12 Disclosure and inspection

Question 1

What is the disclosure for:

Fast track and Multi-track?

Answer 1

Fast track = Standard disclosure

Multi-track = menu disclosure

Question 2

Menu Option Disclosure

Applies to:

Answer 2

(i) Most multi-track claims unless the court orders otherwise
(ii) N__ot to personal injuries claims on the multi-track
(iii) Fast track claims and personal injuries claims if the court makes direction for menu option disclosure

Question 3

Are Case Management Conferences compulsory on the multi-track?

Answer 3

Case Management Conferences are NOT compulsory on multi-track.

Question 4

When can Case Management Conferences be dispensed with?

Answer 4

They can be dispensed with if:

1. Parties agree directions and court agrees with proposed directions; or
2. Court thinks it has enough information to make directions without CMC

Question 5

Menu disclosure has 3 stages

Answer 5

1. Disclosure report filed
2. Parties agree disclosure directions
3. CMC menu disclosure directions.

Question 6

What is:

Stage 1: Disclosure report

Answer 6

Not less than 14 days before the first CMC each party must file and serve a disclosure report.

Question 7

What is contained in the disclosure report?

Answer 7

• describes the relevant documents
• describes where they are
• details storage of electronic documents
• estimates cost of giving disclosure
• includes a proposal for the most suitable disclosure direction
• verified by a statement of truth

Question 8

What is:

Stage 2: Agreeing disclosure directions

Answer 8

Not less than 7 days before the first CMC the parties must:

• meet or telephone each other to discuss and seek to agree a proposal for disclosure
• which must meet the overriding objective of dealing with the case justly and at proportionate cost
• any agreed proposal must be filed at court
• court may approve the proposal without a hearing

Question 10

What is Stage 3: CMC menu disclosure directions

Answer 10

If disclosure directions are mat at a hearing, at the CMC the court can:

(a) order dispensing with disclosure;
(b) order party disclose documents on which it relies, and at the same time request any specific disclosure it requires;
(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.

Question 11

Are train of inquiry document required on the fast track?

Answer 11

Train of inquiry documents are NOT required on fast track, but they are on menu disclosure.

Question 12

Basic position of disclosure

Small Claims Track

Answer 12

documents relied upon

Question 13

Basic position of disclosure

Fast Track

Answer 13

= standard disclosure

Question 14

Basic position of disclosure

PI claims

Answer 14

standard disclosure

Question 15

Basic position of disclosure?

PI claims =

Answer 15

standard disclosure

Question 16

Basic position of disclosure?

Multi-track usually =

Answer 16

menu disclosure

Question 17

Basic position of disclosure?

Business & Property Courts =

Answer 17

disclosure pilot scheme

Question 18

STANDARD DISCLOSURE

Standard disclosure requires each party to disclose:

Answer 18

• Documents they rely upon (same as small claims)
• Documents adversely affecting own case
• Documents adversely affecting another’s case
• Documents supporting another’s case
• Documents required to be disclosed under a Practice Direction

Question 19

Does standard disclosure include train of inquiry documents?

Answer 19

NO!

Doesn’t include train of inquiry documents

Standard disclosure does not cover documents merely relevant to credit:

“Train of inquiry” documents = MAY lead to the discovery of other documents supporting or adversely affecting either party

Question 20

Cases covered by Standard Disclosure

This applies to:

Answer 20

(i) Most fast track claims unless the court orders otherwise
(ii) Most personal injuries claims on the multi-track
(iii) Other multi-track claims if the court decides to make a direction for standard disclosure

Question 21

Redaction -blanking out irrelevant material in disclosed documents. The test on whether this is allowed is the same as for standard disclosure, i.e.

Answer 21

• Documents they rely upon
• Documents adversely affecting own case
• Documents adversely affecting another’s case
• Documents supporting another’s case
• Documents required to be disclosed under a Practice Direction

Question 22

What is a document?

Answer 22

= anything in which information of any description is recorded, inc electronic docs, including deleted docs and CCTV recordings and photos. Also metadata.

