Dispute Resolution - Fundamentals

Question 1

Pre-action steps - Limitation

Before issuing proceedings for the claimant, ensure the client is within the limitation period. What is the basic rule?

Answer 1

The claimant has 6 years from the cause of action to send the claim form with the court, meaning:

• from the breach occurring (but check contract for a specified period)
• from the tort occurring.

Note: 3 years for personal injury (or discovery of injury)

Note: for children, the time limit does not run until their 18th birthday.

The time stops running once the court receives the claim form.

Question 2

Pre-action steps - Limitation

In negligence, the claimant generally has 6 years from the date that the damage occurs. What is the exception?

What is the longstop?

Answer 2

Latent damage:

• 6 years from the date of the damage occurring; or
• 3 years from the date of the claimant’s knowledge of the damage, whichever is later.
• 15-year longstop.

Example: suppose the damage occurs in 2020. The claimant discovers it in 2021. The limitation period is 2026 (“whichever is later”).

Question 3

Pre-action steps - Ethics

You must act in the best interests of your client. This means you should not encourage them to…

Answer 3

…make a claim where there is a limited prospect of success.

Question 4

Pre-action procedure

(a) Before issuing proceedings, what must the parties comply with?

Provide three areas for which these exist.

(b) For areas that do not have these, the parties must comply with the…

Answer 4

(a) Pre-action protocols

• Debt claims
• Personal injury
• Professional negligence.

(b) Practice Direction on Pre-Action Conduct and Protocols (PDAC)

Question 5

Pre-action procedure - Principles of PDAC and the protocols

What are five principles common to both the PDAC and the protocols?

Answer 5

1. Litigation is last resort
2. Parties should exchange sufficient information and disclose key documents.
3. The claimant should write to the defendant with concise details of the claim
4. The defendant should respond within reasonable time;
5. identify, narrow and resolve the legal, factual and/or expert issues.

-

Defendant responding within reasonable time = 14 days in straightforward cases or 3 months in complex cases. Include confirmation of whether all or part of the claim is accepted, and if not, the reasons why. Details of any counterclaim.

The overarching themes are to consider ADR, attempt to settle and exchange information.

Question 6

Pre-action procedure - Failure to comply with PDAC and Protocols

Sanctions can include:

Answer 6

• Paying all or part of the opponent’s costs
• No interest or damages for claimant at fault
• Enhanced interest on damages for defendant at fault to pay interest

A false claim in a pre-action protocol letter, may give rise to contempt of court.

Question 7

Pre-action protocols - Debt Claims

When does the Pre-Action Protocol for Debt Claims (PPDC) apply?

The claimant must give full information of the debt owed, including (2 pieces of information)

How many days does the debtor have to respond?

Answer 7

When a business (including sole traders and public bodies) brings a claim against an individual debtor.

1. A statement of account containing details of interest and charges, and
2. How the debt can be paid.

30 days

The creditor should allow for extra time if necessary for the debtor to seek legal or debt advice in order to pay.

Question 8

Pre-action protocols - Professional Negligence

This is mostly the same as the PDAC, but some additional requirements are:

1. The claimant should:
2. The professional should then:
3. The claimant should then:
4. The professional should:

Answer 8

1. Claimant: notify the professional in writing of their claim
2. Professional: inform their insurers and acknowledges the notice in writing within 21 days of receipt.
3. Claimant: write a Letter of Claim
4. Professional: acknowledge receipt of the Letter of Claim within 21 days, after which the professional has 3 months to write a Letter of Response.

The claimant’s notice should include:
(a) information about the claimant;
(b) a brief outline of the grievance; and (if possible)
(c) a general indication of the financial value of the claim.

Question 9

Jurisdiction

What is the effect of the 2005 Hague Convention in relation to jurisdiction?

Answer 9

If a contract contains an exclusive jurisdiction clause designating the court of a contracting state, that court must hear the case.

