may be commenced in the HC when?

if over value £100K

16

What is the threshold for a personal injuries claim having to be commenced in the High court?

5.—(1) Proceedings in which county courts have jurisdiction and which include a claim for damages in respect of personal injuries shall be commenced in a county court, unless the value of the action is £50,000 or more.

17

What type of claim is excepted from category where the threshold for a personal injuries claim having to be commenced in the High court applies?

clinical negligence 

18

When calculating how much the claimant expects to recover, the claimant must disregard what?

INTEREST, COSTS, CONTRIB, CCLAIM, SETOFF, BENEFITS

 

(i) interest;

(ii) costs;

(b) that the court may make a finding of contributory negligence;

(c) that the defendant may make a counterclaim or that the defence may include a set-off; or

(d) that the defendant may be liable to pay an amount of money which the court awards to the claimant to the Secretary of State for Social Security under section 6 of the Social Security (Recovery of Benefits) Act 1997 1.

19

What are the relevant paragraph titles in PD PAC?

OPSESSCL

Objectives of pre-action conduct and protocols

Proportionality

Steps before issuing a claim at court

Experts

Settlement and ADR

Stocktake and list of issues

Compliance with this practice direction and the protocols

Limitation

20

PD-PACP applies to which category of disputes?

This Practice Direction applies to disputes where no pre-action protocol approved by the Master of the Rolls applies.

21

What are the Objectives of pre-action conduct and protocols?

ESI-UNDECSETTREDOCEFFCASH

3.  Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—

(a) understand each other’s position;

(b) make decisions about how to proceed;

(c) try to settle the issues without proceedings;

(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;

(e) support the efficient management of those proceedings; and

(f) reduce the costs of resolving the dispute.

22

How should the PD-PACP NOT be used

4.  A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party.

23

What happens to a party who incurs undreasonable costs in complying with the PDPACP?

 Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.

The costs incurred in complying with a pre-action protocol or this Practice Direction should be proportionate (CPR 44.3(5)).

Where parties incur disproportionate costs in complying with any pre-action protocol or this Practice Direction, those costs will not be recoverable as part of the costs of the proceedings.

24

What Steps should be taken before issuing a claim at court

Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings.

Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate.

The steps will usually include—

LETTER BEFORE CLAIM (a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;

RESPONSE (b) 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. The reply should include 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 and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and

DISCLOSURE OF KEY DOCUMENTS (c) the parties disclosing key documents relevant to the issues in dispute.

25

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

  • 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

26

The defendant's reply to a letter before action should be done how quickly?

 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

27

Defendant's reply to a letter before action should include what?

  • 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

28

What disclosure should be made at the PD PAC stage?

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

29

What consideration should be given to experts at the PD-PAC stage?

  • 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.

30

What consideration should be given to ADR at the PDPAC stage?

  • 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.

31

What modes of ADR are open to the parties at the PDPAC stage?

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.

32

What is the consequence of not considering ADR at PD PAC stage?

  • 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.

33

What should the parties do if the steps of the PD PAC have not enabled them to settle the dispute?

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.

34

How will non-compliance with the PD-PAC be taken into account by the court once proceedings have been issued?

  • 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).

35

When may the court may decide that there has been a failure of compliance?

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.

36

What may a court order where there has been non-compliance with a pre-action protocol?

 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.

37

What sorts of sanctions may be applied for non-compliance with the pre-action protocols?

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.

38

If proceedings are started to comply with limitation before pre-action has been complied with, what step should the parties take?

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.

39

the protocols currently in force 

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

40

When are proceedings started?

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

41

A claim form is issued on which date?

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

42

How many claim can be strated with one claim form?

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

43

At what point (and how) are claim forms to be served on the D?

  • 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.

44

What step must accompany the service of particulars of claim?

(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 –

45

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.... what time?

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.

46

What is the step required where the method of service of the claim form is first class post, document exchange or other service which provides for delivery on the next business day?

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

47

What is the step required where the method of service of the claim form is delivery of the document to or leaving it at the relevant place?

Delivering to or leaving the document at the relevant place

48

What is the step required where the method of service of the claim form is Personal service under rule 6.5?

Completing the relevant step required by rule 6.5(3) 

49

When can a claim form be served personally?

  • (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.

50

How is personal service of a claim form effected on an individual?

by leaving it with that individual

51

How is personal service of a claim form effected on a company or other corporation?

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

52

How is personal service of a claim form effected on a partnership (where partners are being sued in the name of their firm)?

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.

53

What is the step required where the method of service of the claim form is fax?

Completing the transmission of the fax

54

What is the step required where the method of service of the claim form is another electronic method?

Sending the e-mail or other electronic transmission

55

Where the claim form is to be served out of the jurisdiction, the claim form must be served within how many months of what date?

 

(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.

56

Can the time for the extension of the claim form be extended?

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

57

an application to extend the time for compliance with rule 7.5 (time for serving claim form) must be made within what period of time?

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.

58

If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 (or by an order made under this rule, the court may make such an order only if...

(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.

59

An application for an order extending the time for compliance with rule 7.5 must be supported by what?

Evidence

60

When making an  application for an order extending the time for compliance with rule 7.5, need notice be given?

No

61

The claim form and every other statement of case, must be headed with what?

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

62

The title of proceedings should state what?

 

(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).

63

Where there is more than one claimant and/or more than one defendant, the parties should be described in the title as follows...

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

64

When are proceedings started?

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

65

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, on what date is the claim  ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute?

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.

66

How is the date on which the claim form was received by the court recorded?

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.

67

An enquiry as to the date on which the claim form was received by the court should be directed to whom?

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.

68

What steps should be taken by parties proposing to start a claim which is approaching the expiry of the limitation period?

  • 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.

69

Where it is sought to start proceedings against the estate of a deceased defendant where probate or letters of administration have not been granted, what steps should the claimant take?

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.

70

If not included in the claim form,  how may POC be served?

...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).

71

If the particulars of claim are not included in or have not been served with the claim form, what must the claim form contain ?

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.

72

What is the wording of a statement of truth?

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

73

What is the consequence of making a false statement of truth?

(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.

74

What does the Claim form and Particulars of Claim have to have at the end of it?

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.

75

Evidence in support of an application by evidence under r 7.6 for an extension of time for serving a claim form should state what?

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.

76

For Part 6 purposes, ‘bank holiday’ means....

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

77

For part 6 purposess, ‘business day’ means...

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

78

(1) A claim form may (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) be served by any of the following methods –

(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.

79

How may a company be served the claim form?

(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.

80

A limited liability partnership may be served the claim form how?

(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.

81

Who is to serve the claim form?

(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.

82

Where the court is to serve the claim form, who is to decide which method of service is to be used?

(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.

83

Where the court is to serve the claim form, the claimant must, in addition to filing a copy for the court, provide what to the court?

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.

84

Where the court is serving the claim form, at what point is the court no longer required to try to serve the claim form?

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.

85

In what cases must personal service be effected?

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

86

Where may a claim from not be served personally?

(a) where rule 6.7 applies; or

(b) in any proceedings against the Crown.

87

Must a claim form be served inside the jurisdiction?

(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.

 

 

88

Must the claim form contain the defendant's address?

(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.)

89

When must the claim form be served at the business address of that solicitor?

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.

90

When must the claim form be served on a Solicitor in Scotland or Northern Ireland or EEA state other than the United Kingdom?

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.

91

When must the claim form be  served at the business address of a European Lawyer?

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).)

92

Service of the claim form where before service the defendant gives an address at which the defendant may be served

(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

93

Which CPR rule deals with "Service of the claim form where the defendant does not give an address at which the defendant may be served"

6.9

94

In what circumstances  does the rule about service of the claim form where the defendant does not give an address at which the defendant may be served apply?

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).

95

Place of service of the claim form where the defendant (an individual) does not give an address at which the defendant may be served

Usual or last known residence.

96

Place of service of the claim form where the defendant (an individual being sued in the name of a business) does not give an address at which the defendant may be served

Usual or last known residence of the individual; or

principal or last known place of business.

97

Place  of Service of the claim form where the defendant (an Individual being sued in the business name of a partnership) does not give an address at which the defendant may be served

Usual or last known residence of the individual; or

principal or last known place of business of the partnership.