Must disclose documents in your custody, but also those under your control. Someone may not have ever seen the documents or know they exist.

Question 23

What does Possession, custody or control mean?

Answer 23

Disclosure obligations apply to documents which are or have been in a party’s “control”

Question 24

What are the two stages of disclosure?

Answer 24

1. Disclosure by list of documents

Form N265:

• Documents party is prepared to disclose to the other side
• Documents protected by privilege
• Documents no longer available

1. Inspection
   * If electronic documents are best accessed using technology not readily available to the other side, by making available reasonable additional inspection facilities to enable them to have the necessary access

Question 25

Who can sign the disclosure list?

Answer 25

A solicitor CANNOT sign the disclosure list, it MUST be the client themselves.

Question 26

When does a party have control over documents?

Answer 26

(a) in his physical possession;
(b) if he has a right to possession;
(c) if he has a right to inspect or take copies.

This includes docs party is entitled to call someone for, e.g. asking for your medical notes because you have a right to this.

Question 27

What does reasonable search mean?

Answer 27

Parties have a duty to make a reasonable and proportionate search

Any limits on their searches have to be set out in their list of documents

Question 28

What is a disclosure statement?

Answer 28

MUST include disclosure statement, signed by CLIENT, NOT solicitor or close associate.

• Disclosure statement NOT a mere technicality
• If joint Claimants or Defendants, each must sign a disclosure statement

Question 29

Factors in deciding how wide a search is required

Include

Answer 29

• Number of documents
• Nature and complexity of the litigation
• Ease and expense of retrieval
• Likely significance of the documents
• Also: Availability of the information from other sources

Question 30

What happens if the disclosure statement is not signed?g

Answer 30

Courts MAY strike out claim if disclosure statement not signed because parties must be on equal footing.

Question 31

What are the professional duties for disclosure?

Answer 31

As soon as litigation is contemplated = parties’ legal representatives MUST notify clients of the need to preserve disclosable documents, inc docs which would have ordinarily been deleted in accordance with doc retention policy or deleted in course of business. If not = misleading court + MUST cease to act and promptly return instructions.

If you become aware of doc which client won’t disclose- you cannot continue to act unless consent is given.

Question 32

What are the limits to disclosing?

Answer 32

Continuing duty to disclose until the proceedings are concluded.

Question 33

Failure to Comply with Disclosure Obligations

What are the litigation consequences?

Answer 33

• Party may not rely on undisclosed documents without court permission
• False disclosure statement without an honest belief in its truth: contempt of court
• Strike out the defaulting party’s statement of case as a sanction

NORM: It is adverse docs not disclosed – rules silent on this, so make application for specific disclosure.

Question 34

Specific Disclosure

T__wo types of order

• Specific disclosure – give me the specific document
• Specific inspection – give me photocopy of the document etc

Question 35

Nature of specific disclosure

Order for specific disclosure = party must:

Answer 35

(a) disclose docs 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.

Question 36

For Specific Disclosure, what are the discretionary factors?

Answer 36

• all the circumstances of the case
• Where docs should have been disclosed under an order for disclosure, specific disclosure will norm be given
• Overriding objective
• Relevance of the documents
• Importance
• Docs necessary for the just disposal of the claim
• Lateness in applying

Question 37

What is the timing for Specific Disclosure?

Answer 37

• At any stage of the proceedings
• Typically at a CMC or PTR, or with directions questionnaires
• As soon as apparent it is necessary or desirable

Question 38

What is the expert’s report?

Answer 38

In relation to documents mentioned in an expert’s report, an application is necessary

Question 39

What duty are parties under?

Answer 39

Parties are under a duty to allow inspection of documents mentioned in their statements of case, witness statements, witness summaries.

document is “mentioned in” a witness statement if: specifically mentioned or directly alluded to.

Question 40

What should you do with inadvertent disclosure?

Answer 40

Party receiving inadvertently disclosed documents can only use them with the court’s permission.

