Civil Procedure (Foundation)

2

CONTENTS PAGES

CHAPTER 1 OUTCOMES 2 INTRODUCTION TO CIVIL PROCEDURE 3-12 PRELIMINARY MATTERS 13-27 REMEDIES IN CIVIL CLAIMS 28-33 THE JURISDICTION OF THE CIVIL COURTS 34-37 COMMENCEMENT OF PROCEEDINGS 38-52 CHAPTER 2 OUTCOMES 53 DEFAULT JUDGMENTS, JUDGMENTS FOLLOWING ADMISSION AND SUMMARY JUDGMENTS

54-60

SETTLEMENT AND DISCONTINUANCE OF CLAIMS 61-63 ALLOCATION AND DIRECTIONS 64-70 DISCLOSURE 71-79 CHAPTER 3 OUTCOMES 80 STATEMENTS AND EXPERTS 81-85 OFFERS TO SETTLE 86-94 INTERIM APPLICATIONS 95-104 CHAPTER 4 OUTCOMES 105 TRIAL PROCEDURE AND COSTS FOLLOWING TRIAL 106-113 COSTS LITIGATION 114-119 COURT ORDERS, JUDGMENTS AND ENFORCEMENT 120-123 APPEALS 124-127

Chapter 1

Learning outcomes After studying this chapter you should understand the following main points:

þ the legislation, delegated legislation, rules and practice directions that govern civil procedure in England and Wales;

þ the steps a fee earner must take when initially instructed in a civil litgation matter;

þ the jurisdiction of the civil courts; and þ the rules and procedure governing the issuing of proceedings.

© Association of Costs Lawyers Training 2019 4

1.1 Introduction to Civil Procedure

1. Introduction

The Civil Procedure Rules 1998 (CPR) contain 89 parts and are supplemented by practice directions and schedules. The practice directions to the Civil Procedure Rules apply to civil litigation in the Queen's Bench Division and the Chancery Division of the High Court and to litigation in the county courts other than family proceedings. Where relevant they also apply to appeals to the Civil Division of the Court of Appeal.

The costs lawyer may become involved in litigation at various stages of proceedings. These stages include:

The outset Advice on costs and funding may be required. During litigation Particularly in relation to budgets, costs of interlocutory

applications or in relation to costs estimates and costs capping. At the end of litigation Bills of costs may need to be prepared or challenged.

A costs lawyer who is not competent in civil procedure is handicapped in the work that he undertakes, the majority of costs assessment takes place in the civil courts and therefore knowledge of the procedure of these courts is vital in order to quantify costs and advise on the costs assessment procedure. Moreover, Costs Lawyers have the right to conduct litigation and this is one of the reserved legal activities which is regulated by the Costs Lawyer Standards Board.

2. Civil Cases

The vast majority of civil case in England and Wales are based on one of two main areas of law; contract and tort (particularly the tort of negligence).

2.1 Contract

Terms in contracts can be either express or implied. Common claims for breach of contract arise out of the terms implied into all contracts by statute, for example:

þ for the sale of goods (under the Sale of Goods Act 1979); þ for the supply of a service (under the Supply of Goods and Services Act 1982); or þ the sale of consumer goods or supply of consumer services, where one party to the

agreement is a business and the other is not (under the Consumer Rights Act 2015).

These implied terms can be excluded by the terms of the contract but such exclusions are not generally enforceable against consumers and only against other businesses to the extent that they are considered “reasonable” under the Unfair Contract Terms Act 1977.

Where a contractual term is breached, the effect of the breach will depend on whether the term breached is classified as a “condition” or a “warranty”. Many of the implied terms referred to above are classed as “conditions”. A breach of contract enables the innocent party to repudiate and/or recover damages for breach. The rules on remoteness of damage enable the innocent party to recover damages that are foreseeable.


2.2 Negligence

Claims for damages based on negligence depend upon the claimant establishing 3 essential elements of a claim. According to the leading case of Donoghue v Stevenson [1932] UKHL 100 a claimant must prove:

1. the existence of a duty which relies on the 3-part test in Caparo Industries v Dickman [1990] 2 AC 605;

2. breach of that duty; and 3. causation of loss or damage (known as “factual causation” or the “but for” test).

A claimant who is able to establish negligence on the part of the defendant is entitled to damages for all injury, harm and loss suffered as a result of the defendant’s negligence, so long as the injury or loss is of a kind which is foreseeable according to the “remoteness of damage” test in The Wagon Mound (No 1) [1961] AC 388.

Negligence claims against occupiers of premises by visitors are given statutory form by the Occupiers’ Liability Act 1957, section 2 of which imposes a statutory duty upon occupiers to “take such care as in all the circumstances is reasonable to see that visitors will be reasonably safe in using the premises”. Please note that this is not an absolute duty, only one to act “reasonably” in the circumstances. A modified form of this duty was extended to trespassers by the Occupiers’ Liability Act 1984.

Generally, a defendant will be able to avoid liability if he or she can establish one of the following:

þ there is a reason in law why he is not liable; þ there is a reason in fact why he is not liable; or

there is a “special” defence available to the claim (such as consent; Illegality; or contributory negligence).

3. The Civil Procedure Rules

The Civil Procedure Rules 1998 are the rules of civil procedure used by practitioners during litigation in England and Wales in civil cases. They apply to all cases commenced after 26th April 1999, and replace the Rules of the Supreme Court 2009 and the County Court Rules 1981.

3.1 The reasons for the CPR

Until the introduction of the CPR there were separate rules applicable in the county court (County Court Rules 1981) and in the High Court and Court of Appeal (The Rules of the Supreme Court 1965). These rules were, with some minor exceptions relating to relatively uncommon proceedings still covered by the Rules of the Supreme Court, swept away and replaced by the CPR.

Over many years, before the CPR, concerns had developed at the complicated civil procedures involved and the rigidity where breaches of procedures occurred. Delays in civil litigation became common-place. Simple cases frequently took years to come to


court. It was common for cases to be struck out for delay (“dismissed for want of prosecution”) or for failure to comply with a rule. Proceedings were controlled by the parties with courts having limited ability to interfere in the process. Trials were frequently adjourned due to cases being unready. With the exception of low value cases in the county court, costs became largely uncontrollable until the end of proceedings. The ills of the system are illustrated in the case of Piglowska v. Piglowski [1999] 1 W.L.R. 1360 (a family law case). In this case both parties in a dispute as to financial relief were funded through legal aid. The assets available for division were estimated at £127,400. The legal costs which were expended in deciding how the assets should be divided were estimated to exceed £128,000 by the time the case reached the House of Lords. Their Lordships gave leave to bring an appeal not merely because it appeared likely that the Court of Appeal had erred in law but also in the hope that they might be able to reduce the chances of such disasters happening to other people in the future.

The proliferation of expert evidence was a matter of concern. It was not uncommon for there to be expert witnesses of several different disciplines for each party in low value straight-forward cases.

3.2 The fundamentals of the CPR

It was the ills described above that the CPR has sought to address and overcome. Section 2 (7) of the Civil Procedure Act 1997 provided that:

“The Civil Procedure Rule Committee must, when making Civil Procedure Rules, try to make rules which are both simple and simply expressed.”

To a large degree that has been achieved, although there are still some areas of civil litigation where the CPR does not apply. The implementation of the CPR has not been entirely straightforward as is evidenced by the number of amendments required to the CPR since 26th April 1999. As set out in the introduction, at the time of writing, there have been 92. The rules are expressed simply and do not in themselves lay down the fine detail of practice to be followed. This is applied by case management, practice directions and the overriding objective. How the CPR addresses the ills of the past is best illustrated in the overriding objective, in the case management powers vested in the courts and in the rules themselves.

The CPR are allegedly designed to improve access to justice by making legal proceedings cheaper, quicker and easier to understand for non-lawyers. The CPR (referred to universally by practitioners as “The White Book”) is comprised of parts or chapters, each dealing with the rules for a discrete issue e.g, Part 12 relates to default judgments.

When referring to one of the CPR rules in litigation it is practice to specify the rule and/or sub rule so, for example, CPR 13.2(1). This directs the reader to the precise location of the rule in the White Book.

Important parts of the CPR for a costs lawyer’s purpose include: are:

þ Part 1: The overriding objective (see below), courts must manage cases efficiently and cost effectively. This rule is designed to aid in the application of specific provisions and to guide behaviour where no specific rule applies;


þ Part 3: The court's case management powers; þ Part 7: How to start proceedings and the claim form; þ Part 8: Alternative procedure for claims which do not require the court to resolve any

factual disputes or hear detailed oral evidence.

3.3 The overriding objective

The final report of Lord Woolf’s “Access to Justice” inquiry proposed that the CPR should “guide the Court and the litigants towards the just resolution of the case”. The “overriding objective” is said to be the fundamental purpose of the CPR. The “overriding objective” is intended to provide “a compass to guide courts and litigants and their legal advisers as to their general course”. Part 1 of the CPR records the “overriding objective” of the CPR.

Under CPR 1.1(1) the CPR are described as:

“…a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost”.

CPR 1.1(1) gives guidance on what is meant by dealing with a case justly and at proportionate cost. It includes, so far as is practicable, the following:

þ ensuring that the parties are on an equal footing; þ saving expense; þ dealing with the case in ways which are proportionate –

o to the amount of money involved; o to the importance of the case; o to the complexity of the issues; and o to the financial position of each party;

þ ensuring that it is dealt with expeditiously and fairly; þ allotting to it an appropriate share of the court’s resources, while taking into account

the need to allot resources to other cases; and þ enforcing compliance with rules, practice directions and orders.

CPR 1.2 provides that the court has to give effect to the overriding objective when making decisions and interpreting the rest of the CPR. By virtue of CPR 1.3, the parties are also required to help the court to further the overriding objective. Under CPR 1.4, the court must make this happen by actively managing cases which, according to CPR 1.4(2)(e), includes:

“encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure.”

Alternative dispute resolution will be considered in more detail within this module.

3.4 Pre- action protocols

Pre-action protocols are now in place for most types of case. They explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. The current pre-action protocols are listed in paragraph 18 of the practice direction relating to pre-action conduct and protocols (PAC PD). The most commonly used protocols are those relating to personal injury and disease


and illness claims. A new pre-Action Protocol for Debt Claims has been introduced and came into effect on 1 October 2017. The PAC PD applies to disputes where no pre-action protocol approved by the Master of the Rolls applies.

Sanctions may be imposed for non-compliance with the relevant pre-action protocols under CPR 3.1(4) and (5) and when making orders about costs pursuant to CPR 44.2(5)(a).

PAC PD para 13 sets out that, when considering whether or not there is compliance with a relevant pre-action protocol or the PAC PD, the court will take into account non-compliance when giving directions for the management of proceedings and when making orders for costs. The court will consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or the PAC PD and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (e.g. application for an injunction).

The costs incurred in complying with a pre-action protocol or the PAC PD should be proportionate. Where parties incur disproportionate costs in complying with any pre-action protocol or the PAC PD, those costs will not be recoverable as part of the costs of the proceedings (PAC PD para 5).

The PAC PD para 14 goes further by way of guidance, providing examples of non-compliance:

þ not provided sufficient information to enable the other party to understand the issues;

þ not acted within a time limit set out in a relevant pre-action protocol, or, where no specific time limit applies, within a reasonable period; or

þ unreasonably refused to consider ADR, or failed to respond at all to an invitation to do so.

The PAC PD para 15 provides that, where there has been non-compliance with a pre-action protocol or the PAC PD, the court may order that:

þ the parties are relieved of the obligation to comply or further comply with the pre-action protocol or the PAC PD;

þ the proceedings are stayed while particular steps are taken to comply with the pre-action protocol or the PAC PD; or

þ sanctions are to be applied.

Under the PAC PD para 16 the court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions. If the court finds there has been non-compliance, the sanctions which the court may impose under that paragraph are:

þ an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties (this may include an order under rule 27.14(2)(g) in cases allocated to the small claims track);

þ an order that the party at fault pays those costs on an indemnity basis (rule 44.3(3) sets out the definition of the assessment of costs on an indemnity basis);


þ if the party at fault is the claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period and/or awarding interest at a lower rate than would otherwise have been awarded;

þ if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.

The protocols are extremely helpful in ensuring compliance with the overriding objective. Claimants are entitled to obtain information from prospective defendants to assess the merits of their cases before the expense of issuing proceedings is incurred. Defendants benefit by not having proceedings issued against them when they have not had the information that they need to consider the merits of a case or not had sufficient time to properly investigate a claim. Every letter of claim delivered must comply with the protocol and supply the prospective defendant with sufficient information to enable the defendant to undertake investigations. The claimant must disclose essential documents which he intends to rely upon. Where he seeks documents he must identify in general terms the documents required. If a claimant intends to use an agency for the obtaining of expert evidence he should seek the prior consent of the prospective defendant to the use of a medical agency.

The pre-action protocol for personal injury claims, for example, encourages joint selection of and access to experts (para 7.2). The expert evidence produced in the protocol stage may not be joint expert evidence. Prospective defendants have 21 calendar days of the date of posting of the letter of claim to identify an insurer and to identify specifically any significant omissions in the letter of claim. Should a prospective defendant fail to acknowledge a claim within the requisite period, the claimant is entitled to issue proceedings (para 6.2). Prospective defendants have a maximum of 3 months from the date of the acknowledgment of the letter of claim (or claim notification claim if commenced in a portal) to investigate the claim (para 6.3). A time limit may be extended by agreement but, under certain circumstances, this may require the approval of the court. At the end of the investigation period defendants are required to state whether liability is denied (para 6.3) and, if it is, to give the reasons for the denial of liability including any alternative version of events relied upon. If liability is denied a defendant is required to disclose to the claimant documents that are material to the issues between the parties. Most letters of claim are accompanied by a standard list of documents generally expected to be disclosed (para 6.5).

If contributory negligence is alleged by a defendant he is required to give reasons supporting those allegations and to disclose any documents material to the issues as to contributory negligence. If contributory negligence is alleged, claimants are expected to respond to the allegations before issuing proceedings. No charge may be made for providing copy documents under the protocol. Claimants are required to send to the defendant, as soon as practicable, a schedule of special damages with supporting documents, particularly where the prospective defendant has admitted liability (para 8.1). Prospective defendants are entitled to receive a list of the names of one or more experts in the relevant speciality considered suitable to be instructed. The prospective claimant should provide details before instructing the expert (para 7.3). The prospective defendant is entitled to object to one or more of the named experts. If the prospective defendant objects to any of the nominated experts any expert not objected to may be instructed. If


none of the experts nominated are acceptable to the prospective defendant the prospective defendant should send a list of alternative experts. The cost of obtaining expert evidence from an agreed expert is usually payable, in the first instance, by the party instructing the expert. Where it is necessary to ask questions of the expert, the cost of responding to individual questions are payable by the party asking the question (para 7.10).

The procedures under the protocols provide for sensible co-operation between the parties. If the requirements under the protocol are complied with, neither party will be prejudiced. The majority of cases are either not proceeded with, or are compromised before proceedings are issued. If a case is to proceed, both parties should, at the end of compliance with the protocols, know the strengths and weaknesses of their case.

4. Pre-action Disclosure

Disclosure generally is dealt with in more detail later.

Pre-action disclosure of material documents is essential, particularly to enable a claimant to conclude the investigations into the merits of his case and to assess them. In most cases, disclosure of material documents will be given voluntarily by a prospective defendant. Sometimes, however, that does not happen. In such circumstances an application may be made under CPR 31.16 for disclosure before proceedings are started. The court is empowered to order disclosure of documents before a claim is issued under section 33 of the Supreme Court Act 1981 and under section 52 of the County Court Act 1984. Such orders may be made against a “prospective party”. An order for such disclosure will not be made unless a claim is “arguable”. Mars UK Limited v Waitrose [2004] EWHC 2264 (Ch) indicates that:

“the applicant must show at least a prima facie case of entitlement to substantive release”.

5. Sanctions and Case Management

Parties are no longer permitted to be cavalier in the granting of extensions of time after the issue of proceedings. The circumstances in which they may grant such extensions is restricted. In the of case Cecil v Bayat [2011] EWCA Civ 135, relating to a commercial claim, the claimants delayed serving proceedings because of the need to secure a conditional fee agreement (CFA) and after the event (ATE) insurance. Extensions of time were granted. An application by the defendant to set aside the orders extending the validity of the claim was dismissed, but the appeal of the defendant was allowed. Whilst acknowledging that without a CFA and after the event insurance it was not viable for the claimants to take the proceedings to trial, they could have commenced and served the proceedings without them. The decision of the claimants to secure their position as to costs by delaying service until funding was in place for the whole of proceedings did not provide a good reason for extending time.

The overriding objective also seeks to strike a balance between the resources of the parties themselves. To ensure that no one party is disadvantaged, the courts can put greater obligations on another party. For example, in Malez v Lewis (The Times 4th May 1999) the responsibility for preparation of trial bundles was put on the party with the greatest


resources. The court can also protect the position of the party with the least resources by directing that the cost of unreasonably high legal representation will not be recoverable. As it is a fundamental part of the “overriding objective” that cases should be dealt with expeditiously, the pre-action protocols (as discussed above) were introduced so that defendants are not disadvantaged and know the case that they have to meet before proceedings are issued.

Co-operation between the parties is encouraged. It is clearly an intention of the CPR that the court should have powers to disallow or reduce costs to mark its disapproval of the conduct of a party. In Hertsmere Primary Care Trust v Rabindra-Anandh [2005] EWHC 320 QB there were costs consequences imposed upon a party where a party declined to respond to a request for him to explain the basis upon which he asserted that an offer did not comply with the provisions of Part 36. However, controls by the court must be proportionate. Where a claimant had failed to comply with orders of the court, had limited prospects of success and would not have the resources to meet any adverse order for costs it was held that it was inappropriate to make a peremptory order requiring a payment into court by the claimant. Such orders should only be made when they represent a proportionate and effective means of achieving the purpose intended by the order (Hushcroft v P&O Ferries [2010] EWCA 1483).

Another indication of the importance of co-operation is the encouragement to use alternative dispute resolution. This has become an important procedure and will become increasingly important in the future. In effect, the courts are encouraged to help parties to settle their disputes.

A further area of costs management is the requirement that courts must consider whether the likely benefits of taking a particular step justify the actual cost of taking it. Gone are the days of endless pleadings. Pleadings beyond replies to defences are not permitted unless the court considers that the pleading justifies the cost involved. A further example is the restriction of the number of expert witnesses permitted in litigation. In lower value cases the parties are encouraged to jointly instruct experts. More than one expert of the same discipline will not be allowed in proceedings unless the issues regarding the expert opinion are contentious. There are specific procedural provisions regarding cases on the small claims track and the fast track that are intended to reduce the procedures involved and thereby the costs incurred. To reduce costs, courts are empowered to make limited orders without hearings and the use of technology is encouraged although this area has not been particularly successful. Some elements of the judiciary have been less than encouraging in this area. It has, however, been encouraged in relation to disclosure of documents and evidence and in detailed assessment proceedings where parties are entitled to request bills of costs and points of dispute in electronic/disk format.

Of particular importance today is the allocation of the court’s resources. In simple terms, no one case can be permitted to use an unfair amount of the resources of the court and this is particularly so in the listing of cases. Parties are required to bring to the immediate attention of the court any changes in a case that may affect the listing of the case.

As a result of the “Jackson reforms”, The CPR were amended in April 2013 to allow courts actively to manage parties’ costs as well as procedure. These provisions were extended in April 2014, when some important changes were introduced. The provisions can be found in section II of CPR Part 3 and CPR PD 3E. Courts now have discretion to order parties to file


costs budgets in most cases at any stage and, so, it is a wise move to have some idea of the costs budget from the outset.

No matter how keen or desperate a client is to “see them in court”, there are a number of steps that must be followed before issuing proceedings in order to fulfil the spirit of the overriding objective. These steps include:

Complying with the relevant pre-action protocol (if there is one):

These protocols lay down guidance for the parties on action to be taken by the parties for particular kinds of claim. The protocol deals with attempts to settle the dispute and disclosure of documents. Some consideration has been given to these protocols, above, and there will be further consideration later in this module.

Complying with the pre-action conduct practice direction:

This practice direction applies to all claims where there is no protocol and imposes a requirement for all potential claimants to “act reasonably” pre-action. This has been considered above.

Consider some form of alternative dispute resolution (ADR):

This requires consideration of a direct alternative to formal court action to resolve the dispute. Forms of ADR can include simple negotiation, mediation, conciliation or arbitration. These methods will be considered in more detail within this module.


1.2 Pre-Action Considerations

1. Introduction

A party rushing into litigation without giving proper consideration to the issues, prospects of success and ability to recover the fruits of the litigation is a most unwise litigant. A legal representative acting under a conditional fee agreement (CFA) is an unwise litigator if, through inadequate pre-action consideration, he causes costs to be incurred that are found to be irrecoverable when the litigation comes to an end. He may also be in breach of his duty to his client. Claims must be properly assessed at the outset. Although this front-loads costs, it is an unavoidable consequence of the Civil Procedure Rules 1998 (CPR). It must be emphasised that no matter how meticulous the pre-action enquiries are they can be no guarantee of success. Proportionality must also be borne in mind.

2. Parties

An important consideration for a solicitor is: “who is my client?” The answer may not always be quite what is expected. Special rules relate to certain types of parties, particularly children, protected persons (formerly called patients) and companies. Sadly, the rule that a solicitor may not issue proceedings in the name of a client, without the express agreement of the client, is often overlooked. An authorised person by using his name as the legal representative of a party in any court document is expressing a statement that he has authority to take any step in the proceedings that he does. This includes serving notice of commencement of detailed assessment proceedings or points of dispute. If it is found that the lawyer had no authority to take the steps that he did, even if he is unaware that he lacked authority, he may be ordered to pay personally the costs that are incurred in taking those steps. In addition, he will not be entitled to recover his own costs.

The following table lists various circumstances and relevant case law:

Circumstances Case

Action taken unintentionally on behalf of a non-existent company.

Simmons v. Liberal Opinion Ltd [1911] 1 KB 966.

Action taken upon the instructions of someone not properly authorised to provide instructions on behalf of a company.

West End Hotels Syndicate v. Vayer [1912] 29 TLR 92

The litigator needs also to ensure that proceedings are properly commenced and served on defendants. Before issuing a claim and issuing proceedings the litigator should be certain of:

þ the appropriate defendant or defendants (suing the wrong defendant can be costly);

þ the correct identity of the defendant or defendants; þ the capacity of the defendant or defendants; and þ the correct address(es) of the defendant or defendants.


In this subsection we will briefly consider some of the main points material to the subject of parties.

2.1 Children

A child is a person under the age of 18. Unless ordered otherwise by the court, he must conduct proceedings through a litigation friend. A litigation friend is required to file a certificate of suitability (Form N235) when proceedings are issued. In that certificate, the litigation friend must undertake to pay any costs which the child may be ordered to pay in relation to the proceedings.

It is frequently forgotten that when a child reaches 18 the appointment of the litigation friend automatically comes to an end. This has obvious implications if a solicitor is acting under a conditional fee agreement when the agreement is entered into with the litigation friend. It appears that a new conditional fee agreement will be required to be entered into with the child if the action is to be continued with this method of funding. Consideration may be given to the case of Dunn v Mici [2008] EWHC 90115 (Costs). In this case, the Supreme Court Costs Office (as it was at that time) worked hard to preserve the validity of a CFA. It found that, if the original CFA entered into by the minor is valid, then costs under that original agreement, including the success fee (particularly relevant in respect of success fees which are recoverable between the parties), are recoverable. If, unusually, proceedings are issued before a CFA was signed, then there would be a litigation friend, who would doubtless have signed the CFA. However, that does not prevent the litigation friend from also being the agent of the principal, the principal being the minor.