98

Place of Service of the claim form where the defendant (an LLP) does not give an address at which the defendant may be served

Principal office of the partnership; or

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

99

Place of Service of the claim form where the defendant (a Corporation (other than a company) incorporated in England and Wales) does not give an address at which the defendant may be served

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.

100

Service of the claim form where the defendant (a Company registered in England and Wales) does not give an address at which the defendant may be served

Principal office of the company; or

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

101

Place of Service of the claim form where the defendant (Any other company or corporation) does not give an address at which the defendant may be served 

Any place within the jurisdiction where the corporation carries on its activities; or

any place of business of the company within the jurisdiction.

102

What is a claimant to do where he has reason to believe that the address of an individual being sued in his own name, the name of a company or in the business name of a partnership is an address at which the defendant no longer resides or carries on business?

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

103

Having taken reasonable steps to ascertain the address of the defendant’s current residence in the case of an individual (Individual, Individual being sued in the name of a business, Individual being sued in the business name of a partners) who the Claimant has reason to believe no longer resides or carries on business at an address, what should the Claimant do??

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.

104

If unable to ascertain an individual's current address or an alternative address or an alternative method of service, what should the Claimant do?

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).

105

How is service effective where method of Service of the claim form is contractually agreed?

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.

106

Service of the claim form by contractually agreed method outside the jurisdiction - rules to be observed

(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.

107

Where the defendant is a child who is not also a protected party, the claim form must be served on who?

(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.

108

Where the defendant is a protected party, the claim form must be served on  who?

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.

109

A reference in Section 6.13 to (Service of the claim form on children and protected parties) "a defendant or a party to be served" includes who?

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

 

 

110

Can a claim form under the section on "Service of the claim form on children and protected parties" be served on a person other than the people mentioned in subsections (1) and (2)

(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).

111

Can an application for a  claim form under the section on "Service of the claim form on children and protected parties" be served on a person other than the people mentioned in subsections (1) and (2) be made without notice?

yes

112

Is a claim form  sent or given to someone other than the person specified in paragraph (1) or (2) of 6.13 (Service of the claim form on children and protected parties) properly served?

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.

113

In what circumstances may a court may make an order permitting service by an alternative method or at an alternative place.

(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.

114

Can order  permitting service by an alternative method or at an alternative place work retroactively in relation to steps already taken?

(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.

115

Must an application for alternative service or at an alt. address be made with notice?

no

116

An application for alternative service or at an alt. address be supported by what?

evidence

117

  • (4) An order for alt.service or service at an alternative address  must specify –

  • (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.

118

Can a  court to dispense with service of the claim form?

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.

119

When may an application for an order to dispense with service be made?

(2) An application for an order to dispense with service may be made at any time and –

...

(b) may be made without notice.

120

An application for an order to dispense with service must be supported by...

(a) must be supported by evidence; and

121

a document (other than the claim form) may be served by  which methods?

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.

122

How may a document non-claim form be served on a Company?

(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.

123

A non-claim form document may be served on an LLP how?

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.

124

Who will serve a document which a party has prepared ?

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.

125

Who will serve a document  prepared by the court?

(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.

126

Where the court is to serve a document, which method of service is to be used?

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

127

Where the court is to serve a document prepared by a party what must that party provide?

(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.

128

May service of a document be effected personally?

  • 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).

129

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 which rule?

(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).

130

A document which would otherwise be served on a child or a protected party must be served on who?

(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.

131

May a document be served on a child or protected party or on some person other than the one specified in 21.8?

(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).

132

Does 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 need to be made on notice?

no

133

If a document has been sent or given to someone other than the person specified in rule 21.8 or paragraph 6.25(2) (Service on children and protected parties), has proper service been effected?

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.

134

A document, other than a claim form, served by First class post (or other service which provides for delivery on the next business day) within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on...

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.

135

  A document, other than a claim form, served by DX within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table –

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.

136

6.26  A document, other than a claim form, served by Delivering the document to or leaving it at a permitted address within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on ...

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.

137

A document, other than a claim form, served by FAX within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on ....

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.

138

A document, other than a claim form, served (by some Other electronic method) within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on...

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.

139

6.26  A document, other than a claim form, served personally within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table –

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.

140

Does Service of the claim form by an alternative method or at an alternative place apply to documents or only claim forms?

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.

141

May the court dispense with service of a document?

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.

142

  • An application for an order to dispense with service of a document must be supported by what?

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

143

Must an application to dispense with service of a document be made with notice?

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

144

Service by document exchange (DX) may take place on what condition?

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.

145

Service by post, DX or other service which provides for delivery on the next business day is effected by doing what?

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.

146

147

What is the conditions to be met before a document is to be able to be served by fax or other electronic means?

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).

148

Where a document is served by electronic means, need the party serving the document  send or deliver a hard copy?

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.

149

Personal service on a registered company or corporation in accordance with rule 6.5(3) is effected how?

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.

150

Personal service is effected on a registered company or corporation in accordance with rule 6.5(3), a person in a senior position is?

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.

151

Where the court serves a document in accordance with rule 6.4 or 6.21(2), the method will normally be what?

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.

152

Where an Application for an order for service by an alternative method or at an alternative place is made before the document is served, the application must be supported by evidence stating what?

 

(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.

153

Where the application for an order for service by an alternative method or at an alternative place is made after the applicant has taken steps to bring the document to the attention of the person to be served by an alternative method or at an alternative place, the application must be supported by evidence stating  what?

 

(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.

154

an application to serve by posting or delivering to an address of a person who knows the other party must be supported by evidence of what?

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

 

155

an application to serve by sending a SMS text message or leaving a voicemail message at a particular telephone number saying where the document is must be accompanied by evidence that ...

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

 

156

an application to serve by e-mail to a company (where paragraph 4.1 does not apply) must be supported by evidence that ...

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.

157

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

the following Wednesday (a business day).

158

Where the document is left in a numbered box at the DX on a Friday (a business day), the day of deemed service is

the following Monday (a business day).

159

Where the document is sent by fax on a Saturday and the transmission of that fax is completed by 4.30p.m. on that day, the day of deemed service is 

the following Monday (a business day).

160

Where the document is served personally before 4.30p.m. on a Sunday, the day of deemed service is

ext day (Monday, a business day).

161

Where the document is delivered to a permitted address after 4.30p.m. on the Thursday (a business day) before Good Friday, the day of deemed service is

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

162

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

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

163

When starting a claim against trustees do you have to add the beneficiaries?

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.

164

Is a judgement against beneficiaries binding on trustees?

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.

165

Where a person who had an interest in a claim has died and that person has no personal representative the court may order  what?

(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.

166

Where a defendant against whom a claim could have been brought has died and  a grant of probate or administration has been made, the claim must be brought against who?

the persons who are the personal representatives of the deceased;

167

Where a defendant against whom a claim could have been brought has died and a grant of probate or administration has not been made, the claim must be brought against who?

(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.

168

A claim shall be treated as having been brought against ‘the estate of’ the deceased in accordance with paragraph (2)(b)(i) (where a defendant against whom a claim could have been brought has died and a grant of probate or administration has not been made) where.. ?

 

(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.

169

Can a company or other corporation may be represented at trial by an employee?

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.

170

Where that partnership has a name, claims must be brought in or against which name?

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.

171

Practice direction in respect of Claims by and against partnerships within the jurisdiction and Persons carrying on business in another name

  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.

172

claimants had put an address for service for the defendant both in and out of the jurisdiction on the claim form - had failed to take elementary steps to discover that he had in fact been residing in the jurisdiction for 3 years – given or refused?

refused

173

Will the court grant  an application to extend time for serving the claim form without being satisfied that the claimant has taken all reasonable steps to comply with r.7.5? 

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

174

one of the two defendants had not replied to the letter of claim - good reason to extend time for serving the claim form prosectively?

NO

175

accountant’s report with regard to quantum had arrived late, and Counsel’s drafting of the particulars of claim had been delayed - good reason for extending time to serve claim form prospectively?

no

176

Can  an extension of time for service of the claim form without notice to the defendant  be set aside ?

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.

177

What do you have to show if you are making successive applications to extend time for serving the claim form?

 

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.

178

Is an application to extend time for service by 3 months acceptable?

