Interim applications, summary judgment, strike out and costs (W7)

Question 1

CPR 23.1 - Meaning of ‘application notice’ and ‘respondent’

Answer 1

• “application notice” means a document in which the applicant states his intention to seek a court order
• “respondent” means (a) the person against whom the order is sought, and (b) such other person as the court may direct.

Question 2

CPR 23.2 - Where to make an application

Answer 2

(1) General rule = an application must be made to the court or County Court hearing centre where the claim was started.
(2) If a claim has been transferred to another court, or transferred or sent to another County Court hearing centre since it was started, an application must be made to the court/hearing centre to which the claim has been transferred or sent, unless there is a good reason to make the application to a different court.
(3) If the parties have been notified of a fixed date for trial, an application must be made to the court where the trial is to take place.
(4) If an application is made before a claim has been started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reason to make it to a different court.
(4A) An application made in the County Court before a claim has been started may be made at any County Court hearing centre, unless any enactment, rule or PD provides otherwise.
(5) If an application is made after proceedings to enforce judgment have begun, it must be made to the court or County Court hearing centre which is dealing with the enforcement of judgment unless any enactment, rule or PD provides otherwise.

Question 3

CPR 23.3 - Application notice to be filed

Answer 3

(1) General rule = applicant must file an application notice.
(2) May make an application without filing an application notice if
(a) this is permitted by a rule or PD;
(b) the court dispenses with the requirement for an application notice.

Question 4

CPR 23.4 - Notice of an application

Answer 4

(1) General rule = a copy of the application notice must be served on each respondent.
(2) Application may be made without serving a copy of the application notice if this is permitted by:
(a) a rule
(b) a PD
(c) a court order

Question 5

CPR 23.5 - Time when an application is made

Answer 5

Where an application must be made within a specified time, it is so made if the application notice is received by the court within that time.

Question 6

CPR 23.6 - What an application notice must include

Answer 6

Must state -

(a) what order the applicant is seeking; and
(b) briefly, why the applicant is seeking that order
- It must be verified by a statement of truth if the applicant wishes to rely on matters set out in his application notice as evidence.

Question 7

CPR 23.7 - Service of a copy of an application notice

Answer 7

• A copy of the application notice:
  (a) must be served as soon as practicable after it is filed; and
  (b) except where another time limit is specified in the CPR or a PD, must in any event be served at least 3 days before the court is to deal with the application.
  (2) if a copy of the application notice is to be served on the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.
  (3) When a copy of an application notice is served it must be accompanied by–
  (a) a copy of any written evidence in support; and
  (b) a copy of any draft order which the applicant has attached to his application.
  (4) If-
  (a) an application notice is served, but
  (b) the period of notice is shorter than the period required by CPR or PD,
  the court may direct that, in the circumstances of the case, sufficient notice has been given, and hear the application.
  (5) This rule does not require written evidence-
  (a) to be filed if it has already been filed
  (b) to be served on a party on whom it has already been served.

Question 8

CPR 23.8 - Applications which may be dealt with without a hearing

Answer 8

If:

(a) The parties agree as to the terms of the order sought;
(b) The parties agree that the court should dispose of the application without a hearing;
(c) The court does not consider that a hearing would be appropriate.

Question 9

CPR 23.9 - Service of application where application made without notice

Answer 9

(1) Applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.

(2) Where a court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person:
(a) against whom the order was made; and
(b) against whom the order was sought.
(3) The order must contain a statement of the right to make an application to set aside or vary the order under CPR 23.10.

Question 10

CPR 23.10 - Application to set aside or vary order made without notice

Answer 10

(1) A person who was not served a copy of the application notice before an order was made under CPR 23.9 may apply to have the order set aside or varied.
(2) An application to do so must be made within 7 days after the date on which the order was served on the person making the application.

Question 11

CPR 23.11 - Power of the court to proceed in the absence of a party

Answer 11

(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence.
(2) Where-
(a) the applicant or any respondent fails to attend the hearing of an application; and
(b) the court makes an order at the hearing,
the court may, on application or of its own initiative, re-list the application.