After a child reaches the age of 18, the child is obliged, within 28 days, to serve a notice on all other parties that the appointment of the litigation friend has ended. He is required to give his address for service and to state whether or not he intends to carry on the action. If he fails to do so any other party may apply to strike out the child’s statement of case.

2.2 Protected parties

A person who by reason of mental disorder within the meaning of sections 1 to 4 of the Mental Capacity Act 2005 is incapable of managing and administering his property and affairs was formerly called “a patient” and is now, following amendments to the CPR, known as a “protected person”. He may only bring or defend proceedings through a litigation friend. The procedures are very similar to those involving children. There is an important distinction. If a protected person recovers from his mental disorder the appointment of the litigation friend does not automatically come to an end. The appointment of the litigation friend is not ended until an order is made.

2.3 Proceedings by a child or protected party

Every compromise of a claim by or against a child or protected party must be approved by the court to be valid under CPR 21.10(1). If a claim settles before proceedings which involve a child or protected person, Part 8 proceedings must be issued to obtain approval of the settlement. Unless the solicitor representing the child or protected person waives any claim for further costs beyond those payable by the other party, summary assessment of costs is not appropriate at the conclusion of the hearing of the action or the hearing of the


application to approve the compromise under CPR PD 44 para 9.9(1). Courts may make a summary assessment of costs payable by a child or protected party CPR PD 44 para 9.9(2).

2.4 Companies

Companies can be public limited companies or simply limited companies. They can bring proceedings in the name of the company and proceedings can be brought against them in the name of company. Before commencing proceedings against a company a litigator should consider writing to the company or its representatives to establish the correct name of the company and to obtain other information such as the registered office of the company. A search of the Companies Register will also reveal such information, if necessary.

2.5 Partnerships

There are two types of partnerships. Limited liability partnerships may be formed under the Limited Liability Partnerships Act 2000 or simple partnerships. As the name of the first suggests, a limited liability partnership limits the liability of the members of the partnership in relation to claims. Limited liability partnerships must be incorporated and have a registered office. They have names that end with LLP. Limited liability partnerships and simple partnerships can bring proceedings in the name of the partnership and proceedings can be brought against them in the name of the partnership.

2.6 Deceased persons

If proceedings are to be brought by or against an estate of a deceased person the proceedings must be brought by or against the executors as the executors of the estate of the deceased. An action commenced by a Claimant purportedly as an administrator, when the Claimant does not have that capacity is a nullity and the proceedings must be struck out. Claims may not be made by Claimants as personal representatives on behalf of the estate of a Deceased without grant of probate or grant of letters of administration (Millburn-Snell & Others v Evans [2011] EWCA Civ 577).

In certain circumstances, if a party to the proceedings dies during the proceedings the action comes to an end and cannot be continued. This is applicable in relation to defamation actions and also to actions brought by the deceased under the Inheritance (Provision for Family and Dependents) Act 1975. In other actions, personal representatives of the deceased can apply to carry on the action. If a defendant dies, an application may be made for an order that personal representatives be joined in the proceedings in substitution for the deceased. In certain circumstances where, for example, the deceased was insured and there are no personal representatives willing to be appointed the court has power to appoint a representative to represent the estate of the deceased.

If a claimant dies before proceedings and does not leave a will, letters of administration should be obtained and the proceedings brought by the administrators of the estate. If a defendant dies before proceedings and there is neither a grant of probate nor letters of administration, a claim should be issued naming as the defendant “the personal representatives of the deceased”. The claimant is then required, within 4 months, to apply to the court for an order appointing someone to represent the estate. If he fails to do so the claim expires and is no longer valid.


2.7 Joinder of parties

Most litigators will join all defendants upon whom liability is believed to rest when issuing a claim. Before proceedings are commenced, the litigator will usually know the stance of the defendants. Occasionally, where liability appears to rest with one defendant and that defendant seeks to blame another, a litigator may bring the action against the first defendant and wait to see if that defendant in his defence seeks to blame another or issues part 20 proceedings against another party. Then an application may be considered appropriate by the claimant to join the other party as a defendant. Joining multiple prospective defendants can be risky as to costs. Generally, if a defendant blames another party and a claimant introduces a second defendant into the proceedings as a consequence, the claimant will not be penalised as to the costs of the other defendant should the other defendant be successful in defending the claim. This is not always so. Sometimes it is not apparent when proceedings are issued as to whom liability may ultimately rest with. In these circumstances an application may be made after the issue of proceedings to join in any additional defendant considered necessary to the convenient disposal of the proceedings. Where it is convenient for the disposal of the proceedings in cases where a claimant has more than one cause of action against more than one defendant arising from related facts, proceedings may be brought against all defendants in the same claim. If more than one set of proceedings is brought against different defendants where there are different causes of action and there are related facts and issues that render the matter capable of being conveniently disposed of in one set of proceedings, the proceedings may be consolidated by order of the court.

A person cannot be added or substituted as a claimant unless he agrees in writing and this agreement is filed with the court. If a person, who is necessary for the disposal of the issues in an action, refuses to be joined as a claimant he can be made a defendant unless the court orders otherwise. Problems do arise in joining additional parties after the limitation period (see below) has expired.

Under CPR 19.5(2) a party may be substituted only if:

þ the relevant limitation period was current when the proceedings started; and þ the addition or substitution is necessary.

CPR 19.5(3) provides three grounds:

þ substitution where a party was named in the claim form by mistake. þ The claim cannot properly be carried on by or against the original party unless the

new party is added or substituted. þ The original party has died or had a bankruptcy order made against him and his

interest or liability has passed to the new party.

In addition, CPR 19.5(4) permits the court to add or substitute a party where it directs that special time limits (i.e. for personal injury claims or claims under fatal accidents legislation) of the Limitation Act 1980 shall not apply to the claim by or against the new party or the issue of whether those sections apply shall be determined at trial.


2.8 Group litigation orders

There are now extensive procedures and provisions relating to group litigation. It is beyond the remit of this module to go into detail regarding these proceedings. The intention is to avoid numerous proceedings brought in relation to similar or related facts. The court is empowered to make a group litigation order where there are likely to be large numbers of claims giving rise to similar issues. The procedures and provisions are contained in CPR Part 19 Section III.

2.9 Claimants and defendants

CPR 2.3 defines a “claimant” is defined as being a person who makes a claim and a “defendant” is the person against who a claim is made.

3. Enquiries

In a typical case involving a claimant, he will provide initial instructions as to the claim. Ideally, the claimant should be seen by a reasonably experienced litigator at the outset. The litigator will take initial instructions as to the nature of the claim of the client. He will then make the necessary enquiries to enable proper advice as to funding of the claim to be given. Occasionally at the outset it will be clear that the claim has no merit. The client will be advised that is so and the matter will proceed no further. Before an assessment of the merits of the claim can be made most cases require detailed enquiries. The litigator may wish to have the funding arrangements in place before taking more detailed instructions or may elect to use the first appointment with the client to take very detailed instructions. In any event, at a very early stage the client should be interviewed at length to obtain all relevant information regarding the claim. He should be required to produce all documentation that he holds relevant to the claim (and of course all documentation relating to other possible means of funding the case). In some cases, it will be imperative that some early investigations are put in hand. For example, in highway tripping cases the earliest possible site inspection should take place to undertake measurements of the “trip” and to take photographs. This avoids repairs to the highway being undertaken before this very important evidence is obtained. Where the litigator practises many miles away from where his client lives, detailed instructions may have to be obtained by telephone. Information may need to be provided by the client by means of replying to questionnaires. The litigator in such circumstances will need to identify someone relatively independent who can undertake any inspections and provide photographic evidence. This can generally be left to a competent enquiry agent.

The client should be requested to identify all witnesses who can support his claim. If he is not able to identify witnesses either the litigator or enquiry agent may find it necessary to make some local enquiries. If the claim relates to a road traffic accident the litigator should seek production of a copy of any insurance accident report, if this is not the subject of privilege. In highway tripping claims evidence should be sought from local residents to identify whether there have been other similar accidents, whether complaints have been made regarding the condition of the highway and of evidence as to how long the highway had been in a dangerous condition. This can involve knocking on doors or writing to residents locally. In road traffic accident claims, if an accident was reported to the police, a copy of the police accident report should be sought.


In commercial type claims, if there is likely to be a dispute in relation to the claim, the litigator will need to identify the witnesses who can give evidence on behalf of the client. Usually in such cases there will have been an exchange of correspondence between the client and the proposed defendant. The litigator will want to fully consider the arguments raised by the proposed defendant regarding the claim.

In employment accident claims the litigator may be able to obtain helpful supporting evidence from the union or professional association representative at the place of employment, if there is one. The litigator may also be able to obtain helpful supporting evidence from the Health and Safety Executive.

At the outset, some consideration as to the value of the claim will need to given. Although there is unlikely to be any medical evidence available to the litigator (in personal injury claims) sufficient information should be available from the client to enable a preliminary view to be reached as to the potential range of damages. An initial assessment of quantum is essential. If a case is likely to be one that would fall within the small claims track, the client is unlikely to recover costs from the opponent and a conditional fee agreement would not be appropriate. The client may therefore decide, after being advised that he is unlikely to recover costs, either not to pursue the case or to pursue it himself as a litigant in person.

4. Funding Litigation

The solicitor’s retainer (the agreement between the solicitor and his client) is a contract just like any other. The same rules about formation and enforcement of contracts apply, just like any other contract.

4.1 Private funding arrangements

The traditional method of civil claims funding, depends on the terms of the retainer. This would involve the client paying at an hourly rate out of his own funds. The essential feature is that the client always remains responsible for the payment of his solicitor’s costs regardless of the outcome of the case and even if there is an order from the court at the end of the claim for the opponent to pay the costs. The privately paying client can recover the costs order from the opponent to cover the amount that they owe to the solicitor, but the contractual obligation is always for the client to pay the solicitor directly. The ordered costs may not, in some circumstances, match exactly the amount owed by the client to the solicitor and the client will have to stand those additional costs himself. In civil claims, also the danger is always that if a privately paying client loses the claim, he may be ordered to pay all or most of the opponent’s costs. For a private paying client, everything depends on the terms of the retainer.

For many years, clients and consumer pressure groups complained that litigation and the funding of claims was becoming too complex and too expensive, particularly publicly funded litigation (legal aid). The government commissioned Court of Appeal judge, Sir Rupert Jackson, to inquire into the whole issue of funding. Jackson reported in 2011. Most of Jackson’s recommendations have now been implemented in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Following Jackson and the coming into force of the legislation in April 2013, there are now a number of options open to potential litigants for funding. Some of these were created as a result of Jackson’s


recommendations, but most existed long before Jackson, although a number of them have undergone important changes as a result of Jackson and the Act.

4.2 Legal expenses insurance (before the event insurance)

Legal exepnse insurance (LEI) is also known as before the event insurance (BTE). These types of insurances can be found in a variety of places: home contents, buildings policies, credit cards or other club memberships.

4.3 Conditional fee arrangements

Such agreements have the following characteristics:

þ representative only recovers costs if the case is successful; þ in some cases the client will take out after the event insurance (ATE); þ client will pay disbursements and insurance as the case progresses; and þ a success fee/uplift can be claimed from the other party (note: the rules as to

recovery depend upon when the CFA was entered into).

Under section 58 of the Courts and Legal Services Act 1990 (CLSA) a CFA must:

þ be in writing; þ not relate to criminal or family proceedings; þ specify the percentage of any success fee; and þ not include a success fee which exceeds 100% of the base costs.

For CFAs entered into before 1st April 2013, success fees were fixed for low value road traffic and employer’s liability cases. Also, they could not exceed 100% of the base costs. If a party was successful, both the success fee and ATE premium were recoverable from the losing party providing notice had been given to that party at the appropriate time (Form N251).

Sections 44 and 46 LASPO amended section 58 CLSA 1990 and success fees and ATE premiums are, for the most part, no longer recoverable from the losing party; these are now to be deducted from the winning party’s damages. The aim of this amendment was to make claimants have a financial interest in their claims. Success fees are still still calculable as a percentage of costs chargeable to the client and there is a maximum limit (or “cap”) on personal injury cases of 25% and 100% for all other claims. The post April 2013 success fee applies to general damages and past losses – it does not apply to future loss and should be calculated on solicitor’s base costs.

4.4 Damages based agreements (DBAs)

These are contingency fee agreements whereby the solicitor gets his fees if his client wins. The payment comes from the client’s damages. Section 45 LASPO introduced this new type of funding which became operational on 1st April 2013.


4.5 After the event insurance (ATE)

This is a policy that can be taken out by a solicitor, on a client’s behalf, to ensure that, in the event of a claim not being successful, the client is not left liable for the payment of any legal fees. For claims where the CFA was entered into (and ATE obtained) before 1st April 2013, if the claim is successful, the cost of the premium is usually recovered; but for those entered into after that date the premium is no longer recoverable from the other side.

4.6 Public funding (legal aid)

This is now largely obsolete for most civil claims as a result of the Jackson reforms and LASPO, but even before that it was becoming very restricted. Eligibility for public funding now depends on a potential claimant fulfilling the criteria set out in the Funding Code. This is a set of rules issued by the Legal Aid Authority (LAA) which administers publicly funded civil claims on behalf of the Ministry of Justice.

5. Debt Recovery – the Statutory Demand Procedure

A statutory demand is a written request to a debtor for the payment of a debt. Statutory demands can be used to ask for payment of debt from an individual or a company. Anyone who is owed money can make a statutory demand; a lawyer is not required. The law relating to statutory demands can be found in section 268 of the Insolvency Act 1986 and sections 6.1 – 6.5 of the Insolvency Rules 1986.

5.1 The procedure for applying statutory demand

A creditor who is owed money by a debtor can complete Form 6.1 (annexed to the Insolvency Rules 1986) or Form 6.2 if the creditor has already obtained an unpaid court judgment. The completed form has to be served on the debtor. Service must be in person by the creditor on the debtor or by a process server (enquiry agent, private detective etc.) on the creditor’s behalf. Only if personal service fails can service be effected by registered post or inserting the document through the debtor’s letterbox.

When an individual or company receives a statutory demand it has 21 days to either:

þ settle the debt (pay in full); or þ reach an agreement with the creditor to repay or secure the debt, for example,

payment by instalments or by offering something to stand as security for the debt.

Alternatively, a debtor may apply to have the statutory demand set aside, but this must be done within 18 days of receiving the demand.

If none of the above steps are taken, the creditor serving the statutory demand can apply to make the debtor bankrupt (if he is an individual or sole trader) or to wind-up the debtor (if it is a limited company).

A bankruptcy order can only be made in respect of debts of £5,000 or more. This amount has only recently (from 1st October 2015) been increased to £5,000 from £750. The relevant legislation is the Insolvency Act 1986 (Amendment) Order 2015 (SI 2015/922) which amends section 267(4) of the Insolvency Act 1986. This will affect those who may want to issue a


statutory demand or bankruptcy petition for a sum owed between £750 and £5,000, as they will no longer be able to do so. The limit for companies remains unchanged. A company that fails to pay a statutory demand for a sum exceeding £750 is deemed unable to pay its debts, which is one of the grounds on which a winding up order may be made.

5.2 Setting aside a statutory demand

To set aside a statutory demand an application must be made to the court. Application “stops the clock” as far as the 21-day period for presenting the bankruptcy/ winding-up petition is concerned. Application to set aside is made on Form 6.4 (see the Insolvency Rules), which must be accompanied by Form 6.5, which serves as a statement of truth (these will be looked at in more detail later in the module). The court will review the forms to ensure they are completed correctly and, if so, will set a hearing date for the application. In order to set aside the statutory demand, the debtor must persuade the court that at least one of the grounds set out in the Insolvency Rules is satisfied.

If the application is unsuccessful, the time for taking action to settle the debt starts again. The court will authorise the creditor to issue a bankruptcy/winding up petition either immediately or after a specified date. If the application is successful the statutory demand will be set aside and the creditor will be ordered to pay the debtor’s costs of the application.

6. Litigation and Liquidity

There is nothing more frustrating for both clients and practitioners than to pursue a civil claim through the courts, win the case, obtain judgment and then find that your opponent has no money to satisfy the judgment or the award of costs.

There are a number of simple checks that can be carried out, before litigation commences and before the client gets involved in large expense, to check the “liquidity” of the opponent.

þ Companies House search; þ Register of County Court Judgments; þ Land Registry search; þ Credit Reference agency search; þ Enquiry agents.

7. Quantification of Claims in Personal Injury cases

A litigator will obtain from his client sufficient information regarding his injuries to determine the appropriate discipline of medical expert required. In low value claims a report from a general practitioner may be all that is required. In higher value claims, particularly where there is a physical or mental injury, a report from a consultant may be required. Having secured the agreement of the prospective defendant as to the appropriate expert, that expert will be instructed either directly or through a medical agency. The expert should be provided with sufficient information in the written instructions. The precedent attached to the pre-action protocol for personal injury claims should be used. The expert should be provided, except in low value case, with the all relevant medical records of the client.


Upon receipt of the medical report the litigator will need to consider the report before obtaining instructions on it from his client. He will generally check the report against his instructions. He may wish to briefly review the report against any medical records held before seeking instructions. In most cases a discussion of the medical report with the client will be justified. This avoids misunderstandings regarding what is said in the report. If there are factual errors in the report it is appropriate that the expert is asked to review it before disclosure and to correct those errors. If the client does not agree with the substance of the report the concerns of the client may be put to the expert for him to consider those concerns. The litigator must not seek to doctor expert evidence to suit the case of his client (Whitehouse v. Jordan [1981] 1 WLR 246). If an expert is not willing to make changes to a report to accommodate the client then the client may either rely upon the report and disclose it or identify and seek to instruct a second expert. In such circumstances the costs thrown away by the unused evidence are unlikely to be allowed against the prospective defendant. Where a claimant seeks a substitution of expert, the court is empowered to make it a condition of reliance upon the expert opinion of the new expert and that abandoned reports be disclosed to the defendant (Edwards-Tubb v JD Weatherpoon PLC [2011] EWCA Civ 136). Where a party has had a free choice of an expert and has put forward the report of that expert as part of his case, he must adduce good reason for changing expert (Guntrip v. Cheney Coaches Ltd [2012] EWCA Civ 392).

Expert medical evidence may indicate that further expert evidence is required. This may involve a later report from the same expert or the instruction of an expert of a different discipline. Where later medical evidence from the same expert is required, it is at the very least a courtesy to the defendant to advise that the medical situation has not stabilised and that further medical evidence will be required. If medical evidence from an expert from a different discipline is required, again, under the protocol, the prospective defendant should be given a list of the experts and the same procedures gone through again.

At the outset, consideration will have been given by the litigator to items of financial loss that may be recoverable for the client. In the “law of tort”, items of financial loss that may be claimed are considered in general terms. These can include (and this is not an exhaustive list):

þ loss of earnings; þ the cost of care and assistance; and þ travelling expenses.

If there is a claim for loss of earnings and the prospective defendant is the employer, the prospective defendant should have been requested at the outset to provide particulars of the pre-accident earnings and post-accident earnings of the client. If the prospective defendant is not the employer this information should be requested from the employer, unless the client is able to produce this himself. The client at the outset should be required to keep a list of expenses incurred that he considers have arisen from the accident.

Once the medical evidence has been completed and is disclosed a schedule of financial loss should be served on the prospective defendant with supporting documents.


8. Alternative Dispute Resolution

Alternative Dispute Resolution (ADR), sometimes referred to as Resolution of Disputes Out of Court (REDOC), is a direct alternative to formal court action. Although not strictly litigation, ADR forms a vital part of practice for practitioners undertaking civil claims and has grown in importance with the reduction of public funding and the CPR’s direction to the courts to encourage parties to resort to ADR where possible.

ADR takes two general forms, and there are a number of different forms of ADR within those general categories:

þ Non-adjudicative ADR; and þ Adjudicative ADR.

Adjudicative ADR involves an independent third party who considers the claims of both sides and makes a decision. The adjudicator is usually an expert in the subject matter in dispute. Also, adjudicators are not bound by the rules of litigation or arbitration. Their decisions are often interim ones, i.e. they can be finalised using arbitration or another binding process.

8.1 Negotiation

Negotiation is a process where the parties themselves or via lawyers discuss the issue direct in order to achieve a resolution. The most simple example of this is when a shopper returns clothes that are faulty, they will in effect negotiate with a sales assistant.

There can be negotiations in the pre-action stage of the case as to liability, apportionments of liability and as to quantum. If a case cannot be compromised on all issues it may be capable of being compromised as to the liability or primary liability (leaving issues as to causation and contributory negligence in dispute), as to quantum of the claim (if liability or the apportionment of liability cannot be agreed) or as to parts of the damages that may be payable, for example, general damages may be capable of agreement, but special damages may not.

8.2 Mediation

Mediation is the most frequently used form of ADR. It is a form of neutrally assisted (or facilitated) negotiation. It is a process in which the parties to the dispute agree that an independent third party, the mediator, may attempt to assist them in arriving at an agreement, or compromise, to settle their dispute. The mediator plays a key role and careful consideration must be given to the selection of the most appropriate mediator.

Typically, the mediator will discuss the problem with the parties, both together in open forum, and separately in private meetings. The mediator's training and experience should ensure the use of skills and lateral thinking to attempt to assist the parties in focusing on underlying real interests and needs, rather than rights or liabilities, and to enable them to construct a solution which both find acceptable.


8.3 Conciliation

Conciliation is very similar to mediation in its procedures and first stages. This process differs from mediation in that the neutral third party (the conciliator) may express an opinion on the merits of the dispute and will actively make recommendations of how to reach a resolution.

Like mediation, conciliation is a “without prejudice” procedure and is non-binding in that at any time before a settlement is achieved any of the parties, or the conciliator, may terminate the procedure. All the characteristics of privacy, confidentiality and economy which mediation exhibits are also true of conciliation.

8.4 Adjudication

Introduced in 1998 by the Housing Grants, Construction and Regeneration Act 1996 as an alternative to court proceedings, adjudication offers a quick, straightforward and relatively informal way of resolving disputes arising out of construction contracts, parties are still able to apply to the courts should the adjudication not remedy the situation.

The legislation provides that adjudication can be used at any time. For example, provided the parties have a contractual relationship, it can be used to decide contractual disputes with designers before construction begins; it can be used to resolve contractual disputes with and between designers, contractors and subcontractors during construction; and with or between them after completion.

A contract may name an adjudicator, a panel of adjudicators or an Adjudicator Nominating Body. If it does, then the claimant would use the named person or body. If it does not, or if the person named declines to act and the contract does not provide for a substitute, then the claimant may approach an Adjudicator Nominating Body.

8.5 Neutral Evaluation

Early neutral evaluation is a process in which an experienced lawyer gives an indication, as strong and as detailed as the disclosure and representation at that stage allows, of what would be the outcome if the matter were to be finally adjudicated in court.

9. Letters Before Action

One of the first steps required before any formal court proceedings are commenced is for the potential claimant to send a pre-claim letter or “Letter before Action”. The CPR and Pre-action Protocols set out certain requirements that a letter before action should follow or include, namely:

þ Make it clear that this is a formal letter that may lead to a claim – Use the heading “Letter before action” or mention in the introduction that this is designed to be a letter before action;

þ Name and address of claimant; þ Clear summary of facts upon which claim is based and legal grounds for the claim; þ What the defendant is being asked to do to resolve the dispute;


þ The amount of the claim (if it can be quantified at this stage) and how this figure has been calculated;

þ Include an invitation to use alternative dispute resolution; þ Specify a date by which the defendant should respond (usually 14 days is seen as

reasonable for straightforward cases); þ A request for any documents that claimant want to see which will help to resolve the

claim; þ A reminder that this letter is the last step before the commencement of court

proceedings and such proceedings will involve the defendant in extra costs; and þ A reminder of the duty of mutual co-operation in attempting to resolve the dispute.

