14 Further Information

Question 1

Regarding further information, what may the court order a party to do at any time? CPR 18.1

Answer 1

a) Clarify any matter which is in dispute in the proceedings or
b) give additional information in relation to such matter, whether or not the matter is contained or referred to in a statement of case

Subject to any rule of law to the contrary

Question 2

What must a party do, if an order for further information is made against them? CPR 18.1

Answer 2

a) file his response and
b) serve it on the other parties

within the time specified by the court

(Part 22 requires statement of truth & Part 53 restricts requirements for providing further information about sources of information in defamation claims)

Question 3

Restrictions on the use of further information CPR 18.2

Answer 3

The court MAY direct that information provided by a party or another party (whether given voluntarily or following an order under rule 18.1) MUST NOT be used for any purpose except for that of the proceedings in which it is given

Question 4

Before making an application to the court for further evidence, what must a party do?

Answer 4

The party seeking additional information or clarification must serve on the party whom they are seeking it, a written request for that clarification stating a date to the Request should be served. The date must allow reasonable time to respond

Question 5

A Request should be… PD18

Answer 5

Concise and strictly confined to matters which are reasonably necessary and proportionate to prepare his own case or to understand the case he has to meet

Question 6

Requests must be made as far as possible PD18

Answer 6

in a single comprehensive document and not piecemeal

Question 7

Can a request be made by letter? PD18

Answer 7

Yes if the Request and reply is likely to be brief. Otherwise the Request should be made in a separate document

Question 8

If a Request is made by letter, in order to distinguish it from routine correspondence what should it do? PD18

Answer 8

1. State that it contains a request under Part 18 and

2. deal with no matters other than the request

Question 9

What is the required format of a Request? PD18

Answer 9

(a) be headed with the name of the court and the title and number of the claim CLAIM INFO
(b) in its heading state that it is a REQUEST MADE UNDER PART 18, identify the first party and the second party and state the date on which it is made,
(c) set out in a separate NUMBERED PARAGRAPH FOR EACH REQUEST for information or clarification,
(d) where a Request relates to a document, IDENTIFY THAT DOCUMENT and (if relevant) the paragraph or words to which it relates,
(e) state the DATE by which the first party expects a response to the Request
(a) A Request which is not in the form of a letter may, if convenient, be prepared in such a way that the response may be given on the same document
(b) To do this the numbered paragraphs of the Request should appear on the left hand half of each sheet so that the paragraphs of the response may then appear on the right
(c) Where a Request is prepared in this form an extra copy should be served for the use of the second party

Question 10

A request should be served by email if reasonably practicable

Answer 10

PD18

Question 11

A response to a Request must be… PD18

Answer 11

in writing, dated and signed by the second party or his legal rep

Where the Request is made in a letter the second party may give his response in a letter or in a formal reply

Such letter should identify itself as a response to the Request and deal with no other means in the response

Question 12

Unless the Request is in the format described in paragraph 1.6(2) and the second party uses the document supplied for the purpose, a response must:
PD18

Answer 12

(a) be headed with the name of the court and the title and number of the claim,
(b) in its heading identify itself as a response to that Request,
(c) repeat the text of each separate paragraph of the Request and set out under each paragraph the response to it,
(d) refer to and have attached to it a copy of any document not already in the possession of the first party which forms part of the response
(2) A second or supplementary response to a Request must identify itself as such in its heading

Question 13

What must the second party do when he serves his response?

Answer 13

He must on the first party serve on every other party and file with the court a copy of the Request and of his response

Question 14

Must a response to a Request be verified by a statement of truth?

Answer 14

Yes, re the Part 22 definition of a statement of case

Question 15

What must the second party do if they object to complying the a Request? PD18

Answer 15

he must inform the first party promptly and in any event within that time

He may do so in a letter or in a separate document (a formal response), but in either case he must give reasons and, where relevant, give a date by which he expects to be able to comply

There is no need for a second party to apply to the court if he objects to a Request or is unable to comply with it at all or within the stated time. He need only comply with paragraph above

Where a second party considers that a Request can only be complied with at disproportionate expense and objects to comply for that reason he should say so in his reply and explain briefly why he has taken that view

Question 16

What is the prescribed format of an application for an order

Answer 16

An application notice for an order under Part 18 should set out or have attached to it the text of the order sought and in particular should specify the matter or matters in respect of which the clarification or information is sought

Question 17

If a Request under paragraph 1 for the information or clarification has not been made, the application notice should…

Answer 17

… in addition, explain why not

Question 18

If a Request for clarification or information has been made, the application notice or the evidence in support should…

Answer 18

describe the response, if any

Question 19

Who should consider whether evidence is required regarding a Request?

Answer 19

Both the first party and the second party should consider whether evidence in support of or in opposition to the application is required

Question 20

Where the second party has made no response to a Request served on him, the first party need not serve the application notice on the second party…

Answer 20

and the court may deal with the application without a hearing. However, this only applies if at least 14 days since the Request was served and the time stated to respond has expired

Question 21

The application notice, unless it is within the time frame reply, must be served on

Answer 21

the second party and on all other parties to the claim

Question 22

An order made under Part 18 must be served on

Answer 22

all parties to the claim

Question 23

Costs regarding further information PD18

Answer 23

(1) Attention is drawn to Practice Directions 44 to 48 on costs and, in particular, subsections 8 and 9 of Practice Direction 44, which relate to the court’s power to make a summary assessment of costs
(2) Attention is also drawn to rule 44.10(1) which provides that the general rule is that if an order does not mention costs no party is entitled to costs relating to that order

Question 24

Courts discretion regarding further information

Answer 24

When considering whether to make an order the court must have regard (a) to the likely benefit which will result if the information is given; and (b) to the likely cost of giving it; and (c) to whether the financial resources of the party against whom the order is sought are likely to be sufficient to enable that party to comply with such an order. These considerations, though not stated in r.18.1, are consistent with the “overriding objective” stated in r.1.1, and which the court is obliged to give effect to when exercising any power given to it by the CPR. For an example of specific reference to r.1.1 in ruling on an application for further information under r.18.1, seeToussaint v Mattis [2001] C.P. Rep. 61, CA(whether party should be required to give information as to identity of intermediary where anonymity guaranteed). See alsoHarcourt v Griffin [2007] EWHC 1500 (QB); [2007] P.I.Q.R. Q9(Irwin J), referred to in para.18.1.4.

In patent infringement cases it has not been the standard practice to order parties to give particulars of the construction which they propose to put on the patent claim. However, inNovartis AG v Johnson & Johnson Medical Ltd [2008] EWHC 293(Pat), Floyd J ordered the claimant to answer certain requests for further information relating to its proposed construction of certain terms at trial in order to ensure that the defendant’s clinical trials were conducted on the correct basis. The judge found that it was not satisfactory to allow the claimant to identify only at the stage of experts reports the characteristics for testing. By the time of the experts’ reports, experts ought to be in possession of all the material necessary