full deck Flashcards
what is the overriding objective?
to enable the court to deal with cases justly and at proportionate cost
what must the claimant prove
- duty, breach, causation and loss for negligence
- duty (existence and terms of contract), breach, causation and loss for contract
what must the defendant prove
- contributory negligence (if any)
- why D’s version of the facts is correct (and that C’s version must therefore be wrong)
when may the court treat matters as established without evidence being brought
into court?
- Formal admissions: In the statements of case; or in response to a notice to admit facts.
- Presumptions: For example: res ipsa loquitur (‘the facts speak for themselves’).
This means that where the thing is shown to be under the management of the defendant and the accident is such that in the ordinary course of things does not happen if those who have the management have proper care, it affords reasonable evidence that the accident arose from want of care. In other words, it signifies that further details are unnecessary; the facts of the case are self-evident. - Inferences of fact: Common sense conclusions drawn from primary facts.
what costs might parties incur during litigation?
- solicitor’s fees
- disbursements
what are disbursements?
fees other than the solicitor’s fees
- Court fees
- Counsel’s fees
- Expert’s fees
- Other costs
what is the general rule in relation to costs?
the unsuccessful party will pay the successful party’s costs
can the court make a different order / depart from the general rule on costs?
yes, taking into account:
- conduct of the parties (incl ADR and offers to settle)
- has the party succeeded on all its case, or only part?
as a general rule, how much can be recovered in costs?
only a reasonable and proportionate sum
what happens if a judge does not make an order as to costs?
each party will simply pay its own costs
what happens if a judge gives ‘no order as to costs’?
each party will simply pay its own costs
what does the indemnity principle provide?
party will not be able to recover a sum in excess of their liability to their own solicitor
what are ‘inter-party costs’?
the actual figure for costs awarded by the court which one party has to pay the other party
what are ‘non-party costs’?
the court can award costs against a non-party to the proceedings
when do non-party costs usually arise?
where there is a litigation ‘funder’
what do the courts consider before ordering non-party costs?
- non-party costs are exceptional
- is it just to make the order?
- if the non-party funds and also substantially controls / benefits from proceedings, the non-party will pay the successful party’s costs
what does ‘costs follow the event’ mean?
the unsuccessful party pays the successful party’s costs (i.e., general rule)
can a successful party be refused costs if it failed to engage in ADR?
However, the burden is
on the unsuccessful party to show why there should be a departure from the general rule for this particular reason.
unreasonable refusal does not automatically result in a costs penalty, but is considered as part of the parties’ conduct
what is the standard basis?
The court will allow costs which: The court will allow costs which:
* have been proportionately and reasonably
incurred; and
- are proportionate and reasonable in
amount. - any doubt is resolved in favour of the
paying party. - not uncommon for only 60% of costs to be
recovered from the paying party.
what is the indemnity basis?
- have been reasonably incurred; and
- are reasonable in amount.
- any doubt is resolved in favour of the
receiving party. - not uncommon that the receiving party
will receive 70 – 80% of its legal costs from the
paying party.
in either case, will costs unreasonably incurred or unreasonable in amount be allowed?
no
what is meant by proportionate? (standard basis)
Costs will be proportionate if they bear a reasonable relationship to:
(a) The sums in issue in the proceedings;
(b) The value of any non-monetary relief in issue in the proceedings;
(c) The complexity of the litigation;
(d) Any additional work generated by the conduct of the paying party; and
(e) Any wider factors involved in the proceedings, such as reputation or public importance.
how long does a party have to comply with a costs order?
Unless the court orders otherwise, a party must comply with an order for the payment of costs within 14 days of:
- the date of the judgment or order if it states the amount of costs;
- if the amount of those costs (or part of them) is decided later, the date of the certificate which states the amount; or
- in either case, such other date as the court may specify.
fixed costs generally apply to which situations?
unless the court orders otherwise:
- uncontested disputes;
- enforcement
proceedings; - small claims;
- specialist areas (Sections II to VII of CPR 45 - beyond scope)
when are assessed costs needed?
only when the parties are unable to agree the amount of costs one should pay to the other.
what are the two types of assessed costs?
- summary assessment
- detailed assessment
what is summary assessment, and when is it used?
the court determines the amount payable by way of costs immediately at the end of
a hearing.
The parties must prepare statements of costs, preferably on the N260, and file and serve them on each party not less than 24h before the hearing.
The court will review these (broad brush).
The court will hear the parties’ short submissions in relation to them.
The court will then make a decision as to how much should be paid.
Unless there is good reason not to do so, the court should use the summary assessment
procedure:
* In fast track cases at the end of the trial. In this situation, the costs of the whole case will be assessed; and
* At the end of a hearing of an interim application or matter which has not lasted more than a day.
In this case, usually only the costs of the interim application will be assessed.
what is the detailed assessment procedure?
(a) The court, on deciding that one party should pay the other party’s costs, orders that they be subject to detailed assessment (if not agreed). At that point, the court makes no attempt to set a figure on them.
(b) To commence the detailed assessment proceedings, the receiving party serves a notice of commencement and a copy of its bill of costs (a more detailed statement of costs than used in summary assessment) on the paying party.
(c) Points of dispute in relation to any item in the bill of costs should then be served on the
receiving party by the paying party within 21 days of service of the notice of commencement.
(d) If the parties cannot reach agreement, the receiving party should then file a request for a
detailed assessment hearing at which a costs officer will determine the sum to be paid.
what is a bill of costs?
a more detailed statement of costs than used in summary assessment
what are the various types of interim costs orders?
- Costs in any event (and summary
assessment of costs) - Costs in the case
- Costs reserved
- Claimant or defendant’s costs in the
case - Costs thrown away
- Costs of and caused by
- Costs here and below
- No order for costs / no order was made
- Costs in any event (and summary
assessment of costs)
The party in whose favour this order is made is awarded its costs of the interim hearing from the other party regardless of who eventually wins at trial.
- Costs in the case
The party who eventually gets its costs at trial
(usually the winner) will recover its costs of the
interim hearing from the other party ie usually
the party that wins at trial will recover the costs of this application.
- Costs reserved
The decision about who pays the costs of the
interim hearing is put off to a later occasion. If
no decision is later made then the costs will be
in the case (see above).
- Claimant or defendant’s costs in the
case
CHECK THIS!!
In the case of the claimant’s costs in the case,
if the claimant is successful and receives an
order that it should be entitled to its costs at
the end of trial, it can include the costs of the
interim application. If the defendant is awarded costs at trial, the claimant does not have to pay the defendant’s costs of the interim application.
In the case of the defendant’s costs in the
case, the same principles apply but in reverse.
- Costs thrown away
If a judgment or order is set aside, the party in
whose favour this costs order is made is
entitled to the costs incurred as a result of the
judgment or order being set aside. This
potentially includes the hearing (including
preparation and attendance) at which the
original order is made, as well as the hearing
at which the order is set aside. The rationale is
that the judgment or order should never have
been made so the party at fault should be
punished by having to pay the costs of it
being made and set aside.
- Costs of and caused by
A party must pay the costs resulting from
something that party has done; for example
costs incurred by the defendant resulting from
a claimant amending its particulars of claim.
- Costs here and below
The party in whose favour the costs order is made is entitled not only to that party’s costs in respect of the proceedings in which the court makes the order,
but also to that party’s costs of the proceedings in any lower court.
** BUT** In the case of an appeal from a Divisional Court the party is not entitled to any costs incurred in any court below the Divisional Court.
- No order for costs / no order was made
Each party will bear its own costs
what are the most common interim costs orders?
- costs in any event
- costs in the case
- costs reserved
when is non-compliance with the Pre-Action Protocols justified?
including but not limited to:
(a) Limitation period is about to expire, in which case it may be necessary to issue proceedings (the crucial act that must be completed before the limitation date) before there is time to comply with the pre-action requirements.
In those circumstances, the parties must comply to the extent possible, and ordinarily will need to apply for a stay of proceedings after issue in order that the pre-action procedure can be followed.
(b) urgent proceedings or for the element of surprise (e.g., search orders)
Consequences of non-compliance: are sanctions always imposed?
it is unlikely that sanctions will be imposed for minor infringements
what constitutes a ‘reasonable response within a reasonable period’?
between 14 days and 3 months
Summary of the Limitation Act 1980
limitation period for personal injury claims s11
the claimant must bring the
claim within 3 years of the latest of:
(a) the date when the cause of action accrued; or
(b) the date of knowledge of the person injured.
how is the ‘date of knowledge’ defined?
Date of knowledge means knowing:
(a) That the injury was significant;
(b) That it was attributable (at least in part) to the alleged wrongdoing;
(c) The identity of the defendant; and
(d) If it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person and the additional facts supporting bringing the claim against the defendant.
the date of knowledge of the what permits the limitation period to start running?
the facts
regardless of whether the claimant does or does not realise that, given those facts, they have a claim in negligence
what knowledge does the ‘date of knowledge’ include?
knowledge which the claimant might reasonably have been expected to acquire from an expert / facts observable / ascertainable by them.
limitation period for fatal accidents s12
(a) The claim cannot be brought if the person injured (the employee in our example) could no longer bring a claim. In most cases, you will need to apply the personal injury rules to ascertain this, from the injured person’s perspective.
(b) The claim cannot be brought after 3 years from the later of:
(i) Date of death;
(ii) The date of knowledge of the dependent.
who might claim under the Fatal Accidents Act 1976?
people who were depending on that employee (perhaps the employee’s children) can claim
compensation from the employer.
in what circumstances can the court extend the limitation period?
- PI claims or FAA claims
- if it would be equitable (balance prejudice to claimant and defendant)
looking at:
- the conduct of the parties;
- the reasons for the delay; and
- the effect of such a late claim on the evidence.
limitation period for recovering contribution s10
2 years from the date on which the right to recover the contribution arose:
(a) The date when the judgment was given imposing liability on the first party;
(b) In cases where the first party agreed to make the payment (rather than having a judgment imposed on them), the date on which the amount to be paid was first agreed.
which types of claims are excluded from latent damage s14A and s14B?
PI and FAA claims
what is latent damage?
damage or a Product defect that exists as at the Delivery Date but is not discoverable by a reasonable inspection
e.g., problems with the foundations of building work of a house
limitation period for latent damage s14A and s14B
negligence (excluding PI) - the later of:
(a) Six years from when the cause of action accrued; or
(b) Three years from when he had the requisite:
(i) knowledge; and
(ii) right to bring a claim. (s14A)
and subject to a long stop of 15 years from the date of the latest negligent act or omission which caused all or part of the damage
is the definition of ‘date of knowledge’ different for latent damage?
it is same as for PI cases, but rather than needing to know that ‘the injury was significant’, the claimant needs to know ‘the
material facts about the damage in respect of which damages are claimed’
until when can an action to enforce a judgment, or recover interest, be brought?
six years from when the judgment became enforceable
limitation period for tort and contract claims (outside the above categories) - s2 and s5
6 years from the date the cause of action accrued
what happens to the limitation period if the claimant is under a disability at the time the cause of action accrued?
(a) 2 years in relation to contribution claims;
(b) 3 years in relation to personal injury or fatal accident claims; and
(c) 6 years in most other cases.
what is considered a disability?
- minor (under 18); or
- lacks mental capacity in line with the MCA 2005
what happens to limitation if a claim is based on fraud / concealment / mistake?
limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).
when can claims be brought against a partnership?
two or more people who:
- were partners; and
- carried on the partnership business at the time the cause of action accrued
what is the full name for a partnership in whose name/against which a claim may be brought?
other than for an LLP:
- full name of the partnership (e.g., Flagstones (a firm)) and/or
- full unabbreviated names of partners e.g., (1) John Flagstone (2) Nisha Katon.
- must be the name at the time the cause of action accrued
what is the full name for a sole trader in whose name/against which a claim may be brought?
commonly both the individual and trading name
e.g., John Flagstone (trading as John’s Café)
what is the full name for a LLP in whose name/against which a claim may be brought?
full registered name of the LLP
e.g., Flagstones LLP
what is the full name for a company in whose name/against which a claim may be brought?
the full registered name, including the suffix (such as plc or limited)
e.g., Rockstone Limited
who can represent a company at trial?
by an employee if:
* The employee has been authorised to do so by the company and
* The court gives permission
in a trusts context, by and against who can claims be brought?
- by or against trustees, executors or administrators.
- not necessary to add the beneficiaries of the trust or estate as parties to the claim
are court orders binding on trust beneficiaries?
yes, unless the court orders otherwise
who can claim on behalf of a deceased person if they have no PRs?
the court may order:
* The claim to proceed in the absence of a person representing the estate of the deceased; or
* A person to be appointed to represent the estate of the deceased.
how can one claim against a defendant who has died?
- If a grant of probate or administration has been made, the claim must be brought against the PRs.
- If a grant of probate or administration has not been made:
- the claim must be brought against ‘the estate of’ the deceased; and
- the claimant must apply for a court order appointing a person to represent the
estate of the deceased in the claim.
which categories of claimants are legally incapable of pursuing claims on their own behalf?
- children (under 18)
- protected parties
what is a ‘protected party’?
Any person who lacks capacity to conduct the proceedings within the meaning of the Mental Capacity Act 2005. This means that by reason of impairment or disturbance of the brain or mind, the party is unable to make the decision in question at the time it needs to be made (CPR 21.2(1)).
until the contrary is proved, which persons have capacity until proved otherwise?
adults
who has the burden of proof of incapacity?
whoever asserts incapacity
In determining the issue of incapacity, what questions should the legal advisers ask?
- Can the person recognise the problem they encounter?
- Can the person explain with sufficient clarity the problem to those from whom they seek
appropriate advice? - Can the person understand and evaluate the advice received from an appropriate source?
- Can the person understand the effects of choosing one course of action over another and give effect to their chosen course through instruction?
legal advisors must satisfy themselves that the party has the requisite capacity to
bring or defend proceedings. Quite often this may involve an assessment and report by the
party’s GP. If there are legitimate concerns that a client does not have legal capacity to deal with the case, advice may have to be sought from a psychologist or psychiatrist. The court may also require the personal evidence of the solicitor or family and friends.
who represents children and protected parties?
litigation friend
when may a person act as a litigation friend (with or without a court order)?
- Can fairly and competently conduct proceedings on behalf of the child or protected party.
- Have no adverse interest to that of the child or protected party; and
- Where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.
who is normally a litigation friend?
often a relative or court-appointed person
process for appointing a litigation friend without a court order
by filing and serving of a certificate of suitability demonstrating that the litigation friend satisfies the three above criteria either:
- at the time the claim is made (C or PP is claimant) or
- when the child takes the first step in the proceedings (if the C or PP is defendant).
if a court order is required
a specific procedure must be followed (CPR 21.6).
for a protected party, who else can appoint someone to conduct proceedings on their behalf?
the Court of Protection
what else can the court order?
permit the child to conduct proceedings without a litigation friend
what are the special rules for service on children and protected parties?
- Any document due to be served on a child or a protected party must be served on the litigation friend.