9.1 Sending the letter before action

Lawyers are advised to keep a copy of the letter before action and get a proof of posting certificate from the post office, in case there is a dispute later about whether any letter was sent.

9.2 Without prejudice correspondence

Letters before action are an important and formal part of the rules and practice directions. Letters before action must be open and may be read out or form part of the evidence in court later. However, parties may (and the CPR encourages them to do so) engage in “without prejudice” correspondence in an effort to settle the dispute alongside following the pre-action procedures. "Without prejudice" may be used by parties who are discussing or corresponding about an existing dispute, whether or not Court proceedings have already been issued. “Without prejudice” letters are written with a view to settlement but may contain, or be interpreted as containing, admissions of facts which the parties would not want repeated in court. The wording literally means that the communication has been made without prejudice to the writer / speaker's position. It must be noted that a communication can only be "without prejudice" where the following conditions are satisfied:

þ there must be an existing dispute between the parties; and þ the communication must contain a genuine attempt to settle the dispute.

There are some conventional requirements for “without prejudice” letters to be effective as such:

þ letter must be clearly marked “without prejudice” (or be written on the prior understanding between the parties that the correspondence is to be “without prejudice”);

þ correspondence must be a genuine attempt to settle the dispute (simply stating that correspondence is “without prejudice” does not mean that it is);

þ concessions, admissions or offers made in an attempt to resolve a dispute should not be seen as an admission of any liability; and

þ no reference to the “without prejudice” correspondence can be made in any subsequent court proceedings (unless the party on whose behalf the letter was written waives their right for the contents to remain secret).


The rules on “without prejudice” correspondence also apply (with appropriate modifications) to emails, faxes, text messages and telephone conversations. The essential idea is for the parties to communicate with each other at an early stage in order to settle the dispute if possible.

9.3 Without prejudice save as to costs

This rule extends the "without prejudice" rule. With this type of correspondence the same privilege is maintained but, should the matter go to Court, the parties can disclose communications when the Court comes to decide the issue of costs. For this rule to apply letter must be clearly marked “without prejudice save as to costs” (or be written on the prior understanding between the parties that the correspondence is to be “without prejudice save as to costs”). This type of communication remains privileged until after the matter has been settled or decided by the judge. This is to allow the Court to decide who should be awarded costs after the outcome of the dispute has been decided. The Court will consider the conduct of the parties in determining this.

10. Limitation Periods for Civil Claims

The Limitation Act 1980 provides time limits by which proceedings must be commenced. In some specified instances claims may be brought outside the limitation period. This is mainly in relation to personal injury/disease claims. The discretionary powers of the court to extend the limitation periods for commencing an action have been considered earlier in this handout.

A claim must be brought within a defined time period known as the limitation period. This period is defined by statute, the Limitation Act 1980. The following table summarises the main periods and sections of reference under the Act.

Tort/Personal Injury

Starting point/generally 6 years Section 2 Personal injury 3 years Section 11 Defamation and malicious falsehood 1 year Section 4A Fatal Accidents Act 1976 claims 3 years Sections 11 and 12

Contract Contract Claim 6 years Section 5

Land Recovery of Land 12 years Section 15(1) Breach of Trust 6 years Section 21(3)

This is fairly straightforward if the injury, loss or damage, coincides with the event giving rise to the claim (the accident, negligent act or breach of contract). However, what is the position if the injury is one which is not immediately obvious or which may take a considerable amount of time to develop? Sections 11 and 14 of the Act deal with this. Under these sections, time starts to run on the date of knowledge of the incident.

Section 35 of the Limitation Act 1980 governs the right to bring new claims in existing actions. It deems the new claim to have been commenced on the date when the proceedings were issued. There are conditions, however. Section 35(3) instructs courts not to allow such new claims unless certain circumstances apply. These can be summarised as:


þ a new cause of action arising out of the same or substantially the same facts as are already in issue in any claim previously made in the original action; or

þ if a new claim involves a new party the new party must be necessary for the determination of the original action (commonly where substitution of a party is necessary).


1.3 Remedies in Civil Claims

1. Damages

The most common remedy sought by claimants in civil claims is damages i.e. compensation for any injury, loss or damage they have suffered as a result of the defendant’s “wrongdoing”. Damages generally fall into one of two categories:

Special damages

Those financial losses which can be easily calculated and quantified as a precise amount. Special damages can be separated into past losses, those already incurred at the date of settlement/trial and those losses that the claimant will experience in the future as a result of the injury.

General damages

The unquantifiable (or difficult to quantify) financial and non-financial losses which cannot be calculated to a specific amount. These compensate a claimant for the pain suffering and loss of amenity (PSLA) that has been suffered through injury.

In actions based on tort, the purpose of damages is to place the injured party, so far as money can, back into the position they would have been in had the tortious act not taken place.

In actions based on contract, the purpose of damages is to place the innocent party in the position they would have been in had the contract been performed correctly.

2. How are damages quantified?

In the case of special damages, this should be straightforward as, by definition, such damages can be quantified specifically. The amounts claimed by way of special damages will have to be verified by evidence, such as invoices, receipts, wage slips, accounts, letters from employers, and official records from benefits agencies, HMRC etc. The calculation of special damage is a matter of simple arithmetic.

In the case of general damages this is much more difficult. Because general damages are not capable of precise mathematical calculation, the courts have to take a different approach. There are two categories of general damage:

þ Past/current pain suffering and loss of amenity (PSLA): The amount awarded under this category is based on an assessment of the degree of pain and suffering that an individual has gone through as a result of an injury (physical and/or psychological) and how much the consequences of the injury has affected his daily life, work, hobbies, relationships etc. (loss of amenity). The "Guidelines for the Assessment of General Damages in Personal Injury Cases" published by the Judicial College (JCG) is a guide that helps legal professionals determine the financial value of a general damages claim.

þ Future losses: For future losses, the courts adopt a “multiplicand/multiplier” approach. Because predicting the future is not an exact science, a simple mathematical calculation for loss of future earnings or future nursing care, for example, is not possible. In an effort to reduce the “guesswork”, courts calculate an annual loss figure for each item of future loss based on what is already known at the


time the case comes to trial (or is settled) i.e. a figure for annual loss of earnings or annual medical costs. This is the multiplicand. To this figure is applied a multiplier, a number which varies from one claimant to another depending on factors such as gender, the type of loss suffered (loss for a working lifetime or loss for a whole lifetime), age at the date of injury, anticipated retirement date, and the anticipated rate of interest achievable on investments. The appropriate multiplier is based on a government publication of actuarial tables, known as the Ogden Tables, which set out various multipliers based on life expectancy of individuals based on their gender, job, location, lifestyle etc. The product of the multiplicand x multiplier = value of future loss.

In personal injury actions, account needs to be taken of the effect of the Social Security (Recovery of Benefits) Act 1997. This Act permits the government, through a body known as the Compensation Recovery Unit (CRU) to recover the full amount of any welfare benefits received as a result of the injury giving rise to the claim. Any claimant who receives benefits such as statutory sick pay, Job Seeker’s Allowance, Disability Living Allowance or Personal Independence Payment (and similar benefits) because of the injuries they received (or time off work as a result of those injuries) must take this into account when calculating damages or negotiating settlement. When damages are awarded in favour of a claimant, the claimant’s advisors must obtain a certificate from the CRU (a recoverable benefits certificate) and repay from the damages the amount of benefits stated in the certificate. Benefits are recovered initially from special damages (loss of earnings etc.), but if the award of special damages is insufficient, deduction may be made from general damages as well (including costs of future care etc.). The CRU recovers the full amount of any relevant benefits received, even if a claimant’s damages are reduced for contributory negligence.

It should be noted that the above rules on general damages apply almost exclusively to personal injury actions. In commercial claims for breach of contract, general damages for distress, upset, inconvenience etc. are not normally recoverable. However, there is an exception to this if the object of the contract was “peace of mind, pleasure or relaxation” according the House of Lords ruling in Farley v Skinner [2001] UKHL 49 where £10,000 general damages for inconvenience and discomfort was awarded against a surveyor who, in breach of contract, had failed to advise the claimant about the likely disturbance from aircraft noise.

3. Fatalities and Civil Claims

Fatal accident claims are actions for damages in respect of the consequences of the death following a tort. There are two types of fatal accident claim:

þ the estate’s claim; and þ the claim by the dependents of the deceased.

Under section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934:

“on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against or for the benefit of his estate”.


The estate can (subject to the exception of funeral expenses) only claim for the losses that the deceased could have claimed if he or she had survived. All causes of action apart from defamation survive the death of any person for the benefit of his or her estate. This includes, for example, the diminished value of a personal injury case unconnected to the cause of the deceased’s death (Singh v Aitken [1998] PIQR Q37).

Under section 1(1) of the Fatal Accidents Act 1976 :

“If death is caused by any wrongful act, neglect or default, and death is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages, the person responsible shall be liable to an action in damages, notwithstanding

the death of the person injured”.

An injury includes any disease and any impairment of a person’s physical or mental condition by virtue of section 1(6) of the Fatal Accidents Act 1976. Section 1(2) of the Fatal Accidents Act 1976 states that these actions shall be for the benefit of the dependents of the decesased. Section 1(2) of the Fatal Accidents Act 1976 goes on to say:

“Such action shall be for the benefit of the dependents of the deceased”.

There are limits on the type of people who can claim. The word “family” and “dependents” are used to describe close family ties with the deceased such as children, wife or husband as this group of family members are often the most affected in a fatal accident claim and usually “dependent” upon the deceased. Therefore, the person(s) who can claim on behalf of the deceased are those close family members who were in some way “dependent” upon the deceased before and at the time of death.

4. Periodical Payments

Section 2(1) of the Damages Act 1996 and CPR 41.4 permit the court to:

“order that all or part of an award of damages in respect of personal injury is to take the form of periodical payments”.

It is worth noting that some older sources of information may still refer to these payments as “structured settlements”. The purpose of such payments is to enable the claimant’s damages to be structured so as to ensure that money is available for future payments for the claimant’s income and/or care and medical costs. This is to avoid a situation where the claimant is awarded the traditional “lump sum” payment and the claimant then spends all the damages immediately, leaving nothing for future costs. Periodical payments can be ordered either at the request of either party (there are certain tax advantages to both the claimant and defendant of periodical payments) or by the court of its own initiative (even against the wishes of the parties). The court may also order periodical payments to continue after the claimant’s death for the benefit of his dependents.

Under CPR 41.7 and PD 41B, when deciding whether to order periodical payments, the court is directed to take into account “all the circumstances of the case”, the form of award which “best meets the claimant’s needs” and “the scale of the annual payments” as well as the preferences of the parties and their reasons for that preference.


Periodical payments are usually secured by the defendant purchasing an annuity (a form of insurance policy) which pays out a certain amount at periodic intervals (usually annually). It is generally considered that such awards are only suitable for large value claims where a substantial element of the claim is future loss of earnings and/or medical and care costs. It should be noted that they are only available for personal injury claims.

5. Interest and Damages

Section 35A of the Senior Courts Act 1981 (for claims in the High Court) and Section 69 of the County Courts Act 1984 (for claims in the county court) permit the courts to award interest on any award of damages. These provisions make the rate of interest, the period over which interest is to be awarded and the types of damages which attract interest at the court’s discretion. This means that the court can, in some circumstances, refuse to award interest at all or award it at a reduced rate or for a reduced period than would otherwise be the case. The court may also award different rates of interest on different heads of damages. However, the courts are unlikely to award interest on damages for future losses.

Generally, the courts will award interest on the following bases:

þ Where the sum claimed or awarded is a fixed amount (such as debt, money back on defective goods or special damages), interest is normally awarded at 8% per annum from the date of the incident giving rise to the claim until judgment or earlier payment;

þ Where the claim is for an unspecified amount, such as general damages for pain, suffering and loss of amenity, interest is normally awarded at 2% per annum from the date of issue of proceedings.

It should be noted that, if the claimant wishes to claim for interest on money he is owed or awarded as damages, it is vital that such a claim is included in the claim form at the commencement of the claim (claim forms will be considered later in the module). The rule is that if you don’t ask, you don’t get, even if the court thinks the claimant is entitled to and deserves an award of interest.

The Late Payment of Commercial Debts (Interest) Act 1998 permits an enhanced rate of interest and additional charges for the late payment of commercial debts. The Act only applies to contracts for the sale/supply of goods and/or services where both the purchaser and the supplier are acting in the course of a business (s.2(1) of the Late Payment of Commercial Debts (Interest) Act 1998).

From 4th August 2016 the statutory rate of interest has been 8.25% per annum (Bank of England base rate plus 8%) and, under section 4(5) of the Late Payment of Commercial Debts (Interest) Act 1998, can be charged from 30 days after the date upon which payment was due (unless the contract provided for an earlier date for payment, in which case from that earlier date).

As well as the statutory rate of interest, debts more than 30 days overdue attract an additional fixed sum charge which is added to the debt. Section 5A of the Late Payment of Commercial Debts (Interest) Act 1998 details the current fixed charges:


þ £40 (for debts under £1,000); þ £70 (for debts of £1,000-£10,000); and þ £100 (for debts in excess of £10,000).

It should be noted that on 16th March 2013 the Late Payment of Commercial Debts Regulations came into force. This was amended on 14th May 2013 and both sets have regulations have the effect of amending section 4 of the Late Payment of Commercial Debts (Interest) Act 1998 and set out regulations about the supply of goods and services by public authorities and all other organisations. These set out specific time frames in relation to interest.

6. Other remedies available

Although damages is by far the most common remedy in civil cases, it is not the only one. Other common remedies include:

þ injunctions; þ orders for specific performance; þ declarations; þ orders in judicial review proceedings; þ rescission of contracts; and þ rectification of documents.

6.1 Injunctions

An injunction is a court order prohibiting a person from doing something (a Prohibitory Injunction) or requiring a person to do something (a Mandatory Injunction). Prohibitory Injunctions are most commonly granted in business protection cases.

By virtue of section 37(1) of the Senior Courts Act 1981 injunctions can either be interlocutory or final. An interlocutory or interim injunction is usually granted at an early stage in the court proceedings, pending a final decision by the court at trial. Interim Injunctions can be granted until a specified date or until the trial of the action. This handout will focus on these types of injunction applications. A final injunction is granted at the conclusion of proceedings and will either last to a specified date, or indefinitely. Generally speaking, the burden of proof upon the Claimant for a final injunction is higher than it is for an interim injunction.

CPR PD 25A sets out the procedural rules on interim injunctions.

6.2 Orders for specific performance

A decree of specific performance is one of the most important equitable remedies. It is a court order directed to someone who is party to a contract to instruct them to perform their obligations under the contract. Refusal to observe the terms of the order is a contempt of court.


6.3 Declarations

In the context of dispute resolution, a court decision setting out the rights or legal position of the parties. It is only generally available if other remedies are inappropriate. It is often sought when the subject matter of the proceedings affects a large number of people.

6.4 Orders in judicial review proceedings

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.

6.5 Rescission of contracts

Rescission is available as a remedy to a party whose consent, in entering into a contract, has been invalidated in some way. This will happen where:

þ a party has contracted on the basis of a false statement of fact made to it by the other party (misrepresentation);

þ a party was mistaken as to the terms of the contract and the other party was aware of its mistake (mistake); or

þ a party was unfairly persuaded by another individual to sign the contract (undue influence).

The effect of rescinding a contract is to extinguish it and to restore (as far as possible) the parties to the positions they were in before contracting. A contract that can be rescinded is voidable, not void. In other words, subject to the right to rescind being exercised, the contract remains enforceable. By contrast, an apparent contract that is void never has any validity or effect.

6.6 Rectification of documents

Rectification is an equitable remedy by which the Court can correct an error of expression in a written document that does not match the intention of the parties to that document. It follows that it is a remedy that is available only in relation to written contracts and other documents. You cannot seek to rectify an oral agreement.


1.4 The Jurisdiction of the Civil Courts

1. Introduction

The civil courts are mostly those which occupy the right hand side of the diagram and the whole of the High Court section. The courts which generally deal with civil cases are:

þ the Magistrates Courts þ the County Court þ the High Court

2. The Magistrates Courts

Magistrates’ courts are often considered, incorrectly, to be only a criminal court. However, civil jurisdiction is limited to some family law matters, orders for payment of local government taxes (Council Tax) and appeals against a variety of administrative regulatory matters (e.g. refusal to grant a taxi driver’s licence).

3. The County Courts

These courts deal with civil (non-criminal and non- family) cases where an individual or a business believes their rights have been infringed. The types of civil case dealt with in the County Court include businesses trying to recover money they are owed, individuals seeking compensation for injuries and land-owners seeking orders that will prevent trespass. The more complex civil cases or those involving very large amounts of money appear at the High Court.

Both Circuit Judges and District Judges sit at most County Court hearing centres. Circuit Judges generally hear cases worth over £25,000 or involving greater importance or complexity, whilst District

Judges maintain an overview of the cases underway to make sure they are running smoothly (known as “case management”) as well as deciding cases under £25,000 and the less complex cases over that figure. County Court judgments usually call for the payment or return of money or property. The majority of civil cases tried in court do not have a jury (libel and slander trials are the main exceptions). Instead, the judge hears the case on his or her own, deciding the case by finding the facts, applying the relevant law and then giving a reasoned judgment.


In general, the High Court and the county court have concurrent jurisdiction, and a claimant is free to choose which court he wants to conduct his claim in. There are, however, some exceptions to this general rule:

a) Cases which must be brought in the county court only

þ Claims to enforce regulated agreements and linked transactions under the Consumer Credit Act 1974 (credit cards and personal loans);

þ Claims concerning unlawful sexual discrimination in non-employment cases under section 114 of the Equality Act 2010;

þ Money claims where the claimant does not reasonably expect to recover more than £100,000;

þ Personal injury claims where the claimant does not reasonably expect to recover more than £50,000.

b) Cases which must be brought in the High Court only

þ Judicial review; þ Libel / slander; þ Title to any toll, fair or market; þ Anything concerning local authority auditors; þ Human Rights claims.

4. The High Court

The High Court deals with nearly all types of civil claims, but for administrative purposes is split into “divisions”:

4.1 The Queen’s Bench Division

The Queen’s Bench Division (QBD) is the biggest of the three High Court Divisions and has the most varied jurisdiction. Essentially the QBD deals with any dispute not coming under the jurisdiction of the other two divisions, but mainly deals with debt actions, breach of contract cases, and all tort actions, including high value personal injury cases. Basically, it handles those contract and tort (civil wrongs) cases which are unsuitable for the county courts for reasons of cost or complexity. It also handles libel cases. Included within it are a number of specialist courts: the Admiralty, Commercial, Mercantile, Technology & Construction, and Administrative Courts.

4.2 The Admiralty Court

The Admiralty Court is the oldest of all the Division’s specialist courts and deals principally with the legal consequences of collisions at sea, salvage, and damage to cargoes. The Admiralty Court has its own procedures (CPR Part 61).

4.3 The Commercial Court

The Commercial Court deals with a wide variety of “commercial” disputes arising out of trade or commerce, including import/export of goods, business documents, transport of


goods by land, sea or air, financial services and commercial arbitrations. The Commercial Court has its own procedures (CPR Part 58).

4.4 The Technology and Construction Court

The Technology and Construction Court deals with claims which raise issues or questions which may be technically complex and may require specialist knowledge. Cases in the TCC usually involve complex building or land disputes, complex machinery, computer software and network systems, or claims involving specialist advisors, such as accountants, surveyors or architects. The TCC has its own procedures (CPR Part 60).

4.5 The Administrative Court

The Administrative Court deals with cases where the High Court is required to exercise its supervisory jurisdiction over lower courts, tribunals, government officials and departments, local councils, public and statutory bodies. This means that it has the power to oversee the quality and legality of decision-making in the lower courts and tribunals. Additionally, it hears applications for judicial review of decisions of public bodies and has its own procedures (CPR PD 54D). Sitting as the Divisional Court of the Queen’s Bench, its judges also hear certain criminal appeals originating in the magistrates’ courts and the Crown Court, as well as applications for judicial review which are so important that they are heard by two or three judges sitting together. Queen’s Bench Division judges also sit in the Court of Appeal Criminal Division on appeals from the decisions of the Crown Court. When doing so they sit as a bench of two or three judges, usually presided over by a judge of the Court of Appeal.

4.6 The Planning Court

The Planning Court deals with all judicial reviews and statutory challenges involving planning matters including appeals and applications relating to enforcement decisions, planning permission, compulsory purchase orders and highways and other rights of way. It forms part of the Administrative Court.

4.7 The Chancery Division

The Chancery Division deals with company law, partnership claims, conveyancing, land law, probate, patent and taxation cases. The division includes three specialist courts: the Companies Court, the Patents Court and the Bankruptcy Court.

4.8 The Bankruptcy and Companies Courts

The Bankruptcy and Companies Courts deal with personal actions or bankruptcy and compulsory liquidation of companies and other matters arising under Insolvency and Companies Acts.

4.9 The Patents Court

The Patents Court deals with a range of intellectual property matters and hears appeals from the decisions of the Comptroller- General of Patents, Designs and Trademarks.


4.10 The Family Division

The Family Division does not have the same range of specialist courts for its work as the Queen’s Bench Division, but it does contain the Court of Protection, which gives judgments on behalf of those who are unable to make decisions for themselves, such as persistent vegetative state victims. The Family Division deals with the most difficult and sensitive situations involving families, such as divorce and disputes over children, property or money; adoption, wardship (guardianship over a child) and other matters involving children. It is also responsible for undisputed cases of probate - the legal recognition of the validity of a will - through the Probate Registry of the Family Division across England and Wales. Under its President, who is a member of the Court of Appeal.

4.11 The Financial List

The Financial List is a specialist Queen’s Bench/ Chancery cross-jurisdictional list set up to address the particular business needs of parties litigating on financial matters.


1.5 Commencement of Proceedings

1. Introduction

As a result of the 82nd update to the CPR which came into effect in November/December 2015 (depending upon the specific amendment) CPR PD 2C now provides for the issue of proceedings under the Companies Acts at the Central London County Court hearing centre rather than in the High Court. CPR PD 5B deals with the “Electronic Communications and Filing of Documents”. The existing practice direction was replaced to give effect (from 7th December 2015) to changes that would allow increased communication with and by the county court by way of e-mail. CPR PD 51O relates to “The Electronic Working Pilot Scheme”. The original pilot scheme (as set out in CPR PD 51J) was replaced, it allowed for the electronic filing of claims and subsequent documents in the Technology and Construction Court (TCC). The new scheme extended the pilot to the Chancery Division, the Commercial Court, the Mercantile Court and the Admiralty Court (“the Rolls Building Jurisdictions”). Compliance with the pilot scheme was not mandatory and the scheme was to operate for one year from 16th November 2015. This has now been extended and CPR PD 51O now provides (88th update to the CPR) that the scheme will operate to 16th November 2017 in the Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court, the Mercantile Court, and the Admiralty Court, at the Royal Courts of Justice, Rolls Building, London (together, “the Rolls Building Jurisdictions”. The pilot introduced CE File, a new electronic filing and case management system. For professional court users, who have previously had to file documents in paper form and pay court fees manually, the electronic filing capability now enables users to file documents at court electronically and pay court fees online.

2. The Claim Form

The procedures for the commencement of proceedings are simple and straightforward. Before the CPR there were writs, default summonses, ordinary summonses, originating applications, originating summonses and petitions. Now, a claim form is used to commence all proceedings in any court. Most civil claims are commenced under CPR 7, which uses the Claim Form N1. An alternative way of commencing proceedings is under CPR 8, which uses a different Claim Form, N208.