Test: obvious mistake.

If there is an obvious mistake, you should not open up the papers at all. If there is not an obvious mistake then you can use them.

Question 41

What does Collateral use mean?

Answer 41

After disclosure, documents still belong to the original party. Implied undertaking not to use them for any collateral purpose, eg:

• By showing them to the media
• Talking about them outside the litigation
• Showing them to a competitor

Effect = disclosed documents only be used for present litigation.

The implied undertaking ends if:

• the documents are used in open court. At that stage they become public documents;
• the court gives permission, or
• the party who gave disclosure agrees.

However, the court may re-impose the undertaking even after use in open court.

Question 42

When might you use an injunction to refrain use?

Answer 42

Party making the inadvertent disclosure may:

• Seek injunction

This is based on equitable jurisdiction to restrain breach of confidence

Norm used to restrain docs.

Injunction may restrain the solicitor from acting for the other side

Question 43

What happens to an inadvertent disclosure where the solicitor receives the document

Answer 43

• owes no duty of care to the party giving disclosure
• generally can assume the documents have been disclosed deliberately, and that the solicitor acting for the other side has authority to disclose
• but if they realise an obvious mistake has been made, they should stop reading the documents, and send them back

Question 44

Can an injunction be granted restraining a solicitor from acting for the defendant?

Answer 44

yes

Question 45

When can an injunction may be granted:

Answer 45

• disclosure was obtained by fraud
• solicitor receiving realises there has been an obvious mistake
• obvious mistake viewed objectively
• the court has to balance the public interest in supporting Legal Professional Privilege with the public interest in the due administration of justice
• ordinarily grant an injunction where there has been an obvious mistake
• delay is an equitable reason for refusing the injunction

Question 46

What does menu disclosure start with?

Answer 46

• Filing Defence
• Notice of proposed allocation

Question 47

When does menu option disclosure apply?

Answer 47

Applies to:

(i) Most multi-track claims unless the court orders otherwise
(ii) But not to personal injuries claims on the multi-track
(iii) Fast track claims and personal injuries claims if the court decides to make a direction for menu option disclosure

Question 48

If the notice of proposed allocation places the claim on the multi-track, the notice will:

Answer 48

• Give a date (not less than 28 days) for filing directions questionnaires
• Probably ask for disclosure reports
• Costs budgets and budget discussion reports are usually also required

Question 49

Case management conferences {Compulsory or not?) on multi-track. dispensed if

Answer 49

NOT compulsory

• The parties agree directions and the court agrees with the proposed directions; or
• The court feels it has enough information (from the filed directions questionnaires) to make directions without a CMC

Question 50

What is Legal Professional Privilege?

Answer 50

• legal advice privilege
• litigation privilege

Only individuals authorized by the company to deal with the lawyers are the “client”. Norm = directors.

A laywer’s underline or giggling on documents is not privileged, unless it shows the tend of advice being given

Question 51

What does privileged documents mean?

Answer 51

Privileged documents must be disclosed, but do not need to be inspected.

Privileged documents:

• must be “disclosed” to the other side in the sense they feature in part 2 of the list of documents
• are privileged from inspection.
• privilege may be “waived”

Question 52

What does legal advice mean?

Answer 52

This privilege protects communications seeking or giving “legal advice”, covering:

• telling the client the law
• advice on what should be done
• presentational advice on evidence

Question 53

What are copies of documents?

PRIVILEGE

Answer 53

• A document not privileged when made does not generally become privileged by enclosing it when seeking legal advice
• Notion there might be a privileged copy of a non-privileged document is not the law
• However, if a compilation of non-privileged documents by a lawyer will give away the trend of advice given, the compilation (but not the individual documents) will be privileged

Party only needs to disclose one copy of document

Question 54

What is litigation privilege?

Answer 54

Confidential communications between a client or lawyer & non parties where the dominant purpose is to use the document or its contents in order to obtain legal advice or to help in the conduct of litigation which was at the time at least reasonably in prospect.