- Children and protected parties should be referred to in the title to proceedings on documents like so: Alice Brown (a child, suing by Kate Brown her mother and litigation friend)
- A protected party is also referred to in the claim form as being represented by his/her litigation friend, like so: Adam Black (a protected party by Clara Dunn his litigation friend)
the value of a claim is what?
its financial worth
if the value of a claim is its financial worth, what should you disregard?
- interest
- costs
- any counterclaim
- any contributory negligence; and
- any deduction of social security benefits.
what should the claim form state if it is to be issued in the High Court?
that the claimant expects to recover more than £100,000
If the court disagrees with the claimant’s choice once the claim has been issued, can anything be done?
yes. the court may transfer cases between the
High Court and the County Court
what are the consequences of issuing in the wrong court?
- The court may transfer the case and order the claimant to pay the costs of transfer.
- If the matter continues in the High Court, there is a separate sanction for wrongly beginning a matter in the High Court when it should have been issued in the County Court. The penalty is that any costs awarded in the claim can be deducted by up to 25%, but this is at the court’s discretion (section 51 SCA).
process for issuing a claim at court
the claimant’s solicitors must take or send the following to court:
- Copies of the claim form (Form N1) to be issued and sealed:
- One copy of the completed claim form to be kept on the court file;
- One copy for every defendant; and
- One copy for the claimant to keep on its own file. - Court issue fee (varies depending on value of claim - check amount online).
why is the date of issue of the claim form important? (2 reasons)
- it stops time running for limitation purposes
- starts the clock for the time in which the claim form must be served (within 4 months / 6 months of issue)
how does a court actually issue a claim form?
- entering a date of issue on the claim form,
- giving the case a claim number; and
- sealing (stamping with the court seal) all copies of the claim form.
where should most claims in the county court for money be issued?
the County Court Money Claims
Centre
how can you issue at the County Court Money Claims Centre?
- send the claim form (Form N1) to the County Court Money Claims Centre; and
- pay the appropriate issue fee
how can non-money only claims be issued?
at any of the County Court Hearing Centres by sending in / attending with the claim form (Form N1) and fee.
what are the limitations on Money Claims Online?
- value of up to £100,000
- against no more than 2 defendants.
Money Claims Online: what happens if defendant wants to defend a claim?
it will be transferred to the appropriate local county court hearing centre
who can use the County Court Business Centre (CCBC)?
In addition to the County Court Money Claims Centre (and Money Claim Online), users who are going to issue many claims (eg utility companies) can become registered users at the Northampton County Court Business Centre, which provides a particular service for such ‘bulk users’.
who can effect service of the CF?
may be served either:
(a) by the court; or
(b) by the claimant / claimant’s solicitor.
if the court serves the claim form, what is the process?
- service will usually be by first class post.
- will send the claimant a notice of issue stating the deemed date of service.
- If the court is unable to serve CF, claimant will be sent a notice of
non-service. Is then up to the claimant to try to serve CF on the defendant.
If the claimant / claimant’s solicitor wishes to serve the claim form, what do they need to do?
- notify the court when issuing the claim form that they do not wish the court to serve it
- court will give or send the claimant / claimant’s solicitor the issued claim form with sealed copies for service on the defendant(s).
- the claimant effects service
- the claimant’s solicitor must then file
a certificate of service at court within 21 days of service, certifying details of the date on which the claim was posted/delivered/transmitted and the method and address used. It is not
necessary to file a certificate of service if all of the defendants have filed an acknowledgment of service within that time.
when does the claimant’s solicitor not need to file a certificate of service at court within 21 days of service of the claim form on the defendant?
It is not necessary to file a certificate of service if all of the defendants have filed an acknowledgment of service within that time.
what are the various methods of serving the claim form:
- Personally on the defendant
- Leaving the document at a permitted address
- First class post
- Document exchange (DX)
- Fax
- Other electronic method (eg email)
- Any other method authorised by the court
what does personal service mean for companies?
an appropriate person - senior employee (CHECK THIS)
what does leaving the document at a permitted address mean?
depositing the claim form at a permitted address (whether or not there is someone
present to receive it)
what does ‘service by first class post or DX’ mean?
posting the document to a permitted address using:
- first class post, or
- using ‘DX’ which provides for
delivery on the next business day
when is service by fax or email/other e-method permitted?
only if the defendant / its solicitor has indicated that it will accept service by fax or email/other e-method
which method of service does not rely on a ‘permitted address;?
personal service
the defendant can be personally served wherever they are found within the jurisdiction
when must the permitted address be of the defendant’s solicitor?
If the defendant gives in writing a solicitor’s address in the jurisdiction for service, or their solicitor does the same, service must be to the solicitor’s address
if the solicitor’s address is not given, where should service be addressed?
an address at which the
defendant resides or carries on business within the UK; and
which the defendant has given for the purpose of being served with the proceedings
what if no address is given?
- individual: usual or last residence
- individual being sued in the name of a business: usual or last known residence of the individual; or principal or last known place of business
- individual being sued in the business name of a partnership:
-
Limited liability partnership / company
registered in E&W: Principal office of the partnership / company;
or any place of business of the partnership/
company within the jurisdiction which has a
real connection with the claim.
time limit for service of the claim form
the ‘relevant step’ must be completed before midnight on the calendar day 4 months after the date of issue of the claim form
what is the ‘relevant step’?
- personal service / leaving the doc at a relevant place: leaving the CF with the defendant
- first class post: posting the CF
- DX: leaving it with DX
- e-method: sending the email/other method
can claimant obtain an extension?
yes, provided it is:
- within the 4 month period
- good reasons for extension
- court failed to serve the CF; or
- claimant took all reasonable steps to comply; and
- either way, the application has been made promptly
Mistakenly serving the defendant’s insurers or solicitors when the rules required service on the defendant is unlikely to justify an extension
what should the claimant do if it fails to serve the claim form in time?
it will need to issue again, then serve
what can be found in the response pack (Form N9)?
- form for admission;
- form for defending; and
- form for acknowledging service.
what are the 3 ways to serve the particulars of claim?
- contained within the claim form;
- served in a separate document, but still with the claim form; or
- following the claim form
when must claimant serve the response pack along with the claim form and particulars?
if particulars are:
- contained in claim form; or
- served separately but with the claim form
if the particulars are served following the claim form, what are the timing requirements?
must be served within:
- 14 days of service of the claim form, and
- within 4 months of issue
when should the response pack be served if the particulars are to follow?
when the particulars are served
when and by who must a copy of the particulars be filed?
when: within 7 days of service, unless already filed
by who: claimant
when is the claim form deemed served?
2BD after the relevant step
what does ‘business day’ mean?
any day except:
- Saturdays,
- Sundays,
- bank holidays,
- Good Friday or
- Christmas day
what is the deemed date of service of all documents other than the claim form?
Instant methods (personal service, fax, email, delivering/leaving at a permitted address. If done before 4.30pm on a business day:
* deemed served the same day.
* Otherwise: deemed served the next business day
Not-instant methods (Post / DX)
* Deemed served second day after posting / giving to DX provider, if a business day.
* Otherwise: deemed served the next business day
what are the ways a defendant might respond to a claim?
- File or serve an admission (CPR 14)
- File a defence (CPR 15)
- File or serve an admission and file a defence, if it admits only part of the claim
- file an acknowledgment of service (CPR 10). This is the step to be taken if the defendant is
unable to file a defence within the period initially allowed, or if it wishes to dispute the court’s jurisdiction (CPR 10.1).
what are the two reasons to acknowledge service?
- D is unable to file the defence in time and needs longer than 14 days from the deemed date
of service of the particulars of claim in which to serve a defence; or - if it wishes to dispute that the court has jurisdiction to hear the claim.
time limits for filing an acknowledgement of service?
- if particulars are to follow the claim form, 14 days after service of the particulars of claim; and
- in any other case, 14 days after service of the claim form
is it mandatory to file an acknowledgement of service?
no, it is optional (but may be different in specialist courts)
what can be found in the acknowledgement of service form (Form N9)?
- defendant confirms their name is correct on the claim form
- gives their address for service
- does D intend to defend all or part of the claim?
- does D intend to contest jurisdiction of the court?
If the defendant does not file an acknowledgment of service, when must it file and serve its defence?
within 14 days of the deemed date of service of the particulars of claim
what happens once the defendant has filed an acknowledgment of service
- the court will notify the claimant in
writing that this has been done (CPR 10.4), and - the defendant’s solicitors will often notify the
claimant / claimant’s solicitors directly as well.
the defendant need not file a defence before the hearing of which applications?
- disputing the court’s jurisdiction
- where, before the defence is filed, the claimant applies for summary judgment
when will the court specify a period for filing the defence?
where the court makes an order for service of a claim form on an agent of a principal who is
overseas
the defendant has up to how long from the deemed date of service of the particulars of claim to file the defence without having to apply to the court for permission to extend the time for service?
56 days
14 days standard
+
14 days after AoS
+
up to 28 days agreed between C + D
to what extent is the court involved in the up to 28 days extension between C + D?
court must be notified in writing (but no application to court is required).
when might a party choose to involve the court to gain an extension?
if a claimant refuses to agree an extension of up to 28 days in accordance with CPR 15.5, the
defendant will need to apply to the court for an order allowing an extension of time (does this apply vice versa too?)
what is the ‘money paid’ defence response to a claim?
- When the court receives this type of defence, it sends a notice to the claimant which, in effect, asks the claimant whether the defence is correct.
- The claimant must respond within 28 days and the claim is stayed if they do not do so.
- Whatever their response, the claimant must serve a copy of it on the defendant.
- If the claimant does not wish to continue that is the end of the case.
- If the claimant does wish to continue (because they do not agree that the debt has been paid or because, for example, they still wish to recover interest and costs) the claim will proceed as a defended claim.
what is Form N9A?
claim is for a specified amount
what is Form N9C?
claim for an unspecified amount, non-money or return of goods
who should an admission be sent to?
- the court; or
- the claimant if admitting a specified claim in full
time limits for an admission
within 14 days of deemed service of the particulars of claim
what happens when D admits the whole of a specified claim?
the judgment amount is known, so the amount due can be calculated immediately:
- debt
- court fees
- interest
- fixed costs
what happens when D admits only part of a specified claim?
judgment can be given in part:
- admitted part of debt
- interest on admitted part of debt
defence must be filed for the disputed part of debt
what options does D have when admitted unspecified claims?
- admit liability to pay the whole claim for an unspecified amount (CPR 14.6); or
- admit liability and offer a sum in satisfaction of the claim (CPR 14.7).
if a claim for an unspecified sum is admitted, what is and isn’t resolved?
- liability = resolved
- quantum (money) = TBC in subsequent hearing and judgment
- interest = TBC in subsequent hearing and judgment
what happens after the whole claim is admitted?
following a request being made by the claimant, the court will enter judgment for an amount to be decided later by the court and costs
Except where one of the parties is a child or protected party
what does a ‘request for time to pay’ involve?
- pay by a certain date
- pay in instalments
available on both Form N9A and N9C, where D can provide personal financial info, and reasons for the request
what happens if the claimant does not accept D’s request for time to pay?
the court will determine the rate of payment taking into account the information supplied by the defendant and the objections raised by the claimant
what does ‘entering judgment against the defendant’ practically mean?
claimant is, either completely or to some extent, the successful party
why do defendants want to avoid judgment against them?
- avoids the possibility of
enforcement proceedings, and - most money judgments are placed on a public, searchable register (the Register of Judgments, Orders and Fines) for 6 years, which could impact credit rating
aside from having judgment entering against a party, what are some other ways to conclude an admitted claim?
- settlement e.g., Tomlin Order
- claimant agrees to withdraw claim
when it is unlikely that judgment will be entered?
specified claim has been admitted and paid in full (with interest, court fee and costs) within the 14 day period for responding to the claim
what is included in the judgment for specified claims?
- the amount of the claim / debt including interest to the date of issue of the claim;
- interest since the date of issue (using the daily rate from the particulars of claim);
- court fees (ie issue fee as shown on the claim form); and
- fixed costs, the amount of which are set out in the rules (CPR 45) – there will be an amount of fixed costs as shown on the claim form and an additional amount to be added on entering
judgment.
what is included in the judgment for unspecified claims?
liability only
the matter will be listed for a subsequent hearing where evidence will be heard
on the issue of quantum and the judge will hand down a judgment recording the amount due, including interest and provision for costs.
How to enter judgment following a claim being admitted
- claimant completes a request for judgment and reply to admission form within 14 days of
receiving notice of the admission. On this form they will indicate the judgment amount, including interest, court fees and fixed costs, as well as the amount of any payments made by the defendant. - On receipt of the request for judgment, the court staff will enter judgment and send this to the parties.
- Once judgment is entered following the admission and the amount payable has been determined, the claim is effectively concluded.
- Unless otherwise agreed or stated on it, the judgment is payable by the defendant within 14 days (CPR 40.11). Enforcement proceedings can be taken against the defendant to secure payment of any sums outstanding after this time.
counting time rules (4)
- day on which a period begins is never counted
- if the end of a period is defined by reference to an event (hearing, trial), the day of the event is not included
- where the period is 5 days or less, any Saturdays, Sundays, Bank Holidays, Christmas Days or Good Fridays in the time period do not count
- where a deadline relates to doing any act at the court office (such as filing a document at
court), and (applying the 3 rules above) the deadline that act ends on a day the court office is closed, the act is treated as ‘on time’ if done on the next day the court office is open.
what is default judgment?
an application for judgment to be granted in the claimant’s favour without a trial
if the defendant has not responded to the claim by either serving an acknowledgment of
service or a defence within the prescribed time limits (CPR 12.1)
in which types of claim can default judgment not be obtained?
- claims for delivery of goods subject to an agreement regulated by the Consumer Credit Act 1974
- Part 8 claims
- any other claims where a practice direction provides that the claimant may not obtain default judgment.
what must the claimant show to obtain default judgment?
- At the date on which judgment is entered, time has expired for filing an acknowledgment of service (and the defendant has not filed either an acknowledgment of service or a defence) or
time has expired for filing a defence (where the defendant has filed an acknowledgment of service but not a defence). - The claim has not been admitted or satisfied by the defendant.
- No application for summary judgment or strike out has been made has been made by D.
what is strike out?
the deletion of written material from the whole or part of the claim or defence, as it does not amount to a legally recognisable claim or defence.
how is default judgment different to strike out?
strike out looks at the merits of the case; default judgment is the consequence of the defendant failing to respond on time, and is purely procedural.
what is summary judgment?
cases which are weak on the facts / merits will be decided without trial, if one or other party has:
- no real prospect of succeeding on or successfully defending the claim or issue; and
- there is no other compelling reason why the claim or issue should proceed to a trial.
how to obtain default judgment: money claims - specified sum
claimant may file a request for judgment on the specified form and the application will be dealt with on paper. The court will make a judgment for the amount sought, fixed costs and interest accrued to the date of judgment.
how to obtain default judgment: money claims - unspecified sum
the claimant may file a request for judgment on the specified form and the application will be dealt with on paper. The court will enter a judgment for a sum to be decided by the court and will set a timetable leading up to a hearing at which the court will decide that sum.
how to obtain default judgment: non-money claims
Non-money applications for default judgment (together with a small number of other claims,
which are beyond the scope of this section) cannot be decided on paper. Instead the claimant must apply for a default judgment hearing to be listed at which the court will hear from the claimant as to why default judgment should be granted and what judgment should be given. The court will then give whatever judgment it considers appropriate
how to obtain default judgment: interest
A default judgement on a claim for a specified amount of money may include the amount of
interest claimed to the date of judgment (CPR 12.7) provided:
* The particulars of claim include details of the interest (as required by CPR 16.4);
* Where statutory interest is claimed (under s.35A of the Supreme Court Act 1981 or s.69 of the County Courts Act 1984), the rate is no higher than the rate of interest payable on judgment debts at the date when the claim form was issued; and
* The claimant’s request for judgment includes a calculation of the interest claimed to the date of the request for judgment.