Question 12

CPR 23.12 - Dismissal of totally without merit applications

Answer 12

If the court dismisses an application (including an application for permission to appeal or for permission to apply for judicial review) and it considers that the application is totally without merit-

(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 13

23APD.2 - Application notices

Answer 13

• An application must be signed and include:
  (1) the title of the claim
  (2) the reference no. of the claim
  (3) the full name of the applicant
  (4) where the applicant is not already a party, his address for service, including a postcode.
  (5) either a request for a hearing or a request that the application be dealt with without a hearing.
• Form N244 can be used.
• On receipt of an application notice containing a request for a hearing, the court will notify the applicant of the time and date for the hearing.
• On receipt of a request for no hearing, the application will be sent to a Master or District Judge so that he may decide whether the application is suitable for consideration without a hearing.
• Where the Master or DJ agrees, the court will inform the applicant and the respondent and may give directions for filing evidence.
• Where the Master or DJ does not agree, the court will notify the applicant and the respondent of the time, date and place for the hearing and may give directions for filing evidence.
• If the application is intended to be made to a judge, the application notice should so state.
• Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.
• Applications wherever possible should be made so that they can be considered at any other hearing for which a date has already been fixed or for which a date is about to be fixed. This is particularly so in relation to case management conferences, allocation and listing hearings and pre-trial reviews.
• The parties must anticipate that at any hearing the court may wish to review the conduct of the case as a whole and give any necessary case management directions. They should be ready to assist the court in doing so.
• Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but does not have sufficient time to serve an application notice, he should inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it. He should then make the application orally at the hearing.

Question 14

23APD.3 - Applications without service of application notice

Answer 14

• An application may be made without serving an application notice only:
  (1) where there is exceptional urgency
  (2) where the overriding objective is best furthered by doing so
  (3) by consent of all parties
  (4) with the permission of the court
  (5) where paragraph 2.10 applies, or
  (6) where a court order, rule or practice direction permits.

Question 15

23APD.4 - Giving notice of an application

Answer 15

• Application notice must be served as soon as practicable after it has been issued and if there is to be a hearing, at least 3 days before the hearing date.
• Where there is to be a telephone hearing the application notice must be served as soon as practicable after it has been issued and in any event at least 5 days before the hearing date.
• Where an application notice should be served but there is not sufficient time to do so, informal notification of the application should be given unless the circumstances require secrecy.

Question 16

23APD.5 - Pre-action applications

Answer 16

All applications made before a claim is commenced should be made under CPR 23.

Question 17

23APD.5A - County Court Money Claims Centre

Answer 17

• If the claim is started in the County Court Money Claims Centre, an application made after a claim has been started must be made to the County Court Money Claims Centre or County Court hearing centre where the claim is being dealt with.
• A District Judge may -
  (a) consider the application without a hearing;
  (b) direct that the application be transferred to a County Court hearing centre.

Question 18

23APD.6 - Telephone hearings

Answer 18

• At a telephone conference enabled court, the following hearings will be conducted by telephone unless the court otherwise orders:
  (a) allocation hearings
  (b) listing hearings
  (c) interim applications, case management conferences and pre-trial reviews with a time estimate of no more than 1 hour.
• This does not apply where:
  (a) the hearing is of an application made without notice to the other party;
  (b) all the parties are unrepresented;
  (c) more than four parties wish to make representations at the hearing
• A request for a direction that a hearing should not be made by telephone:
  (a) must be made at least 7 days before the hearing or such shorter time as the court may permit; and
  (b) may be made by letter,
  and the court shall determine such request without requiring the attendance of the parties.
• The court may order that an application to which the above does not apply may be made by telephone:
  (a) of its own initiative; or
  (b) at the request of the parties.
• The applicant should indicate on his application notice if he seeks such an order. Where he has not done this, the request should be made as early as possible.
• An order allowing a hearing to be made by telephone when it usually would not be will not usually be made unless every party entitled to be given notice of the application and heard at the hearing has consented to the order.