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.

179

Does a reason connected with funding amounted to good reason to extend the time for serving the claim form?

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

180

What should the claimants have done in Cecil v Bayat?

….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.

181

Is difficulty in effecting service a good reason to refuse to set aside an order to extend the time for service?

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.

182

Is an indication of the defendants that they would avoid personal service a good reason for an extension of the time to serve the claim form?

No

183

the claimant served the claim form on the defendant when solicitors had been nominated. The claimant realised the mistake and could have faxed the claim form to the defendant’s solicitors within the four month period for service. Did he get an extension?

No

184

the claimant faxed the claim form to the defendant’s insurers on the last day of the four month period. Did he get an extension?

No

185

claim form was sent to the defendant by DX. The defendant was not a member of the DX. An application to extend time for service retrospectively was granted or refused?

Refused

186

lodging the claim form with the Queen’s Bench Masters for onward transmission to consular services to arrange service out of the jurisdiction - fail or succed?

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

187

in determining whether a claimant has taken “all reasonable steps to serve the claim form” the court is limited to taking into account steps taken during which period?

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

188

What does Part 21 do?

(a) contains special provisions which apply in proceedings involving children and protected parties;

(b) sets out how a person becomes a litigation friend; and

189

Part 21 doesn't apply to what?

(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.

190

(b) ‘child’ means a person under _

18

191

‘lacks capacity’ means 

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

192

‘the 2005 Act’ means

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

193

"protected party" means what

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

194

"‘protected beneficiary’ means

(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.

195

Must a protected party  have a litigation friend?

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

196

Must a child have a litigation friend?

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

197

May a child conduct litigation without a litigation friend?

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

198

(An application for an order permitting a child to conduct proceedings without a litigation friend may be made by who?

(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.

199

(An application for an order permitting a child to conduct proceedings without a litigation friend may be made with or without notice?

(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.

200

Is a court that allows a child to conduct litigation without a litigation friend able to change its mind?

(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.

201

May a settlement, compromise or payment (including any voluntary interim payment) or acceptance of money paid into court be valid without the approval of the court?

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.

202

What in a  claim is made –

(a) by or on behalf of a child or protected party; or

(b) against a child or protected party

needs the approval of the court

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.

203

(2) Where –

(a) before proceedings in which a claim is made by or on behalf of, or against, a child or protected party (whether alone or with any other person) are begun, an agreement is reached for the settlement of the claim; and

(b) the sole purpose of proceedings is to obtain the approval of the court to a settlement or compromise of the claim,

the claim must –

(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.

204

(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  how?

(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.

205

In which proceedings relating to children will money  be dealt with in accordance with directions given by the court under this rule and not otherwise?

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.

206

What directions may be made in respect of money paid under rule 21 to child litigant


 

(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.

207

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  consider what first?

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.

208

5.1 Where a claim by or on behalf of a child or protected party has been dealt with by agreement before the issue of proceedings and only the approval of the court to the agreement is sought, the claim must, in addition to containing the details of the claim and satisfying the requirements of rule 21.10(2), include the following –

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.

209

5.1 Where a claim by or on behalf of a child or protected party has been dealt with by agreement before the issue of proceedings and only the approval of the court to the agreement is sought, the claim must, in addition to containing the details of the claim and satisfying the requirements of rule 21.10(2), include the following (where it is a personal injury case of an accident)–

  • (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.

210

An opinion on the merits of the settlement or compromise given by counsel or solicitor acting for the child or protected party must... requirements.

(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.

211

5.3 Where in any personal injury case a claim for damages for future pecuniary loss is settled, the provisions in paragraphs 5.4 and 5.5 must in addition be complied with... which are..

  • 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.

212

Applications for the approval of a settlement or compromise will normally be heard by –...

 

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.

213

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, what must be done?

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.

214

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 what?

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.

215

Where the Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued includes provision for periodical payments, an application under paragraph 6.1 must  what?

(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.

216

In a Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued, The court must be supplied with  what?

 

(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).

217

Who will hear appilcations for the Settlement or compromise by or on behalf of a child or protected party after proceedings have been issued?

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.

218

When may a Claimant use Part 8 procedure?

(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.)

219

In the County Court, a claim under the Part 8 procedure may be made where?

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.

220

Paragraph (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) does not apply if what?

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.

221

Can you get default judgment when using part 8?

no

222

Where the claimant uses the Part 8 procedure the claim form must state  what?

  • (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.

223

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

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

224

In Part 8 Claims, The claimant’s evidence must be served on the defendant... when?

with the claim form.

225

A Part 8 defendant who wishes to rely on written evidence must file it when ?

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

226

A Part 8 defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service. (If he does so, he must also, at the same time, do what?

(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.

227

7 rules in relation to Part 8 -  Filing and serving written evidence

(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.

228

Part 8 - Filing and serving written evidence - short form

  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)

229

Part 8 - The claimant may rely on the matters set out in his claim form as evidence under this rule if... what?

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.

230

At a Part 8 hearing, (1) No written evidence may be relied on at the hearing of the claim unless –

(a) it has been served in accordance with rule 8.5 (Filing and serving written evidence); or

(b) the court gives permission.

231

May a court allow oral evidence at a Part 8 hearing?

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

232

Can a witness who has given written evidence in Part 8 proceedings be cross-examined?

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

233

Why might a defendant object to the  Part 8 procedure being used?

 

(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,

 

234

What must a Part 8 defendant do when he has an objection to the Part 8 procedure being used?

 

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

235

What will the court do when it receives the acknowledgment of service and any written evidence and the D objects to the Part 8 procedure being used?

(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.

236

Which track are Part 8 claims automatically allocated to?

Multi-track

237

The types of claim for which the Part 8 procedure may be used include –

(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.

238

May Part 8 be used for 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

yes

239

May part 8 be used for 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.

Yes

240

Is part 8 to be used where statute decrees a claim should be brought by  originating summons, originating motion or originating application.?

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.

241

What may the court officer do where it appears to a court officer that a claimant is using the Part 8 procedure inappropriately?

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.

242

Can the court  at any stage order the claim to continue as if the claimant had not used the Part 8 procedure?

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.

243

PArt 8 evidence will normally be in what form?

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.

244

Under Part 8 may a party apply to extend the time for serving evidence?

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).

245

May the parties agree to extend the time for serving and filing evidence under Part 8?

(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).

246

Formalities of an agreement extending time for a defendant to file evidence under Prat 8?

(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.

 

247

An agreement extending time for a claimant to file evidence in reply under rule 8.5(5) must not what?

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.

248

Does Part 16 apply where the claimant uses the procedure set out in Part 8 (alternative procedure for claims)?

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

249

(1) The claim form must –

(a) contain

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

250

The claim form must specify

(b) specify the remedy which the claimant seeks;

251

The claim form must where the claimant is making a claim for money, contain...

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

252

The claim form must where the claimant’s only claim is for a specified sum, contain....

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

253

The claim form must contain such other matters as may be set out in a ________________.

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

254

In civil proceedings against the Crown, as defined in rule 66.1(2), the claim form must also contain

(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.

255

If the particulars of claim specified in rule 16.4 (Contents of the particulars of claim) are not contained in, or are not served with the claim form, the claimant must....

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.

256

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

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

257

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

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

258

Does a remedy have to be specified in the claim form for it to be granted?

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

259

where the claimant is making a claim for money.

(2) The claimant must, in the claim form, state...

(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.


 

260

In a claim for personal injuries, the claimant must also state in the claim form whether the amount which the claimant expects to recover as general damages for pain, suffering and loss of amenity is

(a) not more than £1,000; or

(b) more than £1,000.

261

(4) In a claim which includes a claim by a tenant of residential premises against a landlord where the tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises, the claimant must also state in the claim form –

(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.


 

262

If the claim form is to be issued in the High Court it must, and rule applies, it is to state

(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.

263

(1) Particulars of claim must include –

(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.

264

 If the claimant is seeking interest he must include what in the particulars of claim

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

265

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

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

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

(c) which allegations he admits.

266

Where the defendant denies an allegation  he must state what?

(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.

267

A defendant who –

(a) fails to deal with an allegation; but

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

shall be taken to .

require that allegation to be proved

268

(4) Where the claim includes a money claim, a defendant shall be taken to...