In any other case, the amount of interest will be decided by the court.
how to obtain default judgment: claim against more than one defendant
A claimant may obtain a default judgment against one or two or more defendants and proceed with the claim against the other defendants if the claim can be dealt with separately from the claim against the other defendants (CPR 12.9).
Sometimes the claim cannot be dealt with separately (eg where the claim against the two defendants is ‘in the alternative’, meaning the claimant alleges one (and only one) of the defendants is liable, but does not know which). The success of one claim and the failure of the other go hand in hand, so they cannot be dealt with separately. So the court will deal with the application for default judgment against one defendant at the same time as it disposes of the claim against the other defendants – quite possibly at trial.
what are the two cases in which default judgment might be set aside?
- if judgment was wrongly entered (must be set aside)
- if judgment was correctly entered (may be set aside)
If judgment was wrongly entered, what reasons must the court consider?
The time limit for acknowledging service or
serving a defence has not, in fact, expired when judgment was entered; or
- An acknowledgment of service or defence had, in fact, been filed on time; or
- Summary judgment or strike out had been
applied for before judgment was entered; or - The defendant had, in fact, satisfied the whole of the claim before judgment was entered or admitted the claim or required time to pay.
and
how promptly the defendant made its application to set the judgment aside
If judgment was correctly entered, what reasons might the court consider?
- The defendant has a real prospect of successfully defending the claim; or
- It appears to the court that there is some other good reason why judgment should be set aside or varied or defendant should be allowed to defend
and
how promptly the defendant made its application to set the judgment aside
what are some examples of ‘some other good reason why judgment should be set aside’?
- the claimant lulled the defendant into believing a claim was not forthcoming,
- the claimant failed to serve a response pack, or
- the claim raises issues which should be given a full and fair hearing in the public interest.
how might a party apply to set aside default judgment?
by applying for relief from sanctions
from which case does the relief from sanctions test come?
Denton
can a court set aside default judgment with conditions attached?
yes
eg that the defendant pays
the claimant’s costs of the hearing.
what does every statement of case need, and why?
a statement of truth
If the document turns out to contain a false statement and the person signing
the statement of truth does not have an honest belief that the statement was true, then proceedings for contempt of court may be brought against the person signing.
This can lead to sanctions within the proceedings, fines and/or imprisonment in serious cases
Statement of truth where the party is an individual
I believe that the facts stated in this claim form are true.
….I understand that proceedings for contempt of court may be brought against anyone who
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.
Statement of truth where the party is a company
The defendant believes that the facts stated in this defence are true. I am duly authorised by the defendant to sign this statement….
….I understand that proceedings for contempt of court may be brought against anyone who
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.
who prepares the claim form?
the claimant
how will the value of the claim be stated in the claim form?
- ‘The claimant expects to recover less than £10,000’
- ‘…between £10,000 - £25,000’
- ‘…more than £25,000’
(this information is used to provisionally allocate a claim to a track);
OR
- ‘I cannot say how much I expect to recover’.
how will the value of the claim be stated in the claim form? (PI cases)
the claimant must state whether the amount which the claimant expects to recover for pain, suffering and loss of amenity is or is not more than £1,000.
Sometimes the claimant has a choice whether to issue the claim in the County Court or High
Court. If the High Court is chosen in this situation, what additional items does the claimant need to include in the claim form?
a special ‘jurisdictional endorsement’:
- state that the claimant expects to recover more than £100,000;
- state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment;
- if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or
- state that the claim is to be in one of the specialist High Court lists and state which list.
if the particulars of claim are served separately from the claim form, what additional detail must they contain?
the claimant’s address for service
specific requirements for the particulars
- The particulars of claim should set out any claim for aggravated damages, exemplary
damages and/or provisional damages, giving the grounds for claiming them (CPR 16.4). - In personal injury claims, the particulars should include the claimant’s date of birth, details of his/her injuries, and attach a schedule of past and future expenses losses and the report of any expert medical practitioner which is relied on (16 PD 4).
- A claim in relation to the possession, occupation, use or enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make clear whether it includes residential premises (16 PD 7.1).
- Where the claim is based on a written agreement, it should be attached (with any general conditions which are incorporated) (16 PD 7.3).
- Where the claim is based on an oral agreement, the particulars should set out the words spoken, by whom, to whom, when and where (16 PD 7.4).
- Where the claim is based on an agreement by conduct, the particulars should set out the
conduct relied on and state by whom, when and where the acts were done (16 PD 7.5). - There are detailed rules on the inclusion of information in relation to past convictions, fraud illegality, unsoundness of mind (16 PD 8).
- Any human rights arguments relied upon / relief sought (16 PD 14) must be included in the particulars of claim.
what might be the legal basis of claim for interest (particulars of claim)?
- set out in a contract between the parties or, failing that,
- there is a statutory right to interest (under section 35A Senior Courts Act 1981 in the High Court and section 69 County Courts Act 1984 in the County Court).
what are the two ways of setting out the paragraph(s) claiming interest?
- Calculating exactly the amount of interest claimed; or
- Claiming (‘pleading’) the interest generally.
when is an exact calculation of interest used?
only in relation to a specified claim (ie a debt or a specified/liquidated damages claim).
for an exact calculation of interest, what needs to be set out?
- the applicable percentage rate,
- the dates from/to which interest is being claimed,
- the total amount claimed up to the issue of the claim form, and
- the daily rate of interest thereafter.
when is interest pleaded generally?
for an unspecified claim (the court must decide the amount, because the parties cannot agree)
Certain types (or ‘heads’) of damage will naturally fall into this category, eg:
- loss of goodwill or damage to reputation (which can usually only be estimated),
- loss of future earnings or profits, and
- any damages where remoteness, foreseeability and/or mitigation is an issue.
from an interest perspective, what happens if the claim is partly specified and partly unspecified?
For such ‘hybrid’ claims, you have a choice:
1. treat the two claims separately, working out the interest for the specified claim and making a general claim for the unspecified claim.
2. the two claims together come to a total which is an unspecified claim and therefore treat the whole claim as an unspecified claim.
what principles apply to statutory interest claims?
- Generally, the court has a discretion as to whether to award interest, and how much, from the date the cause of action accrued until judgment (or until payment, if before judgment). Different provisions cover interest after judgment (if the judgment sum is not paid), and these are outside the scope of this section.
- In personal injury claims where damages over £200 are awarded, some interest must be
awarded unless there are special reasons for not doing so, but the amount is still in the court’s discretion. - In debt claims, if the defendant pays the whole debt during the proceedings, some interest must be awarded, but the amount is still in the court’s discretion.
standard wording for introducing each party
At all material times the Claimant was a
professional equities investor and the
Defendant was a firm of solicitors.
standard wording for the relevant duty (or duties), including any necessary background facts
By a contract dated 24 October [year], the
Claimant and the Defendant agreed that the
Claimant would sell to the Defendant
computers for the price of £200,000.
standard wording for specifying the breach(es)
In breach of the express term of the contract
referred to in paragraph 4 above, the
Defendant did not pay.
standard wording for pleading causation (linked to the breach)
As a result of the breach referred to in
paragraph 5 above, the Claimant has
suffered loss.
standard wording for setting out loss (and interest claim).
The Claimant claims the sum of £200,000.
what comes after setting out loss (and interest claim)?
a summary of the remedies sought by the claimant - the ‘prayer’
example of a prayer
AND THE CLAIMANT CLAIMS:
(a) damages under paragraph 13 above; and
(b) interest under paragraph 14 above.
what comes after the prayer?
the name of the firm of solicitors or barrister drafting the particulars of claim and the statement of truth
for claims based on written agreement, what must be included?
must attach the written agreement
for claims based on oral agreement, what must be included?
must set out words spoken, by whom, to whom, when and where
for PI claims, what must be included?
must include claimant’s date of birth, injuries, schedule of past and future expenses / losses and any medical expert report
in a defence, what are three options in relation to each allegation?
- admit;
- deny; or
- require proof
what must a defendant include in its defence if it denies an allegation?
must give reasons
or
if it wishes to put forward a different
version of events, it must state its version in the defence
what effect will the denial have on the claimant?
the claimant will have to prove the allegation
when would a defendant want to require proof of an allegation?
if the defendant does not have any knowledge of the fact alleged
what are the consequences for the defendant’s failing to deal with an allegation?
- If the defendant omits to deal with any allegation made by the claimant, the defendant will be deemed to admit it, unless it has set out its own case in respect of that allegation, in which case it will be deemed not to admit it, ie to require the claimant to prove it (CPR 16.5(3) and (5)).
- In a money claim, however, it will always be understood that the amount claimed is not
admitted unless the defendant specifically admits it (CPR 16.5(4)).
It is still good practice to ensure that every allegation set out in the particulars of claim is dealt with in the defence.
defence contents
[UPDATE LATER]
what is ‘set-off’?
‘I don’t owe you X, because you owe me X, and the two cancel each other out’.
what is a Reply?
an optional statement of case
who serves a Reply and why?
- served by the claimant
- factual allegations which answer ‘new’ points raised in the defence
when should a Reply be filed?
with the directions questionnaire (DQ)
how much notice are parties given for the deadline for filing the DQ and Reply?
at least 14 days’ notice
(unless specialist proceedings e.g., Commercial Court claims)
does the Reply need a statement of truth?
yes
A Reply should be the last statement of case in a claim. What is needed to file any statement of case after the Reply?
permission of the court
when is a classic counterclaim made?
usually at the same time as the defendant files its defence
If a counterclaim is made after the defence has been filed, what is required?
permission of the court
is a defendant’s counterclaim against the claimant pursued in the same
proceedings as the main claim?
yes. it is usually more convenient to deal with the main claim and counterclaim together rather than separately, as long as the parties are suing/being sued in the same
capacities as in the main claim
what can happen if the court does not think the counterclaim should be heard with the main claim?
it can order that the counterclaim be struck out or heard separately
how is a counterclaim normally filed?
- with the defence (‘Defence and
Counterclaim’) - court fee is payable
what is the defence of set off?
The facts that give rise to a counterclaim may also amount to a partial or complete defence in the main claim
what effect does the defence of set off have on a claim?
extinguishing any claim up to the same amount
example of set off
what are the most important legal bases for set off?
-
S.53(1) Sale of Goods Act 1979: Where the seller sues for the price of goods sold and delivered, the buyer can set off a claim for breach of implied terms as to quality
and fitness for purpose. -
Defective services: Where a claim is made for the price of
services, the defendant can set off a claim for
damages for poor services. - Equitable set-off: This has been developed by the courts when it considers that there is such a close connection between the two transactions that it would be manifestly unjust to allow enforcement of one claim without taking into account the cross-claim.
what does set off apply and not apply to?
applies to: debts
does not apply to: damages
where should the defence of set-off be set out?
the defence part of the Defence and Counterclaim (not the counterclaim part)
example of form of set off (usually be the last paragraph of the defendant’s defence before the start of the counterclaim)
Further or in the alternative, if the Defendant is held liable to the Claimant, the Defendant will seek to set off against the Claimant’s claim as much of the sum awarded by way of counterclaim in these proceedings as to reduce it or extinguish it altogether.
what are the timing requirements for claimant to acknowledge service of the counterclaim using an acknowledgment of service?
none. a claimant does not have to do this.
what are the timing requirements for claimant to filed and serve a defence to a counterclaim?
must be served within 14 days after service of the counterclaim
if a claimant wishes to defend a counterclaim, what are the consequences for failure to do so?
a judgment in default might be entered by the defendant
how does a claimant file their Reply to a counterclaim?
the ‘Reply and Defence to Counterclaim’ normally form one document with the defence to counterclaim following on from the reply
A Reply should be the last statement of case in a counterclaim. What is needed to file any statement of case after the Reply?
permission of the court
list of additional claims
- A counterclaim by a defendant against the
claimant. - A counterclaim by a defendant against the
claimant and some other person. - An additional claim by a defendant against
any person (already a party to theproceedings) claiming a contribution or an
indemnity.
An additional claim by a defendant against
any person (already a party to the proceedings) claiming some remedy other
than a contribution or an indemnity. - An additional claim by a defendant against
any person (not already a party to the
proceedings) claiming a contribution or an
indemnity or some other remedy. - An additional claim being made by a party
which has itself been joined to the main
proceedings pursuant to CPR 20.
is a claim by the original claimant an additional claim?
no. a claim by the original claimant cannot fall into any of the categories above, even if the claimant is adding a further claim to its existing claim
what is a ‘contribution’?
right of someone to recover from a third person all or part of the amount
which he himself is liable to pay
what is an ‘indemnity’?
right of someone to recover from a third person the whole amount which he
himself is liable to pay.’
- A counterclaim by a defendant against the
claimant. - A counterclaim by a defendant against the
claimant and some other person. - An additional claim by a defendant against
any person (already a party to theproceedings) claiming a contribution or an
indemnity.
An additional claim by a defendant against
any person (already a party to the proceedings) claiming some remedy other
than a contribution or an indemnity. - An additional claim by a defendant against
any person (not already a party to the
proceedings) claiming a contribution or an
indemnity or some other remedy. - An additional claim being made by a party
which has itself been joined to the main
proceedings pursuant to CPR 20.
- A counterclaim by a defendant against the
claimant.
A counterclaim by a defendant against the
claimant and some other person.
permission required
An additional claim by a defendant against
any person (already a party to the proceedings) claiming a contribution or an
indemnity.
An additional claim by a defendant against
any person (already a party to the proceedings) claiming some remedy other
than a contribution or an indemnity.
- An additional claim by a defendant against
any person (not already a party to the
proceedings) claiming a contribution or an
indemnity or some other remedy.
- An additional claim being made by a party
which has itself been joined to the main
proceedings pursuant to CPR 20.
Examples include:
- The defendant’s loss in the additional claim arises solely out of anything the defendant is
ordered to pay to the claimant in the main claim. - There will frequently be related matters of evidence and fact which, once decided in the main claim, resolve the point in the additional claim as well.
for which additional claims is court permission always required?
- counterclaims against a person other than claimant
-
for which additional claims is court permission required if not filed at the same time / with the defence?
- classic counterclaim
- claims for a contribution or indemnity from an existing party
- other additional claims
what procedure must be following to obtain permission?
the ‘normal’ interim application procedure:
- The Application Notice will be accompanied by a draft order and evidence in support which will include details of the stage the main claim has reached, details of the additional claim, a summary of the relevant facts, explanation of any delay and the name and address of any proposed party
what form do classic counterclaims take?