Question 19

23APD.6 - Conduct of the telephone hearing

Answer 19

• No party or representative may attend the judge in person while the application is being heard unless every other party has agreed that he may do so.
• The following directions will apply:
  (1) The designated legal representative is responsible for arranging the telephone conference for the time fixed by the court. The provider must be an approved one.
  (2) The designated legal representative must tell the operator the telephone numbers of all those participating and the sequence in which they are to be called.
  (3) It is the responsibility of the designated legal representative to ascertain from all other parties whether they have instructed counsel and, if so, the identify of counsel, and whether the legal representative and counsel will be on the same or different telephone numbers.
  (4) The sequence in which they are to be called will be:
  (a) the designated legal representative and counsel
  (b) the legal representative and counsel for all other parties; and
  (c) the judge.
  (5) Each speaker will remain on the line after being called by the operator. The call shall be connected at least 10 mins before the time set for the hearing.
  (6) When the judge has been connected the designated legal representative will introduce the parties in the usual way.
  (7) Judge may require parties to use a handheld telephone
  (8) The telephone charges will be treated as part of the costs of the application.

Question 20

23APD.6 - Documents

Answer 20

• Where a document is required to be filed and served the party or the legal representative must do so no later than 4pm at least 2 days before the hearing.
• A case summary and draft order must be filed and served in-
  (a) multi track cases; and
  (b) small and fast track cases if the court so directs.
• Any other document upon which a party seeks to rely must be filed and served in accordance with the period specified in para 6.11.

Question 21

23APD.7 - Video conferencing

Answer 21

Where the parties to a matter wish to use video conferencing facilities and those facilities are available in the relevant court, they should apply to the Master or District Judge for directions.

Question 22

23APD.9 - Evidence

Answer 22

• Where there is no specific requirements for evidence, it should be borne in mind that the court will often need to be satisfied by evidence of the facts that are relied on in support of or for opposing the application.
• The court may give directions for the filing of evidence. This may specify the form that evidence is to take and when it is to be served.
• Where it is intended to rely on evidence which is not contained in the application itself, the evidence, if it has not already been served, should be served with the application.
• Where a respondent wishes to rely on evidence which has not yet been served, he should serve it as soon as possible and in any event in accordance with any directions the court may have given.
• Evidence must be filed with the court as well as served on the parties. Evidence should not be filed unless the court otherwise directs.
• The contents of an application notice may be used as evidence provided the contents have been verified by a statement of truth.

Question 23

23APD.12 - Miscellaneous provisions as to applications

Answer 23

Except in the most simple application, the applicant should bring to the hearing a draft of the order sought. If the case is proceeding in the Royal Courts of Justice and the order is unusually long or complex it should also be supplied on disk for use by the court office.

Question 24

CPR 24.1 - Summary judgment

Answer 24

The deciding of a claim or particular issue without a trial.

Question 25

CPR 24.2 - Grounds for summary judgment

Answer 25

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if–

(a) it considers that–
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at trial.

Question 26

CPR 24.3 - Types of proceedings in which summary judgment is available

Answer 26

(1) The court may give summary judgment against a claimant in any type of proceedings.
(2) The court may give summary judgment against a defendant in any type of proceedings except–
(a) proceedings for possession of residential premises against–
(i) a mortgagor; or
(ii) a tenant or a person holding over after the end of his tenancy where occupancy is protected within the meaning of the Rent Act 1977 or Housing Act 1988; and
(b) proceedings for an admiralty claim in rem.

Question 27

CPR 24.4 - Procedure for summary judgment

Answer 27

(1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed–
(a) an acknowledgment of service; or
(b) a defence,
unless–
(i) the court gives permission; or
(ii) a practice direction provides otherwise. ‘
(1A) In civil proceedings against the Crown, a claimant may not apply for summary judgment until after expiry of the period for filing a defence in CPR 15.4
(2) If a claimant applies for summary judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing.
(3) Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court’s own initiative) must be given at least 14 days notice of–
(a) the date fixed for the hearing; and
(b) the issues which it is proposed that the court will decide at the hearing.
(4) A practice direction may provide for a different period of notice to be given.