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

269

a defendant who fails to deal with an allegation shall be taken to

admit that allegation.

270

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

(a) state why he disputes it; and

(b) if he is able, give his own statement of the value of the claim.

271

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

what that capacity is.

272

What is a defence of set off?

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.

273

Is a claimant who does not file a reply to the defence  taken to admit the matters raised in the defence?

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

274

A claimant who –

(a) files a reply to a defence; but

(b) fails to deal with a matter raised in the defence, shall be taken to...

require that matter to be proved.

275

May a court dispense with statements of case?

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.

276

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 PD16 apply how?

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.

277

What should a statement of case of over 25 pages include?

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

278

Do you have to have your own address on the claim form if your address for service is that of your soliciotr?

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.

279

Should a claim form include the address of the defendant even if the defendant has given the address of a soliciotr

yes

280

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 ...

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.

281

"full name" for the purposes of the title of proceedings includes (a) in the case of an individual

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

282

"full name" for the purposes of the title of proceedings includes (a) in the case of  an individual carrying on business in a name other than his own name,

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’);

283

2.6 The claim form must be headed with the title of the proceedings, including the full name of each party (c) in the case of a partnership (other than a limited liability partnership (LLP)) – meaning

(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;

284

2.6 The claim form must be headed with the title of the proceedings, including the full name of each party, meaning in the case of a company or limited liability partnership registered in England and Wales

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

285

2.6 The claim form must be headed with the title of the proceedings, including the full name of each party (e) in the case of any other company or corporation,

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

286

Particulars of claim served separately from the claim form must also contain:

 

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.

287

Personal injury claims

4.1 The particulars of claim must contain:

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.

288

What kind of medical report has to be obtained in a soft tissue injury claim?

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

289

Where the claimant files more than one medical report, the first report obtained must be ...

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:

290

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 which disciplines must also be a fixed cost medical report?

(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.

291

In a provisional damages claim the claimant must state in his particulars of claim:

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.

292

In a fatal accident claim the claimant must state in his particulars of claim:

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.

293

May a fatal accident claim  include a claim for damages for bereavement.?

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

294

5.3 In a fatal accident claim the claimant may also bring a claim under ... on behalf of the estate of the ,,,

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.

295

Where the claim is for the delivery of goods let under a hire-purchase agreement or conditional sale agreement to a person other than a company or other corporation, the claimant must state in the particulars of claim:

(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.

296

6.2 Where the claim is not for the delivery of goods, the claimant must state in his particulars of claim:

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.

297

Where a claim is made for an injunction or declaration in respect of or relating to any land or the possession, occupation, use or enjoyment of any land the particulars of claim must:

(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).

298

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

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.

299

Where a claim is based upon a written agreement.... include

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).

300

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

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.

301

7.4 Where a claim is based upon an oral agreement, the particulars of claim should set out ,,,,

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.

302

7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify ...

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.

303

7.6 In a claim issued in the High Court relating to a Consumer Credit Agreement, the particulars of claim must contain....

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.

304

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 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.

305

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:

 

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.

306

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

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

307

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.......

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.

308

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

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.

309

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 –

...

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,

310

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

(2) where he disputes any part of the medical report...

 

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

 

311

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...

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.

312

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...

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.

313

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...

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.

314

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 –

  • 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.

315

A party who seeks to amend his statement of case to include the matters referred to in paragraph 15.1 must...

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.

316

A defendant may file an acknowledgment of service if –

 

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.


 

317

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....

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.

318

The general rule is that the period for filing an acknowledgment of service is ...

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.

319

The general rule that the period for filing an acknowledgment of service is – is subject to the following rules –

 

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).

320

Where a defendant to a claim serves a counterclaim under Part 20, the defence and counterclaim should normally...

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.

321

Where a claimant serves a reply and a defence to counterclaim, the reply and defence to counterclaim should...

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.

322

Rule 15.8(a) provides what?

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.

323

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 ....

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.

324

In these Rules, ‘default judgment’ means ...

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.

325

A claimant may not obtain a default judgment in which claim?

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.

326

The claimant may obtain judgment in default of an acknowledgment of service only if 

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.

327

Judgment in default of defence may be obtained only...

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.

328

  • The claimant may not obtain a default judgment if –

  • 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.

329

Subject to paragraph (2), a claimant may obtain a default judgment by ...

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.

330

(1) Subject to paragraph (2) (The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for –

(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.

331

The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment –

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.

332

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 ...

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).

333

(4) In civil proceedings against the Crown, as defined in rule 66.1(2), a request for a default judgment must be considered by _________ who must in particular be satisfied that ______

(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.

334

Where the claim (for Def Judg) is for a specified sum of money, the claimant may specify in a request filed under rule 12.4(1) –

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.

335

Except where paragraph (4 - Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value) applies, a default judgment on a claim for a specified amount of money obtained on the filing of a request, will be judgment for ....

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.

336

(3) Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for...

(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.

337

(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 –

(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.

338

(5) The claimant’s right to enter judgment requiring the defendant to deliver goods is subject ...

(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).

339

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 ...

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.

340

(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...

(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.

341

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 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.

342

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 ...

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.

343

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 do what?

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.

344

Where a claimant applies for a default judgment against one of two or more defendants what may the court do according to whether the claim can be dealt with separately from the claim against the other defendants ?

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.


 

345

(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 –

(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.

346

In Default Judgment claimant must make an application in accordance with Part 23 where –

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.

347

A default judgment is judgment without a trial where a defendant has failed to file either...

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.

348

A claimant may not obtain a default judgment under Part 12 (notwithstanding that no acknowledgment of service or defence has been filed) if:

 

(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

349

Other rules and practice directions provide that default judgment under Part 12 cannot be obtained in particular types of proceedings. Examples are..

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.

350

A default judgment on:...

can only be obtained if an application for default judgment is made and cannot be obtained by filing a request.

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.

351

The following are some of the types of claim which require an application for a default judgment:

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.

352

Both on a request and on an application for default judgment the court must be satisfied that:

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.

353

On an application for Default Judgment against a child or protected party which requirements apply

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.

354

On an application where the defendant was served with the claim either:

(1) outside the jurisdiction7 without leave under the Civil Jurisdiction and Judgments Act 1982, the 2005 Hague Convention, the Lugano Convention or the Judgments Regulation, or

(2) within the jurisdiction but when domiciled8 in Scotland or Northern Ireland or in any other Convention territory9 or Member State,

and the defendant has not acknowledged service, the evidence must establish that:

(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.

355

On an application for Default Judgment against a state...the evidence must...

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.

356

On an application for DJ against a state or a child or a protected party, evidence in support must be..

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

357

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...

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.

358

Where default judgment is given on a claim for a sum of money expressed in a foreign currency, the judgment should be for ...

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’.

359

The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–

 

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.

360

What are the transfer rules as they apply to default judgment

  • 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 

361

In which circumstances is an abandoned claim restored when the default judgment is set aside?

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.

362

An applicant for setting aside default judgment must show what?

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

363

the only significant difference between the provisions of CPR 24.2 and 13.3(1), is

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

364

Is the power to set aside default judgment conditional?

The discretionary power to set aside is unconditional.

365

The purpose of the power to set aside default judgment  is what?

The purpose of the power is to avoid injustice.

366

The major consideration on an application to set aside DJ is what?

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.

367

Is the fact that defendant had no notice of the claim until service of the claim form relevant in an application to set aside default judgment?

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.

368

Berezhovsky v Russian Television and Radio Broadcasting Co (Default judgment  - Some other good reason)

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.

369

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

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

370

Might setting aside of default judgment be granted even where there has been considerable delay?

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.

371

Should the discretionary power to set aside default judgment be used to punish?

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

372

Nolan v 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...

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.

373

 If a defendant has not acted promptly they would be well advised to address the reason for this in...

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).

374

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....

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.

375

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

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”

376

Can a defendant rely on the default of his representatives as a reason for not acting promptly in filing an application to set aside default judgment?

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.

377

Can an affected third party apply to have default judgment set aside?

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.

378

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...

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.

379

The court’s general powers of management - Except where these Rules provide otherwise, the court may –

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.

380

When the court makes an order, it may.... make it subject to conditions... inlcuding..