‘particulars of counterclaim’
what form do counterclaims against a person other than a claimant take?
serve the appropriate notice (???)
If done in circumstances when the court’s permission is not required, the notice is filed and served with the defence.
If the court’s permission is required, the court will give directions as to when the notice should be served.
how are other additional claims started?
by issuing an N211 claim form
If the court’s permission is required, the court will give directions as to when the notice should be served. If an additional claim is made without court permission, when and how should the claim firm be served?
on the person against whom it is made within 14 days of it being issued
A party upon whom an additional claim is served becomes a party to the proceedings
if he was not already a party
If an additional claim is served on someone who is not already a party to the proceedings, it must be accompanied by what?
- a response pack; and
- a copy of every statement of case and any other documents that the court directs.
A copy of the additional claim form must also be served on every existing party
when will the court direct claims to be dealt with separately?
if there is no substantial connection between the original proceedings and the proposed additional claim
what will the court do if a defendant to an additional claim files a defence, other than to a counterclaim?
the court will arrange a hearing to consider case management of the additional claim
who is given notice of the hearing to consider case mgmt of the additional claim?
Notice of the hearing will be given to any party likely to be affected by any order made at it – in most cases this will be all of the parties.
how should additional parties be referred to in the title to the proceedings?
in accordance with the order in which they are joined to the proceedings, e.g., ‘Third Party’ or ‘Fourth Party’
What happens if the person on the receiving end of an additional claim does not respond?
- If a party does not file a defence to a counterclaim then a defendant can apply for default judgment as usual (CPR 12.3(2)(b)).
- If an existing party does not reply to a notice of contribution or indemnity, it is not possible to apply for a default judgment.
- Where an additional claim form (N211) is served on a person not already a party, it should be accompanied by an acknowledgment of service and a response pack. If a party fails to reply to a Form N211 in the appropriate way/within the specified time limits then it will generally be deemed to admit the claim and will be bound by the judgment or decision given at trial of the
main claim (to the extent that it is relevant to any matter arising in the additional claim) (CPR 20.11(2)). It is not possible to apply for default judgment in such claims, other than in exceptional circumstances
general amendments
CPR 17
Amendments which remove, add or substitute a party
CPR 19
who will usually be responsible for the costs of and arising from the amendment/substitution or addition of a party?
the party applying for the amendment / substitution or addition of a party
when can a party amend an SoC / remove, add or substitute a party without permission or consent?
at any time before it is served
but this is subject to the court’s power to disallow such amendments
when can any SoC be amendment with the written consent of all other parties?
at any time
but this is subject to the court’s power to disallow such amendments
When an amended statement of case is filed without the need for permission, how should the endorsement read?
‘Amended [particulars of claim/defence (or as may be)] under CPR [rule 17.1(1) or 17.1 (2)(a)]
dated …’
When must a party apply to the court for permission to make an amendment?
When a statement of case has been served and the written consent of all the parties has not been given
what is the procedure for applying to the court for permission to make an amendment?
- party seeking the amendment should file an application notice with the court, together with a copy of the proposed amended statement of case
- application can be dealt with at a hearing OR (where all parties consent) without a hearing on written submissions
If permission to amend is given, what will the court usually do next?
usually give directions as to any consequential
amendments and the service of any amended statements of case
in any event, when should any amended statements of case be filed?
usually within 14 days of the date of the order granting amendment, unless the court orders otherwise
When an amended statement of case is filed with permission, how should the endorsement read?
‘Amended [particulars of claim/defence (or as may be)] by order of [Mr Justice…] dated …’
when should an SoC be re-verified by a statement of truth?
If the substance of the statement of case is changed by reason of the amendment
When will the court give permission to amend?
no specific guidance
however, parties are expected to be cooperative in litigation so, once the necessity to amend has become apparent, a party should tell their opponents about the
proposed amendment so as to enable them to consider whether to oppose or consent to it
when will an application for permission to amend a defence be refused?
if it is clear that the proposed amendment has no prospect, for example:
- version of the facts which is inherently implausible, self-contradictory or is not
supported by contemporaneous documentation.
- raising by amendment an allegation which is unsupported by any evidence and is therefore pure speculation or invention. required statement of truth verifying such an amendment could not properly be given.
how does the court treat late amendments?
- can potentially cause unfairness in that it might put the parties on an unequal footing;
- add an excessive burden to the respondent’s task of preparing for trial;
- could put the trial date at risk, which is always something that the court will wish to avoid
key case on late amendments: Swain-Mason and ors v Mills & Reeve [2011]
In this case the Trial Judge had allowed the claimants in a professional negligence action to reamend their particulars of claim on the first day of trial. The Court of Appeal said that the judge had misdirected himself and set out the following principles:
(a) The court should be less ready than it used to be to allow a very late amendment, where the need for the amendment does not result from some late disclosure or new evidence.
(b) A heavy onus lies on the party seeking a late amendment to justify it, not only as regards its own position, but also in relation to other parties to the litigation and other cases before the court, and to give evidence as to why the application is made at such a late stage.
(c) The party seeking the late amendment must satisfy the full requirements of preparing a proper pleading. In other words, the party cannot say that deficiencies can be rectified by
way of further information or evidence in due course.
what is the limit on adding / removing / substituting parties to a claim?
no limit
what test must be satisfied when seeking to add, remove or substitute a party?
the amendment is ‘desirable’
what will the court consider when deciding whether an amendment is ‘desirable’?
- enabling parties to be heard if their rights may be affected by a decision in the case
- the overriding objective (adding parties adds to time/cost/complexity)
to add a claimant, whose consent is needed?
- the new claimant’s consent
- the court (unless the claim form has not been served)
what happens if someone refuses to be added as a claimant?
they can instead be added as a defendant
on what basis is permission to amend given?
that the amending party must pay the costs of and arising from the amendment
what is the starting point for amendments made after the limitation period?
such amendments will not be allowed
are there any exceptions to the rule that, for amendments made after the limitation period, such amendments will not be allowed?
These include when an original set off or
counterclaim is raised by an amendment and where otherwise provided in the Limitation Act and by the rules of the court. The relevant situations to consider are:
* Amendments in relation to personal injury claims (s.33 Limitation Act 1980)
* Amendments generally (CPR 17.4)
* Amendments which add or substitute a party (CPR 19.5)
can a new cause of action be added to an existing statement of case after the limitation period has expired?
yes, but only in the following circumstances:
- When the court directs that the limitation period will not apply in a personal injury action (s.33 Limitation Act 1980). This provision gives the court a general discretion to disapply that time limit if satisfied that it is equitable to do so. For example, the cause or significance of personal injuries or disease caused by someone’s negligence might not be apparent within the standard 3 year limitation period for personal injury claims and this could be a reason for the court to exercise its discretion under this provision in order to do justice. If an action on some other basis was already underway, it could be amended under this provision to add this new claim after the limitation period had expired.
- The new cause of action is an original set-off or counterclaim (s.35(3) Limitation Act 1980).
- The new cause of action arises out of the same facts or substantially the same facts as are already in issue in the original claim (s.35(5)(a) Limitation Act 1980.
The court may allow the amendment when the effect will be to substitute or add a new claim after the end of the limitation period, but only if
the new claim arises out of the same facts (or
substantially the same facts) as a claim in respect of which the party seeking permission to amend has already claimed a remedy
who must prove that the proposed amendment falls within the above criteria?
the applicant
what does and does not constitute a ‘new cause of action’?
An amendment adding a new duty or obligation on the part of a defendant (or possibly even a claimant) will usually raise a new cause of action so this will be a new claim.
An amendment adding additional facts or particulars which clarify a duty or obligation which has already been alleged, will not normally be interpreted as raising a new cause of action.
can you add/substitute parties post limitation?
yes, for example the below, but must meet certain criteria.
- correcting a mistake as to the name of a party (CPR 17.4(3))
- changing the capacity of a party (CPR 17.4(4))
- changing the identity of a defendant (CPR 19.5)
what are the requirements for adding/substituting parties post limitation
- the limitation period was current when the proceedings were actually started; and
- the addition or substitution is ‘necessary’ (CPR 19.5(2).
‘necessary’ means:
(a) the new party is to be substituted for one that was named in the claim form in mistake for the new party; or
(b) the claim cannot properly be carried on/by/against the original party unless the new party is added or substituted; or
(c) the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.
what is the court’s approach wrt to changes in name only, versus changes in identity, post limitation?
amendments post limitation in relation to the name of the party might be allowed
but those relating to someone with an entirely new identity will not be allowed.
Has the intended defendant been identified in the statements of case ‘by reference to a
description more or less specific to the particular case’? (The Sardinia Sulcis [1991])
requirements for format of the amendment SoC
- There is no need for the amended statement of case to show the original text, unless the court orders otherwise (17 PD 2.2).
- Amendments are to be shown by either: (i) using coloured amendments; or (ii) by using a
numerical code (17 PD 2.2). - If colour coding is used, the order of colour for successive amendments is (1) red (2) green (3) violet and (4) yellow.
- The amended statement of case should contain the appropriate endorsement (see 17 PD 2.1) and be verified by a statement of truth (CPR 22.1(2)).
- Finally, once an amended statement of case has been served, there will often be knock on
amendments to the existing statements of case so eg if the particulars of claim are amended, the defendant will likely need to amend their defence as a consequence.
summary of permission to amend: general amendments to SoCs / amendments removing, adding or substituting parties
summary in relation to mistake as to ‘parties’ after the limitation period has expired
why would a party wish to make a ‘request for further information’
- To obtain admissions (although this is rare)
- To obtain information which may reveal weaknesses in the other party’s case
- To obtain information about facts which the other party needs to prove to make good their
case - To acquire advance details of what a witness may say before exchange of witness statements.
- To obtain clarification of the other party’s case (a common and useful function as it limits the other party’s ability to depart from it later)
- To narrow the issues between the parties to save time and costs
when making a request for further info, what must a party do initially?
- seek information from the other party on a voluntary basis first
——serves a written request
——stating a date for response
——allowing the other party a reasonable amount of time to respond
——confined to matters which are reasonably necessary and proportionate - only make an application to the court if the request cannot be resolved
how should a party respond to a request for further information if it agrees to the request
- must be written, dated and signed by the party or its legal representative and include a statement of truth
- response must be sent to the other party
- and filed at court
how should a party respond to a request for further information if it objects to the request
- must inform the party who made the request
- giving reasons for the objection
- within the timeframe set out in the request
e.g., If the request can only be complied with at disproportionate expense, the reasons why must be explained, for example, the request is about matters that are irrelevant, disproportionate, not reasonably necessary or privileged.
if a party sends a request for further info to court, what can the court do?
- can order a party to clarify any matter which is in dispute in the proceedings
- give additional information in relation to any such matter whether or not the matter is contained or referred to in a statement of case
when is an application to court for further info appropriate?
- the other party has not responded or
- has responded with an objection to provide the information
what type of application is a request for further info from the court?
- interim application
- If, the other party has not responded after 14 days have passed, the application can be made without notice to the opponent and the court can deal with the application without a hearing.
- If a court makes an order for further information, the party against whom the order made must file its response and serve its response on the other parties within the time specified by the court, verified by a statement of truth.
- The court can direct that further information given by a party to another party either voluntarily or pursuant to an order is not be to used for any purpose other than the current proceedings
what are interim applications used for?
for example:
* extending the time period for taking a particular step in the proceedings (like filing a defence)
* applying to amend a statement of case
* requiring the other party to provide further information
* requesting specific disclosure of a document
* seeking permission to rely on expert evidence.
who can make an interim application?
any party
in accordance with the overriding objective, what should the parties consider in relation to interim applications?
parties should take a reasonable approach to trying to agree matters to avoid the need for an application to court
however, when should a party make an interim application?
as soon as it becomes apparent that it is necessary or desirable to make an application
when might some interim applications be dealt with?
- at the same time as the case management conference; or
- if closer to trial, at the pre-trial review.
what is the specific obligation that parties are under wrt their interim applications?
they must ‘bunch’ their applications: get their apps dealt with in a single hearing wherever possible
what are the parties in interim applications called?
party making the application: applicant
the other party: respondent
what is the interim application process?
- file Form N244
- court fee payable to issue the application notice
- made to the court in which the main claim is presently being dealt with or, in the case of pre-action applications, is likely to be dealt with
- evidence (advisable, even if not required by the CPR)
- draft order (setting out the terms sought)
The applicant takes or sends to the court the application notice, evidence and draft order. The court issues the application and provides a notice indicating the date and time that the
application will be heard by the court.
what does Form N244 state?
(a) Who is making the application
(b) What order the applicant wants
(c) Why the applicant is asking for that order
(d) What information the applicant relies on in support of the application.
how can evidence be given for an interim application?
- In the application notice itself (Part C, in which case the statement of truth must also be completed (23A PD 9.7))
- By referring to the existing statements of case
- In a witness statement (or, if required, affidavit).
who can serve the application notice and supporting docs?
- the court may
- but in practice the applicant’s solicitor serves it
summary of how to make an interim application - normal procedure
- service as soon as practicable but no less than 3 clear days before the hearing
- respondent files and serves evidence ASAP
- applicant files and serves evidence ASAP
how are most interim applications dealt with?
by hearing
when will a telephone hearing be likely for interim applications?
if the hearing is expected to last no more than on hour
when will a video hearing be likely?
exceptionally (rarely)
when might an interim application be dealt with in the absence of a hearing?
- The parties have agreed the terms of the order (in which case they should send in a ‘consent order’ – a order in the agreed form, signed on behalf of each party);
- The parties agree there should be no hearing; or
- The court does not consider a hearing appropriate.
what does the court does once it has considered the application?
the court will make its decision and the order will be drawn up, sealed and served by the court
when is a without notice interim application permitted?
only if:
(a) there is exceptional urgency (for example, a remedy is needed immediately);
(b) the overriding objective is best furthered by doing so;
(c) all parties consent;
(d) the court gives permission;
(e) a court order, rule or practice direction permits; or
(f) a date for a hearing has been fixed, a party wishes to make an application at that hearing,
and the party does not have sufficient time to serve an application notice. In this case, the
party should still inform the other party and the court (if possible in writing) as soon as
possible of the nature of the application and the reason for it.
To mitigate the risks of unfairness in making an application without notice, what procedural safeguards are in place for without notice hearings?
(a) The application must explain why no notice is given;
(b) The applicant must draw to the court’s attention arguments and evidence in support of the (absent) respondent’s position.
(c) The applicant must serve the respondent as soon as possible after the hearing, whether or not the court has granted the relief sought. The documents the applicant must serve on the respondent are:
- The application notice
- The evidence in support
- The order
(d) The court order must contain a statement of the respondent’s right to make an application to set aside or vary the order. Any application to set aside must by made within 7 days of the order being served on the other party (CPR 23.10).
what is an interim payment?
A claimant may wish to ask for an interim payment to assist it financially in the interim period prior to settlement/trial, for example, in a personal injury claim. Any payment would be made on account of damages.
who can make an interim payment application?
only claimant
Conditions to be satisfied for interim payment?
- The defendant has admitted liability to pay damages (or some other sum of money) to the claimant.
- The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed.