Question 28

CPR 24.5 - Evidence for the purposes of a summary judgment hearing

Answer 28

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must–
(a) file the written evidence; and
(b) serve copies on every other party to the application,
at least 7 days before the summary judgment hearing.
(2) If the applicant wishes to rely on written evidence in reply, he must–
(a) file the written evidence; and
(b) serve a copy on the respondent,
at least 3 days before the summary judgment hearing.
(3) Where a summary judgment hearing is fixed by the court of its own initiative–
(a) any party who wishes to rely on written evidence at the hearing must–
(i) file the written evidence, and
(ii) unless the court orders otherwise, serve copies on every other party to proceedings,
at least 7 days before the date of the hearing;
(b) any party who wishes to rely on written evidence at the hearing in reply to any other party’s written evidence must—
(i) file the written evidence in reply; and
(ii) unless the court orders otherwise, serve copies on every other party to the proceedings,
at least 3 days before the hearing.
(4) This rule does not require written evidence–
(a) to be filed if it has already been filed; or
(b) to be served on a party on whom it has already been served.

Question 29

CPR 24.6 - Court’s powers when it determines a summary judgment application

Answer 29

When the court determines a summary judgment application it may–

(a) give directions as to the filing and service of a defence;
(b) give further directions about the management of the case.
- The court may attach conditions when it makes an order.

Question 30

24PD.1 - Applications for summary judgment under Part 24

Answer 30

• The word ‘claim’ means: (1) a part of a claim, and (2) an issue on which the claim in whole or part depends.
• An application for summary judgment under CPR 24.2 may be based on (1) a point of law or (2) the evidence which can be reasonably expected to be available at trial or the lack of it, or (3) a combination of these.

Question 31

24PD.2 - Procedure for making an application for summary judgment

Answer 31

• Application notice must include a statement that it is an application for summary judgment made under Part 24.
• The application notice or the evidence contained or referred to in it or served with it must–
  (a) identify concisely any point of law or provision in a document on which the applicant relies, and/or
  (b) state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue (as the case may be) or successfully defending the claim or issue,
  and in either case that the applicant knows of no other reason why the disposal of the claim or issue should await trial.
  (4) Unless the application notice itself contains all the evidence (if any) on which the applicant relies, the application notice should identify the written evidence on which the applicant relies.
  (5) The application notice should draw the attention of the respondent to CPR 24.5(1).
  (6) Where the claimant has failed to comply with Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol, an action for summary judgment will not normally be entertained before the defence has been filed, or the time for doing so has expired.

Question 32

24PD.3 - The hearing

Answer 32

• The hearing of the application will normally take place before a Master or District Judge.
• The Master or DJ may direct that the application be heard by a High Court Judge (if the case is in the High Court) or a Circuit Judge (if the case is in the County Court)

Question 33

24PD.4 - The Court’s approach

Answer 33

Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order.

Question 34

24PD.5 - Orders the Court may make

Answer 34

(1) Judgment on the claim
(2) Striking out or dismissal of the claim
(3) Dismissal of the application
(4) A conditional order

• A conditional order is an order which requires a party:
  (1) to pay a sum of money into court, or
  (2) to take a specified step in relation to his claim or defence, and provides that that party’s claim will be dismissed or his statement of case be struck out if he does not comply.

Question 35

24PD.8 - Setting aside order for summary judgment

Answer 35

• If an order for summary judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied.
• On the hearing of such an application, the court may make any order it thinks just.

Question 36

24PD.10 - Case management

Answer 36

Where the court dismisses the application or makes an order that does not completely dispose of the claim, the court will give case management directions as to the future conduct of the case.

Question 37

CPR 24.2.3 - “no real prospect of succeeding/successfully defending”

Answer 37

Easyair Ltd principles:

• must have a ‘realistic’ as opposed to ‘fanciful’ prospect of success
• must not conduct a ‘mini trial’
• but must take into account not only the evidence actually placed before it on application for summary judgment, but also the evidence that can be reasonably be expected to be produced at trial
• court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and affect the outcome of the case
• if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.
• it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction

Question 38

CPR 24.2.4 - “no other compelling reason”

Answer 38

examples:
- claimant company was in liquidation was a compelling reason to refuse summary judgment where there were latent claims and cross-claims between the parties
- summary judgment held to be inappropriate where similar issues remained to be determined at a trial between the defendant and other parties
- summary judgment has been held to be inappropriate where it depended upon a short point of construction of the terms of an insurance contract where the terms were said to be standard terms widely used in the insurance market.
- claimant’s case appearing to be ‘devious and crafty’ and not ‘plain and straightforward’
- where the defendant is an executor or administrator who can raise facts by reference to the existence or absence of letters, accounts or such like of the deceased which make it reasonable to require full investigation
- where the claimant’s case tended to show that he had acted harshly and unconscionably and it is thought desirable that if he were to get judgment at all it should be in the full light of publicity
- libel, slander, malicious prosecution or false imprisonment cases may require trial by jury