Question 10

Jurisdiction: Common Law

When does common law apply in relation to jurisdiction?

Answer 10

Where there is no exclusive jurisdiction clause.

Question 11

Jurisdiction: Common law - Service within England and Wales

Under common law, when can the courts of England and Wales hear proceedings without permission?

On what basis can the defendant object?

Answer 11

When the claim form was served while the defendant was in England or Wales (no matter how briefly)

On the grounds that the courts of England and Wales are not the most appropriate for resolving the dispute.

Question 12

Jurisdiction: Common law - Service outside of England and Wales

Under common law, when would the permission of an English court be required for it to hear proceedings?

In relation to contractual disputes, permission will be granted if (3 circumstances):

In relation to tort, permission will be granted if (2 circumstances):

Answer 12

If the claim form was not served while the defendant was present in England or Wales.

Contract

• Made or breached in England;
• Governed by English law;
• Contains an agreement conferring jurisdiction on the English courts.

Tort

• Tort committed in England; or
• Loss sustained in England

There may be separate rules in relation to Scotland and Northern Ireland. Not really covered in the Ulaw books.

Question 13

Jurisdiction: Disputing the court’s jurisdiction

What is the procedure for a defendant who wishes to dispute the court’s jurisdiction?

The application must be supported by evidence that…

What is the consequence of the court refusing the application?

Answer 13

1. State in the acknowledgement of service.
2. Challenge the court’s jurisdiction within 14 days of filing the acknowledgement of service.

England and Wales is not the proper forum.

The original acknowledgement of service ceases to have effect and the defendant must file a further acknowledgement within 14 days.

Question 14

Commencing Civil Proceedings

The most important element in determining the venue will be the amount in dispute:

If the value of the claim is ____ or less, it [may/must] be started in the County Court.

If the value of the claim exceeds ____, it [may/must] be started in the High Court.

Answer 14

£100,000, MUST
£100,000, may

Note: A claim for damages for personal injury may be started in the High Court if the value of the claim is $50,000 or more.

Note: if the claim is issued in the High Court, the judge may transfer the matter to the County Court at a later date.

Question 15

Commencing Civil Proceedings: County Court

Which court hears most civil cases (‘Part 7 claims’)? In particular it deals with…

For all other civil claims in the County Court, the claimant would…

Answer 15

The Civil National Business Centre (CNBC); money claims (specified and unspecified)

issue proceedings in a County Court hearing centre local to them.

Specified = debt claim
Unspecified = damages where amount in dispute needs to be quantified.

Question 16

Commencing Civil Proceedings: High Court

What are the three High Court divisions and what do they each deal with?

Answer 16

• King’s Bench Division: primarily contract and tort.
• Chancery Division: land and trust, inheritance, partnership and company law.
• Family Division

Question 17

Issuing Proceedings

What does the claimant do to start proceedings?
When are proceedings formally started?

When is a claim ‘brought’ for limitation purposes?

Answer 17

Sends the claim form (form N1) to court.

When the claim form is issued by the court.

When the claim form is received by the court.

Issued = the file is opened.

Other relevant documents to be sent alongside claim form:

• Particulars of claim (although it can be sent separately)
• Documents required to be annexed by the CPR (e.g. a copy of the contract).

Note: you will need to do practice mocks to understand how to draft the claim form.

Question 18

Claim Form drafting: statement of truth

1. What are the requirements of the statement of truth?
2. If the particulars are served separately, do they also need to be verified?
3. Either the party or their legal representative can sign. Where an individual signs on behalf of a party, what should be added to the statement of truth?
4. Where a legal representative signs a statement of truth, what is the solicitor confirming? (three points)
5. What are the consequences for failure to include a statement of truth?

Answer 18

(1) Signed and dated

(2) Yes.

(3) “I am duly authorised by the [party] to sign this statement.

(4) That the client:

• believes the facts are true;
• authorised the solicitor to sign;
• was warned of the possible consequences of a dishonest belief (contempt of court).