- It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a
substantial amount of money against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim.
for interim payments, what must the evidence deal with?
- The reasons for believing that the conditions for making an interim payment are satisfied;
- The sum of money for which final judgment is likely to be given;
- The sum of money sought by way of an interim payment;
- The items or matters in respect of which the interim payment is sought;
- Any other relevant matters;
- In claims for personal injuries, details of special damages and past and future loss; and
- In claims under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made and the nature of the claim.
should the claimant make an application to the court right away?
no:
- A claimant seeking an interim payment would make a request for a voluntary payment from the defendant first
- If the defendant does not agree, for example if it is defending the claim, the claimant would make an application to the court for an interim payment
when can the claimant can make a request to the defendant for a voluntary interim payment?
at any stage in the proceedings, including pre-action, but not before the end of the period for the defendant filing an acknowledgment of
service
how many interim payment application can the claimant make?
more than one (does this mean unlimited?)
what are the financial limits on an interim payment?
The court must not make an interim payment of more than a reasonable proportion of the likely amount of the final judgment, taking into account any contributory negligence, set-off or counterclaim – (CPR 25.7). It may order payment in instalments.
procedure for interim payment applications?
- service of N244, supporting evidence, draft order and notice of hearing date at least 14 days before the hearing
- respondent files at court and serves on the application evidence at least 7 days before the hearing
- applicant files at court and serves on the respondent evidence in reply at least 3 days before the hearing
- both parties file and exchange statements of costs not less than 24h before the hearing
does an interim payment get disclosed to the judge at trial?
no
who can make a security for costs application?
- By a defendant against a claimant (which is the usual case)
- By a claimant against a defendant in respect of a counterclaim
- By a third party against a defendant in respect of an additional claim (CPR 20)
what are the grounds for security for costs?
(a) Having regard to all the circumstances of the case, it is just to make and order; AND
(b) One or more of the prescribed conditions in the rules are satisfied
what are the prescribed conditions?
- Claimant is resident out of the jurisdiction(( (but is not resident in a State bound by the 2005 Hague Convention) (‘Claimant resident out of the jurisdiction’)
- Claimant is a company and there is reason to believe it will be unable to pay the
defendant’s costs if ordered to do so (‘Impecunious claimant company’ condition) - Claimant has taken steps in relation to its assets that would make enforcement of a costs order against it difficult (‘Claimant moving assets’ condition)
- Claimant has changed address since claim was commenced with a view to evading the consequences of the litigation (CPR 25.13(2)(d)).
- Claimant failed to give an address in the claim form (CPR 25.13(2)(e)).
- Claimant is acting as a nominal claimant and there is reason to believe it will be unable to pay the defendant’s costs if ordered to do so (CPR 25.13(2)(f)).
‘Claimant resident out of the jurisdiction’ - what does ‘resident’ mean?
- For an individual this is their habitual or normal residence.
- For a company this is where the company’s central management and control is exercised and it is usually, but not necessarily, where it is incorporated.
‘Claimant resident out of the jurisdiction’ - what does ‘out of the jurisdiction’ mean?
not in:
- E&W
- UK
- EU
- Mexico
- Singapore
- Montenegro
(because there are some (albeit
limited) reciprocal arrangements between these states which would ease the enforcement of a costs order)
can the ‘Impecunious claimant company’ condition apply to an individual?
no, only companies
what must the defendant show to meet the ‘Impecunious claimant company’ condition?
a) The company will be unable to pay costs - only a reason to believe but no need to show on balance of probabilities, even if
the claimant company can adduce substantial evidence to the contrary (Jirehouse Capital v
Beller);
and
b) the amount of the likely costs.
if one of the prescribed conditions is made out, does the court have to give security for costs?
not necessarily. the court must also be satisfied that it is just to make an order
what are the main considerations when deciding whether it is just to make an order? (Sir Lindsay Parkinson)
can the respondent comply with any order for security for costs? ie:
balancing the potential injustice to the claimant in being prevented from carrying on with the claim if it cannot pay the security
against
the injustice of the defendant being at risk on costs if no security is provided
what are the other considerations when deciding whether it is just to make an order? (Sir Lindsay Parkinson)
- Ability to comply with the order;
- Admission of liability by D;
- Substantial open offers (those the court can be made aware of);
- If D responsible for C’s financial difficulties;
- Claim which appears not to be genuine;
- Claim which appears to have little prospect of success.
- Delay.
what is the usual form of evidence for security for costs?
witness statement, which should cover:
* The ground eg for the impecunious company ground, the witness statement is likely to exhibit the accounts to show the claimant is unable to pay
* The factors in the exercise of the court’s discretion
* The likely costs to trial eg the witness statement is likely to exhibit a statement of costs or to refer to an approved costs budget
* The amount of security requested.
what does the court take into account when fixing an amount it thinks just?
- The amount of the defendant’s likely costs
- The security can be for the whole action or up to a point in time eg up to disclosure
- The amount can cover costs incurred (including pre-action) and future costs
- A deduction can be made for the likely reduction upon assessment of costs or the possibility of settling
- Other factors eg delay may mean that security is not given for costs already incurred but is given for future costs.
what are 4 ways to give security?
- A payment into court
- A payment to the defendant’s solicitor
- A bank guarantee
- An undertaking to pay costs
what is most common way to give security?
payment into court
what is the normal procedure for security for costs?
- service as soon as practicable but no less than 3 clear days before the hearing
- respondent files and serves evidence ASAP
- applicant files and serves evidence ASAP
what are the 3 types of interim injunction?
- Prohibitory injunction
- mandatory injunction
- quia timet injunctions
what is a prohibitory injunction?
Requires the respondent to refrain from doing an act eg An employer has brought a claim against an employee for breaching a
confidentiality clause in an employment
contract. The employer obtains an interim
prohibitory injunction preventing specified
uses of information pending trial.
what is a Mandatory injunction?
Requires the respondent to do a specific act
eg In a claim alleging that a supplier of
computer software failed to deliver up
software at the end of the parties’
relationship, the claimant obtains an interim
mandatory injunction requiring the software
to be delivered up pending trial.
what is a quia timet injunction?
Allow both prohibitory and mandatory
injunctions where a wrong has been
threatened but not yet committed eg In a
claim alleging that the threatened closure of a
bank account would be a breach of statutory
duty, the customer obtains an interim
mandatory injunction requiring the bank to
keep the account open
when may an injunction be granted?
where it is just and convenient
what are the American Cyanamid guidelines?
- Is there a serious question to be tried?
- Would damages be an adequate remedy for a party injured by the court’s grant of (respondent) or failure to grant (applicant) an injunction?
- Where does the balance of convenience lie?
what type of remedy is an injunction?
equitable and discretionary
meaning of Step 1: is there a serious question to be tried?
The court must be satisfied that this is not:
- “frivolous or vexatious”; and
- that “there is a serious question to be tried”.
although Step 1 is generally not too difficult to satisfy, what happens if this test cannot be met?
the injunction will generally be refused (and the court will not go on to consider
steps 2 and 3).
what is considered from the applicant’s perspective for Step 2: would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?
the court will generally refuse an injunction if the applicant could be adequately compensated by damages for any loss caused by the refusal to grant an interim injunction. However, damages may be inadequate if the respondent has no means of paying them or the harm being caused is irreparable, cannot be quantified, or is serious and likely to continue.
what is considered from the respondent’s perspective for Step 2: would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction?
if an injunction is granted, the respondent is going to be prevented from doing something, or required to do something, until trial – but it might transpire that the injunction should never have been granted, most likely if the applicant fails at trial. The court will ask itself whether the respondent could be adequately compensated by the applicant if it transpires that the injunction was wrongly granted. If so, then this suggests the injunction should be granted.
what is considered in Step 3: the balance of convenience?
if it appears that damages would be adequate for neither party, then the court will consider a
very broad range of factors to try to ascertain whether granting or not granting the injunction carries the lesser risk of injustice ie to ascertain where the ‘balance of convenience’ lies.
what are the equitable principles that apply to this remedy?
- An injunction will not be obtained when it would serve no practical purpose;
- The court might refuse to grant an injunction if the applicant has not come to court with
‘clean hands’ - Excessive delay may lead to a refusal of the application.
what is meant by the fact that an injunction is a discretionary remedy?
there is no automatic right to an injunction just because all the ‘guidelines’ have been met
can an interim injunction be made without notice?
yes, but the evidence must state the
reason why notice has not been given
what additional requirements must be met for interim injunctions specifically?
1. undertakings:
- A court will often decide to grant an interim injunction only if the applicant offers an crossundertaking to pay damages to the respondent for any loss sustained by reason of the injunction if it is subsequently held that the applicant ought not to have been granted an interim injunction - for example, if proceedings are discontinued, or the injunction is discharged before trial, or if it is
decided at trial that the applicant had not been entitled to restrain the respondent from doing what it was threatening to do.
- The cross-undertaking is made to the court.
- It is there for the protection of the respondent, but the court can also require (as a condition of granting the injunction) an undertaking to be given for the protection of any other person who may suffer loss because of the order.
2. without notice safeguards
- If the application is made without notice and the injunction is granted, it will be
granted initially for a limited period only
- at a second hearing (return date), the respondent may make representations.
- at the return date, the court can order the following:
* Maintain order (to keep the injunction in place until the trial of the substantive matter).
* Discharge the injunction vary the terms of the injunction.
* Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted.
* Accept an undertaking by the respondent not to do the acts in question, in place of the
injunction.
can any interim application be made without notice, and are there any special requirements?
yes
the applicant must make full and frank disclosure of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant.
can a party apply before a claim form has even been issued?
yes, but only if the matter is:
* Urgent; or
* It is otherwise desirable to do so in the interests of justice.
AND the applicant must undertake to the court to issue a claim form immediately.
what is summary judgment?
Enables the court to dispose of claims or issues without the need for a full
trial
how does Summary judgment further the overriding objective?
allows the court to deal with weak
cases or issues proportionately and expeditiously
what are the grounds for summary judgment?
the claimant has no real prospect of succeeding on the claim or issue
OR
the defendant has no real prospect of succeeding on the claim or issue
AND
there is no other compelling reason why the case or issue should be disposed of at trial.
What does ‘no real prospect’ mean?
fanciful, imaginary or false
what does the respondent need to show for ‘no real prospect’?
just some chance of success, even if it is improbable
what does ‘real’ mean?
more than merely arguable
what is a ‘compelling reason’? (non-exhaustive list)
(non-exhaustive list)
* Defendant needs more time to investigate
* Expert evidence is required
* Multi-party litigation
* Scrutiny of key documents is required
* Defendant has a right to trial by jury eg fraud
in what form does evidence for summary judgment come, and what should it include?
usually a witness statement
- Identify concisely any point of law or provision in a document on which the applicant relies; and
- State the application is made because the applicant believes that on the evidence the
respondent has no real prospect of success and knows of no other compelling reason why the claim / issue should be disposed of at trial.
who can apply for summary judgment, and when?
- The claimant can apply for summary judgment after the defendant has filed an acknowledgment of service or defence (or earlier with the court’s permission)
- The defendant can apply any time after proceedings have commenced.
- The court can fix a hearing of its own initiative
when should an applicant ideally apply for summary judgment?
either before or at the same time as filing the DQ to avoid incurring unnecessary costs.
If the application is made on filing DQ, the court will delay allocating the matter to a track until after the summary judgment hearing.
If the claimant fails to comply with a relevant pre-action protocol, the application for summary judgment by the claimant will not normally be considered before the defence has been filed or time for doing so has expired
what is the effect of a summary judgment application on the proceedings?
it stays the proceedings, meaning that:
- If the claimant applies for summary judgment before the defendant has served a defence, the time for the defendant to file a defence is extended until after the hearing (CPR 24.4(2)).
- If the defendant applies for summary judgment, the defendant does not have to file either an acknowledgement of service or a defence until after the summary judgment hearing.
what is the extended procedure for summary judgment?
- service at least 14 days before the hearing
- respondent files and serves evidence at least 7 days before the hearing
- applicant files and serves evidence at least 3 days before the hearing
formal requirements for the summary judgement application notice?
The application notice must:
* Include a statement that it is an application for summary judgment under Part 24; and
* Direct the respondent’s attention to the CPR which require the respondent to file and serve any evidence at least 7 days before the summary judgment hearing
what are the 4 potential orders at the summary judgment hearing?
- Dismissal of the application
- Dismissal of the claim
- Judgment on the claim
- Conditional order
- Dismissal of the application
The application fails.
The issues must continue to trial.
The court will give directions to take the claim forward.
- Dismissal of the claim
If the defendant applies for summary judgment and succeeds, the claim is dismissed. The defendant has ‘won’.
- Judgment on the claim
If the claimant applies for summary judgment and succeeds, then judgment is entered for the claimant: the claimant has ‘won’.
- Conditional order
The judge has decided that the respondent may succeed but it is improbable that it will do so: the court will refuse summary judgment and allow the respondent to continue only subject to conditions ordered by the court, such as paying a sum of money into court.
although the potential orders following summary judgment assume that the application relates to the whole claim, can the claim relate to only specific issues?
yes
when will costs be deemed proportionate?
if they bear a reasonable relationship to:
* The sums in issue in proceedings;
* The value of any non-monetary relief in issue in proceedings;
* The complexity of the litigation;
* Any additional work generated by the conduct of the paying party; and
* Any wider factors in the proceedings, such as reputation or public importance.
when might a court exercise its power to strike out?
- on its own initiative
- on the application of a party
when should a strike out application be made?
- ASAP; and
- preferably before allocation
strike out is used sparingly. what are the other suitable ways to deal with such an issue?
- requiring the party at fault to amend its statement of case; or
- if the ground for striking out is failure to comply with previous orders made by the court, imposing a sanction such as an adverse costs order.
what are the grounds for strike out?
- the SoC discloses no reasonable ground for bringing or defending the claim;
- the SoC is an abuse of the court process or otherwise likely to obstruct the just disposal of proceedings;
- there has been a failure to comply with a rule, practice direction or court order (abuse in not in the SoC itself, but in the way the claim or defence has been conducted)
on a failure to comply, what is the court likely to do instead of striking out?
make an order imposing a lesser sanction for non-compliance
overview of allocation process
- defence is filed
- court sends out the notice of proposed allocation, provisionally allocating to small claims/fast track/multi-track
- parties file DQs
- if the claim has been provisionally allocated to the fast track or multi-track, the parties also file proposed directions
- the court will allocate the claim to a track (after a hearing, if necessary) and serve a notice of allocation
if allocated to small claims or fast track: the court will usually give directions
if allocated to multi-track: the court will give directions OR fix a CMC where directions will be considered
following the receipt of a defence, what happens next?
- a court officer will provisionally decide the track and serve a notice of proposed allocation
- parties will need to serve a DQ
- (if on fast track or multi-track): file proposed directions; AND
- (for claims under costs mgmt regime): file and serve a costs budget and an agreed budget discussion report
which forms are used for DQ?
Form N180 for small claims track cases
Form N181 for fast track and multi-track cases
what happens if all the parties request a stay on the DQ?
the claim is stayed for a month
what happens if one but not all the parties request a stay on the DQ?
the court can stay the claim if it considers it appropriate
what happens if the case is not settled at the end of the month stay, and the parties have not applied for an extension of the stay to continue negotiations?
the case will be referred to a judge for allocation and directions.
how to determine the correct track
what types of disputes are heard on the small claims track?
