Pre Action Conduct and Protocols

Preaction conduct and protocol = a set of steps and conduct parties/ take and adhere to before commencing proceedings.

Approved by the Master of Rolls and annexed to CPR rules.

Person who KNOWINGLY makes a false statement in a pre action letter/ other document may be subject to proceedings for contempt of court.

Objectives of Pre-Action Protocol:

To court will expect the parties to have exchanged sufficient info to:

• Understand each other's position 
• Make decisions about how to proceed 
• Try to settle the issues without proceedings 
• Consider a form of alternative dispute resolution to assist with settlement.
• Support the efficient management of those proceedings.
• Reduce the cost of resolving the dispute

Actions taken by parties must not be tactial instead the actions taken must be:

REASONABLE AND PROPORTIONATE with the aim of narrowing down or resolving factual, legal or expert issues.Cost incurred complying with Pre Action Conduct and Protocol should be proportionate -44.3 (5).

Those which are disproportionately incurred will not be recoverable in cost proceedings.

If there is a Relevant Pre Action Protocol the parties should comply with it before issuing proceedings.If there is not the parties should exchange correspondence and information to comply with the objectives of Pre Action Protocol and Conduct.

IMPORTANT NOTE ^^^^ - COMPLIANCE SHOULD BE PROPOTRIONATE and this would usually include:

• C writing to D with precise details of Claim - (basis of claim, summary of facts, what C wants from D, if £ how was the sum calculated
• D responding within a reasonable time (14 days- 3 months depending on complexity)
• D's response should include: confirmation of claim being accepted, if it is not accepted reasons + explaination as to which parts of claim are disputed.
• Disclousre of KEY DOCUMENTS relevant to the case.

Experts

• Courts permission needed to rely on evidence from expert - 35.4 (1).
• If expert evidence the parties should consider using a single expert.

StockTake and List of Issues:

• Where issue not resolved in preaction conduct/ protocol parties should see if there is anyway they can avoid proceedings or reduce the issues in dispute prior to proceedings being issued.

Limitation

• Pre action does not alter limitation. If running out of time C can issue proceedings and apply for a stay OR issue proceedings and delay serving the claim form.
• Delay in serving the claim form can be for up to 4 months. CPR 7.5

How does the court want people to adhere to pre action protocols?

• Protocols are codes of best practice.
• Court is interested in compliance with the spirit of the protocol not the exact word of it.

Letter of Claim:

Detail will vary depending on the type and value of the claim. However it should ALWAYS include the following:

• Basis of claim (neg, misrep, fraud)
• Remedy sought
• As much details about sum of remedy if the remedy sought is monetary. ATLEAST enough to enable the defendant to put a bracket on damages.

Defendant's Response Letter:

• Should be detailed and not a simply denial of claim. (Failure could be a breach warranting a sanction).
• If D accepts liability the letter should CLEARLY state this.
• CPR 14.1 gives the court the power to allow the withdrawal of an admission. Burden rest on the party applying.

Pre-Action Court Applications:

• Parties can apply to the court for disclosure during pre action - 31.16
• However generally, speaking the parties cannot make other preaction applications unless the claim is unlikely to be able to proceed without the application.

Expert Reports

• report does not need to be dislosed to the Defedant where the identity of the Defedant had not yet been disclosed. These reports remain privilidged.
• Save for whiplash cases the protocol encourages joint selection of experts.
• In personal injury cases the claimant can pick the expert.
• If C chooses to obtain a medical report from a medical agency the D's consent is required. 
• When D is asked for their consent they can also ask for the name of the Dr's the claimant is considering instructing.
• Within 14 days of providing a list of experts the other party may indicate objections to one or more of the named experts. If this is the case the instructing party should select an expert which is pleasing to everyone.
• When an expert is selected in the initial letter of claim - D has 14 days in addition to the 21 days to respond to letter of claims to object to one of the experts.
• Any party may send to an expert WRITTEN questions on the report via the first party's solicitors. This must be within 28 days of service of the experts report.
• Expert should provide both parties with their answers at the same time.
• Party who ask questions fronts the bill for questions.
• Instructing party foots the bill for report.
• Court will decide if the cost of more than one expert are recoverable.

Protocol applies to cases likely to be assigned to fast track (up to a value of 25K).

If protocol not followed or it is varied the court will expect an explaination.

Protocol recommends D given 3 months to investigate and respond to claim. Not always possible eg when C decides to puruse claim towards the end of the limitation period.

In ths case -C's solicitors should gave as much notice as PRACTIABLE of their intention to issue proceedings.

Court can extedn time for service or grant a stay over proceedings to allow pre action protocols to be adhered with.

Litigants in person are expected to comply with the pre action protocol as FAR AS REASONABLY POSSIBLE.

PI Protocols objectives are to:

• Encourage the exchange of early and full information about the dispute
• Encourage better and early preaction investigation by all the parties
• Enable parties to agree a settlement before proceedings are commenced.
• Support the just, proportionate and efficient management of proceedings where litigation cannot be avoided.
• Promote medical rehabilitatin treatment at early stages to address needs of C.

What are the objectives of the PI pre action protocol.

Letter of notification

• (If C wishes to notify D and D's insurer of the claim as soon as) 
• Helpful when D has no knowledge of Claim or where C in incurring significant expenditure.
• Letter of notification should be acknowledged within 14 days.
• Letter of notification should include info available to assist with: liability/ suitability of the claim for an interim payment and or early rehabilitation.

Rehabilitation

Consider as soon as C medical treatment or rehabilitative needs and how to address them.

Letter of Claim:

• C should send D 2 letters of claim. One for D and one for D's insurers.
• D should pass the letter of claim onto the insurers within 7 days of receiving from C but ideally as soon as possible.
• Level of detail in letter of claim varies.What should be included in a letter of claim:

• clear summary of the facts that the claim is based.
• Indication of the nature of any injuries C has suffered.
• Impact of these injuries on the claimant's day-to-day functioning and prognosis.
• C's national inusrance number and DOB should be provided to the insurer once they have responded to the letter of claim.
• D's Response 

• D must respond with 21 calandar days of the date of posting of the letter identifying the insurers (if any).
• If the insurer is aware of any ommissions in the letter of claim they shoud identify them specifically.
• Should do same if another D is indentifed who is unlikely to be involved in proceedings.
• Non complaince = cost penalties/ sanctions no reply within 21 days - C may issue proceedings.

The Response Continued:

Where D is outside of the English and Wales jurisdiction the time periods of 21 days and 3 months should usually be extended to 42 days and six months.

The D should disclose alongside tier response documents which are MATERIAL to the issues and in their possession.

Applicants which are likely to be ordered to be disclosed in dislosure application or preaction disclosure application should be disclosed.

No charge will be made fpr providing copies of these documents under the protocol.

Aim - promote early exchange of relevant information to help in clarifying or resolving issues in dispute.

C's solicitors can assist by:

Identiying in the letter of claim or in subsequent letters :

the particular categories of documents which they believe are relevant 

An explaination as to why they are relevant 

Examples of documents which are relevant in particular types of claims can be found at pg 2555 of V1 White Book.

Destroying evidence when aware of the possibility of proceedings could be an abuse of court proceedings.

Procedure for obtaining experts for Whiplash:

• C must obtain a fixed cost medical report.
• The report must be obtained from an accredited medical expert who is instructed via a search of the online medical reporting organisations and medical experts held by MedCo.
• Expected that in most cases the medical expert will not need to see the medical records.
• If C is outside of jurisication but chooses to be examined in England and Wales the ^^^^ rules apply.

What happens when C obtains report for Whiplash and another injury which is more serious. Report can be used if:

• The report is from a Dr who is listed on the General Medical Council's Specialist Register and 
• The report oprovides evidence of the Whiplash injury.

Where C lives outside English and Wales Jurisdiction the report must be from a person who is recognsied by the country as a:

• Medical exeprt 
• Having the required qualifications for the purposes of diagnosis and prognosis of a whiplash injury.

D admitts liability before proceedings have been issued what should C do:

• Send D any medical reports under the pre action protocol which C relies
• Send D a schedule of any past and future expenses and losses which are claimed even if the schedule is neccessarily provisional. Schedule should contain as much detail as possible and include details of losses which are continuing.
• C should delay issue proceedings by 21 days from disclosure of the above info UNLESS the time limits are about to expire.
• Part 36 offers can be made.