A useful provision under the CPR is to allow a claim form to be amended from a Part 7 to a Part 8 Claim Form or vice versa where the wrong procedure has been followed and the wrong form used. Prior to the CPR, where the wrong procedure and forms were used, claims were struck out. The procedure under Part 7 is appropriate for all types of case, except where Part 8 procedures apply. The most common actions brought under Part 7 are claims for payments of debt and for damages for personal injury. An area where the costs lawyer may be involved under Part 7 is in relation to an action for recovery of the costs of a solicitor due from his client. All proceedings must be issued under Part 7 with a Part 7 Claim Form unless an Act, regulation, rule or practice direction provides otherwise.

A claimant may use the Part 8 procedure where he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact or a rule or practice direction requires or permits the use of the Part 8 procedure and disapplies or modifies any of the rules set out in Part 8 as they apply to those proceedings. Part 8 claims include


applications for a declaration as to the construction of documents and applications in the administration of estates and trusts.

Most relevant to costs lawyers in respect of Part 8 are costs-only proceedings under CPR 46.14. This type of claim is dealt with later in the course. Generally, Part 8 provides an alternative procedure for claims. There are no pleadings as such in Part 8 claims, as the Part 8 procedure is only considered appropriate for cases where the court can decide the issue on the documents after hearing legal submissions and arguments and where there is little substantial dispute on the facts of a case. Instead, claimants are required to file any written evidence they intend to rely on with their claim forms. Defendants are required to file any written evidence they rely on with the acknowledgment of service. A surprisingly little known rule is that where the Part 8 procedure is followed, the claim is automatically treated as if it has been allocated to the multi-track (CPR 8.9 (c)). This does not, however, apply to Part 8 costs-only claims under CPR 46. Applications for approval of settlements involving children and protected persons are brought using the Part 8 procedure.

CPR Part 22 deals with statements of truth. CPR 22.1 sets out the documents which are required to be verified by a statement of truth. This includes statements of case, Part 18 responses providing further information, witness statements and certificates of service.

CPR PD 16 paras 4.1 to 4.3 requires that, in personal injury actions only, the particulars of claim must include/have attached to it:

þ the claimant’s date of birth; þ details of injuries sustained; þ a schedule of all past and future expenses claimed; and þ a medical report verifying the injuries (where the claimant is relying upon such

evidence).

3. Issuing Proceedings

Proceedings begin when the court issues a claim form on behalf of a claimant. The claim form must contain particulars of claim, or an indication that particulars will be served as a separate document later. The claim form and particulars of claim must set out a summary of the basic facts of the claim against the defendant. Failing to do this may allow the defendant to strike out the claim at an early stage in the proceedings.

The first step is for the claimant to complete Claim Form N1 (or , N208 for Part 8 claims) and send the original form and two copies to the court centre for issue. The claimant will also have to pay a fee to issue the claim form (although there are fee remission schemes), the amount of which depends on the value and nature of the claim. The claimant should then send the forms to the local court office with the fee and a covering letter asking for the claim to be issued.

From 19th March 2012 if a claim is a “money claim” (i.e. debt, breach of contract or other fixed sum), so every claim that is either for a specified amount of money or an unspecified amount of money and is not a claim for which special procedures are provided for in the rules, must be issued by sending the claim form to “County Court Money Claims Centre, PO Box 527, M5 0BY”. This applies only to Part 7 proceedings. The claims are processed in Salford. However, all claims issued will be in the name of Northampton County Court! The


Northampton County Court Bulk Centre (NCCBC) will deal with issue, service, default judgments, admissions and offers to pay.

Where a defence is filed and following receipt of allocation questionnaires the case will be transferred to another court. Upon issuing a claim, claimants must record their “preferred courts”. It should be noted that until case management decisions are made the defendant will not have a right to seek transfer of a case to their “preferred courts”.

The alternative to this is to use the Money Claim Online Scheme (MCOS). This allows money claims to be issued electronically by the court. For this method, the claimant’s solicitors need to register as a user and be given a user name and 12 digit password. This method can only be used for fixed sum money claims with a value of up to £100,000. It cannot be used for any of the following claims:

þ claims in excess of £100,000; þ claims where one party is a child or other protected person; þ claims against more than 2 defendants; and þ claims for damages for an accident or injury or housing cases.

This scheme is administered by Northampton County Court.

Whichever method is used, the court issues the claim by sealing it with the court’s official seal and entering its details on the claim form. The court then sends a form called a notice of issue to the claimant’s solicitors.

4. Serving Proceedings

CPR Part 6 sets out rules for when it is presumed by the court that the defendant has been served with the claim form and particulars of claim. Rules 6.3 to 6.19 (section II of Part 6) deal with service of the claim form within the jurisdiction (or, in specified circumstances, within the EEA). Rules 6.20 to 6.29 (section III of Part 6) deal with service of documents other than the claim form in the UK (or, in specified circumstances, within the EEA). For the complicated rules on service outside of the jurisdiction see rules 6.30 to 6.47 (section IV of Part 6). For the purposes of this handout, only service within the jurisdiction is considered.

Rule 6.2 provides some definitions including:

þ “Bank holiday”: means a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the UK where service is to take place; and

þ “Business day”: means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day.

4.1 Methods of service and deemed service – The claim form

Rule 6.3 provides that a claim form may be served by any of the following methods:

þ Personal service in accordance with CPR 6.5; þ First class post, document exchange or other service which provides for delivery on

the next business day in accordance with CPR PD 6A; þ Leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;


þ Fax or other means of electronic communication in accordance with CPR PD 6A; or þ Any other method authorised by the court under CPR 6.15.

A company may be served by any method permitted under this part or by any of the methods of service permitted under the Companies Act 2006. A limited liability partnership may be served by any method permitted under this part or by any of the methods permitted under the Companies Act 2006 as applied with modification by regulations made under the Limited Liability Partnerships Act 2000.

Under CPR 6.4(1)(b) the claimant has a choice to serve the claim form and other documents either himself or to allow the court to serve them. The claimant who wishes to serve proceedings himself has a further choice to serve in person or through the postal service. If service is left to the court, it is for the court to decide which method of service is to be used (CPR 6.4(2)). The method of service chosen has an impact on the date when the court presumes service has been effected upon the defendant (deemed service).

The 81st update to the CPR, which came into force on 1st October 2015, clarified the procedure for filing at court the relevant documents where the claimant serves the claim form and particulars of claim on the defendant.

4.2 Personal service (claimant serving):

CPR 6.5 provides that a claim form is served personally on an individual by leaving it with that individual; on a company or other corporation by leaving it with a person holding a senior position within the company or corporation; or on a partnership (where partners are being sued in the name of their firm) by leaving it with a partner or a person who, at the time of service, has the control or management of the partnership business at its principal place of business.

In respect of where to serve the claim form, CPR 6.6 details the general provisions. Generally, the claim form must be served within the jurisdiction. The claimant must include in the claim form an address at which the defendant may be served. This doesn’t apply where an order of the court specifies the place or method of service.

4.3 Service on a solicitor within the UK (claimant serving):

CPR 6.7 provides that service may be effected on a solicitor within the jurisdiction. Subject to CPR 6.5(1) (personal service), where the defendant has given in writing the business address within the jurisdiction of a solicitor as an address at which the defendant may be served with the claim form; or a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed by the defendant to accept service of the claim form on behalf of the defendant at a business address within the jurisdiction, the claim form must be served at the business address of that solicitor.

4.4 Service of the claim form where before service the defendant gives an address at which the defendant may be served:

Subject to certain exceptions, CPR 6.8 provides that the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the


UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings.

4.5 Service of the claim form where the defendant does not give an address at which the defendant may be served:

CPR 6.9 applies where rules 6.5(1), 6.7 and 6.8, as detailed above, do not apply and the claimant does not wish to effect personal service under rule 6.5(2). Subject to the provisions of rule 6.9(3) to (6), the claim form must be served on the defendant at the place shown in the following table:

Nature of defendant to be served

Place of service

1. Individual Usual or last known address 2. Individual being sued in the name of a business

Usual or last known residence of the individual; or principal or last known place of business.

3. Individual being sued in the business name of a partnership

Usual or last known residence of the individual; or principal or last known place of business of the partnership.

4. 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

5. Corporation (other than a company) incorporated in England and Wales

Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.

6. Company registered in England and Wales

Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.

7. Any other company or corporation

Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.

Where a claimant has reason to believe that the address of the defendant referred to in the table is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business. Once the reasonable steps have been taken, the claimant must serve at the current address if the claimant is able to ascertain that address. If the claimant is unable to the claimant must consider whether there is:

þ an alternative place where service may be effected; or þ an alternative method by which service may be effected.

If there is such a place or method the claimant must make an application under rule 6.15. Where CPR 6.9(3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table where the claimant cannot ascertain the defendant’s current residence or place of business; and cannot ascertain an alternative place or an alternative method under CPR 6.9(4)(b).


4.6 Service of the claim form in proceedings against the Crown:

CPR 6.10 provides that in proceedings against the Crown service on the Attorney General must be effected on the Treasury Solicitor; and service on a government department must be effected on the solicitor acting for that department.

4.7 Other rules regarding service:

þ CPR 6.11 deals with service of the claim form by contractually agreed method; þ CPR 6.12 deals with service of the claim form relating to a contract on an agent of a

principal who is out of the jurisdiction; þ CPR 6.13 deals with service of the claim form on children and protected parties; þ CPR 6.14 provides that a claim form served within the UK in accordance with this

Part is deemed to be served on the second business day after completion of the relevant step under CPR 7.5(1) (which provides that where the claim form is served within the jurisdiction, the claimant must complete the step required in the table under that rule in relation to the particular method of service chose, before 12.00 midnight on the calendar day four months after the date of issue of the claim form).

þ CPR 6.15 deals with the service of the claim form by an alternative method or at an alternative place.

þ CPR 6.16 provides the court with the power to dispense with the service of the claim form.

4.8 Notice and certificate of service relating to the claim form:

CPR 6.17 provides that where the court serves the claim form, the court will send to the claimant a notice which will include the date on which the claim form is deemed served under CPR 6.14.

4.9 Documents other than the claim form - methods of service and deemed service

CPR 6.20 provides that documents other than the claim form may be served by either:

þ Personal service (in accordance with CPR 6.22); þ First class post, document exchange or other service which provides for delivery on

the next business day (in accordance with CPR PD 6A); þ Leaving it in a place specified in CPR 6.23; þ Fax or other means of electronic communication in accordance with CPR PD 6A; or þ Any method authorised by the court under CPR 6.27.

There are other provisions under this rule for companies and limited liability partnerships.

CPR 6.21 provides that a party to proceedings will serve a document which that party has prepared except where a rule or practice direction provides that the court will serve the document or the court orders otherwise. The court will serve a document which it has prepared except for certain situations specified in the rule. Where a court is to serve a document it will decide which method of service is to be used. Where the court is to serve a document prepared by a party, that party must provide a copy for the court and each party to be served.


4.10 Other relevant provisions for documents other than the claim form

þ CPR 6.22(1) provides that a document must be served personally where required by any part, other enactment, a practice direction or a court order;

þ CPR 6.22(2) provides that in all other cases a document may be served personally except for the circumstances specified;

þ CPR 6.22(2) provides that a document may be served personally as if the document were a claim form in accordance with CPR 6.5(3);

þ CPR 6.23 deals with address for service to be given after proceedings are started; þ CPR 6.24 deals with a change of address for service; þ CPR 6.25 deals with service on children and protected parties.

4.11 Deemed service for documents other than a claim form

CPR 6.26 deals with deemed service for documents other than a claim form, served within the UK:

Method of service Deemed date of service 1. First class post (or other service which provides for delivery on the next business day)

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.

2. Document exchange The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or, if not, the next business day after that day.

3. Delivering the document to or leaving it at a permitted address

If it is delivered to or left at the permitted address on a business day before 4.30p.m., on that day; or in any other case, on the next business day after that day.

4. Fax If the transmission of the fax is completed on a business day before 4.30p.m. on that day; or in any other case, on the next business day after the day on which it was transmitted.

5. Other electronic method

If the e-mail or other electronic transmission is sent on a business day before 4.30p.m. on that day; or in any other case, on the next business day after the day on which it was sent.

6. Personal service If the document is served personally before 4.30p.m. on a business day, on that day; or in any other case, on the next business day after that day.

4.12 Miscellaneous provisions on service

The law on service favours the server (Cranfield v Bridgewater [2003] 1 WLR 2441).

Courts may order that service be dispensed with under rule 6.28. This can be simply to avoid unnecessary expense where a document has been served informally earlier. This rule is also used where there are strong grounds to show that the other party has either seen the documents on an informal basis or has sufficient knowledge of them but is evading formal service. The rule has also been used to overcome problems in late service where there are limitation issues. An order dispensing with service will not be made where a firm of solicitors,


who were a party to the proceedings and who consented to accept service by fax received the claim by fax (Thorne v Lass Salt Gavin [2009] EWHC 100 (QB)).

CPR 6.27 deals with service by an alternative method or at an alternative place and CPR 6.29 details the information that must be included in the certificate of service depending upon which method of service was utilised.

Without valid service, the claim cannot proceed. If a claimant misses the 4-month deadline for service, the proceedings are void. CPR 7.6 permits the court to extend the 4-month deadline, but if the deadline has already expired this can only be done on the grounds set out in rule 7.6(3) and is granted only in very rare cases (Vinos v Marks & Spencer [2001] 3 All ER 784). In Barton v Wright Hassall Solicitors LLP [2016] EWCA 177, the Court of Appeal reviewed the authorities on when a court would validate service which had not been effected within the CPR. The claimant would have to demonstrate a ‘good reason’ for not serving the claim form within what was a very generous period of 4 months. Making the defendant aware of the proceedings on its own was not enough. The court would deprecate technical “game-playing” by defendants and their solicitors to take advantage of the rules on service, but defendants were not under any duty to inform the claimant that service by a particular method (such as email) was unacceptable, nor were they obliged to point out that they considered service to have been defective.

CPR 7.5 provides that where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

Method of service Step required First class post, document exchange or other service which provides for delivery on the next business day

Posting, leaving with, delivering to or collection by the relevant service provider

Delivery of the document to or leaving it at the relevant place

Delivering to or leaving the document at the relevant place

Personal service under rule 6.5 Completing the relevant step required by rule 6.5(3)

Fax Completing the transmission of the fax

Other electronic method Sending the email or other electronic transmission

Particulars of claim need to be served at the same time as, or within 14 days of service of the claim form. The documents have to be served on the defendant in accordance with the rules laid down in CPR Part 6, which includes prescribed timeframes for service.

5. Defences and Counterclaims

When the defendant is served with court proceedings, he will receive a “Response Pack”, which contains forms explaining what the defendant should do next and how to deal with the proceedings. Failure to respond at all will allow the claimant to win by default. The defendant’s response must be made within prescribed time limits. If the time limits are not adhered to, this too will allow the claimant to win by default.


CPR 9.1(2) sets out that the time for defendant’s response starts running from receipt of the particulars of claim (note not the claim form). If the particulars of claim are included on the claim form, or served simultaneously with it, then the time for the defendant’s response runs from the date of service. If the particulars are served later than the claim form, then the defendant’s response time starts from service of the particulars.

The defendant has 14 days from the date of service to:

(i) file an acknowledgment of service with the court, indicating whether he accepts or intends to defend the claim;

(ii) file and serve an admission; or (iii) pay the claim.

Form N9A (contained in the Response Pack) allows the defendant to admit the claim and request to pay at later date or by instalments. If the defendant pays all of the claim (including interest and the costs on the claim form) within 14 days of service, his liability for costs is limited to fixed amounts (see CPR Part 45 for details of fixed costs).

Once the defendant has filed the acknowledgment of service, he has another 14 days (28 days in total from service of particulars of claim) to file a full defence and, if appropriate, a counterclaim.

Under CPR 15.5(1) parties may agree to extend the time for serving the defence, but only for a maximum of a further 28 days. If such an extension is agreed, the defendant must notify the court in writing. If parties cannot agree on an extension of time, the defendant must apply to the court for more time, which will involve an explanation of why more time is needed. Courts are very strict on time limits and a very convincing reason will be needed for an extension.

When the acknowledgment of service form and/or defence/counterclaim is filed with the court, the court will notify the claimant.

5.1 Statements of Case

CPR 16 lays down rules for the content of all statements of case. A statement of case is the formal court document in which each party sets out the facts upon which it relies to support its case. Before the introduction of the CPR, the statements of case in an action were known as “pleadings”, the CPR substituted the wording. However, many practitioners still prefer to use “pleadings” instead of “statements of case”. The objects of “statements of case” are:

þ to set out the concise facts upon which a party intends to rely; þ to set out concisely the legal case made; and þ to set out the remedy or remedies, if any, sought by the party pleading its case.

Drafting pleadings is an art and requires a high degree of skill. A badly drafted pleading can lead to the failure of the case or a necessary later amendment leading to an adverse costs order. Where a very late amendment to a statement of case is made, is not made on the basis of recent disclosure and where a party had many months to amend his case,


there is a heavy onus on that party to justify the late amendment (Swain-Mason v Mills & Reeve [2011] EWCA Civ 14).

Before the CPR, there was a lack of control of pleadings. There could be statements of claim, defences, requests for further and better particulars by each party, replies and rejoinders. The CPR seeks to discourage a proliferation of pleadings, with extensive requests for further particulars being avoided by such particulars being included in witness statements. Under the current regime, unless the court gives permission for further pleadings a party may not file or serve any statement of case after a reply to the defence (CPR 15.9) and, therefore, pleadings are limited to:

þ particulars of claim; þ defence; þ counterclaim; þ reply to defence/defence to counterclaims; þ part 20 claims; þ request for further information (where necessary); and þ further information.

A further aim of the CPR is to require a party to fully plead its case so that the opponent knows the case that it has to meet. This is particularly important in relation to defences. Prior to the CPR it was common for defences to be nothing more than a “holding defence”. Blanket denials were common. Claimants and the courts were unaware of what parts of a case and facts were admitted and what parts of the case and facts were not. It was only where special defences were required to be pleaded that claimants and the courts were properly aware of the defence raised. This caused unnecessary costs and wasted court time. Claimants were required to prepare for trial proving facts that were either not in dispute or were incapable of being disputed. The CPR seeks to avoid this by requiring defendants to properly plead defences from the outset. A further significant change is the introduction of statements of truth that are required to be completed by or on behalf of a party at the end of each statement of case.

The object of a statement of case is to explain to the court what the case involves, what the issues are and to ensure that neither party is taken by surprise and is able to properly prepare for trial. In McPhilemy v Times Newspapers Limited [1999] EWCA Civ 1464 Lord Woolf M R gave guidance in relation to the purpose of statements of case. He said:

“Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still crucial to identify the issues and the extent of the

dispute between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader .... No more than a concise statement of facts is required. As well as their expense, excessive particulars can achieve directly the opposite

result from that which is intended. They can obscure the issues rather than providing clarification. In addition, after disclosure and exchange of witness statements pleading

frequently become of only historical interest......... [This] case is over burdened with particulars and simpler and shorter statements of case would have been sufficient.“

It is important that the statements of case set out concisely and precisely the facts that are necessary to establish a case. A pleading that does not show reasonable grounds for


bringing the case or for defending a case may be struck out. Courts may of their own volition direct that further information in relation to a statement of case be provided.

The essentials to any statement of case are:

1. the name of the court; 2. the claim number (when a claim is issued the court will allocate an individual

number to the claim); 3. the names of the parties and their relationship to the case e.g. claimant and

defendant; 4. the type of pleading e.g. particulars of claim or defence and counterclaim; 5. a statement of truth; 6. an address for service; and 7. the name of counsel if he settled the statement of case (although this is not a formal

requirement under the CPR, it remains good practice that the name should be included).

The claimant’s statement of case is known as the “particulars of claim” and the defendant’s statement of case is known as the “defence” (and, where applicable, counterclaim and/or additional claim). Whichever party’s statement of case it is, there are a number of rules which must be borne in mind:

þ it sets out only the facts which underpin the party’s claim; þ evidence and/or points of law are not pleaded in a statement of case; þ it is not necessary to anticipate your opponent’s response; just state your client’s

case; þ each point your opponent makes in his statement of case has to be answered

(otherwise it will be deemed to have been agreed); and þ CPR 16.5 states that each point on the other party’s statement of case must be

either; o admitted; o denied – with an explanation of why it is denied and putting the denying

party’s case on that point; o neither admitted nor denied, but requiring the party relying on that fact to

prove it (putting to proof).

5.2 Contents of the defence/counterclaim/additional claim

CPR 20.4 permits a defendant with a claim against the claimant to bring that claim in the present proceedings – this is known as a counterclaim. The defendant’s claim for these purposes may be connected to the incident out of which the claim arises or it can be entirely unconnected. In other words, any cause of action for any claim can be raised as a counterclaim. The idea is to avoid multiple claims where the same parties are involved. CPR 20.4(2)(a) allows the defendant to raise a counterclaim without permission from the court if filed with the defence. If raised later, the court’s permission is required. CPR Part 16 also applies to counterclaims, so the rules above about the contents of statements of case apply to counterclaims as well.

A court fee is payable by the defendant for filing a counterclaim or additional claim. For money claims, the court fee payable is based on the value of the counterclaim and where


the original claim was issued (i.e. if the claim was issued through MCOL or the County Court Business Centre, the reduced MCOL fees apply).

“Additional claim” means any claim other than the claim by the claimant against the defendant and, unless the context requires otherwise, references to a claimant or defendant include a party bringing or defending an additional claim. CPR 20.3 provides that an additional claim shall be treated as if it were a claim for the purposes of the rules, except as provided by Part 20 which sets out which rules do not apply to additional claims and includes the time within which a claim form may be served, default judgment and admissions. Therefore, where a defendant serves a counterclaim, the claimant must serve a defence to that counterclaim within 14 days from receipt of the counterclaim.

The claimant may serve a reply to the defendant’s defence (this is not obligatory). This is the case whether or not a counterclaim is served. CPR 15.8 provides that, if a claimant files a reply to the defence, the claimant must file the reply with a directions questionnaire and serve the reply on the other parties at the same time as it is filed.

In practice, a reply to a defence is rare unless a counterclaim is served, in which case the reply and defence to counterclaim is contained within the same document as an additional statement of case. A reply may be served to narrow down the issues but must not make any allegations which are inconsistent with the original particulars of claim.

When drafting a Part 20 claim (i.e. a counterclaim or additional claim) it is appropriate to plead the nature of the claim made by the claimant and then record the facts relating to the case against the Part 20 defendant, followed by the legal case against the Part 20 defendant and concluding by recording the remedy or relief sought against the Part 20 defendant. Commonly the relief sought will be an indemnity in relation to the claim of the claimant or a contribution to any judgment or recovery by the claimant against the defendant in favour of the claimant.

5.3 Set-offs and counterclaims

Where a defendant claims he is entitled to money from the claimant, this can be used as a defence to the whole or part of claim (CPR 16.6). This is known as a “Set-off”. The claim must be for “money” (debt or damages) but does not have to be related to the claimant’s claim. A set-off is a defence in its own right and does not have to be pleaded as a counterclaim, but, in practice, it nearly always is. The set-off is a defence, the counterclaim is a new claim against the claimant. This is the essential difference between a set-off and counterclaim, but the two are often used in tandem.

5.4 Additional claims by defendants

CPR Part 20 permits a defendant to an existing claim to bring a claim against a third party, i.e. some individual or organisation who is not already a party to the existing proceedings. CPR 20.2(1) means the rules about additional claims apply to:

þ a counterclaim by a defendant against the claimant or against the claimant and some other person;

þ an additional claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and


þ where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person (whether or not already a party).