Question 55

What are the elements of litigation privilege?

Answer 55

ELEMENTS

• confidential communication
• between third party and either the lawyer or the client
• dominant purpose
• to use the document / its contents to obtain legal advice or to help in litigation
• litigation must be pending or reasonably in prospect

Question 56

What is Legal Advice Privilege?

Answer 56

Covers confidential communications between lawyer & client for giving or receiving legal advice, whether or not litigation is contemplated. Elements:

• confidential communication
• between legal representative and client
• for giving or receiving legal advice

Question 57

What is the ULTIMATE TEST for legal advice privilege?

Answer 57

Ultimate test: whether disclosure/inspection was necessary for disposing fairly of proceedings

Question 58

What does litigation privilege include?

Answer 58

• Experts’ reports for use in litigation
• Witness statements prepared for litigation
• This may include witness statements from a client company’s employees
• Solicitors’ correspondence with witnesses and experts
• Solicitors’ correspondence seeking evidence
• Drafts of court documents

Question 59

What is dominant purpose?

Answer 59

Dominant purpose

If two purposes for drawing up doc (.e.g to assist in accident prevent and help in litigation) then doc only privileged if the dominant purpose of the person who commissioned the document is to use it in contemplated or pending litigation.

“Dominant purpose”= clear paramountcy” in the intention to seek legal advice as opposed to any other reasons for drawing up the document.

So if main purpose is to look at safety then you MUST show other side.

Question 60

What is without prejudice?

Answer 60

Once a document is privileged, subject to waiver, it is always privileged. This means Without Prejudice communications also cannot be revealed to third parties.

• WP can apply to pre-action negotiations
• Omitting the words WP is not fatal
• Simply asserting a party’s rights does not amount to “negotiating” for the purposes of without prejudice
• Arguing your case is not “negotiating”
• The privilege does not apply if the rule is being unequivocally abused or if there is unambiguous impropriety

Question 61

What does without prejudice protect?

Answer 61

Protects: communications which are a genuine attempt to negotiate a settlement.

Question 62

Protects: communications which are a genuine attempt to negotiate a settlement.

Answer 62

Without prejudice privilege applies to:

(a) genuine attempts to negotiate a settlement of a dispute
(b) where the parties contemplate, or might reasonably have contemplated, litigation if they cannot agree. There must be sufficient proximity to the litigation

Question 63

What is the Waiver of Without Prejudice Privilege?

Answer 63

• Without prejudice is a joint privilege
• The protection can only be waived if both sides consent

Question 64

Contrast Open Discussions and Without Prejudice

Answer 64

An “Open” offer is not covered by WP privilege, so can be used for or against the maker at trial.

• A party seeking to change the basis of negotiations from Without Prejudice to “Open” has the burden of bringing the change to the attention of the other party

Question 65

Use of Without Prejudice Communications to Prove Settlement

Answer 65

• If the parties settle claim, without prejudice correspondence can be used to prove they settled if one party then disputes the settlement
• Without prejudice communications can be used to interpret the terms of a negotiated settlement

Question 66

What is Without prejudice save as to costs” CALDERBANK OFFER

Answer 66

• Without prejudice on liability and remedies
• Open on the question of costs

Question 67

Whose privilege is the LPP?

Answer 67

• privilege is that of the client
• not the lawyers
• “Without prejudice”: joint privilege of both parties

Question 68

What are the elements of waiver by disclosure in litigation?

Answer 68

Two elements:

(a) a clear reference to the existence of the privileged communications; and
(b) reliance on the privileged material for the purpose of making a particular point.

If the reference to the privileged material is no more than mere narrative there is no waiver. If the content of the privileged material is used to support a point which the party deploying the material wishes to make, there will be a waiver of the privilege.

There will only be a waiver if it would be unfair to allow the party making the disclosure not to reveal the whole of the relevant information because it may lead to the court or other parties having only a partial, and potentially misleading, impression of the material.