(5) The claimant will be precluded from relying on its contents. The court may also strike out the document.

As the solicitor, sign in your own name and not in the firm’s, but state the capacity in which you sign and add the name of the firm where appropriate.

Question 19

Adding, removing or substituting a party

Is permission of the court required for a party to be added, removed or substituted?

In what way is this limited?

Answer 19

No, unless the claim form has already been served.

A person cannot be added or subsituted as a claimant unless their written consent is filed at court.

Question 20

Adding, removing or substitutng a party: Grounds

A. What are the 3 grounds where the application is made within the limitation period?

B. What is the requirement where the application is made outside the limitation period? Secondly, what are the 3 grounds?

Answer 20

A. Within the limitation period

It is desirable to:
- add a new party to resolve disputed matters.
- remove a party; or
- substitute a party where the existing party’s interest has passed to them.

B. Outside the limitation period

Requirement: A party may only be added or substituted if the limitation period was current when proceedings commenced.

Grounds:

• Original party named by mistake;
• Original party died or is bankruptcy and their interest/liability has passed to the new party; or
• the claim cannot properly be carried on without the new party

Question 21

Commencing Proceedings: service of the claim form

Once a claim form is issued, it must be…

To serve the claim form on a firm of solicitors, the defendant must have…

Answer 21

….served on the other parties within four months.

…nominated them in writing.

Service: the document is sent/delivered to the defendant so they are aware of the existence of proceedings.

It should not be presumed that the defendant’s solicitors have been nominated just because the firm has represented the defendant in pre-action negotiations.

Once nominated, all court documents are served on the lawyers, unless an exception applies that requires personal service (e.g. an injunction).

Question 22

Commencing Proceedings: service of the claim form

What are the five methods of service under the CPR?

Answer 22

1. Personal service
2. First class post or document exchange (DX)
3. Leaving the claim form at a specified place
4. Fax or other means of communication
5. Any other method authorised by the court.

Question 23

Commencing Proceedings: service of the claim form

What does personal service mean in relation to:

(a) an individual
(b) a partnership
(c) a company

Answer 23

(a) handing the claim form to an individual;
(b) leaving the claim form with a partner or person in control of management;
(c) leaving the documents with a person who holds a senior position (e.g. director, treasurer, secretary or chief executive).

Question 24

Commencing Proceedings: service of the claim form

Leaving the form at a specified place

Delivering the claim form by hand to an address specified by the CPR is possible. What are the default positions in relation to:

(a) An individual
(b) A sole trader or individual partner;
(c) A company

Answer 24

(a) Usual or last known residence
(b) Usual or last known residence or principal or last known place of business
(c) Principal office or place of business within the jurisdiction with a real connection with the claim.

Note: where no solicitor is authorised to accept service and the defendant has not given an address for service, these are the default positions.

Question 25

Commencing Proceedings: service of the claim form

What is required for fax/other electronic means to be used?

To that end, would a fax number on the solicitor’s letterhead suffice?

Answer 25

The party being served (or their solicitor) must have expressly confirmed that they are willing to accept service in this manner.

Yes. This indicates that the client has nominated the solicitor to accept service in this manner.

A fax number on the client’s headed paper would not indicate such confirmation.

Also note: using an email address on the letterhead would not be sufficient, in relation to email.

Service by an alternative method

• The court can authorise other methods or places of service, e.g. text or voicemail.
• The court may also sanction a contractually agreed method, or use of an agent by overseas principal.

Question 26

Commencing Proceedings: service of the claim form

The claimant has four calendar months to serve the claim form. The step required to ‘stop the clock’ depends on the method of service. Provide the appropriate step in relation to the following:

(a) Personal service
(b) First class post/DX
(c) Fax/email

Answer 26

(a) When claim form is given at the relevant place
(b) When letter was posted/left with the DX provider
(c) Transmission of fax completed or email sent

Question 27

Deemed Service: Claim Form

When is the claim form deemed to be served?