Special Rues for this scenario in a Whiplash case are provided for by Whiplash Injury Regulations 2021:

• No offer may be made, invited or accepted by either party and
• No payment may be made by the defendant or accepted by the claimant 
• until AFTER THE FIXED COST MEDICAL REPORT HAS BEEN DISCLOSED.

Special Damage:

If the D admits liability, C will send as soon as practicable a schedule of any past and future losses and expesnes which he claims .

Schedule should contain as much info as possible and should clearly identiy the losses that are ONGOING.

If the schedule is likely to be updated before the case has been concluded the schedule should indicate this.

C should keep D informed of the rate at which their financial losses are progressing throughout the entire protocol period.

Stocktake:

If the issue is not resolved during the preaction stage the parties should do the following:

• Undertake a review of their own position (strenghts and weaknesses)
• Consider evidence and the arguments to see if litigation can be avoided.
• If not possible see if the issues can be narrowed down before proceedings.

Parties are expected to comply with preaction protocols / practice directions.

Non complaince will be taken into account by the court when making directions for the management of proceedings 3.14 (4) to (6) and when making orders for cost. CPR 44.3 (5) (a).

Examples of non-complaince include:

• Not providing sufficient info for the pre action protocol objectives to be met.
• Not acting within a time limit set out within a relevant protocol or within reasonable period
• Unreasoably refuse to use a form of ADR or failed to respond at all to an invitation to use ADR.

When faced with non-complaince the court may order:

• Parties releived of the obligation to comply or to further comply
• Proceedings are stayed whilst particular steps are taken to comply with the preaction protocol  or this Practice Direction.
• Sanctions are to be applied.

Protocols are a REASONABLE approach to preaction condcut.

CPR 3.1

Court can order a party to pay a sum of money into court for non-compliance when there is no GOOD REASON.

Parties will not ALWAYS be penalised for non-compliance - where it is justified

eg limitation period was about to expire.

Freezing injunction application needs to be done behind the other parties back so they cannot comply with pre action protocols.

Just becuase one party has not complied it does not give the other party an excuse to not comply

Court will consider the effect of non-complaince when ordering sanctions.

Sanctions may include:

• cost of other party 
• cost on an indemnity basis 
• if the naughty person wins depriving interest on award or reducing the amount of interest on the award.
• If naughty party is loser awarding interest on the winners award at a higher % (not higher than 10%) for a specified period.

Time Limits for Bringing Claim:

• Personal injury  3 years from knowledge and accrual 
• Fatal accident from 3 years date of death or knowledge from dependent
• contribution 2 years from right accrued
• Negigence when neg not know on date of accrual -six years from date of acrue 
• or three years date of knowledge - LONG STOP RULE OF 15 YEARS
• Judgment 6 years 
• Contract or Tort = six years from accrual 
• Fraud/ Concealment/ Mistake:
• Limitation starts to run after fraud concealment or mistake discovered or could have been discovered with REASONABLE DILI
• Disability (insanity, youth):
• *contribution = 2 years
• *personal injury= 3 years
• *6 years in other cases.
• EXTENSIONS POSS IF EQUITABLE.

How to determine the date of knowledge for negligence claims:

• *material facts of damage
• *attributable to the alleged wrongdoing 
• *The identity of the defendant
• *if wrongdoing not by D details of other party + supporting facts

How determine the date of knowledge for personal injury/ fatal accidents:

• *the injury was significant 
• *it was attributable to the alleged wrongdoing 
• *the identity of the defendant
• *If not be D identity or 3rd party + supporting facts.

When are proceedings started?

• When a claim form is issued by the court

When is a claim form issued by the court?

• On the date entered on the form by the court.

Small mistakes on claim form:

• White Book example Claimant used the WRONG claim form but provided all the correct information. It was held unjust and disproportionate to strike out the statement of case as the Defendant had ALL the information they required.
• If the claim form is submitted with the wrong issue fee. Claim will still be able to proceed.
• Proceedings cannot be commenced anonymously. 
• C may use one claim form to start several claims which can be sorted out in the same proceedings.

Name of the firm of claim form must be the name of the firm on the date the cause of action accrued.

When must the particulars of claim be served?

• With the claim form or within 14 days after service of the claim form.
• However, it cannot be served any later than the deadline for serving the claim form.
• Within 7 days of serving PoC of Defendant C must file a copy at the court.
• C will not need to file a PoC @ court when:
• Claim is being dealt with at the Production Centre (under rule 7.10) or the County Court Business Centre.

Where to start proceedings:

• Non personal injury cases with a value of MORE THAN 100K = high court.
• Personal injury cases with a value of £50K or more = high court.

Other reasons a claim should be issued in the high court:

• Financial value/ amount of dispute
• Complexity of facts, legal issues, remedies or procedures involved.
• The importance of the outcome of the claim to the public in general.

Applications must be made in accordance withe the procedure in Part 23 and be supported by evidence.

The evidence must state the following:

• All the circumstances relied upon.
• The date of issue of the claim 
• The expiry date of any rule 7.6 extension and 
• A full explaination as to why the claim has not been served.

What is the procedure for applying for an extension on the time limit for serving a claim form?

What must the evidence state?

General rule: Application must be made within initial time limit to serve claim form.

If the applicant applies outside of this time limit an application will only be granted if:

• The court has failed to serve the claim form or 
• The Claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do s and 
• Has been prompt in making their application.

Application MUST be supported by evidence and may be made without notice.

Reason applicant was not able to serve the claim during the time limit is an extremely significant factor.

Just because a reason is sufficeinet for the extension for a particulars of claim it does not mean it is sufficient reason for extending the time period for service of a claim form.

Generally speaking - reason must be difficulty in effecting service.

Finanicial constraints and ignorance of the law are unlikely to be sufficient reasons.

What is the deadline for serving a claim form?

Before 12 midnight on the calandar day four months after the date of issue of the claim form.

Methods of service include:

• First class post (or the equivalent), document exchange
• Leaving it at a place specified in a rule
• Fax or other means of electronic communication - no need to send hard copy unless no acknowledgement of receipt.
• Any method authorsied by the court under rule 6.15
• Any methods permitted under the Companies Act 2006.

Methods of Service Permitted by the Companies Act 2006:

• Leaving it or posting to the company's registered business address.
• Serving sister company who is authorised to accept service.
• Sering company directors/ secrateries

Revision QuestionsSummarise the methods of serv?What is the deadline for serving a claim form?What are the methods of service permitted by the Companies Ac 2006

Court will usually serve the claim form unless:

• A rule of PD provides otherwise - eg - wants C to serve the form.
• C notifies the court that C wishes to serve the claim form.
• The court orders otherwise.

When te court serves the claim form they decide which method of service to use.

When court serves the claim form C must file enough claim forms for ALL the defendants.

Once court has sent:

• Notificaation of outcome of postal service 
• Notification of non service by a baliff

The courts will not continue to tr to effect service.

Personal service on an individual: leave the claim form with the individual

Personal service on a company: leaving it with a person who holds senior position

Personal service on a partnershp: leaving the claim form with:

• A partner 
• A person who at the time of service has the control or management of the partnership business at its principal place of business.

Revision Questions: Summarise how you personally serve:

claim form on an individual, compnay or a partnership.

Solicitor can be served claim form where D has given the business address of their solicitor to be served

or where Solicitor has notified C in writing that the solicitor is instructed by the Defendant to accept service of the claim form on the behalf of the Defendant at a business address within jurisdiction.

Service of the Claim Form Where the Defedant gives an Address:D can be served at an address which the Defendant resides or carries on business within the UK and which D has given for the purposes of being served.Dispute between landlord and tenant - landlord can be served at an address given by the Landlord under section 48 of the Landlord and Tenant Act 1987 or section 39 of the Renting Homes Act.

Service of the claim where the Defedant does not give an address at which the Defendant may be served?

• Individual - ast known residence 
• Individual business being sued in the name of the business- usual / last know residence of the indivual OR principal or last place of business.
• Individual being sued in the business name of the partnership: Usual or last known residence of the individual or principal last known place of business.
• Limited Liability Partnership - principal office of the partnership or any place of business of the partnership within the jurisdiction which has a real connection with the claim.
• Corporation (other than compnay) incorporated in England and Wales : Principal office of the cooperation or any place within the jurisdiction where cooperation carries out its activites and has a link to the claim.
• Company registered in England and Wales: Principal office of the company or any place of business of the compnay within the jurisdiction.
• Any other company or cooperation- any place within the jurisdiction where the corporation carrries on its activties or any place of business of the compnay within the jurisdiction.