As set out above, CPR 20.2(2)(a) defines “additional claim” as “any claim other than the claim by the claimant against the defendant”.

Additional claims may be for:

Contribution Claims based on section 1 of the Civil Liabilities Contribution Act 1978 which allows one party to claim its losses back from others liable in respect of the “same damage” i.e. other persons jointly responsible for the same loss. The court may apportion the degree to which each party is considered liable for the damage.

Indemnity Where a party claims to be entitled to recover the entirety of its liability to the claimant from the third party (the most common of such claims are in respect of insurance contracts or contracts of guarantee).

Some other remedy

This can involve any other claim against a third party where there is some connection (which does not have to be a strong one) to the original claim.

The statements of case in Part 20 claims are:

þ Notice in respect of an additional claim for a contribution or indemnity from another party (served by one defendant on another existing defendant to the claim (CPR 20.6)) (may be known as a “contribution notice”);

þ Defence to the notice (may be known as a “defence to contribution notice”)(by the existing defendant served with the “contribution notice”);

þ Additional claim (served by a defendant on the third party); þ Third party’s defence to additional claim (from the third party served with an

additional claim).

If a third party wants to claim against another party not already involved in the proceedings, the new party is now the ‘fourth party’ and so the chain goes on in complex cases. All statements of case need to follow the requirements of CPR Part 16 and must contain a statement of truth, just like all other statement of case.

Under CPR 20.7(3)(a) an additional claim can be made at any time so long as served on the Third Party (with copies to the court and claimant) before or at the same time as the defence to the original claim. Otherwise, the defendant will need permission from the court. CPR PD 20 para 2.1 provides that an application for permission will need to be supported by evidence of:

þ the current position in the original action; þ details of the third party; þ the facts relied on; and þ the explanation for any delay.

The court normally grants permission in order to:

þ safeguard against the possibility of conflicting judgments on the same facts;


þ ensure questions between defendants and third parties are dealt with quickly; and þ save costs.

Where an additional claim is served, the court will order that the new party be served with all the existing statements of case. The court will also give orders for managing the case. Under CPR 20.13 where a defence is filed to an additional claim, the court will consider the conduct of proceedings and give appropriate directions to ensure as far as possible that the claim and additional claim are managed together. Usually a case management conference (CMC) will be convened with notice to the affected parties.

If the main claim is subsequently settled, but the question of the contribution/indemnity from the third party remains active, the additional claim will continue.

6. Requests for Further Information

The purpose of a request for further information (also known as a “Part 18 request for further information”) is to obtain additional information to enable the party seeking the information to know the case that he has to meet or to have clarified any matter which is in dispute in the proceedings. Eliciting information is intended in this way to avoid unnecessary expense and to avoid the party seeking information from being taken by surprise.

The information requested should be restricted to what is essential. Requests should be limited to what is necessary. Fishing expeditions should be avoided. Information may be necessary where the facts are entirely within the knowledge of one party only. Information may be necessary to enable a defendant to make a Part 36 offer. Information from a defendant may be necessary to enable the claimant to decide whether or not to continue with a claim or to discontinue a claim.

CPR Part 18 lays down the procedure for requesting further information about another party’s case. According to CPR PD 18, requests are to follow a two-stage process. The first stage is the preliminary (or informal) request. Here The party making request serves written request on other party stating the date by which response should be served. The written request should state it is a CPR Part 18 request. The other party may answer the request. They would use the standard court heading (as appears in the statement of case), identify that it is a response to a Part 18 request, and set out each question in turn with the answer underneath each question. Or, the other party may object to supplying the further information, within the time limit specified in the request and with a reason for that objection.

The second stage to the process in an application to court for an order for the other party to respond. If the preliminary request is ignored, or objected to, or the reply is considered inadequate, the requesting party can apply to the court for an order that the other party responds. Application is on notice under CPR Part 23 with a copy of the original request, together with any response, exhibited to the supporting evidence. The other party must be served with a copy of the application at least 3 clear days before the hearing date (unless the other party failed to reply at all to the original request).

The court is likely to order that other party responds if it is considered necessary and proportionate to want that information. The court is likely to refuse an order if the request is:


þ a fishing expedition - where the requesting party has no evidential basis upon which to make the request, but hopes that in its answers the replying party will undermine its own case;

þ made for an unfair purpose; þ considered oppressive or unduly onerous; þ vague and not precisely formulated; and/or þ unnecessary because the requesting party will be entitled to the information in the

normal course of events.

7. Amendments

CPR Part 17 permits a party to amend its original statement of case. The general principle is that parties should be allowed to amend their claims in order to ensure that the real question in controversy between the parties is determined, so long as the amendment can be made without causing injustice to the other parties.

Amendments can normally be made in one of three ways:

CPR 17.1(1) At any time and in any way before the statement of case is served.

CPR 17.1(2)(a) At any stage of the proceedings with the written consent of all parties.

CPR 17.1(2)(b) with the permission of the court. There are no guidelines in the CPR about when the courts should allow or refuse an application for amendment. However, the Courts consider; the overriding objective, the reason for the need to amend, whether the opposing party will be prejudiced by the proposed amendment, the stage which the proceedings have reached, and whether refusal will produce a harsh result for the amending party.

Courts will normally permit amendments to statements of case but permission is usually granted on the terms that the amending party pays all the costs occasioned by the amendment (including the application to the court and, if required, the cost of the other parties having to amend their statements of case as a result of the amendment).

Where the amendment consists of adding a new party, or changing the name of an existing party, different rules apply. CPR 17.4(3) permits an amendment to correct a genuine mistake as to the name of a party where there is no reasonable doubt about the identity of the party intended to be sued (e.g. mis-spelling a surname or attributing the wrong gender). Other cases are covered by CPR Part 19, which only permits amendments which are considered “desirable” (CPR 19.2(2)) but are also usually allowed on the terms that the amending party pays the costs. If the limitation period has expired, amendments to parties are only allowed if the amendment is “necessary” as exclusively defined in CPR 19.5(3).

Chapter 2


þ four ways a civil matter may end without proceeding to a trial; þ how matters may be settled and discontinued; þ the allocation of a case to a track and the directions the court is likely to

make; and þ the rules and procedure governing disclosure in civil litigation.


2.1 Ending a Case Without a Trial

1. Introduction

Only a small proportion of cases proceed to trial. Claims for monies due normally result in payment of the debt or judgment in default. Many cases are compromised and claims may be discontinued. Where rules or practice directions are not complied with cases may be struck out. Where there is no arguable defence to a claim or a claim is without merit, summary judgment may be granted. Where admissions are made judgment may be entered upon those admissions.

2. Striking Out

“Striking out” can bring part or the whole of a claim or defence to an end. A party relying on the strike out procedure is seeking an order that a whole claim, specific allegations within it or defences be abandoned by the party making them. The court has the case management power to strike out the parties' statements of case under CPR 3.4 and may also strike out under its inherent jurisdiction.

CPR 3.4(2) entitles the court to strike out a statement of case where:

þ the statement of case discloses no reasonable grounds for bringing or defending a claim;

þ where the statement of case is an abuse of the court’s process or is otherwise likely to obstruct just disposal of the proceedings; or

þ where there has been a failure to comply with the rule, practice direction or court order.

An example of the first power to strike out is where a claim is not sustainable in law. An example of the second power to strike out is where proceedings are an abuse of the process, for example where proceedings are brought in relation to the same issues previously determined in another case. An example of the power to strike out where there is a failure to comply with a rule or practice direction is in relation to the non-payment of court fees required to be paid during the course of the proceedings (non-payment of the fee payable upon filing the pre-trial checklist would be such an instance.) A further example of the power to strike out would arise where a party fails to file a pre-trial checklist. Courts will only strike out a statement of case if no other sanctions may be applied. In Biguzzi v Rank Leisure plc [1999] EWCA Civ 1972 Lord Woolf M.R. said that:

“Under the CPR the keeping of time limits was far more important than under the previous rules of the Court. The clearest reflection of such can be found in the overriding objective

and this unqualified, discretionary power to strike out a statement of case for failure to comply with a rule, however, the fact that a Judge has this power does not mean that in

applying the overriding objective the initial approach should be to strike out the statement of case. In many cases there will be alternatives which enable a case to be dealt with

justly without taking the draconian step of striking the case out.”


Frequently peremptory orders (i.e. orders requiring a party to do some act or comply with a previous order/rule/practice direction, nearly always before a specified deadline, in default of which the action will be struck out) may be made before an action is struck out.

The court can exercise the power on a party's application or of its own initiative. The procedure for applying to strike out is in CPR PD 3A. By virtue of CPR PD 23A.2.7 and CPR PD 3A.5.1 the application should be made as soon as it becomes apparent that it is necessary or desirable to make it. Applications for striking out are usually made after the filing of the acknowledgement of service and before the filing of the directions questionnaire. Strike out may be sought following a party's failure to comply with an unless order. Strike out during trial is possible but is rare in practice.

As a result of the Civil Procedure (Amendment) Rules 2017 , CPR 3 was amended to reflect a policy change in the collection and refund of trial fees. The rules now contain detailed provisions for the procedure when a claimant or defendant fails to pay the trial fee. This is a key change that could result in the automatic striking out of a claim or counterclaim if the trial fee is not paid in time. In relation to sanctions for non-payment of trial fees, two new rules have been inserted in the CPR:

þ new rule CPR 3.7A1: non-payment of trial fees by a claimant; and þ new rule CPR 3.7AA: non-payment of trial fees by a defendant where the

proceedings continue on the counterclaim alone.

3. Default Judgments

A default judgment is a purely administrative matter. The date of service is determined by the rules set out. If the defendant does not respond at all after 14 days, or acknowledges service within 14 days but does not file and serve a defence within 28 days, the claimant can apply for “judgment by default”.

A default judgment is requested by completing and returning to the court Form N225 (request for judgment and reply to admission (specified amount)). This form is also used in cases of admissions.

According to CPR 12.2, default judgments may not be used in the following types of claim:

þ Part 8 claims; þ where the claimant cannot prove service; and þ Part 7 claims for the delivery/return of goods, provisional damages; and

admiralty, arbitration, possession of land or contentious probate actions.

Under CPR 12.10 default judgments may only be obtained by a claimant with the permission of the court (for which an application under CPR Part 23 will be required) in the following cases:

þ the defendant was served outside the jurisdiction; þ the defendant is a child or protected party; þ the claimant seeks costs (other than fixed costs); þ tort claims between spouses or civil partners; and þ the claimant wants delivery of goods, not simply damages.


CPR Part 13 deals with how a defendant may have a judgment in default set aside. There are two general grounds for setting aside:

CPR 13.2 The mandatory grounds, upon which the court must set the judgment aside –These are largely confined to where there has been some oversight either by the court or the claimant and the defendant has not in fact defaulted, e.g. where the defendant has complied with the rules, the claim was satisfied before judgment, the defendant had applied for summary judgment against the claimant or the defendant has filed an admission with request for time to pay.

CPR 13.3 The discretionary grounds, upon which the court may set the judgment aside – Under this rule, the court has to be satisfied that the defendant “has a real prospect of success” or “there appears to be some other good reason why” the judgment should be set aside. The court will take into account the following factors:

þ Delay – but only in the conduct of the proceedings – pre-action delay is irrelevant.

þ Any explanation offered by the defendant for failure. þ The prejudice suffered by claimant if set aside vs prejudice to defendant

if not. þ Strength (or weakness) of the defendant’s proposed defence.

It should be noted that under CPR 3.1(3) a court may make setting aside conditional on the defendant paying the claimant’s wasted costs and/or money for the whole or part of the claim being paid into court. In Gentry v Miller [2016] EWCA 141, the claimant claimed that he had been injured in a road traffic accident involving the defendant’s vehicle. The claimant complied with the pre-action protocol and the defendant’s insurance company admitted liability at an early stage but failed to respond to any further correspondence. The claimant issued proceedings, obtained a default judgment and had damages assessed. Four months later, the defendant’s insurance company sought to have the default judgment set aside on the grounds that the parties had colluded in a fraudulent claim. The Court of Appeal held that:

þ it was wrong to conclude that a party seeking relief from sanctions was exempt from the guidelines in Mitchell v News Group [2013] EWCA Civ 1537 as explained in Denton v White [2014] EWCA Civ 906 just because it alleged fraud;

þ the guidelines in Denton were to be applied to applications to set aside default judgments, but only after the requirements of CPR 13.3 had been met; and

þ although the insurer had shown that it had a real prospect of successfully defending the claim, it had not made the application promptly when, by the exercise of reasonable diligence, it ought to have done so. The application to set aside the default judgment would be refused.

4. Judgment on Admissions

If the defendant simply pays the claim within 14 days after being served with the proceedings, this is the desired result and no further action is required. The defendant’s liability for costs is limited to the fixed amount shown on the face of the Claim Form (this varies depending on amount of claim).


Suppose, however, that the defendant does not pay. CPR Part 14 deals with the position on “admissions”. With the response pack, the defendant will have received a Form N9A - Admission which allows the defendant to admit the entire claim, or some of it and dispute the rest, and/or to request time to pay or offer payment by instalments. The claimant has a number of options, depending on the contents of the Form N9A, as to how to respond:

þ Defendant accepts the claim but makes no offer: claimant completes Form N225; ticks section B and the box marked ‘The defendant has not made any offer of payment'; fills in Section C with the details of the claim and how the claimant wants the defendant to pay. The court will process this form and send the defendant a judgment order (N30(1)) informing the defendant how much to pay, when to pay and where to send the money.

þ Accept the defendant’s proposal: again, the claimant completes Form N225; ticks section B and the box marked 'I accept the defendant's proposal to pay'; fills in Section C with the details of the defendant's proposal. Again, the court will process the form and send the defendant a judgment order informing the defendant of the same details as above.

þ Refuse the defendant’s proposal: the claimant completes Form N225; ticks section B and the box marked ‘I do not want to accept the defendant’s proposal to pay'; fills in Section C with the details of the claim, how the claimant wants the defendant to pay and why the offer has been refused. The court will process this form and send the defendant a judgment order with a rate of payment set by the court.

A claimant is at liberty to accept and enter judgment on a partial admission under the above procedure, to the extent of the admission, and continue with the balance of the claim as a contested action.

In accordance with CPR 14.1A, admissions made after 6th April 2007, the claimant can rely on an admission of liability by the defendant made before proceedings commenced to base an application for judgment under this rule (overruling the Court of Appeal decision in Sowerby v Charlton [2005] EWCA 1610). The defendant can use the same rule to apply to the court for permission to withdraw or amend his admission (assuming the claimant does not consent to such a withdrawal/amendment).

5. Summary Judgments

CPR Part 24 deals with applications for summary judgment. This is where a party feels his case is so strong, or, more accurately, the opposing party’s case is so weak, that only a brief hearing is required to find judgment in his favour without a detailed exploration of the evidence. It is important to be aware that, unlike the pre-CPR rules, CPR Part 24 allows any party to apply for summary judgment.

CPR 24.4(1) permits a claimant to apply for summary judgment at any time after the defendant has either acknowledged service or served a defence. If the claimant applies after the acknowledgment this ‘stops the clock’ for the service of a defence (CPR 12.3(3)(a)). If the defendant wishes to seek summary judgment he must at least acknowledge service but no defence is necessary until the application has been heard. By virtue of CPR 24.3(2), applications for Summary Judgment cannot be made against a


defendant in residential possession proceedings or Admiralty claims in rem. Note, there is no such limitation on a defendant applying against a claimant.

Under CPR 24.2 the test applied by the court when it hears such an application is twofold and both parts of the test have to be satisfied before the court can order summary judgment. If not, the application must be refused. The test is whether the court is satisfied that:

þ the defendant has no real prospect of successfully defending (or the claimant has no real prospect of succeeding on) the claim or issue; and

þ there is no other compelling reason why the case or issue should be disposed of at a trial.

Applications for summary judgment are by notice of application under CPR Part 23 with evidence in support of the application in the form of a witness statement and documentation.

Evidence in support needs to be more detailed than just what is in the statement of case. The witness statement needs to set out all the main facts upon which the applicant (whether claimant or defendant) relies. The application must follow the wording of CPR 24.2 i.e. it must state that there is no defence/claim with a reasonable prospect of success and there is no other reason why the case should go to trial. The remainder of the supporting evidence should say why this is the case.

CPR 24.4(3) requires the applicant to give the opponent at least 14 days’ notice of the hearing date (not the usual 3 days as for other Part 23 applications). CPR 24.5(1) provides that, if the application is to be opposed, the opposing party should reply at least 7 clear working days before the hearing together with supporting evidence. If the applicant wishes to respond to the other party’s evidence, this must be done at least 3 clear working days before the hearing date.

The words “no real prospect of succeeding” were considered by the House of Lords in Swain v Hillman [2001] 1 All ER 91, where Lord Woolf said that the words:

"... do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or, as Mr Bidder QC's submits, they direct the court to the

need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success" (pg 92j of judgment).

In Swain v Hillman [2001] 1 All ER 91, the House of Lords also made it clear that dealing with an application under Part 24 does not involve the court in conducting a “mini-trial". In Three Rivers District Council v Bank of England (No.3) [2001] 2 All ER 513, Lord Hobhouse ruled that the criterion which the judge has to apply under Part 24 “is not one of probability; it is absence of reality”.

As an example of how the courts approach summary judgment applications, in the recent case of Hawk Recovery Ltd v Eustace [2016] EWHC 115, the claimant’s case was that Ms Eustace had received money from Mr Baxendale-Walker, an alleged trustee, with whom Ms Eustace had previously been in a relationship. Ms Eustace’s case was that she believed the money was Mr Baxendale-Walker’s to do with as he wished, it had been given as a gift,


and the action was part of an orchestrated campaign of litigation against her. Hawk Recovery sought summary judgment, but the court held, first that Hawk Recovery had come nowhere near establishing a case that satisfied CPR 24.2(a), as Ms Eustace’s case could not be said to be without merit and there was evidence which disputed the existence of any trust. Second, the requirement under CPR 24.2(b) was also satisfied, as there was a compelling reason for the matter to proceed to trial, namely the strong suggestion that the claim was being used as an abuse of the court process.

Summary judgment can be applied for in any case (assuming that the applicant can persuade the court that the provisions of Part 24 are satisfied). However, some cases are particularly suited to the summary judgment procedure, such as where a person has provided a guarantee for a loan and the borrower has defaulted on the payments, or payment has been made with a cheque which is subsequently dishonoured (see section 3 of the Bills of Exchange Act 1882). This old rule preventing a person from setting up a defence of ‘set-off’ against a claim for a dishonoured cheque has more recently been applied to direct debit mandates by the Court of Appeal in Esso Petroleum plc v Milton [1997] 2 All ER 593.

Cases which are unsuitable for the summary judgment procedure, and so any application is likely to be refused, include:

þ where there is arguably a substantive defence; þ where one of the ‘special’ defences, such as consent, frustration, illegality etc.,

applies; þ where there is an arguable point of law; or þ where there is factual evidence which contradicts the applying party’s case.

On hearing a summary judgment application, the court may make any of the following orders:

þ grant summary judgment in favour of the applicant for the whole or part of the claim;

þ strike out the whole or part of a party’s claim; þ dismiss the application and give directions for continuation of the action – this is likely

to include a timetable for filing and service of a defence and continuation of the action thereafter;

þ grant summary judgment, but order a stay of enforcement proceedings pending the trial of any other issues in the case, such as a counterclaim;

þ make a conditional order, by virtue of CPR PD24 para 4, where the court considers that there is an arguable point but it is improbable or unlikely to succeed, the court may make a conditional order requiring a party to: pay a sum of money into court; file and serve a statement of case (or an amended one); or both - with that party’s claim being struck out if he does not comply within a specified time limit.

Whatever decision is made on the application, the court may also deal with the costs of the application. Indeed, the court should do so in the light of CPR 44.13(1) which provides that if an order on a summary judgment application makes no mention of costs then no party is entitled to its costs in respect of that application. The court may make an order for fixed costs under CPR Part 45 (the usual order in a case involving a specified sum) or may order summary or detailed assessment of costs.


6. Fixed Costs

CPR 45.1 sets out the amounts which, unless the court orders otherwise, are to be allowed in respect of legal representatives’ charges. The section applies where the only claim is a claim for a specified sum of money where the value of the claim exceeds £25 and:

þ CPR 45.2(a)(i): judgment in default is obtained under rule 12.4(1); þ CPR 45.2(a)(ii): judgment on admission is obtained under rules 14.4(3); þ CPR 45.2(a)(iii): judgment on admission on part of the claim is obtained under rule

14.5(6); þ CPR 45.2(a)(iv): summary judgment is given under Part 24; þ CPR 45.2(a)(v): the court has made an order to strike out a defence under rule

3.4(2)(a) as disclosing no reasonable grounds for defending the claim; or þ CPR 45.2(a)(vi): rule 45.4 applies.

CPR 45.4 provides that where the claimant has claimed fixed commencement costs under CPR 45.2 and judgment is entered then the amount to be included in the judgment for the claimant’s legal representative’s charges is the total of the fixed commencement costs and the relevant amount shown in Table 2.

For default judgment the relevant costs from table 2 will depend on whether the default was on an acknowledgment of service or default of a defence and also upon the amount of the judgment. These costs range between £22-£35.

For admissions, the relevant costs from table 2 depend on whether the claimant accepts the defendant’s proposal as to the manner of payment or whether the court decides the date or time and also upon the amount of the judgment. These costs range between £40 and £70.

For summary judgment the amount will be £175 for judgments between £25 and £5,000 and £210 for judgments over £5,000.

The court fee will be allowed in addition to the costs set out in Part 45 (CPR 45.1(4)) and the claim form may include a claim for fixed commencement costs by way of CPR 45.1(5).

CPR 45.2 relates to the amount of fixed commencement costs in a claim for the recovery of money or goods

CPR 45.2 (1) provides that the amount of fixed commencement costs in a claim will be calculated by reference to Table 1; and the amount claimed, or the value of the goods claimed if specified, in the claim form is to be used for determining the band in Table 1 that applies to the claim. These amounts range between £50-£110. The amounts shown in Table 4 are to be allowed in addition, if applicable. These are miscellaneous costs in respect of service (CPR 45.2(2)) and range from £15 to £77.


2.2 Settlement and Discontinuance of Claims

1. Settlement of Claims

In keeping with the ethos of the overriding objective, the courts prefer the parties to resolve their disputes by negotiation and settlement rather than trial. Under CPR 3.1(1)(f) the court can stay the whole or part of any proceedings or judgment either generally or until a specified date or event.

2. Negotiated Settlements

One common ground for the courts staying proceedings, in addition to the other matters listed above, is that the parties have negotiated a settlement, but want a formal record of the terms of the settlement. This can take 3 main forms, all dealt with under CPR 40.6:

þ A formal judgment for a specific sum of money to be paid on some specified date as a lump sum or by instalments (with the instalment dates stated).

þ A consent order – A order drafted and signed by both parties which is submitted to the court for its approval. If approved, the court will issue an order in the agreed terms.

þ A Tomlin order – Imposes an agreed stay on proceedings to enable the terms of the settlement to be worked through. The terms of settlement are normally recorded not on the order itself but on a schedule attached to the order. Strictly speaking, the contents of the schedule are not an order of the court and cannot be enforced as such. Such orders are normally reserved for complex cases, where the terms involve more than simple payment of a lump sum of money. It should be noted, however, the effect of CPR PD 40B Para 3.5 which requires that any direction for a) payment of money out of court (i.e. where the court holds money on behalf of one of the parties); or b) payment and assessment of costs, should be contained in the body of the order itself and not in the schedule.