Disclosure of final version of an expert’s report does not amount to waiver of privilege over earlier drafts of the report

Question 69

What is the situation of disclosure of part of a document?

Answer 69

Disclosure of Part of a Document

• Disclosure of part of a single document waives privilege in the whole
• Unless the document is severable

TEST: “entirely different subject-matter”

Question 70

What is the Waiver as a Condition for Changing Expert__s?

Answer 70

Where a party seeks to change experts, even where Expert 1 was only involved at the pre-action protocol stage, the court would usually order that permission to call Expert 2 would be conditional on disclosure of Expert 1’s report.

Question 71

What is a breach of confidence?

Answer 71

Giving disclosure may be a breach of confidence. If so, the court may protect the document where inspection is not necessary for disposing fairly of the proceedings.

Question 72

What is the confidentiality for

Trade / technical secrets ?

Answer 72

Secret formulae, drawings of new products, computer code etc

· court should order a controlled measure of disclosure

· in each case the court needs to decide what measures are required

Question 73

How does one protect confidentiality?

Answer 73

Measures that can be taken include:

• redacting the document
• limiting disclosure to selected individuals. Could be an independent expert, or to named employees of the other side
• on terms not to use the disclosed documents to the detriment of the disclosing party
• holding the hearing in private (if it is necessary to sit in private to secure the proper administration of justice, taking into account the right of freedom of expression, see CPR, r 39.2(2) and (3)(c)).
  *

Question 74

What is a Norwich Pharmacal Order?

Answer 74

A Norwich Pharmacal order = typically addressed to someone who is not going to be a party to subsequent proceedings, but which requires them to disclose information that will be helpful to C in bringing effective proceedings against the real defendants.

• These orders derive from the ancient equitable jurisdiction of the Court.
• They are therefore discretionary.

Question 75

What is the main purpose of a norwich Pharmacol order?

Answer 75

• To discover the name of the defendant
• Or to find information relevant to proceedings

Question 76

When is a norwich pharmacal order normally sought?

Answer 76

Norm sought before the main proceedings are brought.

E.G. someone who “through no fault of his own” 3got mixed up in wrongdoing. Norwich Pharmacal orders NOT restricted to only Tort claims.

• An intention to sack or discipline a “mole” is a “sufficient interest” (requirement (b) above)
• Norwich Pharmacal* orders are of last resort, so will not be made if the information is available through other means

Question 77

What are the principles of a Norwich Pharmacal order?

Answer 77

Norwich Pharmacal orders are available:

1. a wrong must have been carried out, or arguably carried out, by a wrongdoer
2. there must be a need for an order. This is also known as having a “sufficient interest” or that it is “just and convenient” to make the order. E.G. order required to enable proceedings to be brought, or that disclosure is required to discipline an employee, or to set the record straight
3. the respondent is someone who became “mixed up” in the wrongdoing
4. who has facilitated its commission
5. who is able or likely to be able to provide the necessary information
6. the court has a discretion whether to make the order

Question 78

What is the mere witness rule?

Answer 78

Contrast a “mere witness” – no order will be made against such a person. MUST have facilitation.

Question 79

What is the procedure for a Norwich Pharmacal order?

Answer 79

Norm Part 8 claim form against facilitator + make interim application. Can apply WITHOUT NOTICE if URGENT.

Question 80

What are the costs for a Norwich Pharmacal Order?

Answer 80

Costs – Norm payable by claimant, BUT can be recovered against wrongdoer in main proceedings if foreseeable.

Question 81

Pre-action Disclosure

Can the court make an order for disclosure before proceedings are started?

Answer 81

Court MAY make an order for disclosure before proceedings are started.

Once proceedings are commenced, the jurisdiction ceases to exist.

Question 82

What is the purpose of pre-action disclosure?

Answer 82

Purpose

• Before starting proceedings as part of the relevant Pre-action Protocol.
• Standard disclosure or menu disclosure, usually through lists of documents.

Most parties should wait for the normal time for disclosing documents.