Agreed in contract place/ method of service.

If this is outside of jurisdication is service is carried out pursuant to rule 6.36 court permission needed.

If this is outside of jurisdiction and the service is carried out pursuant to r 6.32 and 6.33 permission is needed.

Claim form is deemed to be served on the second business day after the required step is completed.

What steps are required for deemed service for the different methods:

• Post, document exchange or equivalent - posting, leaving with delivery to or collection from the relevant service provider eg royal mail.
• Delivery of the document or leaving at the relevant place - deliviering or leaving the document at the relevant place.
• Personal service - leaving it with appropriate person 
• Fax - completing transmission of the fac 
• Other electronic method like email = sending the email.

If PoC attached to the claim form deemed date of service for PoC is the same for the claim form.

Deemed date of service is different if the claim form is served in accordance with the Comapnies Act instead of part . If Companies Act used - deemed served at the time it would have been delivered in the ordinary course of post.

Revision Questions:When is a claim form deemed to be served?What are the different methods of service?What is the relevant step that needs to be taken for each method of service?

If there appears to be a GOOD REASON why service should e permitted by another method or to another address court may permit it.

Under CPR 6.15.

Application under this rule:

• Must be supported by evidence 
• May be made wthout notice 

Application under this rule must specify:

The method or place of service 

The date on which the claim form is deemed served and the period for-

• Filing an acknowledgement of srvice 
• Filing an admission 
• Filing a defence

IMPORTANT:

• Where a document is to be served by fax or other electronic means the person or the representative who is going to be served (D) MUST have indicated in writing that they are willing to accept service by electronic means
• and provided:
• the fac number and/ or email address orother electroic ID as to where it can be sent.

Who holds a senior position in a registered company or coorperation:

• A director 
• The treasurer 
• The secretary of the company or cooperation 
• Chief executive 
• Manager or other officer 
• For non registered compnay / company or cooperation:
• All people mentioned above = senir position 
• +  the mayor, the chairman, the president, a town clerk or similar officer.

Documents which would be served on a portected party must be served on a litigation friend.

Court MAY make an order for the child, or protected party or some other person to be served with the documents.

When are Documents (NOT INCLUDING CLAIM FORM) deemed to be served:

• First class post or an appropriate alternative:  second day after postal, delivery or collection by Royal Mail (or other equivalent).
• Document exchange: 2nd busiess day after it was left with delivered to or collected by the relevant service provider IF THAT DAY IS A BUSINESS DAY - IF NOT THE NEXT BUSINESS DAY.
• Delivering the document to a permitted address: if delivered before 16:30  on a business day served on that day. If delivered after 16:30 deemed service on next business day.
• Fax and Other Electronic Method: if completed before 16:30 on business day that day IF NOT THE NEXT BUSINESS DAY.
• Personal service: If the document is served personally before 16:30 on a business day that day = deemed date of service. IF not the next busines day.

CPR 6.15 applies to any documents in the proceedings and is modified accordingly.

Summarise CPR 6.15

What does that mean if D wants to serve their defence to an alternaive place - what procedure would they need to exhaust?

When can the part 8 procedure be used?

When parties are seeking the court's deicision on an issue / question which is unlikely to involve a substantial dispute of fact.

In the county court a part 8 claim can be made to ANY county court.

When part 8 proceudre is used default judgment is not available.

Part 8 Procedure Claim Form Contents:

• State Part 8 applies 
• The question C wants the court to decide.
• Remedy which the C is seeking and the legal basis for the claim to that remedy.
• If the claim is being made under an enactment what that enactment is.
• If C is claiming in a representative capaicty what that capacity is.
• If D is being suied in a representative capacity what that capacity is.

Acknowledgement of Service:

• The D must file an acknowledgement of service in the relevant practice form within 14 days  after service of the claim form.
• Needs to be served on C and any other party.

The acknowledgement of service must state:

• Whether D contest the claim and 
• If D seeks a different remedy from that st out in the claim form what that remedy is.

D failing to serve an acknowledgement of service means that D will be able to attend the hearing but will not be able to take part unless the court gives permission.

• If C wants to file written evifence this needs to be served with the claim form. Evidence can be included on the claim form if it is verified by a statement of truth.
• If D wants to rely on evidence D MUST file it with their acknowledgement of service. If D chppses to do this they must also serve copies of their evidence on ALL the other parties.
• C may file evidence in response to D's eivdence within 14 days of receiving the acknowledgement of service. Evidence must also be filed on other parties.
• Parties can apply to the court for an extension on the time limits to serve evidence.
• However, the parties can agree in writing between themselves : An extension of time:
• Not more than 14 days = serving and filing evidence from the D
• Not more than 28 days = serving evidence in reply.

Court should be notified of such extension within the acknowledgement of service or with 48 hoursof the agreement.

No writte evidence can be relied upon at the hearing unless it is submitted in keeping with the procedure above or the court gives permission.

• Court MAY require or pemrit a party to give oral evidence at hearing.
• Court MAY give directions requiring the attendance for cross examination.

What happens when D objects to use of Part 8 Procedure becuase:

• There is a substantial dispute of fact and 
• The use of the Part 8 Procedure is not required or permitted by a rule or practice direction.
• D must state this on their acknowledgement of service + state reasons why.

• What is the Part 8 Procedure?
• When is it used?
• What should be on the claim form in a part 8 procedure?
• Summarise acknowledgement of service in a part 8 procedure ?
• What is the consequence of D not filing an acknowledgement of service?
• How and when should written evidence be served?
• Can this be extended?
• What is the rpcoedure fr extendign this?
• What is the procedure when D objects to the use of the Part 8 Proceudre?

Claims can be bought against trustees, executorsor adminstrators in this capacity.

• The judgment will be binding on the benefiiciaries.

A person has interest in a claim and dies:

• The claim can proceed in the absence of a person representing the estate or
• A person can be appointed to represent the estate of the deceased.

Defedant whom a claim could have been brought against dies:

• Where grant of adminstration or probate has been made the claim must be bought against the personal representatives.
• When no grant of probate or administration has been made:
• The claim must must be bought against the estate of the deceased.
• The claimant must apply to the court for an order appointing a person to represent the estate of the deceased in a claim.
• Judgments given are binding on the estate of the deceased.

• Litigations friends are required in proceedings against a child or protected party.
• Unless the court orders otherwise. - it is possible for the court to order that a child conduct litigation without a litigation friend.
• Application for such an order:

• May be made by the chld 
• If the child already has a litigation friend the litigation friend must be given notice of the application.
• If the child has no litigation friend the application can be made withou notice.
• If court decides proceedings can go ahead against. a child who does not have a litigation friend the court can later change its mind.
• Any step taken before a child or protectd party ha s a litigiation friend will be of no effect unless the court order otherwise.
• If a child has a solicitor and te case is being heard in the highcourt there is no requirement for a litigation friend.
• The solicitor can double up = eg act as the litigation friend and the solicitor.
• Sometimes requirement for litigation friend can be a barrier in cases progressing - unlikely to be a breach of Article 6 Human Rights.
• A child can only be referred to as a protected party when they will not gain capacity once they turn 18.
• If someone wants to start a claim against child or protected party (this can even include a counterclaim) the court's permission is need.

• Who may be a litigation friend without a court order?
• can fairly or compotently conduct proceedings on behalf of the child or protected party.
• Have no interest adverse to that of the child or protected party and 
• where the child or protected party is a claimant, undertake to pay any costs that  the claimant is ordered to pay, subject to any right  to be repaid from the assets of the child or protected party.
• All offers made or on behalf of protected party need to be agreed by the court.
• Claim must be made using a Part 8 procedure.
• Application for approval must include:
• A draft consent order setting out the proposed settlement terms 
• Details of whether or to what extent liability is admitted.
• The age and occupation (if any) of the protected party 
• Confirmation that the litigation friend approves the settlement
• A copy of any relevant medcal, financial or other expert evidence or advice 
• PI arising from accident = details of the accident and claimed loss and damage
• Legal opinion on mertis of settlement unless its abundantly clear
• Where settlement on behalf of dependant child of deceased person the above needs to be submitted but in additon to:
• The claimed loss of future earnings in respect of the deceased. +The nature and extent of dependency.

Settlement / Offers / Compromise to children and protected parties are not final until approved by the cout and thus they can be varied.

Money can be paid to court.

Small sums of money can be paid to litigation friend to put into bank account.