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.

381

Where the court gives directions it will take into account whether or not a party has complied with ...

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

382

The court may order a party to pay a sum of money into court if ...

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.

383

When ordering a party to pay a sum of money into court  the court must have regard to –

(a) the amount in dispute; and

(b) the costs which the parties have incurred or which they may incur.

384

Where a party pays money into court following an order under paragraph (3) or (5), the money shall be...

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.

385

(7) A power of the court under these Rules to make a (case managment) order includes a power to ...

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

386

How might the court  monitor compliance with directions.

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.

387

Where the court proposes to make an order of its own initiative it may give ... person... ?

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.

388

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...

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.

389

May the court make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations?

(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.

390

(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations a party affected by the order apply to have it set aside, varied or stayed must make the application–

 

(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.

391

(7) If the court of its own initiative strikes out a statement of case or dismisses an application, (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the claim or application is totally without merit – the court must

 

(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.

392

Where there has been an error of procedure such as a failure to comply with a rule or practice direction...

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.

393

How many tracks are there and what are they?

(2) There are three tracks –

(a) the small claims track;

(b) the fast track; and

(c) the multi-track.

394

If a defendant files a defence a court officer will ..

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

395

the notice of proposed allocation will..

(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.

396

How does an unrep'd party get the directions questionnaire?

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

397

Where there are two or more defendants and at least one of them files a defence, the court will serve the a notice under paragraph (1 - propsed allocation)–

 

 

(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

398

If a notice is served under rule 26.3(1) [notice of proposed allocation] each party must..

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.

399

The date for complying with a notice served under rule 26.3(1) - may it be varied by agreement between the parties?

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

400

The time when the court serves a directions questionnaire under this rule may be varied by a practice direction in respect of claims issued by the Production Centre - true or false

true

401

If a claim is a claim to which rule 26.2A applies and a party does not comply with the notice served under rule 26.3(1) by the date specified and

(a) the court serves a further notice on that party, requiring them to comply within 7 days; and

(b) that party fails to comply with the notice served under subparagraph (a) so the party’s statement of case will be struck out without further order of the court, will a party who was in default will be be entitled to an order for the costs of any application to set aside or vary that order or of attending any case management conference ...?

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.

402

Can a party may, when filing the completed directions questionnaire,  get the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means.?

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.

403

If the parties request a stay to try and use ADR how long will it be stayed for?

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

404

Can a court impose a stay for ADR of its own motion?

(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.

405

May a court extend a stay for ADR?

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

406

What must a claimant do if a settlement is reached after a stay for ADR is given?

tell the court

407

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

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

408

(If the claimant does not tell the court by the end of the period of the stay (for ADR) that a settlement has been reached, the court will do what?

(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.

409

Referral to the Mediation Service applys to which claims?

) 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.

410

Referral to the Mediation Service does not apply to—

(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.

411

'the Mediation Service' means

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

412

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

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

413

(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 ...

(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.

414

(5) If a claim to which this rule (26.4  Stay to allow for settlement of the case) applies is settled, the proceedings will automatically be stayed with permission to apply for—

(a) __________; or

(b) _______

unless the parties have agreed that the claim is to be discontinued or dismissed.

(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.

415

The court will allocate the claim to a track when ________ unless ________

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.

416

If the court has stayed the proceedings under rule 26.4, it will allocate the claim to a track when?

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.

417

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 when?

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.

418

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 do what?

(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.

419

When may the court may hold an allocation hearing ?

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

420

If a party fails to file an allocation questionnaire, the court may do what?

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

421

 5 If a party fails to file an allocation questionnaire, the court may do what?

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

422

The small claims track is the normal track for–

  • 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.

423

Subject to paragraph (5), the fast track is the normal track for any claim –

  • 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.

424

The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that –...

  • 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.

425

The multi-track is the normal track for ...

(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.

426

In considering whether to allocate a claim to the normal track for that claim the court will have regard to ...

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)

427

The court will allocate a claim which has no financial value to which track?

(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).

428

A claim which includes a claim by a tenant of residential premises against his landlord for a remedy in respect of harassment or unlawful eviction will be allocated to which track?

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.

429

When deciding the track for a claim, the matters to which the court shall have regard include –

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

430

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 ___________ when it assesses financial value for allocaiton purposes.


 

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).


 

431

Once it has allocated a claim to a track, the court will do what?

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).

432

Is track allocation permanent?

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

433

Rules 26.6, 26.7 and 26.8 do what?

(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.

434

Which rule sets out the scope of each track?

26.6

435

wHich rule states the general rule for allocation

26.7

436

Which rule sets out the matters relevant to allocation to a track.

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

437

Where the court believes that the amount the claimant is seeking exceeds what he may reasonably be expected to recover it may do what?

(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.

438

In deciding for allocation purposes whether an amount is in dispute the court will apply the following general principles:

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.

439

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, the normal track for the claim will be ...

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.

440

How will The court will treat view expressed by the parties in relation to allocation?

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.

441

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 aggregate the claims - TRUE OR FALSE

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.

442

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 ......

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.

443

When it is considering the likely length of the trial the court will regard a day as being a period of _ hours, and will consider whether ________.

The court will also take into account __________.

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.

444

 Is the possibility that a trial might last longer than one day  a conclusive reason for the court to allocate or to re-allocate a claim to the multi-track?

(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.

445

Can a claim may be allocated to the fast track or ordered to remain on that track if there is to be a split trial?

(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.

446

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 ______

(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.

447

Directions for the case management of claims which have been allocated to the fast track will be given at what  stage? With or without a hearing? 

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.

448

The matters to be dealt with by directions under rule 28.2(1) include –

 

 

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.

449

If the court decides not to direct standard disclosure, it may –

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.

450

When drafting case management directions both the parties and the court should take as their starting point...

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.

451

 When it allocates a case to the multi-track, the court will –

 

  •  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.

452

The court may fix –

(a) a case management conference; or

(b) a pre-trial review, at what time?

The court may fix –

(a) a case management conference; or

(b) a pre-trial review, at any time after the claim has been allocated.

453

(2) If a party has a legal representative, who must attend case management conferences and pre-trial reviews?

(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.

454

What steps must be taken by the parties regarding directions

  • 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.

455

Where the court approves agreed directions, or issues its own directions what is to happen?

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.

456

A party must apply to the court if he wishes to vary the date which the court has fixed for –

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.

457

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 do what?

(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.

458

(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 ...

(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.

459

Each party must file the completed pre-trial check list by what date?

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

460

The court will send the parties ___________________ for completion and return by the date specified in directions given under rule 29.2(3)

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)

461

If no party files the completed pre-trial checklist by the date specified, the court do what?

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.

462

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 do what

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.

463

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 do what?

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.

464

As soon as practicable after –

(a) each party has filed a completed pre-trial check list;

(b) the court has held a listing hearing under rule 29.6(3); or

(c) the court has held a pre-trial review under rule 29.7,

the court will –

 

(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.

465

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

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

466

Case management of  claim other than one which is taking place at the RCJ which has been allocated to the multi-track will normally be undertaken where?

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

467

The hallmarks of the multi-track are?

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.

468

On allocating a claim to the multi-track the court may give directions....

(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,

469

On allocating a claim to the multi-track the court may do what?

  •  (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.

470

When should a court fix a multi track trial date?

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

471

The court may give or vary directions at which hearing?

(multi track)

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.

472

5 When any (multi track) hearing has been fixed it is the duty of the parties to consider _______

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.

473

The court will hold a hearing to give (multi track) directions when?

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.

474

 3.6 The court will hold a hearing to give (multi track) directions whenever it appears necessary or desirable to do so. When this happens because of the default of a party or his legal representative the court will..

 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.

475

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

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).

476

Where a party needs to apply for a (multi track) 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 when?

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.

477

In (multi track) Case management will generally be dealt with by what judge?

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.

478

in a personal injury claim the court should consider and indicate to the parties as soon as practicable whether ....

 

(multi track)

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.

479

What is the court’s first concern at the allocation stage?

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.

480

May the court have regard to  documents filed by a party with his directions questionnaire at the allocation stage?

 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.

481

On the allocation of a claim to the multi-track the court will consider what?

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.

482

To obtain the court’s approval the agreed directions must do what?