Therefore a claim form sent by post on Monday is deemed served on…

If served separately, do the particulars of claim fall under these rules or the rules for other documents?

Answer 27

The second business day after the step required has occurred.

Wednesday.

Other documents.

Business Day = any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day.

Clear days - so the day itself is not counted.

Question 28

Deemed Service: Other documents

For most methods of service, when are other documents (that are not the claim form) deemed to be served?

Which method of service is the exception, and when would the document be deemed served?

Answer 28

On that day, provided it is before 16:30 on a business day.
Otherwise, the next business day.

First Class Post/DX: The second day after the document is posted provided it is a business day. Otherwise, the next business day.

Inconsistencies arise in relation to the claim form and first class post of other documents (e.g. the particulars), keeping in mind that the claim form is deemed served two business days after the required step whereas first class post of other documents is deemed served two days after the document is posted (provided it’s a business day).

JT Note: If the particulars are posted (first class post) on Monday, it is deemed to be served on Wednesday (clear days, so first day not counted).

Question 29

Service of the particulars

When are the particulars served?

Answer 29

• With the claim form, or within 14 days after service of the claim form
• In any case, no later than four months after the claim form is issued.

Therefore if the claimant serves the claim form four months after it was issued by the court, the particulars must be served at the same time.

Question 30

Serving the claim form out of the jurisdiction

A. Where the claim form is being served outside of England and Wales, when must it be served?

B. Additionally, what must the claimant do?

C. What must the claim form be accompanied by?

Answer 30

A. Within six months of being issued.

B. Obtain the court’s permission (unless there is an English jurisdiction clause).

C.A notice setting out (a) the grounds relied upon to serve outside the jurisdiction and (b) evidence that England and Wales is the proper forum.

There are special procedures governing service (not specified in the ULaw book, but they are detailed in Part 6, CPR).

Permission is not required in relation to proceedings being served in Scotland and Northern Ireland.

Example grounds:

• Breach of contract occurred in England.
• Excessive cost or delay if case is heard in a foreign court.

Where an order permitting service outside the jurisdiction is made, the time limit for responding will also be extended.

Question 31

Responding to a Claim

If the claim form is marked “particulars of claim to follow”, what must the defendant do?

Once both the claim form and the particulars are served, what will the defendant will receive, and what does this explain?

Answer 31

Await service of the particulars of claim.

the response pack (Form N9); the defendant’s options and time limits.

Defendant’s options:

1. admission (Part 14)
2. acknowledgement of service (Part 10)
3. defence (Part 15).

Ignoring claim would allow claimant to apply for default judgment.

Question 32

Admission for a specified claim

Admission of entire specified claim

The defendant:
- provides details of income and expenditure
- makes an offer of payment.

Upon receipt, the claimant does one of two things:

Admission of part of specified claim

How many days does the claimant have to consider an offer of part of the claim?

What are the claimant’s options in response?

Answer 32

Admission of entire claim

• files a request for judgment; or
• rejects defendant’s payment terms, and the court will decide the appropriate rate of payment.

Admission of part of the claim

14 days.

• Accept admission in full satisfaction and request that judgment is entered for that amount.
• Accept admission but reject the payment terms, and the court will decide.
• Reject offer and proceed with the claim as a defended action.

The decision is likely to be based primarily on the defendant’s ability to pay.

Question 33

Admission for a unspecified claim

1. For unspecified claims, the defendant may admit fault and offer a sum of money. If so, what will the court do?
2. If the claimant accepts the offer, what can the claimant do?
3. If the defendant does not make an offer or the claimant rejects the offer, what will the claimant do?

Answer 33

1. Serve notice on the claimant asking whether they accept the offer.
2. Enter judgment for the amount offered.
3. Enter judgment for damages to be assessed at a disposal hearing.