Question 39

CPR 24.2.5 - Burdens of proof

Answer 39

• Overall burden of proof rests on the applicant to establish that there are grounds to believe the respondent has no real prospect of success and that there is no other reason for trial.
• If the applicant for summary judgment addresses credible evidence in support of their application, the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for trial. The standard of proof is not high, it suffices merely to rebut the applicant’s statement of belief.
• When deciding whether the respondent has some real prospect of success, the court should not apply the standard which would be applicable at the trial, namely the balance of probabilities

Question 40

CPR 24.2.6 - Effect of a set off or counterclaim

Answer 40

• A claimant may be prevented from obtaining summary judgment, in whole or in part, if the defendant can show that he intends to raise a set off or counterclaim which raises a triable issue, i.e. has some prospect of succeeding.
• If the facts relied upon by the defendant amount to a set off, the claimant may obtain summary judgment only to the extent that the value of the claim overtops the value of the set off. If the claim value is the same or lower than the alleged value of the set off, the claimant’s application for summary judgment will be dismissed.
• If the defendant raises a triable counterclaim which cannot be deployed as a set off, the court may grant summary judgment to the claimant but with a stay of enforcement pending the trial of the counterclaim.
• if the claim value overtops the alleged value of the counterclaim, the stay of enforcement may be made conditional upon the defendant paying the difference by a specified date. Alternatively, the stay of enforcement may be limited to the alleged value of the counterclaim.

Question 41

CPR 24.2.7 - No set off in action on dishonoured bill or cheque

Answer 41

• Under previous rules, a practice prevailed concerning the setting up of a defence of set off in proceedings on a dishonoured bill of exchange, cheque or promissory note.
• In an action on a dishonoured bill of exchange by one of the immediate parties to the bill against the other, a claim for an unspecified amount of damages under a contract for the sale of goods did not afford a defence, nor was it available as a set off or counterclaim, nor did it afford a ground for a stay of execution.

Question 42

CPR 24.6.6 - A conditional order

Answer 42

• Before exercising the power, the court should identify the purpose of imposing a condition and should satisfy itself that the condition it has in mind represents a proportionate and effective means of achieving that purpose.
• 5 principles when considering whether a conditional order for payment into court or security for costs should be made on an application for summary judgment:
  (1) In a case where D has no real prospect of successfully defending the claim, the court must not impose a condition requiring payment into court or the provision of security with which it is likely to be impossible for D to comply.
  (2) The burden is on D to establish on the balance of probabilities that it would be unable to comply with a condition requiring payment into court
  (3) In order to discharge that burden D must show, not only that it does not itself have the necessary funds, but that no such funds would be made available to it.
  (4) It is not incumbent on D to a summary judgment application to adduce evidence about the resources available to it, at any rate in a case where no prior notice has been given that the claimant will be seeking a conditional order.
  (5) The court’s power to make a conditional order on a summary judgment application is not limited to a case where it is improbable that the defence will succeed. Such an order may be made e.g. if there is a history of failure to comply with court orders or there is real doubt as to whether litigation is in good faith.
• In the case of a corporate D, it is important to keep in mind that the question is not whether the company’s shareholders can raise the money but whether the defendant company has established that funds to make the payment will not be made available to it by its beneficial owners.
• Conditional order may be made where whilst it it possible that it might succeed, a defence/claim is particularly weak and very vulnerable to attack.

Question 43

CPR 3.4 - Power to strike out a statement of case

Answer 43

(2) Court may strike out a statement of case if it appears to the court–
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.

(4) Where–
(a) the court has struck out a claimant’s statement of case;
(b) the claimant has been ordered to pay costs to the defendant; and
(c) before the claimant pays those costs, the claimant starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,
the court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid.

(6) If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit–
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

Question 44

CPR 3.5 - Judgment without trial after striking out

Answer 44

(1) This rule applies where–
(a) the court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and
(b) the party against whom the order was made does not comply with it.