 

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.

483

The provision that agreed directions "include provision about disclosure of documents" may do what–

(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.

484

Directions agreed by the parties should also where appropriate contain provisions about:

 

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.

485

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 do what?

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.

486

4.10 Where the court is to give directions on its own initiative without holding a case management conference and it is not aware of any steps taken by the parties other than the exchange of statements of case, its general approach will be:

(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.  

487

directions requiring the parties to consider ADR  may be in what terms?

  • 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.

488

If it appears that expert evidence will be required both on issues of liability and on the amount of damages, the court may direct what?

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.

489

(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 what?

(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.

490

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 od what?

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.

491

The court will at any case management conference do what?

R D E

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.

492

What lawyer should attend a CMC/PTR and what happens if he's not up to scratch?

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.

493

The topics the court will consider at a case management conference are likely to include:

 

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.

494

Wiill the court give permission to use expert evidence at the CMC stage?

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.

495

To assist the court, the parties and their legal advisers should, at a CMC,

 

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.

496

A case summary should do what?

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.

497

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 do what?

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.

498

If the time allowed for the case management conference is likely to be insufficient for the application to be heard a party hsould do what?

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.

499

 (1) 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.

(2) 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.

(3) A what may be imposed on a party who fails to comply with sub-paragraph (1) or (2).

costs sanction

500

At a case management conference the court may also consider whether the case ought to be tried by who?

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.

501

Variation of directions

6.1 This paragraph deals with the procedure to be adopted:

 

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.

502

what does a party who wishes to have a direction varied need to do?

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

503

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 __ days of service of the order containing the directions, was ______.

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.

504

(1) Where a party is dissatisfied with a direction given or other order made by the court he may do what? What are the rules that apply to that?

  • (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.

505

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, what may and must the court do?

 

(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.

506

Where there has been a change in the circumstances since a case management order was made the court may do what?

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.

507

Where the parties agree about changes they wish made to the directions given...

  • 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.

508

7.1  Where a party fails to comply with a direction given by the court any other party may....

  • 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.

509

Will the court allow a failure to comply with directions to lead to the postponement of the trial?

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

510

How should the court proceed where it looks like failure to comply with directions might to lead to the postponement of the trial?

  • (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

511

(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 what?

  • (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.

512

Where the court has no option but to postpone the trial it will...

  • (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.

513

With regards to postponents, litigants must be aware of what?

(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.

514

What is good reason to postpone a trial?

(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.

515

the court will specify the date for filing completed pre-trial check lists when ...?

 

(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).

516

The date for filing the completed pre-trial check list will be not later than what time?

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.

517

The court will serve the pre-trial check lists on the parties at least ___ days before which  date?

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.

518

Are the parties required to exchange copies of the check lists before they are filed?

(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.

519

(6) The file will be placed before a judge for his directions when what has been done?

(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.

520

(1) Where no party files a pre-trial checklist the court will order what?

(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.

521

Where a party files a pre-trial check list but another party (the defaulting party) does not do so, the court will do what?

(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.

522

8.4  Where the court decides to hold a hearing under rule 29.6(4) the court will do what?

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.

523

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 do what?

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.

524

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 how much notice?

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.

525

Directions the court will give on listing - Directions the court must give

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

526

Who determines the diretions to be given by the court?

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.

527

Agreed directions should include provision about what?

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.

528

Unless a direction doing so has been given before, a direction giving permission to use expert evidence will say... what?

  • (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.

529

Where will a trial take place?

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.

530

Is an opening address required in a civil trial?

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

531

Is a trial timetable set in stone?

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

532

Once the trial of a multi-track claim has begun, the judge will normally sit on which days?

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.

533

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 __________________, except—

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.

534

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 ...

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.

535

What is the purpose of costs management?

(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.

536

Which parties must file costs budgets?

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

537

At what point must parties file costs budgets?

  •  Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets—
    • (a) where the claim's stated value
    • (b) in any other case, not later than 21 days before the first CMC

538

In the event that a party files and exchanges a budget under paragraph (1 - Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets), all other parties, not being litigants in person, must file an agreed budget discussion report when?

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

539

Failure to file a costs budget...

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.

540

The court may  make a ‘costs management order’ when?

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

541

Where costs budgets have been filed and exchanged the court will make a costs management order unless...

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.

542

By a costs management order the court will—

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.

543

(3) If a costs management order has been made, the court will thereafter...

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

544

‘costs management conference’.

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’.

545

(2) Where practicable, costs management conferences should be conducted how?

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

546

How does the court take costs into account when making any case management decision?

  • (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.

547

In any case where a costs management order has been made, when assessing costs on the standard basis, the court will adopt which approach?

 

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.

548

Costs budgets in Part 7 multi-track claims with a value of less than £10 million

 

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

549

What do rules 3.12 and 3.13 deal with?

Application of the Costs Management section of Part 3 and the purpose of costs management

Filing and exchanging budgets and budget discussion reports

550

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....

  • 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.

551

In cases where the Claimant has a limited or severely impaired life expectation (5 years or less remaining) the court will ordinarily do what? (costs)

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.

552

3.  At an early stage in the litigation the parties should consider what? (costs)

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.

553

An order for the provision of costs budgets with a view to a costs management order being made may be particularly appropriate in the following cases:

(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.

554

(a) Unless the court otherwise orders, a budget must be in the form of ...

(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.

555

In substantial cases, the court may direct what with relation to costs

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.

556

A budget must be dated and verified by what?

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

557

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...

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 .

558

The budget discussion report required by rule 3.13(2) must set out...

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.

559

Where costs budgets are filed and exchanged, the court will generally...

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.

560

Where will the court make a costs management order?

Where costs budgets are filed and exchanged

561

(a)    the recoverable costs of initially completing Precedent H shall not exceed ..

(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

562

all other recoverable costs  of the budgeting and costs management process other than the recoverable costs of initially completing Precedent H shall not exceed... ?

 

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.

563

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

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

564

In so far as the budgets are not agreed, the court will ... ?

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. 

565

The court’s approval of agreed costs budgets will relate only to... ?

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.

566

When reviewing budgets, the court will adopt what approach?

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.

567

As part of the costs management process the court may not...

The court may, however...

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.

568

timetable or directions for future reviews of budgets

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

569

The process of revising budgets

  • 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.

570

After its budget has been approved or agreed, each party shall...

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.

571

A litigant in person, even though not required to prepare a budget, shall nevertheless...

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.

572

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...

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.

573

  • 7.10 The making of a costs management order... totals allowed for each phase of the budget... hourly rates claimed in the budget...underlying detail

  • 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.

574

Scope and application of Part 31 is?

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.

575

Meaning of disclosure

Meaning of disclosure

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

576

  • (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;
  • (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)

577

(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.

(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)

578

Part 31 - 'document' and 'copy' mean what?

‘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.

579

In rule 31.5(1), which 3 rules apply in all claims to which rule 31.5(2) does not apply?

  • 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.

580

paragraphs (3) to (8) of rule 31.5 apply to which claims?

(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.

581

Rule 31.5 (1) and (2)

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.

582

31.5 - disclosure:

  • (3) Not less than 14 days before the first CMC each party must do what?

  • (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.

583

 

Not less than __ days before the first CMC each party must file and serve a report verified by a statement of truth...

 

14

584

31.5 disclosure: What must each party do no less than 14 days before the first CMC?

  • (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.

585

(4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed when?

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 –

586

(5) Not less than __ 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.

(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.

587

(5) Not less than seven days before the first CMC, and on any other occasion as the court may direct, the parties must do what?

(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.

588

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.

The court may approve proposals for disclosure without a hearing and give directions in those terms if...

(a) the parties agree proposals for the scope of disclosure; and

(b) the court considers that the proposals are appropriate in all the circumstances,

589

 

At the first or any subsequent CMC, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure

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.

590

The court may at any point give directions as to how disclosure is to be given, and in particular –

  • (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.

591

r 31.5  paragraphs (3) to (8) where the documents are electronic.

(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).

592

Standard disclosure – what documents are to be disclosed 31.6  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.

593

Duty of search 31.7 (1) When giving standard disclosure, a party is required to ...

  • 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.

