Case management, sanctions and striking out (W6) Flashcards
1
Q
CPR 2.8 - Time
A
- A period of time in the CPR expressed as a number of days shall be computed as clear days.
- “Clear days” means that in computing the number of days, (i) the day on which the period begins and (ii) if the end of the period is defined by reference to an event, the day on which that event occurs, are not included.
- e.g. notice of an application must be served at least 3 days before the hearing. If the hearing is Friday 20 October, the last date for service is Monday 16 October.
- If the end date is a day on which the court office is closed, that act shall be done in time if done on the next day on which the court is open.
2
Q
CPR 3.8 - Sanctions have effect unless defaulting party obtains relief
A
- Where a party has failed to comply with a rule, PD or court order, any sanction for failure has effect unless the party in default applies for and obtains relief from the sanction.
- Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.
- Where a rule, PD or court order (a) requires a party to do something within a specified time, and (b) specifies the consequence of failure to comply, the time for doing the act in question may not be extended by agreement between the parties.
- Unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided that any such extension does not put the hearing date at risk.
3
Q
CPR 3.9 - Relief from sanctions
A
- On an application for relief from any sanctions, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need:
- (a) for litigation to be conducted efficiently and at proportionate cost;
- (b) to enforce compliance with rules, PDs and orders.
- An application for relief must be supported by evidence.
4
Q
CPR 3.9.1 - Effect of rule
A
- Does not apply where the sanction imposed is an order for the payment of costs; relief must be obtained by appealing the order
- Refusal to grant relief against a debarring sanction would not contravene Art 6 ECHR if such refusal was proportionate and for a legitimate purpose.
5
Q
CPR 3.9.3 - Summary of guidance given in Denton
A
A judge should address an application for relief from sanctions in three stages:
(1) Identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order”. If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages.
(2) Consider why the breach occurred.
(3) Evaluate all the circumstances of the case, so as to enable the court to deal justly with the application.
6
Q
CPR 3.9.4 - Stage (1) Assess seriousness and significance of breach
A
- In many circumstances, whether or not a breach imperilled future hearing dates or otherwise disrupts the course of litigation would be the most useful measure of whether the breach is significant or serious.
- There are breaches which are serious although they are incapable of affecting the efficient progress of litigation e.g. failure to pay court fees.
- The assessment should focus on the very breach, not the litigant’s other conduct.
- The fact a party has failed to comply with an unless order is a pointer towards seriousness and significance. However, not every breach of an unless order is serious or significant.
- Where applications for relief from sanctions are made in respect of two separate sanctions, the court should consider each breach separately at the first stage but should consider them together at the third stage.
7
Q
CPR 3.9.5 - Stage (2) Why the default occurred
A
- Court declined to give any examples of good or bad reasons
- Did not disapprove of examples: fact that the defaulting party or their solicitor suffered from a debilitating illness or was involved in an accident, the period for compliance being unreasonable.
- If some good reason is shown for the breach, the court will usually grant relief from any sanction imposed because of it.
- More examples: failure to deliver an insurance bond in time caused by difficulties encountered in getting the underwriter’s signature to the bond, one of the defaulting party’s key witnesses had been pre-occupied with caring for and visiting his very ill wife in hospital, non-compliance with a consent order to issue a new claim form by 21 September 2013 - although the claimant had delivered the new claim form to the court office in good time, the court office had not issued it until 25 September, i.e. 9 days after receipt and 4 days after the deadline; such a delay was out of the control of the claimant.
8
Q
CPR 3.9.6 - Stage (3) all the circumstances of the case
A
- It is wrong to assume that if (i) the breach is a serious or significant breach and (ii) there is no good reason for the breach, the application for relief from sanctions will automatically fail. In every case, the court will consider “all the circumstances of the case, so as to enable it to deal justly with the application.”
- Two circumstances specifically mentioned are (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules, PDs and court orders.
- Other factors/circumstances mentioned in Denton are the need to consider whether the sanction imposed is proportionate to the breach, whether the application for relief was made promptly, and whether the defaulting party has a poor record as to compliance with court orders.
- Depp: breach was serious but was not deliberate because of the solicitors’ erroneous view of the nature of disclosure obligations.
9
Q
CPR 3.9.7 - The importance of discouraging opportunism by the non-defaulting party
A
- Parties who opportunistically and unreasonably oppose applications for relief from sanctions take up court time and act in breach of the overriding objective.
- It is inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties.
- In a case where (a) the failure can be seen to be neither serious nor significant, (b) a good reason is demonstrated, or (c) it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs.
- Parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days.
- Heavy costs sanctions should be imposed on parties who unreasonably oppose applications for relief from sanctions.
- However, the threat of a costs penalty to restrain opportunism: “was emphatically not designed to give carte blanche to a defaulting party to blame the other side for the delays caused by its own breach”
10
Q
CPR 3.9.8 - Effect of Denton principles on applications to set aside default judgments
A
Court must first consider the specific conditions of the particular CPR, and then the Denton principles e.g. delay is a specific condition of CPR 39.3 so that is considered first, then Denton.
11
Q
CPR 18.1 - Obtaining further information
A
- The court may at any time order a party to:
(a) clarify any matter which is in dispute in the proceedings; or
(b) give additional information in relation to any such matter,
whether or not the matter is contained or referred to in a statement of case. - Where the court makes such an order, the party against whom it is made must-
(a) file his response; and
(b) serve it on the other parties,
within the time specified by the court. - This is required to be verified by a statement of truth.
- Part 53 (defamation) restricts requirements for providing further information about sources of information in defamation claims.
12
Q
CPR 18.2 - Restriction on the use of further information
A
The court may direct that information provided by a party to another party (whether given voluntarily or following an order under CPR 18.1) must not be used for any purpose except for that of the proceedings in which it is given.
13
Q
CPR 18.1.10 - Court’s discretion
A
- When considering whether to make an order, the court must have regard to:
(a) the likely benefit which will result if the information is given;
(b) the likely cost of giving it;
(c) whether the financial resources of the party against whom the order is sought are likely to be sufficient to enable the party to comply with the order - In patent infringement cases, it has not been standard practice to order parties to give particulars of the construction which they propose to put on the patent claim. However, a claimant has been ordered to answer certain requests for further information relating to its proposed construction of certain terms at trial in order to ensure 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 expert reports the characteristics of testing.
14
Q
18PD.1 - Preliminary Request for further information or clarification
A
- Before making an application to the court for an order under Part 18, the party seeking clarification or information should first serve on the other party a written request for that clarification or information stating a date by which the response to the request should be served. The date must allow the party a reasonable time to respond.
- A request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.
- Requests must be made as far as possible in a single comprehensive document and not piecemeal.
- A request may be made by letter if the text of the request is brief and the reply is likely to be brief; otherwise the request should be made in a separate document.
- If a request is made in a letter the letter should, in order to distinguish it from any other letter: (a) state that it contains a request made under Part 18, and (b) deal with no matters other than the request.
15
Q
18PD.1 - Contents of a request
A
A request must:
(a) be headed with the name of the court and the title and number of the claim,
(b) in its heading state that it is a request made under Part 18, identify the first party and the second party and state the date on which it is made,
(c) set out in a separate numbered paragraph each request for further information or clarification
(d) where a request relates to a document, identify that document and if relevant the paragraphs or words to which it relates,
(e) state the date by which the first party expects a response to the request.
- A request which is not in the form of a letter may be prepared in such a way that the response may be given on the same document.
- 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 appear on the right.
- Where a request is prepared in this form, an extra copy should be served for the use of the second party.
- A request should be served by email if reasonably practicable.