(2) A party may obtain judgment with costs by filing a request for judgment if–
(a) the order referred to…relates to the whole of a statement of case; and
(b) where the party wishing to obtain judgment is the claimant, the claim is for–
(i) a specified amount of money,
(ii) an amount of money to be decided by the court,
(iii) delivery of goods where the claim form gives the defendant the alternative of paying their value, or
(iv) any combination of these remedies.

(3) Where judgment is obtained under this rule in a case to which para (iii) applies, it will be judgment requiring the defendant to deliver goods, or if the defendant does not do so, pay the value of the goods as decided by the court.
(4) The request must state that the right to enter judgment has arisen because the court’s order has not been complied with.
(5) A party must make an application in accordance with Part 23 if they wish to obtain judgment under this rule.

Question 45

CPR 3.4.1 - Definition of a ‘statement of case’ for the purposes of strike out

Answer 45

a claim form, particulars of claim where these are not included in the claim form, defence, Pt 20 claim, or a reply to a defence; and includes any further information given in relation to them voluntarily or under court order by CPR 18.1

Question 46

CPR 3.4.1 - When an application for strike out will usually be made

Answer 46

• During the pre-trial stages of proceedings
• Often together with an application for summary judgment
• Court may exercise the power at any stage during proceedings
• The court may act of its own volition

Question 47

CPR 3.4.1 - Scope of grounds for strike out

Answer 47

• Grounds (a) and (b) cover statements of case which are unreasonably vague, incoherent, vexatious, scurrilous or obviously ill founded and other cases which do not amount to a legally recognisable claim or defence
• Ground (c) covers cases where the abuse lies not in the statement of case itself but in the way the claim or defence has been conducted. In many circumstances such a strike out would seem unduly harsh unless the party was warned of the risk of their statement of case being struck out if they did not comply with the rule, PD or court order in question.
• Other options in the case of non-compliance with a rule or PD: order the non-complying party to pay a sum of money into court, awarding costs on the indemnity basis, ordering a party to pay money into court and awarding interest at a higher or lower rate

Question 48

CPR 3.4.1 - Principles for the court to apply

Answer 48

• Denton principles have a direct bearing even though they relate to applications for relief from sanctions rather than to impose a sanction. Applying the Denton three-stage test, it may be held that a judge was entitled to dismiss a strike out application because the breach of CPR or PD was not sufficiently serious
• The ultimate question for the court however is fundamentally different i.e. r.3.4 requires consideration of proportionality of strike out while relief from sanction has to proceed on the basis that the sanction was properly imposed.

Question 49

CPR 3.4.1 - Evidence

Answer 49

While many applications can be made without evidence in support (e.g. if the statement of case discloses no reasonable grounds for bringing or defending the claim), the applicant should consider whether facts need to be proved and, if so, whether evidence in support should be filed and served.

Question 50

CPR 3.4.1 - General provisions

Answer 50

• The court may make an order under r.3.4 of its own initiative
• If a strike out application is made, the court cannot refuse it on a reading of the papers unless it first hears oral argument on behalf of the applicant.

Question 51

CPR 3.4.2 - Statement of case discloses no reasonable grounds for bringing or defending the claim

Answer 51

• those claims which set out no facts indicating what the claim is about, which are incoherent and make no sense, or which contain a coherent set of facts but those facts even if true, do not disclose any legally recognisable claim against the defendant
• a defence may fall within ground (a) where it consists of a bare denial or otherwise sets out no coherent statement of facts, or the facts it sets out, while coherent, would not even if true amount in law to a defence to the claim.
• those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides
• may be struck out on a matter of law; but it is not appropriate to strike out a claim in an area of developing jurisprudence
• a statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence
• where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend

Question 52

CPR 3.4.3 - Statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of proceedings

Answer 52

• ‘using that process for a purpose or in a way significantly different from its ordinary and proper use’
• there has to be an abuse, and striking out has to be supportive of the overriding objective
• the proportionality of the sanction is in issue
• the striking out of a valid claim should be the last option; if the abuse can be addressed by a less draconian measure, it should be.