594

Duty of search 31.7: The factors relevant in deciding the reasonableness of a search include the following :

  •  (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.

595

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 ....  do what?

(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.

596

A party’s duty to disclose documents is limited to ...

  • 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.

597

A party’s duty to disclose documents is limited to documents which are or have been in his control. For this purpose a party has or has had a document in his control if...

  • 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.

598

Need a party disclose more than one copy of a document?

  • 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.

599

Which copy of a document is to be treated as a separate document?

 

  • 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.

600

What is the procedure for standard disclosure?

  • 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.

601

Each party must make and serve on every other party, a list of documents in the relevant practice form which  must include a disclosure statement that does what?

  • 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.

602

May a disclosure list or disclosure statement be dispensed with by the parties?

  • 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.

603

May a disclosure statement  be made by a person who is not a party?

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

604

Duty of disclosure continues during proceedings

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.

605

How does disclosure in stages come about?

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.

606

Documents referred to in statements of case etc - the rule 31.14

  • 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.

607

Inspection and copying of documents (31.15) Where a party has a right to inspect a document– what are the rights and duties of the parties?

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.

608

Claim to withhold inspection or disclosure of a document

31.19

nature of the thing

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.

609

Claim to withhold inspection or disclosure of a document - CPR 31.19

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...

(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.

610

Claim to withhold inspection or disclosure of a document

31.19

How to challenge such a claim

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

611

CPR... 31.19

(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 –

(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.

612

(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.

...

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

...

(7) An application under paragraph (1) or paragraph (5) must be supported by ...

evidence

613

CPR 31.19  and  rules of law which permit or require a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest...

(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.

614

Restriction on use of a privileged document inspection of which has been inadvertently allowed

 

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.

615

What are the consequence of failure to disclose documents or permit inspection?

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.

616

A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except...

 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.

617

Can the use of a document which has already been disclosed be restricted?

At whose behest can this be done?

(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

618

Subsequent use of disclosed documents and completed Electronic Documents Questionnaires - Electronic Documents Questionnaires

(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.

619

Consequence of false disclosure statements

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.

620

The normal order for disclosure will be...

 an order that the parties give standard disclosure.

621

In order to give standard disclosure the disclosing party must do what?

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.

622

Having made the search the disclosing party must do what?

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).

623

The obligations imposed by an order for standard disclosure - are they alterable?

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.

624

The extent of the reasonable search under standard disclosure which must be made will depend upon what?

  • 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

625

Disclosure - reasonable search and proportionatity

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.

626

Definition of 'document' as it extends to electronic documents

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.

627

Disclosure by list should be in what form?

Form N265.

628

Listing documents conveniently: In order to comply with rule 31.10(3) it will normally be necessary to list the documents how? 

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_.

629

The obligations imposed by an order for disclosure will continue until  when?

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

630

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 do what?

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.

631

Disclosure statement requirement

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. 

632

The disclosure statement should do what?

(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.

633

Where rule 31.10(7) applies, the details given in the disclosure statement about the person making the statement must include...

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.

634

If the disclosing party has a legal representative acting for him, the legal representative must endeavour to ensure that...

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.

635

disclosing party wishes to claim that he has a right or duty to withhold a document - statement.... should normally...

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.

636

If a party believes that the disclosure of documents given by a disclosing party is inadequate he may...

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).

637

An application for specific disclsosure - must specify what and be supported by what?

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).

638

The grounds on which an application for specific disclosure is  sought should be set out how?

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.

639

In deciding whether or not to make an order for specific disclosure the court will take into account what?

  •  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.

640

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...

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.

641

An order for specific disclosure may in an appropriate case direct a party to  do what?

  • (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.

642

Does a claim to withhold inspection of a document, or part of a document, disclosed in a list of documents  require an application to the court?

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. 

643

If a party wishes to inspect documents referred to in the expert report of another party he should do what?

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.

644

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 do what?

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.

645

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 - covered or not by standard disclosure?

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. 

646

Standard disclosure - Adverse effect is normally primarily assessed how?

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

647

Do Parties  need to give disclosure of documents relating to non-material allegations in pleadings?

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

648

DOes confidentiality justify non-disclosure?

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

649

Is masking irrelevant parts of a document by way of redaction  possible?

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

650

Documents which relate purely to cross-examination as to credit - within the scope of standard disclosure?

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

651

(Standard Disclosure) Documents may be divided into the following four categories:

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.

652

Rule 31.6 provides that “standard” disclosure is limited to documents falling within which  categories 2?

(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.

653

Whether a document falls into sub-paras (a) or (b) of r.31.6 is to be judged against what?

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

654

Are documents relating to quantum disclosable

  • 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

655

Train of inquiry documents in cases of fraud - disclosable?

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).

656

The obligation to disclose adverse material - does it apply when a defendant has been debarred from defending a claim due to non-compliance with an unless order?

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.

657

general principles which parties and their legal representatives should bear in mind when considering disclosure of electronic documents

(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.

658

as soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to... (preserve)

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

659

where it becomes apparent that the parties are unable to reach agreement in relation to the disclosure of electronic documents, they should...

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.

660

Failure to deliver up computers and deliberate deletion of files from a computer in contravention of a search order amounts to...

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”).

661

Making searches for documents held electronically meaningful and effective - court's jurisdiction, costs.

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.

662

Disclosure and admissibility

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.

663

A party to whom a document has been disclosed has a right to inspect that document except where—

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.)

664

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...

31.3—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.

665

Legal professional privilege - It is necessary to divide into two classes the documents that are protected on this ground:

  • 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). 

666

What is the nature of the privilege where legal professional privilege exists and is not waived or abrogated?

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

667

Disclosure a legally privileged document for a limited purpose - constitutes a general waiver or loss of privilege?

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

668

The question of whether waiver is limited has to be determined by reference to ...

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

669

Letters and other communications passing between a party, or their predecessors in title, and his, or their solicitors are privileged from production, provided ...

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 

670

Croft House Care Ltd v Durham County Council [2010] EWHC 909 (TCC)

Legal Privilege, disclosure

  • 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.

671

legal professional privilege - The test

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

672

how is "the purposes of legal advice" construed?

  • ...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

673

Three Rivers (No.5)  - legal privilege

  • 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

674

documents otherwise within it, although they contain statements of fact as to matters in the public domain?

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 

675

information which the solicitor receives in a professional capacity from a third party and which they convey to their client - privileged or not?

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).

676

internally circulated documents or parts of documents revealing privileged lawyer-client communications  - privleged or not?

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 

677

Communications between a solicitor and a non-professional agent or a third party, directly, or through an agent which come into existence after litigation is contemplated or commenced and made with a view to such litigation, either for the purpose of obtaining or giving advice in regard to it, or of obtaining or collecting evidence to be used in it, or obtaining information which may lead to the obtaining of such evidence - privileged?

yes

678

surveyor’s report obtained by a solicitor with a view to giving a client legal advice - privileged?

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 

679

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 - privileged or not?

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 

680

Documents which come into existence for some purpose other than to instruct a lawyer or to form part of their brief are .... ?

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

681

Documents prepared confidentially after a dispute has arisen between the claimant and the defendant, and for the purpose of obtaining information, evidence or legal advice with reference to litigation existing or contemplated between the parties to a claim, are ...

... privileged 

682

Documents [do]/[do not] become privileged by the mere fact that they have at some time been submitted to a solicitor?

Documents do not become privileged by the mere fact that they have at some time been submitted to a solicitor

683

original document which  has not come into existence for the purposes of the litigation, but is already in existence before the litigation is contemplated or commenced - privileged?

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.

684

A pre-existing document not entitled to privilege becomes privileged because it is handed to a solicitor for the purposes of litigation - T or F?

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

685

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 or not?

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

686

Who does privilege belong to?

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

687

Who may waive privilege?

the client, not the solicitor or legal rep

688

referring to the documents in a statement of case - waiver or not?

no waiver

689

 part of a document is put in evidence, or read to the court - consequence for privilege?

 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

690

whether or not waiver has occurred - how is this determined?

  • 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

691

Instructions to an expert and privilege

  • 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.”

692

waiver of  professional privilege which exists between solicitor and client and the waiver of the further privilege which protects documents brought into existence for the purpose of litigation, pending or contemplated

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.