Money cna be invested on the child or ptoected parties behalf.

What should the contents be of a claim form outside of the Part 8 Procedure:

• A concise statement re the nature of the case.
• Specify the remedy C seeks.
• Contain a statement of value in accordance with rule 16.3 where the C is making a claim for money.
• Contain a statement of the interest accrued on the sum where the only claim is for a specified sum.
• Contains such other matters as may be set out in a practice direction.

If the claim form is against the Crown the claim form must contain:

• The names of the government departments and officers of the Crown concerned; and 
• Brief details of the circumstances in which it is alleged that the liability of the Crown arose.
• If the PoC is not accompany the claim form, C must state on the claim form that the particulars of claim will follow.
• If C is claiming in a representative capacity the claim form must state what the capacity is.
• If D is being sued in a representative capacity the claim form must state what that capacity is.
• Court can grant C a remedy that is not listed in the claim form.

If C is making a claim for money the claim form must state:

The amount of money claimed;

The amount the claimant expects to recover 

• not more tha £10,000 
• More than 10K but less than 25K
• More than 25K 
• Or that C cannot say how much is likely to be recovered.

In a claim for PI C must state whether the amount they wish to recover for PSLA (general damages) is 

• Not more than 1500
• More than 1500

If the claim form is to be issued in the High Court it must state:

• C expects to recover > than 100K
• State that some other enactment permits or requires the claim to be brought in the High Court and specify that enactment.
• If the claim is for personal injuries state that C expects to recover 50K or 
• State that the claim is to proceed in one of the specialist High Court list and state which list.

Value of claim in claim form does not limit the value of award that the court may make.

PoC should contain the followign (CPR 16.4):

• A concise statement of the facts on which C relies.
• If C is seeking interest a statement to that effect.
• If C is seeking aggrevated damages (GL) or exemplary damages (GL) a statement to that effect and the grounds for claiming them.
• If C is seeking provisional damages a statement to that effect and the grouds for them. 

What must a PoC contain?

When do special provisions about statements of case apply:

• Media and communications claims 
• Claims for possession and 
• Probate claims 

Claim form must include an address (with postcode) at which C lives or carries out business, even if C's address for service is the business adress of their solicitor.

If D an individal if possible claim form should include full address and postocde.

PoC which are not included in the claim form must be verified by a statment of truth.

Particulars of Claim for Personal Injury Cases:

PoC must contain:

C's date of birth and brief details of C's personal injuries.

Attach a schedule of any past or future losses..

D MUST file an aknowledgement of service when:

• D is unable to fle defence within 14 days after service of particulars of claim. IF an acknowledgement of serivce is served deadline = 28 dyas after the particulars of claim are served.
• D wishes to dispute the courts jurisdiction
• Failure to file acknowledgement of service or defence within the relevant time period MAY result in the claimant obtaining default judgment.

Period for filing an acknowledgement of service:

• 14 days after service of claim form if the particulars of claim are not served with the claim form.
• Or 14 days after the claim form in any other case.

Contents of a Defence:

• A comprehensive response to the particulars of laim.
• State any representative capacity in which the Defendant is defending.
• Include any other matters required by the practice direction.
• Unless an acknowledgement of service has been filed give an address for service.

If D fails to deal with an allegation but sets out the nature of their case in relation to the issue. C is required to prove .

• Replies to a defence are optional.
• If C does not file a reply to the defence D must prove the matters raised in the defence.
• If C files a reply but fails to deal with a matter in the defence D is still required to prove the matter.
• D required to prove unless C makes an EXPRESS admission in the reply.
• The reply should not contradict the intial claim form. If C wishes to ammend claim form they should seek to ammend not lay out new claim in the reply.
• A C who wishes to defend a counterclaim must file a defence and serve it on every party.
• Reply must be verified by a statement of truth.

The Court has the power to dispense of statements of case if a claim form has been:

Issued and served properly.

What are the 4 exceptions to the period for filing a defence:

• Where the claim form has been served outside of the jurisdiction.
• Where D applies to the court for an order declaring that it has no jurisdiction to ty the claim or it should not excercise any jurisdiction that it may have.
• Where before the defence is filed C applies for summary judgment.
• Where the court majes an order for service of a claim form on an agent or principal wh is overseas.
• If defence is filed late default judgment cannot be obtained. Default judgment is only available where a defence or ackowledgement of service has not been filed.
• Parties can agreed to extend the period for filing a defence for up to 28 days. The agreement does not need to be in writing but the court needs to be notified in writing.

• If D requires an extension beyong 28 days they will need to apply to the court.
• If D files a pathetic defence -eg claimed denied full defence shall follow shortly. C can appy for defence to be struck out as it is not a valid defence.
• Copy of defence must be served. However if D files defence at court but does not serve C a copy C cannot obtain defautlt judgment. They can demand D share and threaten strike out or obtain a copy of the defence from the court.
• Counterclaim and defence would usually be in one document unless they are due on different days.
• If C choses to reply to a defence they must file the reply with the directions questionnaire.Reply should be one document.
• Claim willbe stayed if atleast 6 months have expired since Particulars of claim and claim form and no defence or acknowledgement has been submitted and there has been no application for default judgment.

• Any number of claimants or defendants may be joined as parties to a claim.
• A single claim form can be used.
• Court permission is not needed to add, remove or substitute a party if the claim form has not been served.
• Proceedings may be brought against unnamed defendants.
• Claimant consent needed.
• Defedant consent not needed.
• New parties must be supplied with documents without cost.
• On the death of a sole claimant in existing proceedings where the cause of action survives the deceased executor or adminsitrator may apply for an order to be added as the claimant to carry on the proceedings.
• Anew defedant does not become a party to the proceedings until the ammended claim form has been served.
• Applications to add a party can be made by an existing party or by a person who wishes to become a party.
• Must be supported by evidence and made under part 23.
• HM Revenue and Customs may where a dispute between parties may have tax consequences be added as a party to proceedings.
• A party applying to add a new party will usually be responsible for the ammendment.

Subsitituion is at the court's discretion.

For the court to substitue in a party:

The relevaant limitation needs to have been current when the proceedings were started and the addition or substitution needs to be neccessary.

Mistake 

Court may permit the subsistition of a new party if it is satisfied the party on the original claim form was named in mistake for the new party.

Test for ^^^: Is it possible to identify the intended defendant "by reference ti a description more or less specific to the particular case? If Yes new C can be substiuted under rule 19.3

Description of NEW Ds more important than naming C. If court can identify from description that the C was tdescribing New D but misnamed them substitution is likely to go ahead.

Ammendments of a Statement of Case are dealt with in CPR 17.

Any ammendemnts can be made before the claim form is served.

Court has discretion to disallow this under CPR 17.2

Parties can consent to changes in writing.

Person who makes the ammendment will bear the cost of the ammendment.

If the claim form has been served an ALL the parties do not agree to ammending the statement of case. The party seeking the ammendent will need to apply to court with
Application Notice 

• Proposed ammendment 
• This can be dealt with at a hearing on on paper. Being dealt with on paper requires all the parties consent.

If permission is given to ammend the court will usually give any conseuential directions eg service and deadlines. Ammended statement of case should be filed with the court within 14 days of the ammendment being granted by court.

Ammendments of a Statement of Case are dealt with in CPR 17.

Any ammendemnts can be made before the claim form is served.

Court has discretion to disallow this under CPR 17.2

Parties can consent to changes in writing.

Person who makes the ammendment will bear the cost of the ammendment.

If the claim form has been served an ALL the parties do not agree to ammending the statement of case. The party seeking the ammendent will need to apply to court with
Application Notice 

• Proposed ammendment 
• This can be dealt with at a hearing on on paper. Being dealt with on paper requires all the parties consent.

If permission is given to ammend the court will usually give any conseuential directions eg service and deadlines. Ammended statement of case should be filed with the court within 14 days of the ammendment being granted by court.

General Rule: once the limitation period has expired ammendemnts can not be made.

However there are 3 Exceptions:

• Where the court directs the limitation period will not apply in personal injury case.
• The new cause of actin is an original set off or counterclaim
• 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.

Adding a party once the limitation period has expired:

CPR 19.3 applies 

• New party to be substituted for a party who was named by mistake in the original claim form.
• The claim cannot be properly carried on nless the new party is added or subsititued.
• Original party had died/ been made bankrupt and the liability has passed to the new party.
• Ammendments need to be NECESSARY if made after the expiry of the limitation period.
• If before the expire of the limitation period they need only be DESIRBALE.