- consumer disputes
- personal injury cases where damages for pain, suffering and loss of amenity are less than £1,500 (although
there are different limits for personal injuries arising from road traffic accidents) - to disputes about enforcement of parking charges and holiday claims.
on the small claims track, why will the court rarely order one party to pay any costs
to the other party?
other than very limited fixed costs (and court fees and witness expenses),
there is very limited costs recovery
what do the standard abbreviated directions for small claims usually include?
(a) Parties to file and serve on every other party copies of documents they intend to rely upon no later than 14 days before the main hearing (this in place of more detailed directions for disclosure, witness and expert evidence that you might expect on other tracks);
(b) Original documents to be brought to the hearing;
(c) Notice of the hearing date (at least 21 days’ notice will usually be given) and time allowed for the hearing (CPR 27.4(2)); and
(d) That the court must be informed if, by agreement between the parties, the case settles.
how does the court normally give directions on the fast track?
on the basis of the DQ, but occasionally can hold a hearing
what are the standard directions for the fast track (subject to modification)?
Disclosure - within 4 weeks of notice of allocation
Exchange of witness statements - within 10 weeks
Exchange of experts’ reports (with associated
directions for questions etc) - within 14 weeks
Filing pre-trial checklists at court - within 22 weeks
Trial date/period fixed or trial itself - within 30 weeks
what will the directions for disclosure generally be?
- no disclosure
- standard disclosure, or
- disclosure of particular documents
proportionate to the value/complexity of the claim.
where are fast track trials usually held?
County Court
what type of costs will usually apply to fast track trials?
fixed costs
what is the court likely to consider at a CMC?
At a CMC, the court is likely to consider:
(a) Whether the claim is clear;
(b) Whether any statements of case need to be amended;
(c) What disclosure is required, if any;
(d) What expert evidence is required, and how and when it should be obtained;
(e) What factual evidence (eg witness statements) should be provided for;
(f) Whether any further information is required; and
(g) Whether it will be just and will save costs to order a split trial or the trial of one or more
preliminary issues.
who should attend a CMC?
- Any legal representative attending a CMC must be familiar with the case and have sufficient authority to deal with any issues likely to arise (like discussing directions / identifying issues).
- Court can also order the client to attend
what if a legal rep does not attend the CMC?
If such a representative does not attend and the CMC is postponed as a consequence, it is likely to result in a wasted costs order (a costs order payable by the solicitor as opposed to by the client).
overview of CMC procedure
- budget filed and exchanged not less than than 21 days before first CMC
- disclosure report filed and exchanged not less than 14 days before first CMC
- agreed or draft directions and budget discussion report (and possibly EDQ) filed and exchanged not less than 7 days before first CMC
in relation to the budget, what is the parties’ express obligation wrt directions?
try to agree directions before any CMC
what is the disclosure report form?
N263
what is the EDQ form?
N264
when should the EDQ be filed?
with the Disclosure Report, even where it has already been exchanged
what document drafted by the claimant could also be useful at the CMC?
case summary of not more than 500w, prepared by the claimant and if possible agreed with the other parties, containing:
(a) A chronology of the claim;
(b) Factual issues agreed and in dispute; and
(c) The nature of the evidence needed to decide them.
which cases do not fall under the costs mgmt regime? (all other cases do)
- Small claims.
- Fast track claims.
- Claims commenced on or after 22 April 2014 where the amount of money claimed as stated on the claim form is £10 million or more.
- Claims commenced on or after 22 April 2014 which are for a monetary claim which is not
quantified or not fully quantified or is for a non-monetary claim and the claim form contains a statement that the claim is valued at £10 million or more. - Claims commenced after 6 April 2016 made by or on behalf of a person under the age of 18.
- Claims that are the subject of fixed costs or scale costs.
Note, however, that the court can disapply the costs management regime even when it would
normally apply automatically (for example, where a claimant has as a limited or severely impaired life expectation of 5 years or less remaining – 3E PD 1), or require compliance with the regime even when it would not normally apply.
what is a budget?
An estimate of the reasonable and proportionate costs (including disbursements)
which a party intends to incur in the proceedings
when should a budget be filed is the value of the claim is less than £50,000?
with the DQs
when should a budget be filed is the value of the claim is not less than £50,000?
21 days before the first CMC
overview of the costs mgmt regime
budgets:
- parties prepare budgets: estimates of future costs
- filed and exchanged, usually 21 days before the CMC
- subsequently discussed by the parties
budget discussion reports:
- record the extent to which the parties have agreed budgets
- filed and exchanged, usually 7 days before the first CMC
case / costs mgmt conference:
- budgets and budget discussion reports are considered by the court
directions order and / costs mgmt order:
- directions are determined in light of estimated costs
- court might make a costs mgmt order: a provisional indication of what should be considered reasonable and proportionate costs in any later assessment proceedings
what is the prescribed form for the costs budget?
Precedent H
what is the rule relating to budgeted costs?
a party will only recover budgeted costs unless there is good reason
which costs does the rule that a party will only recover budgeted costs (and no more) unless there is good reason NOT apply to?
costs incurred before the costs budget is produced
ie budgeting is all about future costs
what prescribed form is used for budget discussion reports?
Precedent R
what is included in the budget discussion report?
(a) The figures which are agreed and not agreed for each phase of the litigation; and
(b) A brief summary of the grounds of dispute.
to focus on the parts of the costs budget where there is disagreement
when can the court make a costs management order (CMO)?
at any time
what does the CMO record?
(a) Record the extent to which the costs budgets are agreed between the parties. Agreed figures cannot be changed by the court.
(b) Where the figures are not agreed, “record the court’s approval of a costs budget, after
making appropriate revisions”.
when the court makes a CMO and assessing costs on the standard basis, what does the court look at to determine costs?
a party’s last approved or agreed costs budget
in the context of a CMO, when can the court depart from a party’s last approved or agreed costs budget, and what is considered a ‘departure’?
unless satisfied that there is good reason to do so
departure = allowing costs in excess of those in the approved costs budget or CMO to be recovered
what happens if no CMO is made?
If there is a difference of 20% or more between the costs claimed by a receiving party on detailed assessment and the costs shown in a budget filed by that party, the receiving party must provide a statement of the
reasons for the difference with the bill of costs, and the court may reduce the recoverable sum if the paying party reasonably relied on the budget.
when can a costs budget be revised?
If significant developments in the litigation warrant a revision to a party’s budget (upwards or downwards)
this is not (generally) for correcting
inadequacies or mistakes!
how should a costs budget be revised?
(a) An amended budget should be submitted to the other parties for agreement if possible (using a form prescribed specifically for variations – ‘Precedent T’, annexed to 3E PD);
and
(b) The amended budget then needs to be submitted to court for consideration.
what happens if a party fails to file a costs budget?
automatically treated as having filed a costs budget comprising of only the applicable court fees unless the court otherwise orders
what can sanctions relate to (for example)?
-
Interest (eg reducing the interest payable to the claimant as a sanction imposed on the
claimant) - Costs (eg ordering the defendant to pay costs on the indemnity rather than standard basis, as a sanction imposed on the defendant)
- Striking out a statement of case
when can the court impose sanctions?
- Immediately; or
- Make an unless order
what is an unless order + example?
an automatic sanction in the event of non-compliance with the order. the order must specify the date and time in which to comply.
‘unless the defendant serves its list of documents at or before [time and date] its defence will be struck out and judgment entered for the claimant’
In addition to the court’s direct powers to impose sanctions, what other powers of sanction does the court have?
automatic sanctions
in which situations might automatic sanctions be ordered?
- where failure to disclose an expert report prevents a party from using that report at trial - where failure to file a costs budget will be treated as only filing a costs budget of applicable fees
general rule for varying CPR or court-ordered timings to comply with sanctions
timings may be varied by the written agreement of the parties, unless a rule, practice direction or the court orders otherwise
when would a rule prevent a party from varying the time to comply?
e.g., the rules prevent the parties from agreeing to vary the date for a CMC and most other types of hearing
where a rule, practice direction or court order
(a) Requires a party to do something within a specified time, and
(b) Specifies the consequence for failure to comply, the time for doing the act may not be extended by agreement between the parties UNLESS
parties can agree an extension of time by prior written agreement (ie before the deadline is
reached) for a maximum of 28 days provided that this does not put at risk any hearing date.
unless the court orders otherwise.
If a party fails to comply with a rule, practice direction or court order imposing a sanction, the sanction will take effect unless…
the party applies for and obtains relief from that sanction
when granting relief from sanctions, what 2 things do the rules expressly require the court to consider?
- For litigation to be conducted efficiently and at proportionate cost.
- To enforce compliance with rules, practice directions and orders.
- evidence!
what is the 3-stage test in Denton?
(a) Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice direction or court order which engages CPR 3.9(1). If the breach is neither serious nor significant, then relief should be granted.
(b) If the breach is serious or significant, consider why the default occurred.
(c) Having considered the reason for the default, the court should then evaluate all the circumstances of the case to ensure that the court deals with the matter justly, but with
particular weight to the fact that litigation must be conducted efficiently and at proportionate cost and the court must enforce compliance with rules, practice directions and orders.
when is the Denton test relevant: for out of time or in-time application?
when the deadline has passed - out of time applications
what should a party do where a deadline is looming and a party realises that it is not going to be able to comply with that deadline (in-time application)?
file for an an extension of time, and this applies even if the court actually deals with the application after the expiry of the relevant period.
this is different to applying for relief from sanctions
what is the disclosure stage?
- where the parties exchange documents relevant to the dispute
- the 1st exchange of docs (then witnesses of fact, then sometimes expert evidence)
what is ‘disclosure’?
Stating [to another party] that a document exists or has existed
what is ‘inspection’?
[the party to whom a document has been disclosed] looking at a document
what comes with a right to inspect?
right to request a copy
Overview of disclosure and inspection
where does an obligation to give disclosure come from?
- no automatic obligation
- obligation comes from a court order
when is an order for disclosure usually given?
allocation or at a CMC
when can an order for disclosure less commonly be given?
party can also apply for an order for disclosure at a later stage in the proceedings
on the small claims track, what order for disclosure is normally given?
- Directions given on allocation
- The usual order is that at least 14 days before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing
on the fast track, what order for disclosure is normally given?
- court usually gives directions on allocation
- usually standard disclosure
in brief, what is standard disclosure?
a search for relevant documents and also an obligation to disclose documents which are adverse to the disclosing party’s case
costly and time consuming
on the multi-track, what order for disclosure is normally given?
(a) complete a disclosure report to be filed and served not less than 14 days before the first CMC (CPR 31.5(3)).
(b) not less than 7 days before the first CMC, consider the issues in the case and enter into discussions to seek to agree a draft disclosure order which they will then ask the court to make. The proposal should meet the overriding objective to conduct litigation at justly and at proportionate cost and to limit to necessary disclosure only
At the CMC (in any case), the court will consider carefully what form of disclosure order is most appropriate.
what forms are used for the disclosure reports?
N263 and N264
what does a disclosure report briefly explain?
(a) what relevant documents exist, or may exist;
(b) Where, and with whom, they are;
(c) How any electronic documents are stored;
(d) Estimate the broad range of costs that could be involved in giving standard disclosure in the case;
(e) States which of the disclosure directions (several alternatives to standard disclosure are
offered) are to be sought (CPR 31.5(7) and (8)).
+ EDQ if necessary
what are the limits on a court’s ability to order disclosure?
none. the court can make any
order in relation to disclosure that it thinks is appropriate.
in which court is there a specialist disclosure regime?
Business and Property courts (part of the High Court)
Summary of usual path to a disclosure order
A party does not have to disclose every copy of a document. Copies of documents need only be disclosed if:
(a) They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure (CPR 31.9). Such a copy document also needs to be separately considered for privilege; or
(b) The party has never had the original or no longer has the original in its control.
what is the continuing obligation to disclose?
Any duty of disclosure continues until proceedings are concluded, including:
- those that come within its control; or
- those that were created after the date it originally gave disclosure
what is the general rule wrt use of the disclosed document?
may only use that document for the purposes of the proceedings in which it is disclosed and not for any collateral or ulterior purpose eg in other proceedings
what are the exceptions to the rule that a party may only use that document for the purposes of the proceedings in which it is disclosed and not for any collateral or ulterior purpose?
(a) The document has been read to or referred to by the court at a hearing held in public (‘read’ includes pre-read and referred to in skeleton arguments);
(b) The court gives permission; or
(c) The party who disclosed the document and the person to whom the document belongs agree.
The court can be asked to make an order restricting or prohibiting the use of a document read or referred to at a public hearing.
what is standard disclosure?
a party must disclosure **only*:
1. documents on which the disclosing party relies;
2. docs which adversely affect his own case;
3. docs which adversely affect another party’s case;
4. docs which support another party’s case;
4. docs which he is required to disclose by a relevant practice direction
how to approach standard disclosure (3 questions)
3 questions to ask:
1. is it a document?
2. is or was it in the party’s control?
3. does it fall within standard disclosure?
what is the meaning of ‘document’?
anything that records information
what is the meaning of ‘in a party’s control’?
- the doc is (or was) in the physical possession of the party; or
- the party has (or has had) a right to possession of the document (eg documents held by party’s agent, such as documents a party sent to its own accountant); or
- the party has (or has had) a right to inspect or take copies of the document (eg a party has a right to inspect their own medical records).
all disclosure obligations (not just standard disclosure) are limited to what?
documents which are or were in the disclosing
party’s control
what constitutes a ‘reasonable search’?
- the numbers of docs involved
- the nature and complexity of the proceedings
- how difficult/expensive it is to retrieve any doc
- the significant of any doc likely to be found
+ overriding objective (proportionality)
how is standard disclosure practically performed?
each party makes a list of the required documents and serving it on the other party (Disclosure List plus disclosure statement)
what are the 3 parts of the Disclosure List?
(a) ’I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.’
(b) ’I have control of the documents numbered and listed here, but I object to you inspecting them [due to privilege].’ (can be described generically e.g., “correspondence fr the purpose of legal advice”)
(c) ’I have had the documents numbered and listed below, but they are no longer in my control.’
what can a receiving party do if disagrees with the disclosing party’s assertion of privilege?
it can apply to court challenging the alleged privilege
what is included in the disclosure statement?
(a) sets out the extent of the search made (ie that the search was reasonable and proportionate and also what was not searched for - eg documents predating a certain date);
(b) certifies the party understands its duty to disclose the documents; and
(c) certifies that, to the best of the party’s knowledge, it has carried out that duty.
+ signed
who makes the disclosure statement on behalf of a company?
- by an appropriate officer
- who must identify him/herself
- and state why they are the appropriate person to make the statement
what is a solicitor required to do in relation to disclosure statements?
‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure
can a party rely on any document that it has not disclosed / fails to permit inspection?
yes, but only if the court gives permission
when might contempt of court be an issue in relation to disclosure?
if a person makes,
or causes to be made,
a false disclosure statement, without an honest belief in its truth
A party has a right to inspect a document that has been disclosed except where:
(a) The document is no longer in the disclosing party’s control (CPR 31.3(1)(a));
(b) Allowing inspection would be disproportionate (CPR 31.3(2); or
(c) The disclosing party has a right or duty to withhold inspection, ie it is privileged
If a party disclosing documents thinks that it is disproportionate to permit inspection of a certain category/class of documents to be disclosed, what must it first do?
must state this in its disclosure statement
how often do parties say that allowing inspection would be disproportionate?
rarely
what is the meaning ‘privilege’?
A document need not be produced if there is a right or duty to withhold inspection
what are the 3 key types of privilege?
- legal advice
- litigation
- without prejudice
what principles apply to all types of privilege?
- redaction
- waiver
- once privileged, always privileged
- burden of proof
what is ‘redaction’?
- no CPR rules/guidelines on redaction
- clients sometimes wish to redact parts of docs that will be inspected
why do clients like to redact docs?
most often because they contain information which is confidential and commercially sensitive.
however, confidential and commercial sensitivity do not alone justify redaction. what are the two main circumstances in which it may be possible to redact?
- if there is a clear and distinct part of a document which does attract privilege, but the
remainder does not, then the privileged part can and indeed should be redacted, to avoid waiving privilege - if the confidential/commercially sensitive info is totally irrelevant to the dispute
example of when 1. there is a clear and distinct part of a document which does attract privilege, but the remainder does not, so the privileged part can and indeed should be redacted to avoid waiving privilege
An accountant receives a letter of complaint from a customer. He telephones his solicitor to take advice in relation to the complaint, and makes a note of the advice on the letter from the customer. As you will come to understand later in this chapter when reading about different types of privilege, the letter as a whole is not privileged and inspection of it would be permitted, but the note of advice from the solicitor would be privileged. That note should be redacted at the time of
inspection.
example of when the info is 2. confidential/commercially sensitive and totally irrelevant to the dispute
There is a dispute between a law firm and a recruiter about the terms of the contract between them. The recruiter is obliged to disclose and allow inspection of the correspondence it sent to the law firm. That correspondence also includes the addresses and personal details of work-seekers. That is sensitive information, and it is entirely irrelevant to the dispute. It can be redacted from the documents at the time of inspection.
what is a ‘waiver’ (of privilege)?
a party deliberately allows inspection of a privileged document if it considers
that the document helps its case
what are rules regarding waiver?
- waiver of privilege in part of a wholly-privileged document will lead to waiver of privilege over the remainder of the document, unless it deals with entirely different subject matter (parties cannot cherry-pick)
- waiver of privilege in one document can lead to privilege being lost in other
documents (if docs all deal with the same subject matter and only permitting inspection of the first document could lead to the facts being misunderstood - e.g., waiver of the privilege attaching to a solicitor’s letter of advice may also result in
privilege being lost in respect of letters from the same solicitor dealing with the same issue)
which docs might even be inspected before the disclosure stage?
documents referred to in a statement of case, a witness statement, a witness summary, an
affidavit and (subject to certain restrictions – not considered in this section) an expert’s report
what is the meaning of ‘Once privileged, always privileged’?
If something is privileged in relation to one set of proceedings, it will remain privileged in relation to all proceedings (The Aegis Blaze [1986] 1 Lloyd’s Rep 203)
unless something takes place to cause the privilege to be lost, such as waiver
Where there is a dispute over whether a document is subject to privilege, who has the burden of proof?
the party claiming privilege to establish it.
how can a party wishing to inspect docs gain access to those docs?
- must send a written notice of its wish to do so to the other side
- and the other side must allow inspection within 7 days of receipt of the notice
can the requirement for the other side to allow inspection within 7 days of receipt of the notice be varied?
yes, by the court
how else can a party wishing to inspect docs get access to docs?
- ask for copies
- provide an undertaking to pay reasonable photocopying charges
- copies must be provided within 7 days of receipt of the request
what is Legal advice privilege
- a confidential communication
- between a lawyer and a client
- prepared for the dominant purpose
- of giving or receiving legal advice
what does NOT constitute a communication between lawyer and client?
A solicitor’s attendance note of a conversation between parties, because there is no confidentiality in notes of matters at which both sides are present (Parry v Newsgroup Newspapers [1990])
LAP: what was the principle in Three Rivers?
advice given by lawyers through ‘legal spectacles’ will be covered by LAP
LAP: what was the principle in the Good Luck?
if a client repeats internally legal advice provided by his lawyer, for example to
other personnel within his company, then that repetition is covered by LAP
but it needs to be a repetition of the advice, not a matter of his opinion
LAP: are comms with in-house lawyers covered in civil actions?
yes, as long as the communication is LEGAL and not in a general commercial or executive capacity
what is litigation privilege?
- a confidential communication
- between the lawyer and his client
- or between lawyer or client, and a third party
- where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation
- which was at the time reasonably in prospect
when has litigation not been the dominant purpose?
Following an accident on a railway, the railway faces a claim by an injured person. The railway
produces a report for the dual purposes of improving safety on the railway and being submitted to the railway’s solicitors for legal advice. As the litigation was at best a purpose, not a dominant purpose, the report was not privileged
(Waugh v British Railways Board (‘BRB’) [1980] AC 521).
when has litigation NOT been reasonably in prospect?
Documents produced by a company, not for specific litigation, but because it felt it was
constantly under the threat of litigation by customers, were not privileged
(USA v Philip Morris [2003] EWCH 3028).
what is a without prejudice communication?
- a document whose purpose
- is a genuine attempt to settle
WP comms: does the court look at substance or form?
substance
i.e., a doc marked ‘WP’ may not actually be WP, and vice versa.
when might WP docs be seen by the court?
WP docs will not generally be seen by the court
unless the privilege is expressly waived
and / or
when deciding costs
summary of specific disclosure, specific inspection, pre-action disclosure, non-party orders and Norwich Pharmacal Orders
which order should be applied for to:
- obtain info from the opponent / intended opponent; and
- after proceedings have started?
specific disclosure and/or specific inspection
which order should be applied for to:
- obtain info from the opponent / intended opponent; and
- before proceedings have started?
pre-action disclosure
which order should be applied for to:
- obtain info from a non-party; and
- after proceedings have started?
non-party order
which order should be applied for to:
- obtain info from a non-party; and
- before proceedings have started?
Norwich Pharmacal Orders
what is ‘specific disclosure’?
a party must do one or more of the following
things:
(a) Disclose documents / 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.
when does the court have the jurisdiction to make an order for specific disclosure and / or inspection?
any time after proceedings have been issued
In practice, when is an application for specific disclosure generally made?
after standard disclosure has occurred, where the applicant considers that further disclosure should be made by the other party
examples of specific disclosure?
- Opponent has not complied with its existing disclosure obligations (eg failed to comply with a direction for standard disclosure.
- Applicant wants documents earlier than the current directions provide for (but after proceedings have been issued)
- Applicant wants something more than the current directions provide for
When the court decides whether or not to make an order for specific disclosure, what does it consider?
(a) all the circumstances of the case;
(b) in particular, the overriding objective (including, for example, the proportionality and reasonableness of making an order for specific disclosure); and
(c) If the court decides that the party against whom specific disclosure is sought has ‘failed adequately to comply with the obligations imposed by an order for disclosure’, the court ‘will usually make such order as is necessary to ensure that those obligations are properly complied with’.
So, for example, if a party can show that:
(a) The court has made an order for standard disclosure; and
(b) On a proper consideration of the applicable disclosure rules, the documents concerned
should therefore have already been disclosed by the opponent;
then the court will usually order the opponent to disclose the documents.
An order for specific disclosure is not just confined to a case where the respondent is in breach of an obligation to give standard disclosure. When else can the court order specific disclosure?
also/in the alternative:
even where the respondent has complied properly with its obligations to give
standard disclosure but in circumstances where the applicant satisfies the court that:
(a) such disclosure is, in fact, ‘inadequate’; or
(b) the case is one where something more than standard disclosure is called for - for example, disclosure of documents which may lead to a train of inquiry with the consequence of producing documents which advance the applicant’s case or damage the respondent’s case.
how can a party apply for specific disclosure?
- application notice;
- specify the order sought, including listing the documents sought in a schedule to the order. The more specific the list, the more likely the application is to succeed; and
- evidence (usually witness statement)
what is specific inspection?
an order that a party permit inspection of a document which has been disclosed, but the disclosing party alleges it would be disproportionate to allow inspection
(rare, because it is uncommon for a party to disclose and then claim inspection is disproportionate. this is different to claiming a right or duty to withhold inspection due to privilege.)
when may (not must) a court order pre-action disclosure against a likely party to proposed proceedings?
The court may make an order for pre-action disclosure where:
(a) The respondent is likely to be a party to subsequent proceedings; and
(b) The applicant is also likely to be a party to those proceedings; and
(c) If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents which the applicant seeks (so the scope of a pre-action disclosure order cannot be wider than that of an ordinary standard disclosure order); and
(d) Pre-action disclosure 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 ALL are satisfied, a court may (not must) order pre-action disclosure.
what is the procedure for pre-action disclosure?
it is the same as specific disclosure:
* specify the order sought, including listing the documents sought
* be supported by evidence.
(+ a pre-action disclosure order may also require the respondent to specify those documents which are no longer under its control or which it has a right to withhold from inspection)
what is the general rule on costs wrt non-party disclosure?
the applicant for pre-action disclosure will
generally have to pay the respondent’s (the non party’s) costs
when might the court depart from the general rule on costs wrt pre-action disclosure?
for example:
- if the respondent did not comply with a pre-action protocol
- if the respondent did not comply with a relatively modest request for pre-action disclosure
it may find itself bearing the costs of the subsequent application.
when is non-party disclosure likely to be ordered?
(a) The documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings (similar to the test for standard disclosure); and
(b) Disclosure is necessary in order to dispose fairly of the claim or to save costs.
in this case, non-party disclosure may (not must) be ordered
when can non-party disclosure be applied for?
only once proceedings have actually started
what must the non-party disclosure application include?
- be made by application notice;
- specify the order sought, including listing the documents sought
- be supported by evidence
- require the respondent to specify those documents which are no longer under his control or which he has a right to withhold from inspection (CPR 31.17(4)).
+ must be served on respondent and any other party to the proceedings
what is the rebuttable presumption on costs wrt non-party disclosure?
the court will order the applicant to pay the costs of the respondent in dealing with the application itself and complying with any order that is made as a consequence
when might the court depart from the r rebuttable presumption on costs wrt non-party disclosure?
e.g., if the non-party respondent has acted unreasonably in opposing the application and any previous request for disclosure.
what is a Norwich Pharmacal order
where court proceedings cannot be commenced because the identity of the defendant is unknown, the court it orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant
example of a Norwich Pharmacal Order
The owner of a patent for a particular chemical learns that unknown people are importing goods in a way that infringes the patent. HMRC knows the identify of the wrongdoers. The court orders HMRC to disclose the information so that the owner of the patent can bring proceedings against the correct defendant
how to apply for a Norwich Pharmacal Order?
NOT application notice
claim form against Persons Unknown, setting out its claim as best as poss against the ultimate wrongdoer
why have a Norwich Pharmacal Order?
subject to any statutory exceptions and also to cases of ‘intended’ actions against a person, if the court is to make an effective order against that person, proceedings must either first be started against that person or that person must be joined into existing proceedings
what 3 conditions must be satisfied for the court to grant an application?
(a) a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer (for example, a tort, breach of contract or crime);
(b) there must be the need for an order to enable action to be brought against the ultimate wrongdoer (so it is unlikely an order will be obtained if the information can be obtained another way)
(c) the person against whom the order is sought must
(i) be more than a mere witness / bystander (they must have some greater involvement, but not necessarily any fault); and
(ii) be able to (or likely be able to) provide the information necessary to enable the ultimate wrongdoer to be sued.
who usually pays the costs of a Norwich Pharmacal order?
the successful applicant will pay the costs incurred by the respondent, including the costs of giving the disclosure.
The applicant may then be able to recover those costs from the wrongdoer in either the same or subsequent proceedings
what is the witness and expert evidence stage?
stages 2 and 3 of the 3 main stages between case mgmt and trial
what is ‘witness evidence’?
Direct evidence of fact by a witness of what they have perceived with their own senses.
what is ‘expert evidence’?
evidence of opinion given by a highly skilled or knowledgeable individual whose role is to advise the court impartially on matters within their expertise
what is meant by the court’s broad power to control evidence (all evidence, not just witness evidence)?
The court has the power to control the
evidence by giving directions as to:
* The issues on which it requires evidence
* The nature of the evidence it wants
* The way the evidence is to be placed before the court
* Exclude evidence that would otherwise be admissible
* Limit cross-examination
what is the general rule wrt witnesses?
any fact which needs to be proved by the evidence of witnesses at trial will be by oral evidence (or sometimes video link)
what is a witness statement?
a written statement signed by a person which contains the evidence which
that person would be allowed to give orally
what happens with a witness statement before trial?
exchanged with the other parties
why is a witness statement exchanged with the other parties?
saves time and costs at trial and helps to facilitate settlement because the parties are able to evaluate the merits of their respective cases.
what will be the witness’s evidence in chief at the trial?
witness statement, meaning the witness will only be asked to confirm the truth of the contents of the statement in the witness box
if the witness will only be asked to confirm the truth of the contents of the statement in the witness box, what is the principal purpose of the witness’ attendance at trial?
- the other party’s counsel will cross-examine the witness
- witness will then be reexamined by their own party
when does the court usually give directions as to the exchange of witness statements?
at the allocation and case management stage
what will the court direction wrt witness statements usually include?
- date for exchange with the other party (it is not normal to file trial witness statements at court, although this can be ordered
- Limiting the issues
- Identifying the witnesses whose evidence may be used
- Limiting the number, length or format of witness statements
- Specifying the order in which witness statements are to be served
what happens if a party has served a witness statement of a witness and wishes to rely on it?
- the party must call the witness to give oral evidence at trial; or
- put in the statement as hearsay evidence
what happens if a witness statement (or witness summary) for trial is not served within the time specified by the
court?
the witness may not be called to give oral evidence unless the court gives permission
in what circs can the parties can agree in writing extensions of up to 28 days for serving (and filing, if that has been ordered) of witness statements without the need for court approval?
provided any such
extension does not put a hearing at risk
in what circs should the parties apply to the court for an extension under CPR 3 to avoid the risk of the court not approving the agreement at trial?
- if an extension of time is agreed which has an effect on a subsequent key date
- if an extension of time cannot be agreed before witness statements are due to be
served
If no extension is agreed and witness statements are served late, what application should be made?
relief from the sanction that the witness may not be called to give evidence
when can a witness statement be used in other proceedings?
it may only be used for the proceedings in which it is served unless:
- the witness or the court has given permission for some other use; or
- it has been put in evidence at a hearing
held in public
what is an important use for witness statements outside of trial?
interim applications
what is the general rule wrt witness statements outside of trial?
any fact which needs to be proved by the evidence of witnesses other than for trial is to be proved by their evidence in writing
what is the practical effect of the general rule wrt witness statements outside of trial?
the witness does not generally ‘give evidence’ in person at the interim hearing and is not cross-examined
however, any party may apply for permission to cross-examine the person giving the evidence (though this is very unusual)
who writes a witness statement?
it must be in the witness’ own words although it will usually be drafted by a
lawyer, following which the witness will amend as appropriate
what is considered ‘relevant content’ for a witness statement?