Question 83

What is pre-action disclosure important for?:

Answer 83

1. Deciding whether to sue at all
2. Being able to plead a sensible case in the Particulars of Claim

Question 84

Pre-action disclosure

What is the 2 stage test?

Answer 84

(1) Court considers whether the jurisdictional conditions are satisfied.
(2) If they are, the court exercises its discretion whether to make the order

Question 85

Pre-action disclosure

What is the first stage?

Answer 85

Jurisdictional Conditions (stage 1)

1. Applicant is likely to be a party to future proceedings
2. Respondent is likely to be a party
3. If proceedings were started, the documents sought would be within the respondent’s standard disclosure obligations
4. Pre-action disclosure desirable for either:
   
   • disposing of the claim fairly
   • assisting to resolve the dispute without proceedings
   • saving costs

Question 86

What is the procedure for pre-action disclosure?

Answer 86

• Issue (pre-action) application notice
• Written evidence in support (witness statement)
• On notice to the proposed defendant (3 clear days)

Question 87

What are the factors for the discretion (stage 2) for the pre-action disclosure?

Answer 87

Factors include:

• degree to which the documents are likely to support the proposed claim
• whether the documents are “train of inquiry” documents
• merits may be taken into account at the second stage. The question is whether the applicant has shown some reason to believe they have suffered some compensable injury
• the nature of the injury or loss complained of
• the clarity and identification of the issues raised by the applicant
• the nature of the documents requested
• the relevance of pre-action protocol inquiries
• applicant’s opportunity to make his case without pre-action disclosure

Question 88

What does “likely” mean?

Answer 88

Likely means “may well”

Question 89

Are the merits of the proposed claim relevant at stage 1?

Answer 89

Merits of the proposed claim - None of the jurisdictional conditions impose a merits test. This is irrelevant at stage 1.

Question 90

What is the disclosure against non-parties?

Answer 90

Pre-action disclosure, it is only pre action – Disclosure against NP is only after claim from. Also Pre-action disclosure is against “likely defendant”. NP disclosure is against the “witness”.

Question 91

Disclosure against Non-parties

Documents in the possession of a non-party

If NP has possession of relevant, either:

Answer 91

• ask them to provide the documents for use in the litigation; or
• require them to produce them at trial under a witness summons
• Force them to disclose it

Question 92

Conditions for non-party disclosure

Answer 92

1. Likely that documents are in the respondent’s possession, custody or power

• The documents sought must be specifically identified
• The documents must exist
• If either condition is not satisfied, the application will be refused
  
  1. Documents must be likely to support applicant or adversely affect another party
• Check relevance against the statements of case
• “Likely” means “may well”
  
  1. Disclosure must be necessary to:
• dispose of the claim fairly; or
• to save costs

Question 93

What is the procedure for disclosure against Non-parties?

Answer 93

• Application notice (N244)
• Witness statement
• On notice (3 clear days)

Procedure -“to any proceedings” = means court proceedings must have been issued

Question 94

What is the test for Disclosure against NOn parties?

Answer 94

(1) Court considers whether the jurisdictional conditions are satisfied.
(2) If they are, the court exercises its discretion whether to make the order

Question 95

What is the discretion in Disclosure against NOn parties?

Answer 95

• whether the documents are available from another source
• whether non-party disclosure will add to the costs
• order forces a non-party to permit inspection, samples etc of property
• which is the “subject-matter” of the proceedings
• or where “any question” arises relating to that property

I.E. if factory belongs to someone else, the statute says the court has a power to order someone to allow inspection, samples or someone which is the subject matter of the despite.

Question 96

What is : Inspection of Property Owned by a Non-party

Answer 96

On application of party to any proceedings, court shall have power to make an order for:

(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.

Question 97

What is Third Party Proceedings (additional claims under Pt20)?

Answer 97

While grafted into the original claim, a TP claim is also in some respects treated as a separate claim.

Question 98

While grafted into the original claim, a TP claim is also in some respects treated as a separate claim.