Question 53

CPR 3.4.5 - Attempts to re-litigate issues which were raised, or should have been raised, in previous proceedings

Answer 53

• precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in earlier ones.
• the rule applies not to matters which were decided by a court, but to matters which might have been decided but were not
• applies not just to subsequent litigation between the same parties but also to parties to subsequent proceedings who were not joined as parties to the earlier proceedings
• depends upon all the circumstances: it does not follow that a matter should have been raised in earlier proceedings simply because it could have been raised in those proceedings.

Question 54

CPR 3.4.9 - Collateral attacks upon earlier decisions

Answer 54

’ the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which had been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had the full opportunity of contesting the decision in the court in which it was made’ is an abuse of process.

Question 55

CPR 3.4.19 - Striking out sanction effective without need for further order (“unless” orders)

Answer 55

• CPR 3.1(3) states that, when the court makes an order, it may (a) make it subject to conditions, and (b) specify the consequence of failure to comply with the order or a condition.
• This, combined with CPR 3.4(2)(c), confirms that the court may make a conditional order in the form of an order stating that, unless by a particular date a parties complies with a procedural order made by the court, their statement of claim shall be struck out and their claim dismissed. The consequence follows automatically upon the party’s failure to comply with the condition, without any further order of the court.
• In making an unless order containing such sanction, a judge should consider carefully all the circumstances of the case and whether the sanction is appropriate.
• Where an unless order has effect, the court retains jurisdiction to grant the defaulting party relief (usually in the form of extension of time for complying) if that party makes an application under CPR 3.8.
• Where an unless order has had this effect, the defaulting party’s opponent may obtain judgment by complying with CPR 3.5. In such event, the party against whom the claim was made may obtain judgment by filing a request for judgment, but otherwise they must make an application in accordance with CPR 23 if they wish to obtain judgment under CPR 3.5.
• At the hearing of such an application, (a) the court’s function is limited to deciding what order should properly be made to reflect the sanction which has already taken effect, and (b) the operation of the sanction does not lie in the discretion of the court, as it is only if there is an application under CPR 3.8 by the defaulting party that the court is required to consider whether, in all the circumstances, it is just to make an order granting relief from the sanction automatically imposed.

Question 56

CPR 44.2 - Courts’ discretion as to costs

Answer 56

(1) The court has discretion as to–
(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid.

(2) If the court decides to make an order about costs–
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.

(3) The general rule does not apply in the following proceedings–
(a) proceedings in the CoA on an application or appeal made in connection with proceedings in the Family Division; or
(b) proceedings in the CoA from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.

(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including–
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(5) The conduct of the parties includes –
(a) conduct before, as well as during, proceedings and in particular the extent to which the parties followed the PD - Pre-Action Conduct or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended its case or a particular allegation or issue;
(d) whether a claimant who has succeed in the claim, in whole or in part, exaggerated its claim.

(6) The orders which the court may make under this rule include an order that a party must pay–
(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date only;
(d) costs incurred before the proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating only to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date, including a date before judgment.

Question 57

CPR 44.3 - Basis of assessment

Answer 57

(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs;
(a) on the standard basis; or
(b) on the indemnity basis.
but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

Question 58

CPR 44.3 - Standard basis

Answer 58

(2) Where the amount of costs is to be assessed on the standard basis, the court will–
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they are reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Question 59

CPR 44.3 - Indemnity basis

Answer 59

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

Question 60

CPR 44.3 - where the court does not indicate basis

Answer 60

(4) Where –
(a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or
(b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis,
the costs will be assessed on the standard basis.

Question 61

CPR 44.3 - Proportionate costs

Answer 61

(5) Costs incurred are 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;
(c) the complexity of litigation;
(d) any additional work generated by the conduct of the paying party;
(e) any wider factors involved in the proceedings e.g. reputation or public importance;
(f) any additional work undertaken or expense incurred due to the vulnerability of a party or witness.

(6) Where the amount of a solicitor’s remuneration in respect of non-contentious business is regulated by any general orders made under the Solicitors Act 1974, the amount of costs to be allowed in respect of any such business will be decided in accordance with those orders rather than CPR 44.3 and 44.4.
(7) Paragraphs (2)(a) and (5) do not apply to cases commenced before 1st April 2013 or costs incurred in respect of work done before 1st April 2013.