(a) What is the argument?
(b) What is the legal basis for the argument?
(c) What are the facts that this witness can speak about that support the legal argument? These are what should be set out in the witness evidence.
what is the general rule wrt opinions of witnesses?
opinions of witnesses are not admissible
what are the 2 exceptions to the general rule that opinions of witnesses are inadmissible?
- perceived facts;
- expert opinion
what are some examples of perceived fact that would be admissible?
“The car was driving fast” - is made up of smaller facts such as:
- hearing the car’s engine turning over at
high revolutions (it was loud and high pitched)
- the car overtaking other cars
- the car leaving tyre marks on the road
“Leanne was drunk”
what must a witness statement be verified by?
a statement of truth
what is the danger involved in a witness making a false statement in the witness statement without an honest belief in
the truth of that statement?
they may be in contempt of court and face proceedings
who must always give and sign a witness statement?
an individual (not a company or partnership)
and it must be signed by that individual
what is the full wording that can be found at the end of a witness statement?
*“I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who 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.”
Signed,
[The individual witness]*
what 2 additional paragraphs should be included in witness statements for uses other than trial?
I refer to the application notice dated [ ] and make this statement in opposition to the claimant’s application for summary judgment (after the information and belief paragraph)
In the circumstances, I submit to the Court for the reasons set out above that the Defendant is not liable for the sum claimed and that the Claimant’s application for summary judgment should be dismissed (before the statement of truth)
what additional rules must witness statements in Business and Property courts trials comply with?
(with limited exceptions)
These rules include:
* The statement must identify what documents the witness has referred to for the purpose of providing the evidence set out in their witness statement.
* As well as a statement of truth, a witness must include a signed confirmation that the witness understands that the purpose of the witness statement is not to argue the case nor to take the court through the documents in the case.
* The statement must include a confirmation from an appropriate legal representative that the rules have been explained to the witness and the representative believes the witness statement complies with them.
other than via witness statement, in what other way can evidence of fact be given?
affidavit
when must evidence of fact be given by affidavit?
- if this is required by the court or rule (eg for an application for a search order or a freezing order)
- A party may also choose to give evidence by affidavit at a hearing other than trial if they wish to
what does an affidavit require instead of a statement of truth?
it is a written statement of evidence sworn before a person authorised to
administer affidavits
what is a person who gives evidence by
affidavit called?
a deponent
what are the 3 differences between witness statements and affidavit?
- introduction - “state on oath”
- exhibit wording - “there is now shown to me marked”
- ending has a jurat (not a statement of truth) which must:
- be signed by all deponents;
- completed and signed by the person before whom the affidavit was sworn (whose name and qualification must be printed beneath)
- contain the full address of the person before whom the affidavit was sworn
- follow immediately on from the text and not be put on a separate page
what is the general rule in relation to admissibility in civil proceedings?
all evidence that is relevant to the facts is admissible, but there are special rules for:
- opinion evidence
- evidence which is privileged
- hearsay evidence
what is hearsay?
hearsay is indirect evidence, either written or oral
- an oral or written statement
- made out of court
- which is being adduced in court to prove the truth of the matter stated
what is the general rule on hearsay in civil proceedings?
admissible (can be used)
what is the problem with hearsay evidence?
it is indirect evidence and therefore
inherently less reliable than direct oral, documentary or real evidence
procedural safeguards for hearsay evidence to be given at trial
parties must give notice of intention to rely on hearsay
what are a party’s 4 options following receipt of a notice of intention to rely on hearsay?
- request particulars of hearsay
- call for cross-examination
- challenge the weight of hearsay evidence
- attack credibility of an absent witness
- request particulars of hearsay
A party who has received the notice can ‘request particulars’ of the hearsay that are reasonable and practicable for the purpose of enabling it to deal with any matters arising from the evidence being hearsay.
- call for cross-examination
Where a party adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine them on the statement as if they had been called by the first-mentioned party and as if the hearsay statement was the evidence in chief.
This could have devastating tactical effects for the adducing party, for example, if the witness is weak. The application must be made no later than 14 days after the hearsay notice was served on the applicant.
- challenge the weight of hearsay evidence
It is possible to challenge the weight the court will attach to the hearsay evidence at trial. The factors the court will consider when assessing the weight to attach to hearsay evidence include, for example:
(a) whether it would have been reasonable and practicable for the party who adduced the evidence to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously to the matters stated;
(c) whether the evidence involves multiple hearsay, etc.
- attack credibility of an absent witness
Where a person wishes to rely on hearsay evidence but does not propose to call the person who made the original statement to give evidence, the party who has received notice can attack the credibility of the absent witness at trial (even though they are not present).
The attack should show that the absent witness made previous inconsistent or contradictory statements.
The receiving party must notify the adducing party of its intention to do this no later than 14 days after the hearsay notice was served.
where can hearsay evidence be found?
- oral statements
- statements made in documents
- plans
- photographs
- models
unless notice is given, the following evidence will not be receivable at trial:
any evidence that is:
* Not contained in a witness statement or expert’s report;
* Not to be given orally at trial; or
* Not subject to the notice of intention to rely on hearsay provisions discussed earlier in the
section.
including any plans, photographs and models
in civil proceedings, the fact that a person has been convicted of an offence in a UK court is admissible in evidence to prove that he committed the offence is subject to…
Proving the offence must be
relevant to an issue in the proceedings
(s.11 Civil Evidence Act 1968)
In any civil proceedings in which by virtue of s11 Civil Evidence Act 1968 a person is proved to have been convicted of an offence—
(a) he shall be taken to have committed that offence unless the contrary is proved; and
(b) the contents of any document which is admissible as evidence of the conviction (and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted), shall be admissible in evidence for the purpose of identifying the facts on which the conviction was based.
in light of the fact that a person’s conviction of an offence in a UK court is admissible in evidence to prove that he committed the offence, **who has the burden of proof and what is the standard of proof*?
a person wanting to prove the contrary will have the burden of proving that the person convicted
- did not commit the offence
- on a balance of probabilities.
what issues other than legal issues might an expert give evidence on?
scientific, technical, medical or other issues of which the judge may have no direct experience or knowledge
if a party wishes to adduce expert evidence at trial, what is required?
a court order
which rules must experts and those instructing experts consider?
- CPR 35
- 35 PD
- Guidance for the Instruction of Experts in Civil Claims
expert evidence is an exception to which general rule?
the general rule that opinion evidence is inadmissible
what is the court’s duty in relation to expert evidence?
duty to restrict expert evidence to that which is reasonably required to resolve the
proceedings
is expert evidence always required in proceedings?
no
e.g., if the issues are only factual, the court should refuse permission to use expert evidence
when is the court more likely to restrict expert evidence?
small claims track and fast track
the normal procedural rules on expert evidence are disapplied to cases on the small claims track, with the exceptions being:
- duty to restrict expert evidence;
- experts – overriding duty to the court;
- court’s power to direct that evidence is to be given by single joint expert; and
- instructions to a single joint expert
in the fast track, oral expert evidence at trial will be limited to what?
- one expert per party in relation to any expert field; and
- expert evidence in two expert fields
Where a claim has been allocated to the small claims track or the fast track, what permission will normally be given for expert evidence?
evidence from only one expert on a particular
issue
When parties apply for permission for expert evidence, what must they provide?
in the directions questionnaire:
(a) Provide an estimate of the costs of the proposed expert evidence;
(b) Identify the field in which expert evidence is required and, if practicable, the name of the
proposed expert
with which part of the application should the applicant take particular care?
naming an expert in the directions questionnaire
- because if the court orders a named expert to be used, the party will have to go back to court to obtain permission to use a different expert
- this entails a risk of having to allow the other party to see the original expert’s report
what duty of experts overrides any obligation to the party instructing the expert?
the duty of experts to help the court on matters within their own expertise
what do the Ikarian Reefer Guidelines consider?
the duties and responsibilities of the expert
what are the Ikarian Reefer Guidelines?
(a) Expert evidence presented to a court should be the independent product of the expert, uninfluenced as to form or content by the pressures of litigation.
(b) Independent assistance should be provided to the court by way of objective, unbiased opinion regarding matters within the expertise of the expert witness. An expert should never assume the role of the advocate.
(c) An expert witness should state the facts or assumptions on which their opinion is based.
Experts should not omit to consider material facts which could detract from their concluded
opinion.
(d) An expert witness should make it clear when a question or issue falls outside their expertise.
(e) If the opinion was not properly researched because it was considered that insufficient data was available, then that has to be stated with an indication that the opinion is provisional.
(f) If, after exchange of reports, an expert witness changes their mind on a material matter, the change of view should be communicated to the other party, and when appropriate to the court.
(g) Photographs, plans, survey reports and other documents referred to in the expert evidence must be provided to the other side at the same time as the exchange of reports.
is the letter of instruction to an expert is not privileged from inspection?
no, it can still be inspected
will the court require disclosure and inspection of a specific document or allow cross-examination of the expert in relation to those instructions?
it will not require this unless it considers that the instructions (as summarised by the expert in the report) are inaccurate or incomplete
a party must have what when suspecting instructions to be inaccurate?
a party must have reasonable grounds
without reasonable grounds, it cannot use this rule to force disclosure and inspection
how should expert evidence be given?
in a written report unless the court directs otherwise
If the court gives permission for expert evidence, it will almost always require a report to be produced and served and must:
- Be addressed to the court, not the instructing party
- Set out the expert’s qualifications
- Set out details on any material relied on
- Set out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report
- Make it clear which of the facts stated in the report are within the expert’s own knowledge
(CPR 35.10(1)-(3) and 35 PD 3) - Explain who carried out any test or experiment relied on, give the qualifications of that person and say whether this was under the expert’s supervision
- If there is a range of opinion on the matters dealt with in the report, summarise the range of opinion and give reasons for the expert’s own opinion
- Contain a summary of the conclusions reached by the expert
- If the expert is not able to give an opinion without qualification, state the qualification
- Contain a statement that the expert understands their duty to the court and has complied with it, and is aware of CPR 35, 35 PD and the Guidance for the Instruction of Experts. The report should be verified by a statement of truth (35 PD 3.3):
what is the exact wording for a statement of truth for an expert’s report?
*“I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.
I understand that proceedings for contempt of court may be brought against anyone who 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.”*
when does privilege from inspection apply to expert reports?
draft reports shared with its instructing party are generally subject to litigation privilege
when does privilege from inspection waived for expert reports?
in the final version of the expert report when
it is served.
what can the court order wrt exchange of expert reports?
simultaneous exchange
or
sequential exchange
what are the consequences of failure to exchange in accordance with the given directions?
the evidence cannot be
used
unless the court gives permission
how can a single joint expert be appointed?
- the parties can agree to appoint one
- (if the parties do not do so) the court has power to permit a single expert only
- pre-action protocol also encourage single joint experts where appropriate (less appropriate in multi-track, more so in small and fast track)
best practice with a single joint expert
transparency at all times
- should be copied into all relevant correspondence
- both parties could co-operate and produce a joint letter of instruction
- but if each party gives separate instructions to the expert, it must send a copy to the other instructing party
what if the parties cannot agree who should be the single joint expert?
the court can select from a list prepared by the parties or direct that the expert by selected in some other manner
what happens after expert reports have been exchanged?
a party can put written questions to the
other party’s expert, or to the single joint expert
what are the rules wrt questions by a party to experts?
- Questions can only be put once
- Questions should generally only be for the purposes of clarifying the report
- Questions must be submitted to the expert **within 28 days of service of the report*
- A copy of the questions must be sent to the other party
- There is no time limit within which the expert must answer questions unless ordered by the court
- Answers to the questions become part of the report
- If the expert does not answer, the court can order that the party who instructed the expert
cannot rely on their evidence and or cannot recover the expert’s fees from the other party
what are the rules wrt questions by experts to the court?
Unless the court orders otherwise, the expert must:
(a) provide to the party instructing the expert, a copy of any proposed request for directions at least 7 days before filing it at court; and
(b) provide a copy to all other parties at least 4 days before filing it at court.
The court, when it gives directions, can direct that a party also be served with a copy of the
directions.
To assist experts, where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert (35 PD 8). The claimant must serve the order on the single joint expert.
to identify the issues in the case and (where possible) reach an agreed opinion, what can the court order the experts to do?
discuss the various expert issues in dispute
The court can:
- specify the issues which the experts must discuss; and
- direct a joint statement to be produced after the meeting, setting out the issues on which the experts agree and those on which they do not
- with a summary of reasons.
how does agreement between expert during discussion impact the parties?
they are not binding,
unless the parties expressly agree to be bound
but parties should give careful consideration before refusing to be bound by such an agreement, and be able to explain their refusal should it become relevant to the issue of costs.
do the parties or their legal representatives need to attend the discussion between expert?
no, unless:
- ordered by the court
- agreed by the parties and experts
what can a party do if it considers that its expert has stepped outside their expertise or has acted incompetently in reaching an agreement?
the party can argue that:
* The agreement should not be accepted by the court
* The party should adduce further expert evidence if it felt there was a good reason to suppose that the first expert has modified their opinion for reasons that cannot properly and fairly support their revised decision, and such a procedure is reasonably required to resolve the proceedings.
should the content of discussions between experts be referred to at trial?
no, the discussions should not be referred to,
unless the parties agree.
(without prejudice)
in what circs will the court order the expert to give oral evidence in small claims / fast track cases?
if it is in the interests of justice to do so
If the court does give permission to call the expert to give oral evidence at trial, what is the usual procedure?
- the claimant will often present all the evidence supporting its case first including, if appropriate, the oral evidence of its experts
- and then the defendant does the same.
However, the court can direct expert oral evidence is given in a different way:
- issue-by-issue basis (each side having a
turn to call witnesses / experts in relation to that issue); or
- hot-tubbing (some or all the evidence of experts from similar disciplines is given concurrently - judge will ask each expert in turn for their views on the issues on a pre-agreed agenda)
what options does a party have if it receives an unfavourable report from an expert?
- put questions to expert
- seek advice from another expert advisor
- if there is not a direction for the expert to give oral evidence, seek such a direction from the court
what are the advantages of option 2. seek advice from another expert advisor, even if the party is not given permission to call another expert?
(CHECK THIS) the party can still use the second expert to assist in preparing questions for cross examination
what are the disadvantages of option 2. seek advice from another expert advisor?
difficult and costly
when pursuing option 2. seek advice from another expert advisor, does a party need permission?
yes it must seek court permission
often only on the condition that the first report be disclosed (to prevent ‘expert shopping’)
other than the a second expert potentially being conditional on disclosing the first report, what other difficulties may this raise?
possible cost sanctions and/or loss of credibility
If a party decides it is not intending to rely on its expert’s report once that report has been
disclosed, what can the other party do?
the other party can rely on the report at trial
if an expert’s report is unfavourable, what should a party be thinking about?
settlement