Classic counterclaim:

• No permission needed if filed at the same time as Defence. If filed any other time permission is needed.

Counterclaim against a person other than the Claimant:

• Permission always needed.

Claims for a contribution or indemnity from an existing party:

• If filed at same time as Defence or if the additional party is added at a later date within 28 days of that party filing defence = No permission needed.
• Other additonal claims = If accompanied / done with defence = No permission needed. If filed any other time permission needed.

Procedure for Applying for Permission:

• Normal interim application procedure:-
• Application noitce, accompnaied by a draft oder and evidence in support which will include details of the stage f main claim, details of additonal claim and a summary of the relevant facts, explanation of any delay and the names and address of any proposed party.Claims for contribution/ indemnity made by serving the appropriate notices.

Other additonal claims:

• Issuing N211 Claim Form.
• If no permission needed/ granted the form should be served on the person whom it is made within 14 days of it being issued.
• If permission required - Court will give directions as to when the noitce should be served.All additional claims:

• Serving addtional claim on additional + new party
• Claim needs to be accompanied by a:
• Response pack and 
• A copy of every statement of case and any other document that the court directs.
• A copy of the additonal claim form must also be served on every exisiting party.

UNLESS there is a SUBSTANTIAL CONNECTION between the original proceedings and the proposed additonal claim, the court will usually direct them to be dealt with separately.

Default judgment not aviilable for contribution and indemnity or additional claim served on someone not a party to the proceedings.

The ciurt does have the power to allow an ammendement after evidence has been heard at trial but prior to judgment being sealed.

However, the court must first consider whether there are exceptional circumstances and strong reasons for taking this unusual course of action.

Needs to be some satisficatory reason for failing to apply at the proper time.

If there is a dispute about whether the limitation period has expired. The burden is on the party applying for ammendment to prove thiey are within the relevant limitation period.

Obtaining further information:

• Court can make an order for further information at any point to:
• Clarify any matter which is in dispute
• Give additonal info on a matter which is in dispute.
• Party can aslo request for additonal information. Parties should try to resolve this between themselves before involving the court.
• When the court makes an order for further info the party who it is made against must:
• File their response and serve it on the other parties.
• Responses should e verified by a statement of truth.
• Court may restrict thatfurther information obtained is only used for the court proceedings.
• When the court is deciding whether to make an order for furhter information the court will consider:
• Likley benefit which will result in the information being given.
• Likley cost of giving the information.
• Whether the financial resources of the party who the order is made against is likely to be sufficient to enable them to comply with the order.

Mindmap all you know about request for further information? What CPR is engaged?

Before apply to the court for the order the party seeking the further info/ clarification should the serve request on the party it is  sought.

The request should be concise and confined to the matters which are propertionate and reasonably neccessary.

As far as possible request should be made in a single document.

Request can be made by letter if the letter is brief.

Letter should state request made under Part 18 + deal with no other matters than the request.

CPR 1. 6 FURTHER GUIDANCE ON LETTER CONTENT:

Heading court etc 

Request made under p18

Numbered paragraphs pertaining to each request for information.

State date by which party expects the information.

When can an interim payment be applied for?

• After the period for filing an acknowledgement of service has expired. Once this has expired the application should be filed as soon as it becomes apparent that it is neccessary or desirable.

How many applications can an claimant make for an interim payment?

• C can make more than 1.

When should the application notice be served?

• Atleast 14 days before the the hearing of an application for an interim payment. + be supported by evidence.
• If the respondent wishes to reply and serve evidence in reply this should be done ATLEAST 7 days before the hearing of the application.
• Written evidence needs to be filed and served on other parties.

Interim payments can be ordered by the court in one lump sum payment or in installments.

D has admitted liability.

C has obtained judgment against D for damages to be assessed.

Court satisfied that if the case went to trial C would obtain damages against D for a substantial amount of money.

C is seeking possession of land and court is satisifed that if the case went to trial D would be liable to pay C a sum of money for D's use and occupation of the land.

Multiple Defendants 

C would (if case went to trial) obtain judgment for a substantial sum of money against atleast one of the D'sa and 

D is insured  in respect of claim or car insurance 

D is a public body.

Interim payment must not be ordered for MORE THAN A REASONABLE proporional of the likely amount of the final judgment.

When can an interim payment be applied for?

How many applications can an claimant make for an interim payment?

When should the application notice be served?

What are the conditions / critieria for the court to make an iterim payment?

Are there any limits on the amount of an interim payment that can be made?

The court can order for an interim payment to be repaid fully or partially.

Or for one D to pay another D.

Court can do this without an applciatiion of either party where:

D made interim payment for a total larger than the amount of the final judgment.

The fact interim payment has been made or the details of the interim payment should not be disclosed to the trial judge until after liability and monetary award decided. Unless the Defedant agrees otherwise,

A defendant to any claim can apply for a secuirty to cost.

An application for a security to cost must be supported by written evidence.

Where the court makes an order for security of costs, it will determine the amount of security, the manner and time within which the security must be given.

Conditions to be satisfied for a security of cost order:

Considering all the circumstances of the case it is JUST to make that order.

One or more of the following conditions are satisfied:

• C is resident outside of the jurisdiction but not resident in a state bound by the 2005 Hague Convention.
• C is company or other body and there is REASON TO BELIEVE that it will be unable to pay the Defendant's cost if ordered to do so.
• C has changed their address since the claim commenced with the view of evading the consequences of the litigation.
• C failed to give their address in the claim form or gave an incorrect address
• C is acting as a nominal claimant and there is reason to believe that C will be umable to pay D's cost.
• C has taken steps in relation to their assets which would make it difficult to enforce cost order against them.

If the effect of the security for cost order would make C unable to bring the claim.

The cost order should not be granted.

Burden on C to prove they can't afford it. Burden discharged once this is proved.

Mertis 

Merit investigation by the courts when determining a security for cost order is highly discouraged. It shouly only be done in cases where it can be shown WITHOUT DETAILED INVESTIGATION OF EVIDENCE OR LAW that the claim s certain or almost certain to succeed or fail at trial.

So basicallly when it is obvios courts can consider the mertis.

• An interim injunction requires a party to either refrain (prohibitory) or to do (mandatory) something.
• Injunction is discretionary but can be granted where it is just and convenient to do so.
• American Cyanamid guidelines - is there a serious question to be tried? Adequacy of damages? Where does the balance of convenience lie?
• Applicant required to make cross undertaking - basically.a promise to pay the respoondent any  monies they lose as a result of the injunction being wrongfuly granted.
• Without notice safeguards - interim injunctions can be made without notice - however when this is the case the injunction is granted ONLY FOR A LIMITED PERIOD. Once this period expires there will be a 2nd hearing = RETURN DATE.
• Respondent has to be given notice of the second hearing. They will also be given the opportunity to attend and make representations.
• Applicant in a wihtout notice appliacation must make full and frank disclosures about case and injunction even those which are adverse to their case. Applicant's represnetative must prepare a full note of the hearing as soon as possible and this be served on the respondent WITHOUT DELAY.
• In URGENT situatuions party's can apply for injunction before a claim has been issued. But this will only happen:
• Urgent or
• It is otherwise desirable to do so in the interests of justice. 

Time 

Anytime

Even before proceedings have commenced or when judgment has been handed down.

Interim remedy may only be granted before proceedings have started when it is urgent or it is otherwise desireable to do so in the interests of justice.

Where interim remedy before claim has commenced the court should give directions for the claim to be commenced

How to apply for an interim remedy?

Application which can be made without notice if there is a good reason for not giving notice.

Evidence in support of the application must state why notice was not given.

Application for interim remdy MUST be supported by evidence unless the court orders otherwis.e..

The court has the power to control evidence in the five following ways:

• Giving directions to the issues which require evidence and 
• The nature of the evidence that the court requires to decide those issues and 
• The way evidence is to be placed before the court 
• Excluding evidence that would otherwise be admissable 
• Limiting cross examination 

Court's general power to control evidence is far reaching.

Court can also give directions limiting the legnth of witness statements and the number of witnesses to be called.

Information that is relevant tends to be admissiable regardless of how it was obtained even if this includes illegal means like hacking and torture. However, the party who obtained the evidence in this way may be penalised in cost or a lower interest rate may be imposed on their award.

Evidence should not be excluded purely becuasue it is hearsay instead the court must decide the weight to attach.

Video evidence can be used to attack an opponents case but it is subject to the usual rules of disclosure in part 31.