Question 62

CPR 44.4 - Factors to be taken into account when deciding the amount of costs

Answer 62

(1) The court will have regard to all the circumstances in deciding whether costs were–
(a) if it is assessing on the standard basis–
(i) proportionately or reasonably incurred; or
(ii) proportionate and reasonable in amount; or
(b) if it is assessing costs on the indemnity basis–
(i) unreasonably incurred; or
(ii) unreasonable in amount.

(2) In particular, the court will give effect to any orders which have already been made.

(3) The court will also have regard to–
(a) the conduct of all the parties, including in particular–
(i) conduct before, as well as during, proceedings; and
(ii) the efforts made, if any, before and during the proceedings in order to try and resolve the dispute;
(b) the amount or value of any money or property involved;
(c) the importance of the matter to all the parties;
(d) the particular complexity of the matter or the difficulty/novelty of the questions raised;
(e) the skill, effort, specialised knowledge and responsibility involved;
(f) the time spent on the case;
(g) the place where and the circumstances in which work or any part of it was done; and
(h) the receiving party’s last approved or agreed budget.

Question 63

44PD.4 - ‘Costs in any event’

Answer 63

The party in whose favour the order is made is entitled to their costs in respect of the part of the proceedings to which the order relates, no matter what costs orders are made in the proceedings.

Question 64

44PD.4 - ‘Cost in the case’ or ‘costs in the application’

Answer 64

The party in whose favour the court makes an order for costs at the end of the proceedings is entitled to their costs of the part of the proceedings to which the order relates.

Question 65

44PD.4 - ‘Costs reserved’

Answer 65

The decision about costs is deferred to a later occasion, but if no later order is made, the costs will be costs in the case.

Question 66

44PD.4 - ‘Claimant’s/Defendant’s Costs in the case/application’

Answer 66

• If the party in whose favour the costs order is made is awarded costs at the end of the proceedings, they are entitled to their costs of the part of the proceedings to which the order relates.
• If any other party is awarded costs at the end of the proceedings, the party in whose favour the final costs order is made is not liable to pay the costs of any other party in respect of the part of the proceedings to which the order relates.

Question 67

44PD.4 - ‘Costs thrown away’

Answer 67

• Where e.g. a judgment or order is set aside, the party in whose favour the order is made is entitled to the costs which have been incurred as a consequence.
• This includes the cost of preparing for and attending any hearing at which the judgment or order which has been set aside was made; preparing for and attending any hearing to set aside; preparing for and attending any hearing at which the court orders proceedings to be adjourned; any steps taken to enforce a judgment or order which has subsequently been set aside.

Question 68

44PD.4 - ‘Costs here and below’

Answer 68

• The party in whose favour the costs order is made is entitled not only to that party’s costs in the 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.
• In the case of an appeal from the Divisional Court, the party is not entitled to any costs incurred in any court below the Divisional Court.

Question 69

44PD.4 - ‘No order as to costs’ or ‘each party to pay own costs’

Answer 69

Each party is to bear their own costs of the part of proceedings to which the order relates whatever costs order the court makes at the end of the proceedings.

Question 70

44PD.9.5 - Duty of parties and legal representatives

Answer 70

• It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case.
• Each party who intends to claim costs must prepare a written statement of those costs showing separately in the form of a schedule–
  (a) the number of hours to be claimed;
  (b) the hourly rate to be claimed;
  (c) the grade fee earner;
  (d) the amount and nature of any disbursement to be claimed, other than counsel’s fee for appearing at the hearing;
  (e) the amount of legal representative’s costs to be claimed for attending or appearing at the hearing;
  (f) counsel’s fees; and
  (g) any VAT to be claimed on these amounts.

(3) The statement of costs should follow as closely as possible Form N260 and must be signed by the party or the party’s legal representative. Where a party is–
(a) an assisted person;
(b) a LSC funded client;
(c) a person for whom civil legal services within the meaning of LASPO 2012 are provided under arrangements made for the purposes of that Act;
(d) represented by a person in the party’s employment,
the statement of costs need not include the certificate appended at the end of Form N260.

(4) The statement of costs must be filed at court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought as soon as possible and in any event–
(a) for a fast track trial, not less than 2 days before the trial; and
(b) for all other hearings, not less than 24 hours before the time fixed for the hearing.