693

Where legal professional privilege was waived in respect of advice given in relation to one transaction does the waiver extend to all advice given relating to the dispute?

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.”

694

The institution of civil proceedings against a solicitor by their client - waiver of professional privilege?

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.

695

The service of a witness statement - waives privilege in connected documents?

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.

696

Showing privileged documents to a mediator in the course of a mediation - waives privilege?

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

697

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...

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.

698

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, do they waive privilege?

 

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 

 

699

Afidavit evidence in without notice proceedings exhibiting opinions from counsel and solicitors - privileged?

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

700

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 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

701

claimant for costs - privileged documents to the court on taxation ?

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.

702

Can a costs judge order the production of privileged documents?

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

703

Privileged documents and disclosure to police/state for criminal investigation

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

704

Privileged documents mistakenly disclosed.... usable?

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

705

In ISTIL Group Inc v Zahoo - party gets to see documents by fraud or mistake, court's equitable jurisdiction to grant an injunction 

  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.”

706

Legal privilege may also give way to a contractual obligation to disclose...

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.”

707

The “without prejudice” rule governs what?

 

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

708

The without prejudice rule excludes which negotiations?

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

709

The purpose of the without prejudice rule is what?

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.

710

What sort of dispute does there need to be for the Without Prejudice rule to apply?

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

711

“Without prejudice” material will be admissible if the issue is what?

“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

712

is an admission or acknowledgment made to reach a settlement with a party admissible in proceedings between the maker of the admission or acknowledgment and a different party?

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

713

an admission or acknowledgment regarding an unresolved issue raised in prior proceedings - admissible in subsequent proceedings between the same parties?

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

714

discussions between the parties for the purpose of resolving the dispute between them - admissible?

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

715

Failed to use the words 'without prejudice'?

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

716

The without prejudice rule - absolute?

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

717

Gnitrow Ltd v Cape Plc - summarise

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

718

Without prejudice - Oceanbulk

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:

719

Can without prejudice privilege be waived unilaterally?

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

720

is a marking of "without prejudice" enough to render a document privileged?

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

721

The rule which confers privilege on “without prejudice” communications - limited to documents which constitute offers?

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.).

722

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 - privileged?

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).

723

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 - covered by “without prejudice” privilege ?

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 

724

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

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”

725

Where a judge sees privileged or inadmissible material

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.

726

in a case where privilege over without prejudice material has not been waived...

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,

727

A letter containing an offer to settle written as an open letter and used by the party writing it during the trial

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

728

Solicitor writing threat letters 

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).

729

conflict between the without prejudice rule and the requirement that those who make without prejudice applications make full and frank disclosure

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).

730

An order for specific disclosure is what?

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.

731

An order for specific inspection is  what?

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

732

APplication for specific disclosure or inspection may be made when?

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.

733

An application for specific disclosure or inspection ... Commercial Court, Mult Track, QB

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

734

Application for specific disclosure or inspection - lateness

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).

735

In Fast Track cases the appropriate time to apply for specific disclosure may be ... when?

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.

736

order for specific disclosure or specific inspection - court takes what into consideration?

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).

737

The rationale for the discretion to order specific disclosure is what?

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.

738

The court may make an order for specific disclosure or specific inspection when?

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

739

orders for specific disclosure against a claimant before the service of the defence - possible?

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

740

The court may make an order for specific disclosure or specific inspection  - will need to satisfy itself as to what?

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

741

The court may make an order for specific disclosure or specific inspection - relevance of documents is analysed how?

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

742

claimant refuses to be medically examined or to give consent to hospitals or doctors to disclose - in PI, what can the court do?

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

743

Nicholson v Halton General Hospital NHS Trust - stay of proceedings unless consent given for surgeon to talk to other side's solicitors

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.

744

The power to order disclosure for the purpose of interlocutory proceedings should be exercised how?

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

745

Disclosure of documents relating only to credibility

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

746

SCA 81, s 33 Powers of High Court exercisable before commencement of action.

(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.

747

Disclosure before proceedings start (CPR 31.16) applies when? Must be supported byt what?

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.

 

748

Disclosure before proceedings start ...  court may make an order under this rule only where–

 

  • (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.

749

Disclosure before proceedings start - cpr 31.16 - order under this rule MUST

  • (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.

750

Disclosure before proceedings start - cpr 31.16 - order under this rule MAY

(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.

751

Destruction of disclosable data in breach of an unless order can lead to what?

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).

752

Section 33(2) of the Senior Courts Act 1981 applies to which documents ?

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

753

Scope of documents covered

Pre-action disc vs Std dsc...

 

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.

754

Wording of scope re pre action disclosure - meanings...

  • 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.

755

The structure of r.31.16 formally requires a two-stage approach -which is?

 

  • 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)

756

(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;

Does applicant have to demonstrate an “arguable” or “prima facie” case?

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”

757

Pre-action disclosure---- For the purposes of r.31.16(3)(a) and (b) the respondent/applicant is “likely to be a party to subsequent proceedings” where...

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

758

Pre-action disclosure - do you have to show that proceedings are likely to be issued?

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

759

Pre-action disclosure - proceedings will be referred to arbitration rather than litigated in court...

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:

760

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 ...?

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

761

CAn you require a respondent to identify which of its documents are within the scope of standard disclosure?

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

762

Can you use 31.16 to obtain background docs?

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”

763

Whether disclosure is “desirable” within r.31.16(3)(d) involves a two stage process ...

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.”

764

Disclosure before proceedings have started

Relevance of merits of the future claim...

The applicant must show at least

a prima facie case of entitlement to substantive relief

765

Disclosure against non-parties: SCA 1981 s34

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.]

766

Orders for disclosure against a person not a party

31.17

...

(3) The court may make an order under this rule only where...

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.

767

Orders for disclosure against a person not a party

31.17

...

(4) An order under this rule must –

  • 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.

768

Orders for disclosure against a person not a party

31.17

...

(5) Such an order may –

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.

 

769

Might disclosure against persons not party to proceedings breach Human Rights

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”.

770

Disclosure vs 3rd parties....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, ...

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.

771

 may CPR r.31.17 be used to order disclosure for the purposes of identifying an unknown party?

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.

772

Disclosure against third party./.. Rule 31.17(3)(a)... Where a party seeks disclosure of a class of documents,

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.

773

Rules not to limit other powers of the court to order disclosure

31.18

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.

774

Rule 31.18 merely does what?

Disclosing identity of wrongdoer (Norwich Pharmacal principle)

Rule 31.18 merely preserves the Norwich Pharmacal jurisdiction and does not modify it: 

775

What is the Norwich Pharmacal principle?

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

776

What are the pre-requisites of Norwich Pharmacal relief?

  • “(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.”

777

What sorts of wrongs are covered by norwich pharmacal?

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).

778

In Norwich Pharmacal jurisdiction does the applicant need to prove the wrong?

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.

779

To get a Norwich Pharmacal order is it necessary that you will be brining court proceedings?

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

780

Norwich Pharmacal as last resort

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

781

Requirement of connection to wrong-doing

Norwich Pharmacal

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

782

Contempt of Court Act 1981 c. 49

10. Sources of information.

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.

783

Section 10 of the Contempt of Court Act 1981 - defence to application for a Norwich Pharmacal Order

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.

784

Self-incrimination defence to Norwich Pharmacal Order

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.

785

786

how do you calculate any period of time for doing any act which is specified in CPR?

  • 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.

787

PART 23 -  contains?

GENERAL RULES ABOUT APPLICATIONS FOR COURT ORDERS

788

In Pt 23 ‘application notice’ means what?

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

789

In pt 23 'respondent' means what?

‘respondent’ means –

(a) the person against whom the order is sought; and

(b) such other person as the court may direct.

790

Where to make an application under pt 23 - what is the general rule?

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.

791

Part 23 - 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 where?

(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.

792

Part 23 - If the parties have been notified of a fixed date for the trial, an application must be made where?

(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.

793

Part 23 -  if an application is made before a claim has been started, it must be made where?

(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.

794

Part 23 - If an application is made after proceedings to enforce judgment have begun, it must be made where?

(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.

795

Pt 23 - general rule and exception re: application notice

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.

796

pt 23 - general rule and exception re notice of an application

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 permi