Covertly recorded videos are often used in personal injury cases to challenge the genuity of C's reported injuries.

The human rights arguments surrounding this -eg this being an invasion of privacy tend to not succeed.

In fairness the Defednant wanting to rely on covertly obtained video footage needs :

Usually be disclosed prior to expert evidence.

Alll video evidence - event parts which the Defedant is not relying on should be submitted.

This should be disclosed with surveillance logs.

Concurrent evidence

Usually the claimant will present evidence first and then the Defendant.

Order of witness evidence will generally be a matter for the party producing the evidence to decide subject to any directions recieved from the judge or court.

PD 35 gives the court the power to direct that opposing expert evidence is given concurrently.

The court can exclude witnesses from court - eg they are not present in the courtoom whilst other witnesses are giving evidence. Court can also order witnesses to stay after they have given their evidence.

Parties can also be excluded from part of proceedings until they are called t give evidence. This does not infringe upon their right to a fair trial.

Judges can depart from time barristers/ solicitors propose for cross examination provididng that it does not impose a serious procedural irregularity.

General Rule: Any fact that needs to be proved via witness evidence should be proved:

Orally at a hearing/ trial given in public or 

At any other hearing by their evidence in writing

This is subject to rules or court orders.

The court may give directions to the following:

• Identifying or limiting the issues to which factual evidence may be directed.
• Identifying the witnesss who may be called or whose evidence may be read or 
• Limiting the legnth or format of a witness statement.

proceeedings can be conducting in Welsh in Wales. Notice needed to appropriate arrangements can be made unless the court agree otherwise.

Witness coaching is not allowed but witness training is. practitioners should do this with caution.Witnesses can give evidence by video link or other means.

Evidence should usually be in witness statement form.

However, evidence can be taken from a statement of case or his application notice if the application notice or the statement of case is verified by a statement of truth.

Order for cross examination:

Where at a hearing (WHICH IS NOT A TRIAL) evidence is given in writing ANY PARTY can apply to cross examine the witness. If the witness does not show and court gives permissin for them to be cross examined their evidence may not be used unless the court gives permission.

Where possible evidence should be in the form of witness statement. If affidavit used VOLUNTARILY party will not be able to recover the cost of the affidavit unless the court orders otherwise.

Affidavits must where possible:

Be in the deponent's own name.

Should be expressed in the first person

Should state which statements are made from the deponent's own knowledge and state which are matters of belief

If statements / matters of belief the deponent should state where they got that knowledge from.

Matters of belief portrayed as evidence are likely to be hearsay.

Desposition: is where a party applies for an order for a party to be examined prior to the hearing taking place.

Order means that the deponent (person who the order is served on) will be examined on oath by one of the following people:

• A judge 
• An examiner of the court 
• Such other person as the court appoints.
• Court can request relevant documets.
• Court order must state the date, time and place of the examination.

At the time the order is served on deponent they must be offered:

• A reasonable sum to cover travel expenses to and from the examination location.
• Such sum by way of compensation for loss of time.
• Party who obttained the order may be invited to serve a witness statement re - the evidence to be given by the deponent.

• What is a desposition?
• How does it work?
• Expenses?
• Who will carryout the examination?
• How should the examination be conducted?

Conduct of Examination:

• Examination must be conducted in the same way as a witness giving evidence at trial.
• If ALL the parites are present the examiner can conduct the examination of a person not listed in the order. However, this is continguent on ALL the parties consenting to this.
• Examiner can conduct the examination in private if he feels it is APPROPRIATE to do so.
• Examiner must ensure the evidence give by the witness is recorded in FULL.
• The examiner must send a copy of the desposition to the person who obtained the order for the examinationof the witness and ]
• The court where the case is proceeding.
• Party who obtained the deposition must send each of the other parties a copy of the deposition received from the examiner.

Depoisition can/ may be given in evidence at a hearing.

If a party wishes to put evidence in desposition at a hearing must serve notice of his intention to do so on every other party.

Notice must be ATLEAST 21 DAYS BEFORE THE FIXED DATE OF HEARING.

Where deposition is given as evidence at trial it shall be treated like a witness statement.

Witness statements should be served on the parties ahead of the hearing.

If a party serves a witness statement and they intend to rely on it they must call the witness or put the evidence in as hearsay evidence unless the court orders otherwise.

Witness statement = evidence in chief 

Witness giving oral evidence at trial WITH COURT PERMISSION can:

Amplify his witness statement 

Give evidence in relation to new matters which have arose since the witness statement was served on other parties.

The court will give permission for this if it appears there is A GOOD REASON not to confine the evidence of the witness to the contents of his witness statement.

If a party serves witness statement of witness A, but does not call witness A, or does not put wintes A's statement into hearsay evidence  ANY OTHER PARTY MAY PUT THE EVIDENCE INTO HEARSAY EVIDENCE.

What is a witness summary?

A witness summary is a summary of the evidence if known, which would otherwise be included in a witness statement or if the evidence is not known the matters about which the party serving the witness summary proposes to question the witness.

When is a witness summary used?

When a party is required to serve a witness statement for the use at trial but is unable to obtain a witness statement.

In this scenario the party can apply without notice to use a witness summary instead.

Failure to serve / file @ court witness statement or witness summary:

Witness may not be called to give evidence UNLESS the court gives permission.

Witness statement can only be used for the proceedings in which it has been served for.

If court gives permission, or the witness gives consent or the statement was put to evidence in a public hearing witness statement can be used for other purpose.

Witness Statement that is evidence in chief is open to inspection throughout the entirety of the proceedings.

A court may disallow inpsection when it is satisifed:

• It is in the interest of justice 
• It is in the public interest 
• inpsection should not be allowed because of the nature of any confidential information (including personal financial info)
• The need to protect a child or any protected party
• The court may exclude from inspection words or passages in the statement.

When deciding whether to permit a witness summary the court will consider:

• Was the claimant unable to obtain a witness statement?
• The extent to which the witness' evidence was relevant?
• Whether granting permission was comptable with the overriding objective?
• Adequacy of the witness summary content :- is it fair for the Defendant to be confronted with it.

Witness Summons 

Dealt with in part 34 of the White Book 34.1-7

A witness summons is a summons order issued by the court requiring a witness to attend court to give evidence or to prodcue documents to the court.

Witness summons MUST:

• Be in the relevant practice form 
• Must be a separate summons for the different witnesses being FORCED TO COME.
• Documents can be required to be filed by the date of the hearing or another date that the court directs.
• Person can only be required to produce documents under 34 which they would likely to produce at a hearing.

A witness summons is issued on the date put on it by the court.

Party must obtain permission from the court for summons to be issued. Should be ATLEAST 7 DAYS BEFORE HEARRING.

Witness summons must be issued by:

Te court where the case is proceeding or the court where the hearing in question will be held.

Time for Serving a Witness Summons:

General rule = witness summons is binding if it is served atleast 7 days before the date on which  the witness is required to attend before the court or tribunal.

Court can direct that a witness statement be binding even though it served less than 7 days.

Witness summons served within timeline are binding until the proceedings have concluded.

Court will usually serve a witness summons unless the party wanting summons notifies the court in writing that they wish to apply the summons themselves.

A time witness summons the witness must be offered for the travel and compensation for their loss of time to be paid.

Revision Questions:

• Is there a requirement to witness statements that are going to be used @ trial?
• How are witness statements used at trial?
• Can parties amplify evidence that is not in their witness statement?
• What is the significance of a party who has served a witness statement not being called or fails to attend?
• Can witness statements be used for other purposes?
• Are there exceptions to this general rule?
• When are witness statements open for inspection? When can this be restricted?
• Minmap all you know about witness summons?
• What is the time for serving witness summons?

Notice to admit facts- one party may serve notice on the other party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.

Notice must be served ATLEAST 21 days before the tral.

Admitting something in response to the notice can ONLY be used in the proceedings and by the party who obtained notice.

Court may allow a party to ammend any admissions as it sees just.

Authenticty of Documents:

Party will be deemed to amdit the authenticity of a document unless he serves notice that he wishes for the document to be proved at trial.

Notice re authenticity must be served:

• By the latest date for serving witness statements or 
• Within 7 days of disclosure of the document.

Summarise a notice to admit?

What procedure should a party exhaust if they are challenging the authenticity of the documents?

What are the time limits for this?