Question 34

Acknowledgement of Service

What is the effect of the defendant filing an acknowledgement of service?

Answer 34

Gives them 28 days from service of the particulars rather than 14 days to file a defence.

Must be sent within 14 days of the particulars being served.

Once filed, a copy must be served on all other parties, which the court will be responsible for (unless the defendant’s solicitor has indicated otherwise).

The defendant can also pursue their own claim against the claimant, as a counterclaim.

Question 35

Defence: Extending the time limit

If the defendant cannot meet the deadline for filing the defence, how can it be extended and up to a maximum of how many days?

Are further extensions possible?

Answer 35

By agreement; 28 days.

Only with the court’s permission.

As such, if the acknowledgement of service was filed, the defendant will have a total of 56 days from the date of service of the particulars to file a defence.

Question 36

Default Judgment

The claimant makes an application under CPR Part 12 requesting a default judgment. What conditions must be satisfied when making an application?

IMPORTANT

Answer 36

• The particulars have been served on the defendant;
• The defendant has not filed an acknowledgement of service or defence within the relevant time period; and
• There is no pending application by the defendant for summary judgment or strike out.

Question 37

Default judgment: specified claim

For a specified claim, the claimant’s application requesting default judgment must include:

Once final judgment is entered by the court, what would the defendant usually be required to do?

Answer 37

• the date payment was due;
• total interest claimed; and
• a daily rate at which interest accrues.

Pay within 14 days.

Question 38

Default judgment: unspecified claim

What extra procedural step is required in relation to an unspecified claim?

Answer 38

A disposal hearing, in which the court will decide the amount of damages payable.

Question 39

Setting aside default judgment

What are the two grounds to set aside a default judgment?

What else must the defendant show?

IMPORTANT

Answer 39

A. Mandatory Ground
B. Discretionary Ground

That the defendant should be relieved from sanctions, under the Denton v White factors.

Question 40

Setting aside default judgment: Mandatory Ground

When must the court set aside a default judgment? Give two examples.

Answer 40

Where it was wrongly entered

Examples:

• judgment entered too early;
• claimant has already been paid in part or in full.

Question 41

Setting aside default judgment: discretionary ground

What are the discretionary grounds for the court to set aside the judgment?

In addition, what will the court take into account?

Answer 41

• Defendant has a real prospect of successfully defending the claim; or
• There is some other good reason why the defendant should be allowed to defend the claim.

The promptness of the defendant’s application to set aside the judgment

A good reason would be e.g. defendant was ill or away on holiday.

Good reason: excuses such as pressure of work or documents being misplaced would be insufficient.

Question 42

Setting aside default judgment: procedure

What must the defendant do to apply for the judgment to be set aside?

Answer 42

File an application notice using form N244, supported by a witness statement outlining the defendant’s submissions.

Question 43

Setting aside default judgment: Orders

What three possible orders can the judge make in relation to an application to set aside a default judgment?

Answer 43

1. Set aside the judgment.
2. Set aside the judgment on condition that the defendant pays monies into court (a conditional order)
3. Allow the claimant to proceed to enforcement;

(2) is the least likely outcome. Used where the court is concerned that the defence is being pursued as a delay tactic for payment.

Question 44

Setting aside default judgment: costs

Application fails

What is the cost order of the application to set aside the default judgment fails?

Application succeeds

What is the cost order for a successful application to set aside the default judgment based on:

(a) the mandatory ground
(b) the discretionary ground: real prospect of success
(c) the discretionary ground: good reason

Answer 44

Application fails: Defendant to pay the claimant’s costs

Application succeeds

(a) Claimant usually liable to pay the defendant’s costs
(b) Defendant usually liable to pay the claimant’s costs
(c) Costs usually in the case

Question 45

Court sanctions: striking out a statement of case

What are the two most common scenarios where the court may strike out a party’s case?