If one (or more) party breaches a Tomlin order, first the stay must be lifted by an application to the court. The terms of the order will always provide for any party to apply to the court if the order does not work out or is broken. This is because the terms in the schedule are not orders of the court, so cannot be enforced directly. The court may, after lifting the stay, order enforcement of the agreed terms (or make a different order).

The whole legal basis of any settlement is that the parties have entered a contract to settle the claim. In order for any “deal” to be enforceable, therefore, there has to be a valid contract (with all the elements of offer, acceptance, consideration etc.). So, even if the parties chose not to record their settlement formally as set out above (which is quite common), there still exists a binding contract of compromise which can be enforced through the courts, just like any other contract. This is often referred to in the textbooks as ‘accord and satisfaction’.

Because settlement is contractually based, the effect is that a claimant is no longer able to pursue his/her claim and the defendant is no longer able to defend his position. Once agreed, compromise settlements are strictly enforced, just like any other contract.


3. Discontinuance and Abandonment

Under CPR 38.2 a claimant may discontinue all or part of a claim at any time. So, the general rule is that a claimant may discontinue his claim at any time against all or any defendant (if there is more than one) without permission. However, there are some exceptions to this general rule. Permission of the court is needed to discontinue where:

þ the court has granted an interim injunction; þ any party has given an undertaking to the court (to do certain acts or refrain from

doing certain acts); þ where the claimant has received an interim payment, unless the defendant who

made the payment consents in writing; þ where there is more than one claimant, unless every other claimant consents in

writing.

3.1 Procedure

CPR 38.3 provides that the claimant must file a notice of discontinuance and serve a copy of it on every other party to the proceedings. The filed copy must state that every other party has been served. Any consents required must be attached to the notice of discontinuance Form N279. Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.

CPR 38.4 allows any defendant against whom a notice of discontinuance has been served to apply to the court to have that notice set aside. The defendant must do this within 28 days of service of the notice.

Under CPR 38.5 the notice of discontinuance takes effect from the date upon which the notice is served upon the defendant (the same rules about deemed dates of service as apply to service of proceedings also apply here). As from that date, the proceedings come to an end against that defendant. However, CPR 38.5(3) states that “this does not affect proceedings to deal with any question of costs”.

The question of costs is dealt with by CPR 38.6, which provides that a claimant who discontinues is liable for the costs incurred by that defendant up to and including the date upon which the notice is served, unless the court orders otherwise. So, a claimant who wants to dispute liability for costs will have to apply to the court when they serve the notice of discontinuance. In Barker v Barnett [2015] EWHC 1375, the judge took the unusual step of departing from the normal consequences of discontinuance under CPR 38.6(1). In this case, R had brought a rights of way claim against her neighbour. The neighbour had failed to respond to pre-action correspondence and so R commenced proceedings, which she later discontinued. The High Court upheld the lower court’s decision not to order R to pay the neighbour’s costs and to order the neighbour to pay part of R’s costs, largely on the grounds of the failure to engage in the pre-action protocols. An appeal to the Court of Appeal was intimated but, at the time of writing, there has been no such appeal.

3.2 Abandonment

Discontinuance of all or part of the proceedings is not to be confused with abandonment of parts of the claim. This is made clear in the CPR. CPR 38.1(2) states that a claimant who


claims more than one remedy but subsequently abandons his claim to one or more of the remedies whilst continuing with the rest of his claim is not treated as discontinuing all or part of a claim. This situation is treated as an amendment to the proceedings and is covered by CPR 17.


2.3 Allocation and Directions

1. Introduction

When all the statements of case have been completed and served, the court has to decide how the claim is going to proceed. Claims are administered by allocating each case to a “track”. Allocation is by a district judge (Master in London), guided by the contents of CPR Parts 26-29.

The tracks are:

þ Small claims track þ Fast track þ Multi-track

Shortly after the defence is filed, a court officer makes a provisional allocation to one of the tracks based entirely on the value of the claim as stated in the claim form. The values used are:

þ Small claims track – up to £10,000 þ Fast track - £10,000 to £25,000 þ Multi-track - £25,000 and above

In calculating “the value” of the claim, the court also takes into account the value of any counterclaim and any additional claim against another party. The court, however, disregards the following for these purposes:

þ contributory negligence; þ interest; þ costs; þ sums for which summary judgment has already been entered; þ any distinct items for which the defendant has admitted liability; and þ any distinct items which have been agreed between the parties.

2. Exceptions to Allocation

In the following circumstances, allocation of the claim to a track will not be required or will be postponed:

þ Where there is an offer to settle causing a stay, allocation will be placed on hold pending negotiations over the settlement offer;

þ Where CPR 26.2 applies - defended claims for specific sums of money against individuals are automatically transferred to the Defendant’s home court. In such cases, the allocation is postponed until after transfer;

þ Part 8 claims are always allocated to the multi-track (other than costs-only proceedings as dealt with elsewhere in this module and the course);

þ RTA protocol cases are treated as not allocated to any track; þ Most specialist cases (Commercial Court, Admiralty cases etc.) have their own set of

rules on allocation.


3. Allocation Factors

Based on the provisional allocation, the court will send all parties a directions questionnaire which must be completed and returned to the court. The directions questionnaires will be different depending on whether the claim is provisionally allocated to the small claims track (which has its own questionnaire) or the fast or multi-track (which share a questionnaire). The effect and contents of directions questionnaires are considered in detail in the section on directions (below). For current purposes, you just need to be aware of their existence.

Under CPR 26.5(1) A procedural judge will decide the track after all parties have filed their directions questionnaires or after the time for doing so has expired.

Although the primary factor in determining allocation is the value of the claim (as set out above) this is just one factor and other factors will influence the allocation to track. There are no hard and fast rules, each case will be allocated to what the court considers to be the most appropriate track on its merits. Certain guidelines have emerged, however, as set out below.

3.1 Small claims court

Under CPR 26.6 - This is the normal track for defended claims which do not exceed £10,000. However, the following cases will not be allocated to the small claims track even if the value is under £10,000:

þ Personal injury cases where general damages for pain, suffering and loss of amenity are valued in excess of £1,000;

þ Claims seeking an order for repairs by tenants against landlords where the value is over £1,000;

þ Claims against residential landlords seeking damages for harassment or unlawful eviction (any value);

þ Claims involving disputed allegations of dishonesty; þ Claims for which the hearing will last more than 1 day.

Claims falling into any of the above categories will normally be allocated to the fast track.

3.2 Fast track

This is the normal track for all defended cases with a value of £10,000 to £25,000. As seen above, some lower value cases can be allocated to the fast track, although the upper limit on fast track cases is generally seen as being £25,000. Anything of a higher value should be allocated to the multi-track. However, there are other factors relevant to fast track allocation besides value, such as:

þ Time – Normal maximum time limit for the final hearing of a fast track case is 1 day. If trial would be expected to last for more than 1 day, Multi-track may be more appropriate.

þ Nature of evidence – There are limits on the number of expert witnesses who may give oral evidence in fast track cases (see next section). If the case calls for detailed


evidence from a number of expert witnesses, then multi-track may be more appropriate

þ Complexity – More complicated cases will take longer, may involve more “live” witnesses, more expert evidence, more legal argument etc. More complex cases are more likely to be allocated to the multi-track.

3.3 Multi-track

This is the normal allocation for all claims not falling within small claims or fast track allocation rules/guidelines. The primary factor is still value, i.e. claims worth more than £25,000, but claims of a lesser value can be allocated if the trial likely to last more than 1 day, the case is complex or the claim is under CPR Part 8 (which are always allocated to multi-track).

Once the claim has been allocated to a track, a notice informing all parties of the allocation is served. If a party fails to return the questionnaire in time, under CPR 26.5 the court can make any decision on allocation it deems appropriate, based on the information it has about the case. Under CPR PD 26, if the court does not feel it has enough information to make a decision, it will order an allocation hearing, with the costs paid by the party which did not file. The court may also hold an allocation hearing on its own initiative if it considers that it is necessary to do so. A decision on allocation may be challenged by a party unhappy with the allocation by notice of application under CPR Part 23.

Under CPR 26.10 the court may re-allocate the claim to another track at any stage in the proceedings. Normally a decision to re-allocate to a lower track is only done with the consent of all parties.

4. The Tracks

What is the significance of allocation to a particular track? The CPR sets out rules which mean there are important differences in how cases are conducted according to their track allocation.

4.1 Small claims track

This is the normal track for defended claims of any kind which do not exceed £10,000 in value, or personal injury claims where the total value of the claim does not exceed £5,000 and of which total the claim for pain, suffering and loss of amenity does not exceed £1,000.

Because claims heard on the small claims track are of low value, many of the more complex CPR rules which apply to the other tracks, such as serving lists of documents and exchange of witness statements, do not apply to small claims. The court provides short standard directions to all parties as preparation for the final hearing. Under CPR 27.5, no expert evidence (either oral or written) is allowed in small claims unless the court gives permission.

The final hearing will be informal, although still held in public, and strict rules of evidence will not apply. The judge need not take evidence on oath and he can limit the time made available for cross examination, as well as restricting the questions asked during cross-


examination. Although there is no restriction under CPR on the length of hearing, small claims will normally not be allowed to last for more than 1 day.

Under CPR 27.14 the power to award costs is very limited. The general rule is that the court will not order the losing party to pay the winning party’s costs, fees or expenses except for:

þ fixed costs on issue; þ court fees; þ reasonable travelling expenses and loss of earnings for a party and/or witnesses; þ limited expert’s fee (if permission granted for expert evidence); and þ costs incurred by party’s unreasonable behaviour.

4.2 Fast track

This is the normal track for all actions in which the value of the claim exceeds £10,000 but is lower than £25,000, with some lower value cases also being considered suitable for this track.

The court generally provides a set of fast track standard directions (unless the parties have already agreed a set of the same or different directions at the directions questionnaire stage). Parties are expected to comply with the directions under a strict timetable leading up to a trial date. Expert evidence in fast track cases is allowed but is limited to no more than two fields of expertise (e.g. medical and accountancy) and no more than one expert per field of expertise for each party. CPR PD 28 para 13 makes it clear that the court anticipates that expert evidence in fast track cases will be written rather than oral evidence (unless it is necessary in the interests of justice).

Fast track hearings are normally heard by a circuit judge (district judge in lower value cases) and are not expected to last for more than 1 day.

Costs in fast track cases are generally dealt with by summary assessment at the end of the trial. The costs of conducting and attending the trial are fixed for the advocates, with the costs varying on a sliding scale depending on the value of the claim.

4.3 Multi-track

Multi-track cases are those for which neither the small claims track nor the fast track are considered the “normal” track. Multi-track cases are those which are high value (£25,000 or over), complex, involve a lot of detailed expert evidence, have a large number of witnesses (factual and expert) and are anticipated to last for longer than 1 day.

Parties are encouraged to agree a set of directions for approval by the court at the directions questionnaire stage. If parties agree directions, and the court approves them, the parties will follow that agreed timetable up to trial. If it is not possible to agree directions, the court will hold a case management conference (CMC) at which both parties will be expected to attend. The court will then set a timetable for future conduct of the trial. Under CPR PD 29: The court has discretion to order the conference, but one will usually be called where the court feels unable to make directions of its own volition. CMCs are the normal method of actively managing cases on the multi-track, and can be called at any time between allocation and trial. CMCs are expected to be attended by someone


familiar with the case and with authority to deal with any issues that may arise in the conference (i.e. the fee earner with conduct of the case, not the office junior who has had the file “dumped” on them at the last minute).

In complex litigation, the court may hold what is known as a pre-trial review (PTR). It is a form of CMC and is usually fixed to take place between eight to ten weeks before the date listed for trial. The purpose of a PTR is to:

þ give final directions for the conduct of the trial; þ check all previous directions complied with; þ ensure availability of parties, representatives and witnesses; and þ fix a trial timetable, if this has not already been done, or amend the existing

timetable if necessary.

Costs in multi-track cases can either be summarily assessed at trial or be subject to detailed assessment after the trial.

5. Directions

Directions are timetables set by the court mapping out the future conduct of the litigation. They set out instructions for both parties to follow in the conduct of the litigation. It is vital to follow them as the consequences for not abiding by directions can vary from the award of costs against a defaulting party and, in more severe cases of default, a party may find his case struck out and judgment entered against him.

Once the defence is filed, the court will send out either a small claims directions questionnaire (for cases provisionally allocated to the small claims track) or a fast track/multi-track directions questionnaire (for all other cases). The questionnaire will specify a date (at least 28 days from the date of service of the questionnaire) by which all parties must complete it and other necessary documents, return them to the court and serve a copy on all other parties.

The most important document which must accompany the fast/multi-track questionnaire is a set of agreed or proposed directions from all parties. If it is not possible to agree directions with the other parties, each party should submit its own proposed directions. This is likely to result in either the court deciding directions based on what the parties have submitted or ordering a CMC to resolve the areas of disagreement.

In all cases, one direction that may be required is for transfer of the case to a different court. Remember that under CPR 26.2 defended claims for fixed sums of money against individuals are automatically transferred to the defendant’s home court. Defendants in cases to which this automatic transfer does not apply may seek transfer as a direction at this stage.


On this track, the directions questionnaire will simply list the standard small claims track directions, which are:


þ the parties file and serve copies of the documents they intend to rely on no less than 14 days before the hearing;

þ original documents are brought to the hearing; þ notice of the hearing date and the length of the hearing (fixed by the court at this

stage); and þ the parties must inform the court if they settle.

5.2 Fast track

CPR 28. 3 suggests the matters which should be covered by fast track standard directions. These are:

þ disclosure of documents; þ inspection of documents; þ exchange of witness statements; and þ provision and exchange of experts’ reports.

Parties are encouraged/required to follow the provisions of this rule and the timetable provided in CPR PD 28 when they are trying to agree directions for the purposes of the directions questionnaire. The timetable suggested by the practice direction is as follows:

þ disclosure 4 weeks; þ exchange of witness statements 10 weeks; þ experts’ reports exchanged 14 weeks; þ pre-trial questionnaires (listing questionnaire) to be sent by the court 20 weeks; þ filing of completed questionnaires by all parties 22 weeks; and þ hearing date 30 weeks.

All dates in the timetable run from the date of the notice of allocation. This timetable is subject to the proviso that it applies unless the parties agree different directions between themselves (subject to the approval of the court) OR the court itself otherwise directs. CPR 28.4 permits the parties to apply to the court to vary the timetable if necessary (although the courts rarely grant such a variation unless there is a very good reason).

5.3 Multi-track

Directions in multi-track cases are far more flexible and should cater for what all parties need to do to prepare for trial. Parties are encouraged to agree directions which deal with the same issues as under the fast track and any other points at issue between the parties, such as the contents of statements of case, outstanding requests for further information etc. Any agreed directions must have the approval of the court before they take effect. CPR PD 29 para 4 suggests some ideas for the sort of directions that the parties might want to consider and also the directions the court might impose in the absence of agreed directions.

6. Relief From Sanctions

Although directions are meant to be complied with and are strictly enforced by the courts, if a party defaults on complying with any rule, practice direction or court order, then the court has the power to grant “relief from sanctions” under CPR 3.9 as part of its case


management powers. In Mitchell v News Group Newspapers Ltd [2013] EWCA 1537, the Court of Appeal said that the courts would take a harsh line for the sake of effective and efficient litigation and to emphasise that the rules and court directions were meant to be complied with. Even trivial breaches of the rules that made no difference to the conduct of the proceedings would not be granted relief from sanctions, apart from in exceptional circumstances.

This approach has softened slightly since the guidelines in Mitchell were “explained” further in Denton v TH White Ltd [2014] EWCA 906. The Court of Appeal in Denton outlined that in relief from sanction cases the courts would apply a three-stage test:

1) Identify and assess the seriousness and significance of the relevant failure. This had to be taken in isolation and not take into account previous defaults– if the default was not serious or significant, relief should be granted without more detailed examination of stages 2 and 3.

2) Ask why did the failure or default occur? If there was a ‘good reason’, relief should be granted (although the CA declined to identify what might be a good/bad reason).

3) Consider all the circumstances of the case.

The Court of Appeal also went onto emphasise that CPR 1.3 required the parties and their legal advisers to help the court to achieve the overriding objective, and opportunistic and unreasonably contested applications for relief from sanctions would be penalised in costs – parties should agree relief from sanctions wherever possible.

A recent example of when relief from sanctions was not granted can be seen in the case Syed v Shah [2020] 2 WLUK 15. In this case a decision not to grant a claimant relief from sanctions when witness statements were served late was upheld. This was not a case of incompetence or inadvertence by the claimant not to serve evidence on time, but a deliberate decision taken in the hope that the defendant would settle. The claimant then benefited from being able to scrutinise the defendant’s witness statements and tailor her evidence accordingly. The refusal to grant relief from sanctions effectively ended the case. However, it was held that the judge at first instance had applied the Denton principles appropriately and made a robust decision that he was entitled to make.


2.4 Disclosure

1. Introduction

CPR Part 31 deals with disclosure and inspection of documents. Disclosure is the revealing to the other parties all the information which each party has in its possession, or has had in its possession, which is relevant to the issues in the case (as set out in the statements of case). CPR 31.2 states that a party discloses a document by stating that the document exists or has existed. Inspection is the opportunity for all parties to obtain and examine copies of the information produced at the disclosure stage. By virtue of CPR 31.3 a party to whom a document has been disclosed has a right to inspect that document unless one of the exceptions applies.

Disclosure generally takes place in accordance with directions following allocation or a case management conference. The normal method of disclosure is by a list of all the documents and other information that each party has, which is then served on the other parties. The directions will give a timetable, by a specific date, by which disclosure and inspection is to take place.

2. The Provisions

CPR 31.5(2) states that unless the court otherwise orders, the following provisions apply to all multi-track claims, other than those which include a claim for personal injuries.

Not less than 14 days before the first case management conference, a report verified by a statement of truth, must file and serve by the Parties. The report must:

þ describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;

þ describes where and with whom those documents are or may be located; þ in the case of electronic documents, describes how those documents are stored; þ estimates the broad range of costs that could be involved in giving standard

disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and

þ states which of the directions are to be sought.

CPR 31.5(5) requires parties to discuss and seek to agree a proposal in relation to disclosure, that meets the overriding objective, not less than seven days before the first case management conference. If the parties agree proposals for disclosure and the court considers that the proposals are appropriate, then the court may approve them without a hearing and give directions in the terms proposed (CPR 31.5 (6)).

CPR 31.5(7) includes a ‘menu’ of options in relation to disclosure, of which Standard Disclosure is just one, and at the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure:

þ an order dispensing with disclosure;


þ an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;

þ an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;

þ an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;

þ an order that a party give standard disclosure; þ any other order in relation to disclosure that the court considers appropriate.

CPR 31.5(8) The court may at any point give directions as to how disclosure is to be given, and in particular:

þ what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;

þ whether lists of documents are required; þ how and when the disclosure statement is to be given; þ in what format documents are to be disclosed (and whether any identification is

required); þ what is required in relation to documents that once existed but no longer exist; and þ whether disclosure shall take place in stages.

2. The Duty to Provide Disclosure

The duty to provide disclosure means that each party must:

þ carry out a “reasonable” search for all the relevant information that they have, or have had, in their possession or which is, or has been, under their control;

þ disclose all information upon which he relies in support of his case; þ disclose all information which adversely affects his own case; þ disclose all information which adversely affects another party’s case; þ disclose all information which supports another party’s case; þ disclose all information which is referred to or relied upon in statements of case,

witness statements or experts’ reports; and þ if the information is no longer in the party’s possession or control, state what has

become of that information.

For the purposes of disclosure, “document” means anything upon which or within which information is recorded. Disclosure is, therefore, not confined to paper information, but can also include photographs, voice recordings, computer disks, DVDs, memory sticks, information stored on a computer hard drive etc.

Each party’s list of documents must contain a disclosure statement setting out the extent of the search that has been made and certifying that the party understands the duty to disclose and that to the best of the party’s knowledge the duty has been carried out.

Inspection of disclosed documents may be requested in writing and must be given, usually by providing copies of the requested documents, within seven days after receipt of that


request. The providing party is entitled to charge a “reasonable” amount to cover copying charges.

3. Grounds for Non-Disclosure

3.1 Document was never in possession of or under the control of the party

This would be a clear ground for not disclosing the document – a party cannot disclose what it has never had.

3.2 Not “reasonable” to disclose

CPR 31.7 makes it clear that search for documents is confined by what it is “reasonable” to search for. “Reasonableness” for these purposes is determined by:

þ the number of documents involved; þ the nature and complexity of the proceedings; þ the ease and expense of retrieval of any particular document; and þ the significance of any document which is likely to be located during the

search.

Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he/she must state this in the disclosure statement and identify the category or class of document.

3.3 Document is privileged from disclosure

In order for a communication or document to be protected by privilege it must be and remain confidential. The fact a document is confidential does not mean that the document is also privileged. Confidentiality in itself is no bar to disclosure. A case example where a document was found to be privileged is the case Arroyo v BP Exploration Company (Colombia) Ltd (2010) High Court QBD 6 May 2010 (Senior Master). In this case the disclosure of the claimant’s ATE (after the event) insurance was held to fall outside of standard disclosure and was privileged.

A number of different categories of document fall under this heading:

þ Privilege against self-incrimination: A party does not have to disclose anything which may leave them open to criminal proceedings. There are limitations upon the use of this ground of privilege under section 72 Senior Courts Act 1981 (cases involving intellectual property, children and banks).

þ Legal Professional Privilege: Communications between solicitor and client for the purpose of giving/receiving legal advice or documents created solely for the purposes of the current litigation are privileged from disclosure. This would extend to communications with e.g. potential witnesses or experts.

þ Without prejudice correspondence: Any communication made with the genuine intention of seeking a settlement of a claim is privileged from disclosure (whether the words “without prejudice” are used or not).

þ Public Interest Immunity: Certain documents are not discloseable because to do so would be injurious to the public interest. This could be because of the class of


document to which it belongs (e.g. official secrets) or because of the sensitivity of its contents.

With the exception of public interest immunity, the right to privilege can be waived (given up) by the person seeking to rely on it (i.e. the client). Documents which need not be disclosed must still appear on the disclosure list. They appear in section 2, together with the grounds upon which non-disclosure is claimed.

Under English law there are two main types of legal professional privilege:

Legal advice privilege (“LAP”)

this applies to confidential communications between lawyers and their clients made for the purpose of seeking or giving legal advice.

Litigation privilege (“LP”)

this applies to communications between clients/lawyers and third parties that have been produced for the dominant purpose of obtaining advice/evidence/information in relation to litigation, where: litigation was “reasonably in prospect”, and the contemplated real likelihood of litigation must be the sole or dominant purpose of the communications.

Whether either type of privilege covers a document will depend on the specific facts of each case. In order to establish whether the requirements of the tests are met, the court will consider:

þ the content of the document; þ the purpose for which it was created: þ who it was created by: and þ who it was provided to.

Where a party wishes to claim that he has a right or duty to withhold inspection of a document he must state he has that right/duty and the grounds on which he claims that right or duty. The court has discretion as to whether to order disclosure.

The principles as to what evidence should be provided to discharge the burden of proving a document is privilege were set out in West London Pipeline v Total [2008] EWHC 1729:

þ A claim for privilege is an unusual claim in that the party claiming privilege and their legal advisers are judges in their own case, subject to the power of the court to inspect the documents.

þ For that reason, the court must be particularly careful to consider the basis on which the claim for privilege is made.

þ Evidence filed in support of a claim to privilege should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect.