• Court's permission is reqired to adduce expert evidence.
• No permission is needed to instruct an expert but the court's permission is needed to rely on the evidence obtained from the expert.
• Usually court's permission is obtained by seeking a direction from the court at the case management stage.
• Normal procedural rules on expert evidence are disapplied to small claims track.
• Fast Track:One expert in relation to an expert field
• Expert evidence is limited to expert evidence in two fields.
• Usually in small or fast track only one expert per issue.
• How do parties apply for permission of an expert:
• Provide an estimate of cost for the proposed expert.
• dentify the field in which expert evidence is required and if practicable - the name of the expert.
• Caution should be used naming experts becuase if the named expert is no longer available the party will need to apply to the court for permission to appoint another expert.
• Expert Duty = HELP THE COURT 
• Letter of instruction to an expert is not privilidged from inspection. Parties need to suspect that the instructions of the expert were / are inaccurate.
• Expert evidence should be given in a written report unless the court directs otherwise.
• Draft reprts sent to the instructing party will usually be privildiged.
• Expert reports need to be exchanged with the otherside to be used at trial.

• Parties can put questions to experts within 28 days of receiving the report. Questions can generally be asked ONLY once and for clarification purposes.
• Copy of questions must be sent to the otherside.
• No time limit for the expert to respond to questions.
• Questions can ask court questions to help them fufil their role:
• Notice of question to instructing party 7 days before filing questions at court 
• Other party 4 days before filing questions at court.
• Experts can be made to meet to discuss points of contention in their respective reprots and to draft a joint statement after discussion. Experts usally attend the expert discuss alone.
• Oral evidence can be given at trial.
• If party feels expert is incompetent can argue court does not accept the evidence or for further evidence to be adduced.
• Not comming in small claims and fast track unless it is in the interest of justice to do so.
• Court's prevent parties from expert shopping by making them disclose the report of previous expert.

Small Claims Track 

• Up to 10K (NON-PERSONAL INJURY CASES)
• +
• Claims between tenant and landlord for repairs that are not more than £1000.
• Small Track Rules for Personal Injury Cases:
• Traffic claims before 31/05/21 where damages such a PSLA = less than 1K
• Other road traffic accidents were the damages for personal injuries are not more than 5K.
• In any other personal injury (not a car or traffic accdient) the value of the claim is not more than 1500K.

Fast Claims Track 

• 25K
• Not epxected to last longer than one court day -5 hours
• One expert from each party on issue and no more than 2 experts in total 

MULTI TRACK

• All other cases.

3 reasons the court may strike out a statement of case:

• Abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings.
• Statement of case discloses no reasonable grounds for bringing or defending the claim.
• Failure to comply with a rule, practice direction or court order.

What is the consequence of a court striking out a statement of case:

Court can make ANY CONSEQUENTIAL ORDER it considers to be appropriate.

If the court strikes out a statment of case and considers it to be totally without merit: 

• Court order needs to state that.
• The court at the time must consider whether it is appropriate to make a civil restraint order.

Why would the court decide to strike out a statement of case (3 reasons)? What would be the consequence of the court deciding to strike out a statement of case? If the court strikes out a statement of case and thinks it was totally without merit what is the signifciance of this?

When will an application for the strike out of a statement of case be generally made?

Usually made during the pre-trial stages.

But can be done during the course of the trial.

Also not a judge can make application for strike out of a statement of case off of their own violition. 

Where a statement of case is found to be defective the court should consider if the statement of case would be alright if it was ammended. If this is the case the ammendment should be allowe .

How is an abuse of process defined?

Using process in a way SIGNIFICANTLY different from it's ordinary purpose or use.

Impugning Earlier Civil Decisions basically means undoing them.

Earlier civil decisions are final.

However, there are 3 ways parties can lawfully challenge an ealrier cviil decision:

On the grounds that the earlier judgment obtained FRAUDULENTLY.

On the grounds that new facts have come to light which FUNDAMENTALLY change the complexion of the case.

Under 3.17 - which allows change where there has been a material change in facts or the facts were MISSTATED.

When a judge is making an UNLESS ORDER they should consider whether the sanction is appropriate in ALL the circumstances of the case.

Appeals have to be limited to ensure people are not hcalliging outcomes they simply do not like.

Thus parties have to apply for permission to methods:

• Orally to the lower court at the hearing where the judgment is handed down.
• Or / and 
• Appeal court within 21 days of the lower court's deicsion.
• Parties can exhaust both methods and only need permission once to proceed.

Critieria for granting permission for 1ST Appeals:

• Real prospect 
• Some other compelling reason why the appeal should be heard.

Proceudre for permission:

• If lower court grants permission appelant's notice needs to be filed within the relevant period.
• If applied to court - permission application typically heard on papers. If the application is not heard on paper it can progress to a permission hearing. If NO THATS THE END. If yes appeal proceeds to determination.

What are the grounds / reasons a party can lodge an appeal?

A decision was wrong or unjust.

What does it mean for a decision to wrong:

• Error in fact 
• Error in law 
• Error in the exercise of discretion.

What does it mean for a decision to be unjust?

The decision was plagued by some  procedural or other irregularity.

Appeals are not a rehearing they are a REVIEW.

ROUTE OF APPEAL:

ALL SECOND APPEALS GO TO THE COURT OF APPEAL

Other than that cases tend to go the court that is one level above.

The Hierachry of Courts for Appeal Purposes:

• Supreme Court 
• Court of Appeal 
• High Court Judge 
• High Court Master 
• County Court Circuit Judge 
• County Court District Judge 

What court do all second appeals go to ?

What are the grounds that a party can appeal ?

What is the procedure for applyign for permission to appeal?

Summarise the hierachy of the courts and explain where a first appeal in each court would en

Permission is not needed when the appeal is against:

• A committal order 
• A refusal to grant habeas corpus or 
• A secure accomodation order made under section 25 of the Children Act 1989 or section 119 o the Social Services and Wellbeing Act 2014.

Written request for permission to the appeal court should include:

• The court to which any further application for permission should be made.
• The level of judge who should hear the application.
• UNLESS THE APPEAL IS TO THE COURT OF APPEAL PERMISSION WILL BE DEALT WITH ON PAPER UNLESS THE COURT OTHERWISE DIRECTS.
• IF JUDGE THINKS CASE IS TOTALLY WITHOUT MERIT THEY CAN MAKE AN ORDER THAT THE PERSON SEEKING PERMISSION IS NOT ABLE TO DO SO AT AN APPEAL HEARING.
• Even court of appeal appeals should be heard pn paper unless the judge is of the opinion they cannot be fairly determined on paper in the absence of an oral hearing .
• Hearing should be listed no later than 14 days after direction unless the court directs otherwise.

What is the criteria for the 2nd appeal?

• Real prospect of success
• Raise an important point of principle or practice 
• There is some other compelling reason for the Court of Appeal to hear it.

• When the appelant is seeking permission from the appeal court it must be requested in the appellants notice.
• Within 21 days of the decision of the lower court or 

Such a period of time directed by the lower court.
Appellant's notice must be served on each respondent:

• As soon as practicable and in any event no later than 7 days after it is filed.
• If appealing against a injunction under section 41 of the Policing and Crime Act 2009, the appellant is not required to serve the appellant's notice on the respondent.
• Appellant's notice = MUST 
• Respondent's notice = MAY

Respondent's notice is needed when the respondent is:

• Counter apealing or asking the appeal court to uphold the decision of the lower court but for reasons that are different or additional from that given by the lower court.
• If seeking permission for counter appeal it must be stated in the respondents notice.
• Time Limit for Serving Respondent Notice:
• Such period as may be directed by the lower court 
• Or within 14 days of:
• Permission being given to the appellant from the lower court
• Or it was held that permission to appeal was not requried.
• Respondents notice should be served on appellant and other respondent as soon as practicable or no later than 7 days after it is filed.

Transcripts:

To aid the appeal the transcipt of the lower court can be printed and provided to the appeal court.

This can be done at public expense providing the following conditions are met:

Requesting party qualifies for a FEE REMISSION or is in a poor financial circumstance that the cost of obtaining a transcript would be an excessive burden. and it is 

Neccessary in the interests of justice fo such a transcript to be obtained.

Application to vary time:

A party wishing to vary time limit for filing an appeal notice must be made to the appeal court.

The parties CANNOT agree to EXTEND any time or date set by:

• CPR RULES  -52 
• Practice Direction 52A to 52E or 
• An order of the appeal curt or the lower court.

An appeal does not grant an automatic stay!!!!!!!