Answer 45

• No reasonable grounds for bringing or defending the claim;
• Failure to comply with a rule, practice direction or court order.

Includes particulars not setting out facts indicating what the claim/defence is about; incoherent facts that do not disclose a legally recognisable claim or defence.

Apart from striking out a case, other sanctions include:

• Costs;
• interests; and
• the unless order.

Question 46

Relief from sanctions: Denton v White

In order to seek relief from sanctions, what is the first requirement?

What is the court’s approach to an application to be relieved from sanctions under Denton v White ?

Also needs to be addressed in setting aside a default judgment.

Answer 46

A prompt application, supported by evidence.

1. Seriousness or significance of the failure;
2. Reason for failure;
3. Evaluate all circumstances of the case

Generally, it is difficult to convince the court to grant relief. However, the other party may also be penalised if they seek, unreasonably, to take advantage of a mistake by the opponent which was a minor/technical breach that had no effect on the litigation.

Question 47

Discontinuance

A. How can the claimant discontinue a claim?

B. Is permission of the court required?

C. What is required if there is more than one claimant?

D. Can the claimant bring a claim to some but not all of the defendants?

What should you advise the client?

Answer 47

A. By filing and serving a notice of discontinuance on all parties.

B. No, unless required by Part 38, CPR (e.g. if the court has granted an interim injunction.

C. Written consent of all other claimants (if not, the court’s permission is required)

D. Yes.

Advice: Due to the costs implications of discontinuance, a claimant must consider their prospects of success very carefully before issuing proceedings.

Where consent is required, a copy of the consent must be attached to the notice.

Consequence

• Proceedings are brought to an end on the date that the notice is served.
• Claimant is liable for the costs of proceedings, unless the court orders otherwise - you must explain this to your client.

Question 48

Statement of Case

What are the standard statements of case?

The CPR sometimes requires additional documents:

Answer 48

The claim form, particulars and defence.

• A reply
• A counterclaim and a defence to the counterclaim
• A request for further information and response to the request

• Where a solicitor prepares the statements of case, it should be signed in the name of the firm.
• You must not mislead the court, therefore advise the client to amend the statement of case if they reveal a material error in the course of proceedings. If they refuse to do so, cease to act.

A reply tends to be raised where matters raised in the defence were not covered in the particulars.

Question 49

Statement of Case: Particulars of claim

What details do the particulars of claim include?

Answer 49

1. A concise statement of facts on which the claimant relies;
2. If the claimant is seeking interest, a statement to that effect and details.

Question 50

Statement of Case: Particulars of claim

The particulars must deal with the essential material facts establishing the cause of action. In contract disputes, this includes (nine details):

Answer 50

1. The status of the parties
2. Existence of contract
3. Terms
4. Breach particularised
5. Factual Consequences
6. Damage and Loss particularised
7. Interest
8. THE PRAYER - Summary of relief
9. Statement of truth

1. The status of the parties - e.g. if relying upon terms implied by the Sale of Goods Act 1979, you must confirm the defendant’s business.

Set out the chronological events, which may include pre-contractual matters if they assist in establishing the claim. Thereafter, move into the substance of the matter. At all times, keep in mind the legal elements underpinning your case.

2. Existence of contract - must be established. Include date, type (written/oral), parties, subject matter and consideration.

A copy of the contractual documents must be attached to or served with the particulars.

3. Terms - Any express and implied terms to be specifically stated.
4. Breach alleged and particularised - details of which terms were breached and specifically how.

Question 51

Statement of Case: Particulars of claim - interest

The court may award interest on the sum due, but this must be claimed. If not given in the contract, what is the position for:

(a) Commercial debts (B2B)
(b) Unspecified claims and specified claims owed by a consumer?

For specified claims, what must the claim form set out?