4. Specific Disclosure

When the disclosure list is received from the other parties, it should be scrutinised carefully for any documents which appear to be missing or for which privilege is claimed inappropriately. This is a crucial stage in the litigation which can make or break a case – so it is important to get it right.

CPR 31.12 permits a party which is not satisfied with disclosure to apply for an order of specific disclosure.


Application for specific disclosure must be made under CPR Part 23 and must be supported by evidence setting out:

þ the issues in the case as set out in the statements of case; þ the document or class of documents for which disclosure is sought; þ the grounds upon which the applicant believes that the opponent has, or has had,

the document in his/her/its possession or control; þ the relevance of the document to the issues, or an issue, in the claim; þ any attempts which have been made to request disclosure and any response; and þ the grounds upon which a purported claim to privilege is disputed.

On application, the court may, if it is satisfied that it is necessary to do so, order:

þ disclosure of documents or classes of documents specified in the order; þ a party to carry out a search to the extent stated in the order; þ disclosure of any documents located as a result of that search; and þ a party to permit inspection of any document or class of document specified in the

order.

5. Reform and the E Disclosure Pilot

Over the past ten years the rules of disclosure have changed considerably. 2010 saw the introduction of Practice Direction 31B, which is dedicated to facilitating the management and disclosure of electronic documents. In 2013 Lord Justice Jackson’s reforms introduced a suite of changes to the CPR including those relating to disclosure. However, notwithstanding the introduction of Jackson’s “menu” of potential approaches to disclosure at CPR 31.5(7), of which Standard Disclosure is just one, there has been poor take up of alternative orders.

A two-year Disclosure Pilot scheme commenced in the Business and Property Courts in England and Wales on 1 January 2019. The Pilot Scheme is the product of two years’ work by a Working Group, with a drafting sub-committee, chaired by Lady Justice Gloster. In light of critical feedback from the profession over excessive cost, scale and complexity of disclosure, the Working Group was tasked with critically appraising the existing disclosure framework.

Taking effect as a new Practice Direction to the CPR, CPR PD 51U, the Pilot Scheme will apply, with some limited exceptions, to existing and new proceedings across the Business and Property Courts in the Rolls Building and in Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle. Where the Pilot Scheme applies, much of the CPR relating to disclosure will be set-aside. However, some provisions, include those relating to pre-action, and non-party, disclosure will prevail in much the same form.

At every point, the process is underpinned by disclosure related duties that variously bind parties, and those legal representatives instructed with a view to the conduct of active or potential litigation on their behalf.


5.1 The models

There are five Disclosure Models (A-E), with Models C to E being search based disclosure. Paragraph 8 of CPR PD 51U refers to the fact that different disclosure models may be ordered for different Issues. The court may order that different parties provide disclosure under a different Model on a given Issue for Disclosure). By virtue of CPR PD 51U para 9.2, when deciding whether or not it is reasonable and proportionate to order a particular Disclosure Model, the court will consider all the circumstances of the case including a set of factors found in paragraph 6.4 of CPR PD 51U and the overriding objective.

The models are:

þ Model A: No order for Disclosure: The court may order that no, or no further, disclosure is required in relation to some or all of the Issues for Disclosure (save for known adverse documents in accordance with the duty at paragraph 3.1(2)).

þ Model B: Limited Disclosure: This model does not require parties to undertake a search for documents, requires parties to disclose documents of the type falling within Initial Disclosure (without a limit on quantity).

þ Model C: Request-led search-based disclosure: Is a form of request-led disclosure, where parties will ask another for the disclosure of particular documents or narrow classes of documents (by reference to requests set out in the Disclosure Review Document). Inspired by document production regimes encountered in international arbitration (and drawing from a similar model set out as an option in the current CPR), Model C looks set to be adopted frequently. Notably, the Pilot Scheme indicates at various junctures that the court will pay particular attention to whether any search based disclosure ordered should be constrained to Model C as opposed to the wider ranging Models D and E, and will require parties to justify why that should not be the case.

þ Model D: Narrow search-based disclosure, with or without Narrative Documents: Model D echoes the current Standard Disclosure. It demands the conduct of a reasonable and proportionate search for documents which are likely to support or adversely affect a party’s case, and the disclosure of the same. The order should specify whether a party giving Model D disclosure is to search for and disclose Narrative Documents. If the order does not so specify, Narrative Documents should not be disclosed. “Narrative Document” means a document which is relevant only to the background or context of material facts or events, and not directly to the Issues for Disclosure; for the avoidance of doubt an adverse document (as defined at paragraph 2.6) is not to be treated as a Narrative Document.

þ Model E: Wide search-based disclosure: Is described as “wide search-based disclosure” is the most expansive form. Stated to be ordered “only in an exceptional case”. Model E has a requirement only to undertake a reasonable and proportionate search, however it extends beyond Model D disclosure to documents which may lead to a chain of inquiry which may then result in the identification of other documents for disclosure that fall within the parameters of Model D. Narrative Documents must also be searched for and disclosed, unless the court otherwise orders.


5.2 Documentation

The Disclosure Review Document (DRD) only needs to be completed where the parties are seeking an order for Extended Disclosure where a search-based Disclosure Model (i.e. Models C, D and/or E) is proposed. In complex cases, the DRD may be modified as required to ensure that information is provided to the court in a convenient and helpful format. This may include revising some of the questions asked in Sections 2 and 3 of the DRD or adding others relevant to the particular disclosure exercise to be undertaken.

The DRD should be completed and submitted electronically as a single document to the court by the parties. The claimant will be responsible for doing this. In some proceedings, not every section of the DRD will need to be filled out, particularly if the proceedings are likely to require very little disclosure and/or if the identification and retrieval of documents is likely to be straightforward.

The information to be included in the DRD and other documents involved in the processcan be summarised as follows:

þ Section 1A: Issues for Disclosure and proposed Disclosure Models: The purpose of this section is to provide a concise summary of the parties’ proposals in relation to Extended Disclosure by identifying the Issues for Disclosure and the proposed Models for Disclosure in respect of such issues. Paragraph 7.3 of the Practice Direction defines the issues for Disclosure as only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings.

þ Section 1B: Request-led Research-based Disclosure (Model C): Paragraph 10.5 of the Practice Direction any party proposing Model C Extended Disclosure must complete Section 1B of the DRD. Requests should be focused and concise in order that the responding party may be clear as to the particular document(s) or narrow classes of documents relating to a particular Issue for Disclosure for which it is being asked to undertake searches. Broad and wide-ranging formulations such as “any or all documents relating to...” should not be used.

þ Section 2 of the DRD: The purpose of this section is to provide the court with information about the data held by each party, including where and how the data is held, how the parties propose to process and search the data where a search-based Disclosure Model (Models C, D and E) is sought in relation to particular Issues for Disclosure), and whether there are any points that the parties have not been able to agree through discussions and which they therefore need the court to determine at the case management conference.

þ Estimates of Costs: There are three sections of the form which concern costs. These sections must include the estimated cost of collection, processing, searching, reviewing and production of the disclosure where the costs are agreed, where not agreed the cost of the approach the claimant is suggesting, and where not agreed the cost of the approach the defendant is suggesting.

þ Certificate of Compliance (represented parties): Paragraph 10.9 of CPR PD 51U requires the parties to each file a signed Certificate of Compliance substantially in the form set out in Appendix 3 to the Practice Direction. As soon as reasonably practicable after the claimant has filed the finalised single joint DRD, but in any event in advance of the case management conference.


þ Disclosure Certificate: A disclosure certificate is a certificate that is substantially in the form set out in Appendix 4 of CPR PD 51U and contains a statement of truth. By virtue of paragraph 23.1 of CPR PD 51U, proceedings for contempt of court may be brought against a person who signs, or causes to be signed by another person, a false Disclosure Certificate without an honest belief in its truth.

5.3 The Procedure

Under the CPR PD there are ten main stages to the process.

PD Stage to be completed Deadline

Para 7.1

Each party should state, in writing, whether or not it is likely to request Extended Disclosure on one or more issues in the case. Should not particularise the Model(s) or the issue(s) in the case.

Within 28 days of the final statement of case.

Para 7.2

When a party indicates it is likely to request Extended Disclosure, the claimant must prepare and serve a draft List of Issues for Disclosure unless the equivalent of such a list has already been agreed between the parties.

Within 42 days of the final statement of case.

Para 7.5

In the event that a particular Issue for Disclosure has not been included in the List of Issues for Disclosure, or is described in a manner that is unacceptable to the defendant, using section 1A of the Disclosure Review Document the defendant should provide the claimant with its proposed wording or alternative wording for inclusion in the draft List of Issues for Disclosure.

As soon as practicable but in any event no later than 14 days after service of the draft List of Issues for Disclosure.

Para 7.6

The parties must discuss and seek to agree the draft List of Issues for Disclosure. For each Issue for Disclosure that is maintained, the parties should indicate at this point, using Section 1A of the Disclosure Review Document which Model of Extended Disclosure is sought for each party. Where Model C Disclosure is contemplated the parties should discuss the requests that might apply for the purpose of that disclosure.

In advance of the first CMC.

Para 10.5 Any party proposing Model C Disclosure must complete and then provide Section 1B of the Disclosure Review Document to the other parties.

No later than 28 days after the defendant has responded in accordance with paragraph 7.5 of the PD to the claimant’s draft List of Issues for Disclosure.

Para 10.5

Any party provided with a completed Section 1B must respond by completing the “response” column either agreeing to the request or giving concise reasons for not agreeing to the request.

Within 14 days of receiving requests in Section 1B of the Disclosure Review Document.

Para 10.6

Having agreed the List of Issues for Disclosure and exchanged proposals on Model(s) for Extended Disclosure, the parties should prepare and exchange drafts of Section 2 of the Disclosure Review Document (including costs estimates of different proposals, and where possible estimates of likely amount of documents involved).

As soon as reasonably practicable and in any event not later than 14 days before the CMC.

Para 10.7 The parties must seek to resolve any disputes over the scope of any Extended Disclosure sought.

In advance of the first CMC.


Para 10.8 A finalised single joint Disclosure Review Document should be filed by the claimant. Related correspondence and earlier drafts should not ordinarily be filed.

Not later than 5 days before the CMC.

Para 10.9 The parties must each file a signed Certificate of Compliance substantially in the form set out in Appendix 3 to the Practice Direction.

As soon as reasonably practicable after the claimant has filed the finalised single joint Disclosure Review Document, but in any event in advance of the case management conference.

Chapter 3


þ what is meant by witness evidence; þ the role of experts in litigation; þ negotiation and offers to settle; and þ how to make an interim application and how costs of that application are

likely to be dealt with.


3.1 Statements and Experts

1. Witness Statements

CPR Part 32 deals with witness statements. “Witness Statements” are written documents which contain the evidence that a person will be allowed to give orally on the witness stand in a civil trial. The court will make directions about how witness statements are dealt with either by agreement on allocation to the mast or Multi-track or at a Case Management Conference (CMC).

CPR 32.5(2) provides that exchanged witness statements stand as evidence in chief at trial, unless the court orders otherwise. As the witness statement stands as the witness’s main evidence at trial, there are four important considerations to bear in mind when preparing witness statements:

þ prepare witness statements as early as possible in the proceedings; þ all witness statements must contain a “Statement of Truth” and must be signed by

the witness making the statement; þ the statements made by one party’s witnesses will have to be exchanged with the

other parties’ witness statements before trial; and þ as the witness statements are the witness’ evidence they should be written in the

witness’ own words – they should not be “tidied up” or re-phrased into “better” English by the solicitor.

The judgment of Mrs Justice Lambert in AB v East Lancashire Hospitals NHS Trust [2019] EWHC 3542 (QB), provides some guidance as to what extent a defendant can adduce, what is essentially hypothetical, evidence in response to allegations of what should have been done. A defendant drafting witness statements in these circumstances has to draft with considerable care. However, the central point is that such evidence (properly drafted) is admissible.

Under CPR 32.4(2) the court is required to order all parties to:

“serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at

the trial”.

The courts normally achieve this by an agreed or ordered direction for “mutual exchange” of witness statements on a specific date. It is permissible under the rules to order “sequential" exchange, but this is rare for witnesses of fact.

If a party fails to serve a witness statement in accordance with the directions, they will not be able to call that witness to give evidence at trial (unless the court gives permission). In McTear v Engelhard [2016] EWCA 487 E served his witness statement 50 minutes late. The statement ran to over 700 pages of exhibits, including some documents which had not previously been disclosed. E sought an extension of time to serve the statement and relief from sanctions. The Court of Appeal ruled that judges faced with such applications should deal with the extension of time and relief from sanctions separately, not together as the judge below had done here. Also, again contrary to the findings of the judge below, there was no evidence to suggest that E was trying to subvert the litigation process by “burying”


undisclosed evidence in exhibits to a witness statement. Both of E’s applications would be granted.

Exchanged statements can stand as the witness’ evidence at trial without the need to call the witness if the contents of the statement can be agreed between the parties. However, this is only likely to happen if the entirety of the witness statement is not in dispute. The truth of the contents of agreed statements is assumed to be accepted by all parties.

If witness statements are not agreed, the witness will have to be called at trial to confirm his evidence and be cross-examined. If a witness is reluctant to attend, he can be compelled to attend through the service of a witness summons.

1.1 Witness statements and Interim Applications

Although witness statements are mainly used for the purposes of a witness’ evidence at trial, they may also be used as evidence in support of any interim applications during the course of a trial (considered later in this section). So, any interim applications or remedies that call for evidence in support will, more often than not, be supported by witness statements. In the case of interim applications, these may come from the solicitor with conduct of the case (as they are the best person to know what the case and the application is about). In interim cases, an alternative means of providing supporting evidence is by affidavit.

1.2 Affidavits

An affidavit is similar in content to a witness statement but have a jurat at the end, indicating that the truth of the contents have been sworn to on a holy book in front of an authorised officer of the court. Affidavits must be sworn by the maker (deponent) in front of a commissioner for oaths (which includes most solicitors and certain authorised court staff). A fee is payable to the commissioner. Affidavits are seen to carry more weight (because they are sworn in front of an official) but have largely now been replaced by witness statements for most purposes. Some CPR provisions still require affidavits. Deponents who have no particular religious beliefs or who object to swearing on a holy book may affirm rather than swear.

2. Expert Witnesses

CPR Part 35 deals with the position of expert witnesses. Expert witnesses are witnesses who can give evidence of a scientific, technical or artistic nature within his field of expertise which may assist the court in resolving any issue in the claim. There are 4 criteria which need to be satisfied before expert evidence can be brought forward at trial:

þ Issue must call for expertise – if the issue can be resolved simply on the facts, then no need for expert evidence.

þ The expert’s field must be an established area of expertise – in most cases, this will be obvious (e.g. medicine, engineering, accountancy etc.), but in a new or developing area then the court will have to be satisfied that there is a body of expertise governed by recognised standards or rules of conduct;

þ The expert witness must be suitably qualified – the witness giving the evidence must hold recognised qualifications or claims to expertise in that field through experience.


The expert must have sufficient familiarity with the knowledge of the area for the evidence to be of value;

þ Permission to use the evidence must be obtained from the court.

Ultimately it is a matter for the court to decide whether a witness should be regarded as an expert, with qualifications and experience being the crucial factors.

CPR 35.3 makes it clear that the expert’s duty is to help the court on matters within his expertise, and this duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid. Parties are encouraged, as early as the pre-action protocol stage, to try to agree on the nomination of suitable experts. An expert may be instructed either as a single joint expert- to prepare a report on behalf of the court on the instructions of two or more parties, with all parties entitled to a copy of the report and share the costs equally – or as a jointly selected expert - instructed by one party, who alone is entitled to receive the report and is responsible for the fees. If parties cannot agree on an expert, the court may nominate one from a panel of experts. In all cases, the letter of instruction to the expert should set out:

þ the purpose of the report; þ what needs to be investigated; þ the issues in the case; and þ the terms of the retainer.

Regardless of how they receive their instructions, experts must remain independent and remember that their first duty is to the court. If it becomes apparent that an expert knows nothing about the rules and/or is biased in his opinion, he can be debarred from giving evidence.

The main difference between expert evidence and evidence of “non-expert” witnesses is that an expert may give opinion evidence. Lay witnesses may only give evidence about what they saw or heard. An expert witness may, and indeed is expected to, give his expert opinion on the basis of an assumed/agreed set of facts. The expert’s report should make it clear what “facts” he has based his/her opinion on (in case the facts of the case are in dispute).

CPR 35.4 provides that no party can submit an expert’s report or call an expert witness at trial without the permission of the Court. This is usually done at the directions stage of proceedings, but can be applied for separately at a later stage. Without an expert witness direction, the expert’s report is inadmissible in evidence.

It is possible to change an expert witness, with the court’s permission, but this will usually be on the condition that all of the previous expert’s reports are disclosed to the other parties. In Edwards-Tubb v JD Wetherspoons PLC [2013] EWCA 136, the Court of Appeal held that it was right to impose such a condition of disclosure, regardless of whether the change of expert took place before or after the commencement of proceedings. In BMG (Mansfield) Ltd v Galliford Try Construction [2013] EWHC 3183, the court confirmed that this principle also applied where the need for a new expert was as a result of the old expert retiring and wishing to be released from the proceedings. The court indicated that such a condition was necessary to ensure fairness, especially where there was a suggestion that a party might be indulging in “expert shopping”.


In considering what directions to give (or approve) regarding expert evidence, the court must bear in mind the following points:

þ The four criteria set out previously. þ In small claims track cases, expert evidence will only be allowed if it is in the interests

of justice and, if allowed, should be limited to written report only. þ Even in fast track and multi-track cases, oral evidence should be a last resort –

where possible all expert evidence should be by written report only. þ Whether it is possible to have a single joint expert or whether separate experts will be

necessary. In deciding this issue, the court has to take into account “all the circumstances of the case” (CPR PD35), in particular: the value of the claim; the importance of the expert issue to the party’s case; the complexity of the issue.

þ Whether more than one expert would assist both parties to present their case properly; whether the expert opinion relates to liability, quantum, or causation.

þ There is a presumption (not necessarily binding) that in a fast track case a single joint expert is more appropriate.

þ Where more than one expert is necessary, whether each party should be limited to one expert per area of expertise (this is the usual position).

þ In complex multi-track cases, there is a presumption that each party will be limited to one expert per field of expertise, and to two fields of expertise.

þ Whether, if more than one expert is required, experts’ reports should be disclosed simultaneously or sequentially.

2.1 The expert’s report

Under CPR PD 35 all expert evidence, if allowed by the court, must initially be produced by a written report. The report must include details of the expert’s qualifications and experience as well as details of any literature used. The report should set out the agreed or assumed facts upon which the report is based, details of any inspection, test, examination or experiment which the expert carried out, and the expert’s opinion on the issue which calls for his expertise.

The expert’s report is protected by “legal professional privilege” and need not be disclosed to the other side. Once the report is disclosed, it then loses the protection of privilege. This means that if the client does not like a report he does not have to use it and can seek the opinion of another expert. This can cause difficulties (and embarrassment) in the case of a single joint expert, as such an expert’s report has, by its nature, already been disclosed to the opposition. However, if one party disagrees with a joint report for genuine reasons, that party can ask for a report from a different expert (but will of course need permission from the court).

Any party, or the court, may ask written questions of the expert in order to clarify the contents of the report. Any answers to those questions become part of the report.

The expert’s report will normally stand as the evidence at trial (if it is not challenged or disputed). If it is necessary to call the expert to give oral evidence, then his/her report will form that expert’s evidence in chief at trial.


2.2 What if the expert’s evidence is disputed?

These rules work on the assumption that experts knowledgeable in the same field will have the same opinion on the same set of facts. In reality, this is not always the case. Sometimes, different experts will genuinely disagree on the correct interpretation of a given set of facts. If there is conflicting expert evidence, then the court will deal with this as follows:

þ Try to resolve the conflict by asking for their comments on each other’s report. þ If this does not resolve the conflict, then arrange for the experts to meet for a

‘without prejudice’ discussion. This can be ordered by the court (either at directions state or later CMC) or arranged on the initiative of the parties. At the end of such a meeting, the experts should produce a joint report which sets out: a) the issues on which they agree; b) the issues on which they cannot agree; c) a summary of the reasons for their disagreement.

þ Any expert can ask the court for directions at any stage in the process (either before or after production of or disclosure of his report).

þ If they are still unresolved after this process, the court will give permission for both experts to give oral evidence.

þ At trial, the court will make findings of fact which should resolve any conflict between witnesses (particularly if one expert’s opinion is based on an assumed set of facts which is found at trial to be inaccurate).

þ Trial judge may reject expert’s evidence if he does not believe the expert, does not accept that the opinion is supported by the facts, believes that the expert’s opinion is “out of date” or “out of line” with current thinking on the subject, or significantly conflicts with that of other witnesses. Court will not accept an expert’s evidence over a lay witness’s just because they are an expert, especially on a factual issue which the lay witness saw with his own eyes.


3.2 Offers to Settle

1. Introduction

CPR Part 36 deals with formal without prejudice offers to settle claims. The provisions of this part apply to any offers to try to settle a claim at any time before trial, including before the commencement of proceedings. The provisions also apply to offers within costs proceedings. The rules apply to an offer to settle made by any party. So, a defendant may offer a sum which he considers sufficient to settle the claimant’s claim and the claimant may indicate what he would be prepared to accept to settle the claim.

There have been a number of changes to Part 36 since its original introduction in 1999 (as a result of the Civil Procedure Rules 1998). The most recent amendment came into force on 6th April 2015. This handout is based on the most recent version of Part 36, but some reference is made to previous versions and cases decided under the old regime where this would assist understanding.

The new rules make it clear that Part 36 is a self-contained code, recognising in statutory form the decision in Gibbon v. Manchester City Council [2010] EWCA Civ 726. The making, withdrawal and acceptance of offers are governed by Part 36 and not the common law principles of offer and acceptance (Flynn v. Scougall [2004] EWCA Civ 873; DB UK Bank Ltd (t/a DB Mortgages) v Jacobs Solicitors [2016] EWHC 1614). The rules preserve the right to make offers outside Part 36, but non-compliant offers will not have the costs consequences of Part 36 (F&C Alternative Investments Ltd v. Barthelemy [2012] EWCA Civ 843).

The new rules preserve the right to make offers to settle part of a claim or an issue that arises in the claim. Such issue-based offers have not been widely used, but may be encouraged by the new rules on split trials (see rules 36.12 and 36.16).

The old rules provided that Part 36 offers could be made in appeal proceedings, but without further explanation. At first instance, Part 36 offers cannot be made in respect of interlocutory applications. The new rules clarify that the same position applies on appeal; Part 36 offers can be made in appeals from decisions made at trial, but not interim applications. It was always implicit that respondents could use Part 36 in respect of their cross-appeals. The position has now been clarified.

2. Formalities

CPR 36.2 outlines the scope of the section. Nothing in this section prevents a party making an offer to settle in whatever way that party chooses but if the offer is not made in accordance with CPR 36.5 it will not have the consequences specified in this section. A Part 36 offer may be made in respect of the whole, or part of, a claim or any issue that arises in a claim, counterclaim or other additional claim or an appeal or cross-appeal from a decision made at a trial.

2.1 Definitions

CPR 36.3 provides definitions for this section. These include:


Offeror The party who makes the offer. Offeree The party to whom an offer is made. Trial Any trial in a case whether it is a trial of all issues or a trial of liability,

quantum or some other issue in the case – split trials are also caught by the new rule.

A trial is in progress

From the time when it starts until the time when judgment is given or handed down – This is to enforce the ‘embargo’ on acceptance mid-trial without permission from the court.

A case is decided

When all issues in the case have been determined, whether in one or more trials.