• The court needs to order a stay
• Or the  appeal needs to be from the Immigration and Asylum Chamber of the Upper Tribunal 

What powers does an appeal court have?

All the powers of the lower court in addition to the power to:
Affirm, set aside or vary any order or judgment made or given by the lower court.

Refer any claim for determination by the lower court.

Order a new trial or hearing.

Make orders for the payment of interest;

Make a cost order.

The Court of Appeal have the power in an appeal from a clai heard by a jury:

• Make an order for damages or 
• Vary an award of damages made by the jury.

Appeals are heard as a review not a rehearing unless:

A PD makes different provision for a particular category of appeal; or 

Court considers that in the interest of the individual it would be in the interest of justice to hold a re-hearing.

Unless ordered otherwise the appeal court will not receive:

Oral evidence or 

Evidence which was not before the lower court.

Judgments = final orders 

• Counterclaims - court can order one payment instead of the uneeded back and forth of several payments.
• If cases are settled outside of trial a consent order will be required. Consent orders require the approval of the court.
• Judgement can be handed down at trial or it can be reserved.
• When reserved the judgment will you usually be sent to the parties in draft 2 days before it is officially handed down.This gives the parties the opportunity to create submissions on cost and to correct obvious errors. The sli rule.
• Judgments are not public documents until they are handed down.
• Unless the court has made the order of its own initiaitve or orders otherwise the parties will be responsible for drawing up the order.
• The party responsible for drawing up the order is required to serve it within 7 days of becoming responsible for drawing up the order.
• If the responsible party fails to do this within 7 days any other party may do so instead.

2 Types of Consent Orders:

Tomlin orders 

• 2 parts to tomlin orders (first part = public second part = private - known as the schedule)
• Based on a contract 

Tomlin orders are used when the parties desire confidentiaility or when the settlement terms go beyond those that the court could generally order as part of the proceedings.

Standard Consent Order 

• Not a consent order based on a contract but simply the parties agreeing terms of settlement in a claim.
• Such an rder may be altered or varied by the court.

Once the consent order has been entered into a defence of estoppel may be available regarding matters in the agreement but this depends on the exact wording of the agreement.

What is contained in Part 1 of a Tomlin order?

Part 1 = similar to standard consent order 

• Contains actions to be taken by the court.
• Stay of proceedings 
• Permission to apply 
• Detailed assessments as to cost.
• Public 

Part 2 = Schedule 

• Confidential 
• Contains terms of the agreement which are enforceable with a further court order.
• Enables parties to include limits beyond the provision of the dispute.

Revision Questions:

• What are tomlin orders?
• Why are tomlin orders used as opposed to a standard consent order?
• What goes into part 1 and Part 2 of a Tomlin order?

Judgment takes effect on the day that it is given or made, not served or later period the court orders.

Time limit does not apply to judgment against the state.

CPR 40.7

Interest begins to run on the date that judgment is given.

Parties have 14 days to comply wth a judgment or an order.

Court can allow a stay eg when there is a pending appeal.

Third party can appeal if they have an interest in the claim. EG an insurer or bank.

Methods of Enforcement

Taking Control of Goods 
Balliffs coming to home and taking goods.
Notice needs to be provided. ATLEAST 7 DAYS .
High Court Writ 
County Court Warrant 
If less than 600£ = County Court 
If 600-5000 County Court or High Court 
If more than 5000 High Court 
Attachment of Earnings Ordered  County Court only.
Charging Order
COWNERS AND MORTGAGE CHARGES ARE PIORITY.
This can be a long process - creditor can order a sale to speed things up.
Eniquires into the nature of the debtors assets 
Third Party Debt Order 
Bankrupty Against Individual needs to be 5K debt 
Winding up against business needs to be £750

Judgements can be enforced by a third party via the same methods they would be enforced if they were a party.

CPR 71 deals with a judgment debtor being forced to attend court to provide info about their finances or other information that will help resolve the debt.
Application under CPR 71 

• May be made without notice but 
• MUST  be issued in the Court or County Court hearing centre which made the judgment or order which it is sought to enforce.
• Application can be dealt with by a court officer without a hearing.
• If person attends court they will answer the questions uner oath.
• Contempt of court or non complaince can be punished by: fine, imprisonment, confiscation of assets, or other punishment under the law.
• Conduct of the hearing:
• Debtor answers questions under oath.
• The questionning will usually be carried out by a court officer UNLESS the court has ordered that the hearing should be before a judge.
• The creditor OR his representative:
• May attend when the questioning is by an officer but they MUST attend when the questioning is by a judge.

Before making a third payment order the court will make an interim third party debt order.

An application for a third party debt order:
MAY be made without notice 

MUST be issued in the court which made the judgment or order which it is sought to enforce unless the proceedings have since been transferred.

Application notice must be in the form and contain the information from PD 72.

Application for Charing Order:

May be made without notice.

If the application is to be made to the County Court it must be made to the County Court Money Claims Centre unless the application is for a charging order over an interest in a fund in court.

Must be in the form and contain the info in PD73.

Applications for an attachment of earnings order MUST be made to the County Court Money Claims Centre.

Application MUST include a certificate of the amount of money remaining due under the judgment order and that the WHOLE OR PART OF the installment remains unpaid.

If the attachment of earning order is an order from Magistrates Court it should include the certificate (above) as well as:

Certified copy of the order 

Witness statement verifying the amount due under the order.

If required to be paid to a designated officer of the magistrates court a ceritficate to that effect.

Charging order should be in the form N379 for land and N380 for securities.

Cannot get a third party debt order over a bank account which is shared eg husband and wife.

A judgment/ order from the County court to enforce money owed from an agreement under the Consumer Credit Act 1974 shall be enforced only in the County Court.

Arbitration awards can be enforced as a civil judgment. This excludes construction industry adjudication.

Non- adjudicative awards/ orders = usually contractually so enforced via breach of contract.

ACAS settlements/ awards enforceable in County Court as County Court orders.

failure to comply with binding decisions in expert determinations and other ADR processes is enforced by suing on the contract where it was agreed the determination would be binding

What is the test for granting a mandatory injunction:

Granting the injunction is more or less likely to cause irremediale prejudice if the injunction was granted in error or should have been granted?

High degree of assurance applicant will be able to demonstrate their right to an injunction @ a future trial.

• Requirements of a part 36 offer:
• In writing 
• Clearly state it is a part 36 offer 
• Relevant period is atleast 21 days.
• D pays offer / settlement in one installment.
• D has 14 days of acceptance to pay settlement.
• C makes offer - equal for part 36 to be triggered.
• D makes offer more than for part 36 to be triggered
• If part 36 accepted courts permission needed to withdraw offer.
• Can be withdrawn with notice.
• Benefits of making a part 36 offer:
• Extra interest 
• Extra costs 
• Interest on cost 

Party can discontinue a claim at anytime.

The courts permission is needed to discontinue a claim when:

• When there has be an udertaking
• There is more than one claimant and the other claimant does not consent in writing to disconintuance 
• An interim injunction has been granted.
• When an interim payment has been granted/ made the claim can only be discontinued if the Defedant who made the interim payment consents in writing or the court gives permission.
• Procedure for Discontinuing:
• File a notice of discontinuance.
• Serve a copy on ALL parties.
• C must state in the notice of discontinuance that they served a copy on ALL parties to the proceedings.
• If consent needed from some other party eg another claimant or defendant who made interim payment consent needs to be attached to the notice of discontinuance.
• Where there is more than 1 D the notice of discontinuance must state which Defendant the claim is discontinued against.
• Defendant can apply to have the discontinuance set assdie within 28 days of receiving the notice of discontinace.

Discontinuance takes effect against the Defedant on the date when notice of discontinuance is served on them.

C liable for D's cost when they discontinue on or before the date notice of discontinuance was served.

All parties (except litigants in person) MUST exchange budget cost.

If the proposed value of the claim is less than 50K they can do this with their directions questionnaire or in any other event atleast 21 days before the first case management conference.

Failure to file budget will mean party has only filed cost for the applicable court fees.

When assessing cost on a standard basis the court will not depart from the agreed cost budgest unless it is satisfied that there is some good reason to do so.

Do not require the court's permission 4.15

C has disclosed no reasonable grounds for bringing the claim.

The proceedings are an abuse of the court's process 

Conduct of C or someone acting on C'e behalf is likely to be obtrusive to the judt disposal of the proceedings.

Permission need 4.16 when the claim is fundamentally dishonest.