Answer 51

(a) Commercial debts

• debtor has statutory right to interest on late debts and
• statutory compensation pursuant to the Late Payment of Commercial Debts (Interest) Act 1998

(b) Unspecified claims and specified claims owed by consumer

Court has discretion to award interest under:
- s.35 Senior Courts Act 1981 for High Court cases
- s.69 of the County Courts Act 1984 for County Court cases

A precise lump sum for the amount that has accrued since the breach up to the issue of proceedings and a daily rate.

Question 52

Statement of Case: Particulars of claim

For a negligence claim, what are the legal elements that need to be addressed in the particulars of claim?

Answer 52

duty of care, breach of duty, causation and loss.

The court has discretion to award damages in any negligence claim. Interest is normally awarded from the date that the loss was sustained.

Question 53

Statement of Case: Defence

The defence must state:

Answer 53

for each allegation, whether it is:
- denied;
- admitted; or
- not admitted.

Non-admission applies where the defendant has no knowledge of the matter alleged.

Question 54

Statement of Case: Defence

When denying an allegation, the defence must state:

Answer 54

• the reason for denial; and
• their own version of events (if different from that given by claimant)

Note: you must not miss a single allegation. The effect of missing an allegation is that you are deemed to have admitted it. Therefore as a solicitor, you should take a systematic, point-by-point approach in drafting a defence.

Question 55

Statement of Case: Defence

What are seven details that the defence must include?

Answer 55

• court name;
• claim number;
• parties;
• title (DEFENCE);
• date and signature of solicitors in the name of the firm;
• statement of truth; and
• details of who is to be served and where.

Note: where the defendant alleges either:
- Contributory negligence; or
- a failure by the claimant to mitigate its loss,

the burden remains with the defendant to prove these matters. As such, further detail would be required in the defence.

Question 56

Additional Claims (CPR Part 20)

A. Where the defendant is using a counterclaim, the title of the defence is:

B. The best approach to drafting the counterclaim is to treat it as…

C. Rather than refer back to the claim, the counterclaim will refer back to

D. Is permission of the court required to file a counterclaim?

Answer 56

A. ‘DEFENCE AND COUNTERCLAIM’.

B. a stand-alone claim;
C. the defence
D. No, unless the defence has already been filed.

The first paragraph will state which paragraphs of the claim are repeated (e.g. the terms of the contract).

Other Part 20 claims are:

Indemnity

May arise where there is a contractual relationship between the defendant and the third party, in which the indemnity is expressly stated in the contract. It may also arise out of statute.

Contribution

Can be made where the defendant argues that the third party is partly responsible.

Question 57

Amendments to statements of case: Before expiry of limitation period

When can a statement of case be amended?

Answer 57

• Before it is served
• After it is served, provided written consent of all parties obtained, or permission of the court.

Question 58

Amendments to statements of case: Before expiry of limitation period

When applying for permission to amend, what must the amending party do?

The court will strike a balance between…

Answer 58

File a copy of the statement of case with the proposed amends and an application notice.

…injustice to opposing party/other litigants if permitted and injustice to applicant if refused

Question 59

Amendments to statements of case: After expiry of limitation period

Where the amendment is made after the expiry of the limitation period, the court would allow amends only in three circumstances:

Answer 59

1. To add or substitute a new claim, if this arises from substantially the same facts
2. To correct a genuine mistake as to a party’s name; and
3. to alter the capacity in which a party claims.

Question 60

Requests for further information (CPR Part 18): Procedure

What is a procedure for requesting further information?

When will the court grant an order?

Answer 60

1. Serve a written request on the other party, allowing reasonable time to respond.
2. The other party serves a response and files with the court (the response must be verified by a statement of truth, written, dated and signed).
3. But if no response or request cannot be complied with, the party can apply to court.

Where the request is confined to matters reasonable necessary and proportionate for the applicant to prepare their case or understand the case against them.

Formalities

• A request should be concise
• Single comprehensive document of requests
• May be by letter if brief, or separate document if not.
• Headed with name of the court, the title and number of the claim.
• Must identify that it is a Part 18 request.