Why is it thought of as a separate claim?

Answer 98

• limitation periods are different
• case management needs to be synchronised if possible
• a Part 20 claim can survive (if there is anything left to deal with) if the main claim is struck out
• trials of the main proceedings and third party claims normally take place together

Question 99

Is permission required to issue an Additional Claim/Third Party Claim?

Answer 99

Permission is not required to file an additional claim/third party claim provided it is issued before or at the same time as filing of the Defence.

Question 100

Third Party Proceedings (Pt 20)

An additional claim/third party claim may only be issued after that time with the court’s permission. REQUIREMNTS:

Answer 100

• application notice
• a copy of the proposed third party claim
• witness statement stating:
• the stage the main proceedings have reached
• the nature of the additional claim
• a summary of the facts on which the additional claim is based
• the explanation for any delay
• a timetable of the proceedings to date

Question 101

Is the third party proceeding application with or without notice?

And what are the factors governing the discretion?

Answer 101

• the connection between the additional claim and the original claim
• whether D is seeking substantially the same remedy as C is claiming
• whether D is asking the court to decide any question connected with the subject matter of the existing proceedings

Question 102

Relief that can be claimed in third party proceedings

Answer 102

• Contribution
• Indemnity
• Other remedies related to the original proceedings
• Asking court to answer a question related to the original proceedings

Question 103

What is a third party notice?

Answer 103

Technically, a third party notice issued in this situation is called a “Defendant’s Additional Claim Against a Third Party”.

Question 104

What is a contribution notice?

Answer 104

These are used for bringing claims for contribution, indemnity and related relief by one existing defendant against another existing defendant.

If D filed an A/S or defence, D May make additional claim for contribution or indemnity against person already party by:

1. filing notice stating nature and grounds of additional claim
2. service notice on that party.

If D files and serves the notice, he can do so without court permission if he serves it with defence or additional claim for contribution/indemnity is against party added to claim later, within 28 days after party files defence, or at any time with court’s permission.

Question 105

With contribution notices,

If D filed an A/S or defence, D May make additional claim for contribution or indemnity against person already party by:

Answer 105

1. filing notice stating nature and grounds of additional claim
2. service notice on that party.

Question 106

Contribution notice

If D files and serves the notice, he can do so without court permission if he serves it with defence or additional claim for contribution/indemnity is against party added to claim later, within

[time-limit]

Answer 106

28 days after party files defence, or at any time with court’s permission.

Question 107

What is no default judgment with third party proceedings

Answer 107

normal rules on default judgment do not apply. Instead, where the Third Party fails to acknowledge service or serve a Defence to the TP claim:

• they are deemed to admit the additional claim
• they are bound by any judgment or decision in the main proceedings which is relevant

Question 108

Third Party Proceedings

What are the directions?

Answer 108

Where Defence filed to the TP claim, the court must consider the future conduct of the case and give appropriate directions. In doing so, the court must ensure, so far as practicable, that the original claim and additional claim are managed together

In multi-track PI case = standard disclosure (unless court directs otherwise). If not PI multi-track = menu option.

No definition of “adversely affect” or “support”. A doc doubting party’s credibility = adversely affected the case.

Question 109

What are Fourth Party Claims?

Answer 109

A third party can commence a Fourth Party claim against a non-party they in turn blame.

In fourth party claims (and beyond), in the body of the statement of case the party is referred to by name rather than as the “Fourth Party”

Question 110

What is the limitation with TP proceedings (Pt 20)?

Answer 110

Any new claim shall be deemed to be a separate action and commenced when the new claim was MADE in or by way of TP proceedings, on date on which those proceedings were commenced.

An additional claim “is made” when the court issues the appropriate third party claim form

Question 111

What is the SERVICE for TP proceedings?

Answer 111

An Additional Claim Form must be served within 14 days after it is issued

It must be served together with:

• the usual response pack forms
• all the existing statements of case

It must also be served on all the other existing parties