The relevant period

In the case of an offer made not less than 21 days before a trial, the period specified under rule 36.5(1)(c) or such longer period as the parties agree; otherwise, the period up to the end of such trial.

2.2 Form and content of a Part 36 offer

CPR 36.5 provides that, if an offer under Part 36 is to be effective, certain formalities must be observed. A Part 36 offer must:

þ be in writing (36.5(1)(a)); þ make clear that it is made pursuant to Part 36 (36.5(1)(b)); þ specify a period of not less than 21 days within which the defendant will be liable for

the claimant’s costs in accordance with rule 36.13 or 36.20 if the offer is accepted (36.5(1)(c));

þ state whether the offer relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue (36.5(1)(d)); and

þ state whether the offer takes into account any counterclaim (36.5(1)(e)). þ in personal injury cases only, an offer should state whether it includes the benefits

recoverable by the CRU; and þ Other such information as is required in appropriate cases (36.5(3)).

The change of wording from the old Part 36 is designed to overcome the need for certainty that a party intends to make a Part 36 offer and the need to avoid over formal technicality which may frustrate such an intention, as highlighted in the pre-amendment cases of Thewlis v Groupama [2012] EWHC 3; Huntley v Simmonds [2009] EWHC 406; AF v BG [2009] EWCA Civ 757 and Phi Group Ltd v Robert West Consulting [2012] EWCA Civ 588.

Paragraph 1(c) does not apply if the offer is made less than 21 days before the start of a trial.

A Part 36 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until the date on which the relevant period expires or, if 36.5(2) applies, a date 21 days after the date the offer was made.

A Part 36 offer is made when it is served upon the offeree. Part 6 of the CPR provides detailed rules about service of documents.

2.3 Clarification of a Part 36 offer

CPR 36.8 provides that the offeree may, within 7 days of service, request that the offeror clarifies the offer. If clarification is not given the offeree may, unless the trial has started,


apply for an order that the offeror do so. See CPR Part 23 regarding making an application. If the court makes an order it must specify the date when the Part 36 offer is to be treated as having been made.

3. Acceptance of Part 36 Offer

3.1 Generally

If a party is willing to accept the Part 36 offer, the party accepting the offer must serve written notice of acceptance on the offeror and file a copy at court. Form N242A (Offer to Settle) includes a notice of acceptance for simple acceptance.

A Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different order) unless it has already been withdrawn (this is subject to 36.11 (3) and (4)).

The court’s permission is required to accept a Part 36 offer where:

þ CPR 36.15(4) applies (multiple defendants); þ CPR 36.22(3)(b) applies (deductible amounts), the relevant period has expired and

further deductible amounts have been paid to the claimant since the date of the offer;

þ an apportionment is required under CPR 41.3A (Fatal Accidents Act 1976 and Law Reform (Miscellaneous Provisions) Act 1934); or

þ a trial is in progress.

Where the court gives permission, unless all the parties have agreed costs, the court must make an order dealing with costs and may order that the costs consequences set out in CPR 36.13 apply.

3.2 In a split-trial case

CPR 36.12 provides that where there has been a trial, but the case has not been decided (within the meaning of CPR 36.3), any Part 36 offer which relates only to parts of the claim or issues that have already been decided can no longer be accepted. Subject to this and, unless the parties agree, any other Part 36 offer cannot be accepted earlier than 7 clear days after judgment is given or handed down in such trial.

3.3 Costs consequences of acceptance

Subject to CPR 36.13(2) (defendant’s offer relating to part of the claim only) and (4) (offers made less than 21 days before the start of a trial) and to CPR 36.20 (where Section IIA of Part 45 applies), where a Part 36 offer is accepted within the relevant period:

þ the claimant will be entitled to the costs of the proceedings (including recoverable pre-action costs) up to the date on which notice of acceptance was served on the offeror; and

þ these costs will be assessed on the standard basis if the costs are not agreed, unless the costs are fixed by the rules.


Where a defendant’s Part 36 offer relates to only part of the claim and at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim, the claimant will only be entitled to the costs of such part of the claim unless the court orders otherwise (CPR 36.13(2)). This is a change from the old CPR 36.10(2), under which a claimant was prima facie entitled to its costs of the proceedings on accepting the partial offer and abandoning the balance of its claim. The rule now provides that the usual order should be to award costs only on the part of the claim on which the claimant succeeded.

The liability for costs must be determined by the court unless the parties have agreed the costs where:

þ a Part 36 offer which was made less than 21 days before the start of a trial is accepted; or

þ a Part 36 offer which relates to the whole of the claim is accepted after the expiry of the relevant period; or

þ (subject to CPR 36.13(2)) a Part 36 offer which does not relate to the whole of the claim is accepted at any time.

In these situations, if the parties cannot agree the liability for costs, the court must, unless it considers unjust to do so, order that:

þ the claimant be awarded costs up to the date on which the relevant period expired; and

þ the offeree pay the offeror’s costs for the period from the date of expiry of the relevant period from the date of expiry of the relevant period to the date of acceptance.

CPR 36.13(5) provides new wording of “unless the court considers it unjust”. The old rules simply provided for these default costs orders “unless the court orders otherwise.” The court must take into account all the circumstances of the case in considering whether it would be unjust to make these orders, including the matters listed in 36.17(5) (see section 5 below). In Purser v Hibbs [2015] EWHC 1792, however, the High Court stated that this change in wording did not drastically alter the proper approach by the courts in deciding on the costs consequences of late acceptance. The test was still whether, taking into account the factors in CPR 36.17(5), the normal costs order should be departed from because it would be unjust to apply it in the particular circumstances of the case. This reflects the pre-amendment position taken by the courts in such cases (Lumb v Hampsey [2011] EWHC 2808).

In C v Barts Health NHS Trust [2016] EWHC 500, C had alleged clinical negligence on the part of the hospital in failing to diagnose a dissection of his aorta leading to a blood clot and stroke. B admitted negligence but denied causation, except for one small part of C’s action. B made a Part 36 offer for the whole case, which C sought to accept late. B argued that it would be ‘unjust’ for the normal costs order to follow late acceptance, given that liability for only a small part of C’s case was agreed. The High Court, however, disagreed and saw nothing unjust in the ‘default’ position on late acceptance, and ordered that B pay C’s costs up to the date upon which the period for normal acceptance expired, and C to pay B’s costs, on an indemnity basis, from that date until the date of acceptance.


CPR 36.14 details the other effects of acceptance of a Part 36 offer

4. Withdrawing or Changing the Terms of a Part 36 Offer

4.1 Generally

CPR 36.9 is a new rule specifically dealing with the withdrawal and variation of offers, which provides that a Part 36 can only be withdrawn, or its terms changed, if the offeree has not previously served notice of acceptance. The offeror withdraws the offer or changes its terms by serving written notice of the withdrawal or change of terms on the offeree. CPR 36.17(7) deals with the costs consequences following judgment of an offer which is withdrawn.

Subject to CPR 36.10, notice of withdrawal or change of terms takes effect when it is served on the offeree. CPR 36.10 makes provision about when permission is required to withdraw or change the terms of an offer before the expiry of the relevant period.

Subject to CPR 36.9(1) after expiry of the relevant period the offeror may withdraw the offer or change its terms without the permission of the court or the offer may be automatically withdrawn in accordance with its terms. This reverses the decision of the Court of Appeal in C v D [2011] EWCA Civ 646, where it was held that an offer could not include a ‘sunset clause’ providing for its own automatic withdrawal.

Where the offeror changes the terms of a Part 36 offer to make it more advantageous to the offeree such improved offer shall be treated, not as the withdrawal of the original offer (Gibbon v Manchester City Council (above) held that offers could be “stacked”), but as the making of a new Part 36 offer on the improved terms; and, subject to CPR 36.5(2), the period specified under CPR 36.5(1) shall be 21 days or such longer period (if any) identified in the written notice referred to in paragraph (2).

4.2 Before the expiry of the relevant period

CPR 36.10 provides that, subject to CPR 36.9(1) (no withdrawal/variation after acceptance), where the offeror serves notice before expiry of the relevant period of withdrawal of the offer or change of its terms to be less advantageous to the offeree:

þ if the offeree has not served notice of acceptance of the original offer by the expiry of the relevant period, the offeror’s notice has effect on the expiry of that period (CPR 36.10(2)(a)); and

þ if the offeree serves notice of acceptance of the original offer before the expiry of the relevant period, that acceptance has effect unless the offeror applies to the court for permission to withdraw the offer or to change its terms (CPR 36.10(2)(b):

o within 7 days of the offeree’s notice of acceptance; or o if earlier, before the first day of trial.

Unless the offeror applies to the court during that period then the acceptance automatically takes effect.


On an application under paragraph 2(b), the court may give permission for the original offer to be withdrawn or its terms changed if satisfied there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission. The old rules gave no guidance as to when the court should allow such an application to withdraw /vary. CPR 36.10(3) codifies the previous case law guidance in Flynn v. Scougall (above) and Evans v. Royal Wolverhampton Hospitals NHS Foundation Trust [2014] EWHC 3185.

The new rule only deals with variations to make the offer less advantageous to the offeree. No permission is required to make the offer more generous.

5. Unaccepted Offers

5.1 Restriction on disclosure of a Part 36 offer

CPR 36.16 provides that a Part 36 offer will be treated as “without prejudice except as to costs”. Such an offer must not be communicated to the trial judge until the case has been decided. There are certain exceptions and these are set out in CPR 36.16(3). The position now is that the judge can be shown Part 36 offers that related only to specific decided issues (e.g. where there is a split trial or one party has “won” on one issue, but “lost” on another).

5.2 Costs consequences following judgment

CPR 36.17 (1)(a) relates to the situation where a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer. CPR 36.17(1)(b) relates to the situation where judgment against the defendant is at least as advantageous to the claimant as the proposals contained in the claimant’s own Part 36 offer. It is therefore important to distinguish between a settlement that is more advantageous and one that is at least as advantageous.

“More advantageous”, where it relates to any money claim or money element of a claim, means better in money terms by any amount, however small. The CPR provides that “at least as advantageous” shall be construed accordingly!

Where CPR 36.17(1)(a) applies (i.e. the claimant is awarded a sum equal to or less than the amount of the defendant’s Part 36 offer) the court must, unless it considers it unjust to do so, order that the defendant is entitled to:

þ costs (including any recoverable pre-action costs) from the date on which the relevant period expired; and

þ interest on those costs.

So, if the defendant’s Part 36 offer was for £50,000 and the claimant was awarded £50,000 this isn’t “more advantageous” and the defendant is entitled to his costs as detailed above. The claimant would need to recover at least £50,000.01 in order for the judgment to be “more advantageous”.


Where CPR 36.17(1)(b) applies (i.e. the claimant has equalled or bettered his or her own Part 36 offer), the court must, unless it considers it unjust to do so, order that the claimant is entitled to:

þ interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

þ costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;

þ interest on those costs at a rate not exceeding 10% above base rate; and þ provided that the case has been decided and there has not been a previous order

under sub-paragraph 36.17(4), an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is –

o the sum awarded to the claimant by the court; or o where there is no monetary award, the sum awarded to the claimant by the

court in respect of costs –

Amount awarded by the court Prescribed Percentage

Up to £500,000 10% of the amount awarded

Above £500,000 10% of the first £500,000 and (subject to the limit of £75,000) 5% of any amount above that figure

So, if the claimant’s Part 36 offer was for £50,000 and the court awarded the claimant £50,000 this is “at least as advantageous” and the claimant is entitled to his or her costs as detailed above.

CPR 36.17(5) provides that, in considering whether it would be unjust to make these orders the court must take into account all of the circumstances of the case including:

þ the terms of any Part 36 offer; þ the stage in the proceedings when any Part 36 offer was made, including in

particular how long before the trial started the offer was made; þ the information available to the parties at the time when the Part 36 offer was

made; þ the conduct of the parties with regard to the giving or refusal to give information for

the purposes of enabling the offer to be made or evaluated; and þ whether the offer was a genuine attempt to settle the proceedings.

CPR 36.17(5)(e) refers to a genuine attempt to settle the proceedings. There is some evidence of a growing practice of claimants making very high offers to settle (as much as 95% - Huck v. Robson [2002] EWCA Civ 398), not in a genuine attempt to settle the case but to place the defendant at risk of indemnity costs. Any assessment, whether under Huck as to whether the offer was “merely tactical” or under this new rule as to whether it was “a genuine attempt to settle”, is extremely subjective and fact-sensitive. Judges will no doubt tread carefully, but the amendment is designed to address the potential abuse of Part 36, made even more tempting by the Jackson ‘additional amount’.


The orders specified above (CPR 36.17(1)(a) and (1)(b)) do not apply to a Part 36 offer:

þ which has been withdrawn; þ which has been changed so that its terms are less advantageous to the offeree

where the offeree has beaten the less advantageous offer; þ made less than 21 days before trial, unless the court has abridged the relevant

period.

The rules set out other exceptions.

6. Cases in which the Offeror’s Costs have been Limited to Court Fees

CPR 36.23 deals with cases where the offeror is treated as having filed a costs budget limited to applicable court fees or is otherwise limited in their recovery of costs to such fees. “Costs” in CPR 36.13(5)(b), 36.17(3)(a) and 36.17(4)(b) shall mean:

þ in respect of those costs subject to any such limitation, 50% of the costs assessed without reference to the limitation; together with

þ any other recoverable costs.

7. Implications

The implications of Part 36 offers can be complex and confusing, even for practising lawyers, but it is vital to advise clients clearly and accurately about the full significance, including the costs consequences, of accepting or rejecting a Part 36 offer.

8. Cases in which the offeror’s costs have been limited to court fees

CPR 36.23 is designed to deal with Mitchell type cases where a litigant has been limited to court fees, whether pursuant to CPR 3.14 or, as in Mitchell itself, by order of the court. The Rule Committee’s aim is to ensure that Part 36 still works in such cases. The miscreant should not be able to sidestep the sanction that has been imposed, but nevertheless needs some incentive to make a Part 36 offer. Equally it is important that the innocent party should not regard itself as having a blank cheque to litigate the case. Sanctions must therefore be imposed for turning down a reasonable Part 36 offer.

Arguably, Part 36 could still work for a claimant subject to a CPR 3.14 limitation since it would be awarded indemnity costs under CPR 36.17(4). While it is deemed to have served a budget limited to court fees (CPR 3.14), CPR 3.18 provides that such budget should not be departed from without good reason when assessing costs on the standard basis. The rules are silent as to the position on an indemnity basis and so the claimant could argue for indemnity costs free of the limitation.

Part 36 would not work so well for a defendant subject to a CPR 3.14 limitation since, under CPR 36.17(3), it will usually be awarded standard basis costs. The new rule therefore provides a solution in cases where the offeree has made an effective Part 36 offer. There are 3 circumstances:

þ costs on late acceptance (CPR 36.13(5)(b));


þ defendant’s costs where a claimant fails to obtain a judgment more advantageous than the defendant’s offer (CPR 36.17(3)(a)); and

þ claimant’s indemnity costs where it obtains a judgment at least as advantageous as its offer (CPR 36.17(4)(b)).

In each case the offeree is awarded 50% of the costs that it would have been awarded without reference to the court-fees limitation. It should be noted that this only applies to those costs subject to the limitation. Typically, as in Mitchell, there will be costs before the date of the default that are not subject to the limitation. CPR 36.23 does not limit the recovery of these earlier costs.


4.3 Interim Applications

1. Introduction

CPR Part 23 governs most interim applications (i.e. applications to the court between commencement of proceedings up to, but not including, the final trial). It can be the case that before trial an order or permission is required of the court for some matter or for some step to be taken.

2. Procedure

Under CPR 23.4(1), generally all applications must be made with notice to the other parties. The application is made on Form N244, which sets out the order being sought and the reasons for seeking it (CPR 23.3(1) and 23.6). The terms of the order sought should normally follow as closely as the context will allow the exact wording of the rule under which the application is made. The notice must be signed and state the names of the parties upon whom it is to be served. There is also a fee payable for the application.

All interim applications must be supported by written evidence setting out the background to and reasons for the application and justifying the order sought. This evidence can be supplied in one of 4 ways, depending on the nature of the order sought and the complexity of the evidence. The options are:

þ A brief summary of the facts on the body of the application form supported by the statement of truth on the form itself;

þ Rely on the facts as set out in the statements of case; þ Produce a more detailed set of facts in a separate witness statement, attached to

the application notice. The statement must also contain a statement of truth; þ Verify the facts and their truth by affidavit.

Under CPR PD 23 para 12, in addition to the notice and supporting evidence, the party making the application should produce a draft of the order which it wants the court to make (the court will amend the draft order as it sees appropriate at the hearing). This should be done in all cases, unless the application and order sought is a very simple one.

Notice of the hearing date for the application should be served on all other parties ‘as soon as practicable’ and in any event not less than 3 days before the hearing date (unless some other provision of the CPR requires a longer notice) (CPR 23.7(1))

It is the responsibility of the applicant to serve the application notice, any draft order and evidence in support (CPR 6.21(1)).

In some exceptional circumstances, the court may allow an application to be made without giving notice to other parties. This is provided for in CPR 23.4(2) and covers situations where:

þ The application is an urgent case and there is not the opportunity to give the requisite 3 days’ notice;


þ A party decides to make an application on the spur of the moment at a hearing that has already been fixed and there is insufficient time to serve notice;

þ The application depends on secrecy for its efficacy.

2.1 Hearings

A hearing is not always necessary in every case. Under CPR 23.8, the court may deal with an application without a hearing if:

þ the parties agree on the terms of the order sought; þ the parties agree that the court should dispose of the application without a

hearing; þ the court does not consider that a hearing would be appropriate.

In some cases, especially if the hearing is likely to be short and the solicitors are some distance from the court, hearings can be arranged by telephone. A telephone hearing has to be done by conference call and requires 5 days’ notice instead of the usual 3.

Under CPR 3.3(1), the court may, upon receiving the notice of application, inform the parties that the court will determine the application of its own initiative on the papers OR that a hearing is necessary. A party which wishes to be heard may ask for a hearing in any event.

Where a hearing is necessary, for most routine interim measures and orders, the hearing will take place before the district judge (Master in London). If one party fails to attend, the court may proceed in his absence and may strike out his/her application and/or statement of case. If no parties attend, court may decide application of its own initiative or strike out the application. No witnesses are called to give evidence at interim applications, so if there is a conflict on the filed witness evidence court may take one of four approaches:

1) Leave the issue until trial and make an order that preserves the status quo; 2) Order attendance and cross examination of witnesses – permitted under the CPR

(CPR 32.7) but hardly ever used; 3) Ignore the evidence of the disputed witness and make such order as the court

deems appropriate without it; 4) Decide the disputed issue as best it can on the evidence available and make an

order accordingly.

In deciding any order on an interim application, the court’s primary consideration will always be the overriding objective.

3. Interim Payments

At one time, it was not possible for a party to a claim to obtain part payment on account of the money due to them, even in cases where it was clear that the party was bound to recover something but the amount owed was still in dispute. This meant claimants had to wait until the end of their case, often years away, before they could recover. This has now changed.


The legal provisions are now contained in CPR Part 25 and CPR PD 25B, which enable courts to order interim payments on account of "any damages, debt or other sum (except costs)" (CPR 25.1(1)(k)).

Under CPR 25.7, a court may order an interim payment against a defendant only where:

a) that defendant has admitted liability; or b) judgment has been obtained against that defendant. This could be default

judgment, judgment on admission, or a summary judgment on application. or c) the court is satisfied that if the claim went to trial judgment would be obtained

against that defendant for a substantial amount of money; AND d) the defendant against whom the payment is sought is insured against the liability

claimed or is a public body.

If the court is satisfied that the qualifying criteria have been met, then CPR 25.7(4) permits the court to order an interim payment for a “reasonable proportion” of the likely amount of the final judgment. In assessing what is a “reasonable” amount that the claimant is likely to recover, the court must take into account contributory negligence and/or any relevant set-off or counterclaim.

3.1 Procedure

CPR 25.6 sets out the general procedure. An application cannot be made until at least the time for filing an acknowledgement of service has expired. More than one application for an interim payment may be made during the course of the proceedings. Each application must be made by notice of application under CPR Part 23 (see next section), must be supported by evidence, and be served on the defendant at least 14 days before the hearing. If the defendant wishes to oppose the application, he must file and serve evidence in opposition at least 7 days before hearing. Any further evidence from the claimant must be served at least 3 days before hearing.

CPR PD 25B para 2.1 indicates that the evidence in support of an application should cover the following matters:

þ How much the claimant is seeking by way of interim payment; þ the items or matters in respect of which the interim payment is sought; þ the likely final judgment sum; þ the reasons for believing that CPR 25.7 conditions are satisfied; þ any other relevant matters; þ in personal injury cases only, details of past and future losses; þ in Fatal Accidents Act 1976 cases only, the names of the persons on whose behalf

the claim is made.

3.2 The court’s powers

On an application for an interim payment, the court may (under CPR 25.8):

1) Order payment of a “reasonable proportion” of the claimant’s likely damages, either by lump sum or by periodical payments;

2) Discharge an existing interim payment order;


3) Order repayment of a previous interim payment.

Where an interim payment is made, interest is payable on the amount of interim payment only up until it is paid. After that date, interest can only be claimed on the balance between the interim payment and final judgment. If the interim payment exceeds the final award, the court may order the claimant to repay the excess with interest.

Under CPR 25.9 the fact and amount of any interim payment is not disclosed to the trial judge until damages have been agreed or assessed, or unless the paying defendant agrees.

There have been a number of recent cases where claimants have sought very substantial interim payments in order to purchase long term medical care or more suitable accommodation. These cases have raised the issue of whether the claimant has to show a need for the interim payment, in addition to the CPR 25.7 criteria.

4. Interim Injunctions

These are temporary orders made with the purpose of regulating the position between the parties to an action pending a trial. Such orders will only be granted where it is necessary to do so. They may be applied for on all tracks, but cannot be made by a district judge or Master, only by a circuit judge (or for some types of injunction only a High Court judge has the power to grant them – see ‘freezing’ and ‘searching’ orders below).

Under CPR PD 25 para 3.2 applications for interim injunctions may be made under Part 23 and must be supported by evidence set out in either:

þ a witness statement; þ a statement of case verified by a statement of truth; þ the application notice itself provided that it is verified by a statement of truth. þ The applying party should provide a draft in the terms of the order applied for.

The injunction is an equitable remedy. The court will only grant application as a matter of discretion (i.e. the court may grant the order but also may refuse even if the grounds for making order are established) if it is just and convenient to make the order. In considering whether to exercise its discretion, the court will follow the guidelines in American Cynamid v Ethicon [1975] AC 396. These guidelines are:

þ There must be a serious question to be tried. As long as this is shown, the merits of the claim are a secondary factor;

þ Can the applicant by adequately compensated by damages at trial? If not, then the injunction ought to be granted. Damages will be inadequate if:

o the defendant is unlikely to be able to pay damages in any event; o the wrong is irreparable; o the loss is difficult to quantify in money terms (e.g. libel); o there is no available market by which to quantify the loss; o the actual losses suffered are greater that provided for under rules on

damages (e.g. liquidated damages clause in a contract);


þ Will an undertaking by the claimant to pay damages be adequate protection to the defendant if it is later found out that the injunction was wrongly granted? Such an undertaking is a normal condition for granting an injunction, but is not required if the applicant is a public body.

þ Where does the “balance of convenience” lie between granting and refusing the injunction – would the making or refusing of the order cause irreparable damage to one party?

þ Where other factors appear evenly balanced, the court will seek to “preserve the status quo” pending trial;

þ The merits of the claim will only be considered to the extent that it is possible to do so on undisputed facts.

As injunctions are equitable remedies, it is possible to advance equitable defences to an interim injunction application. So, for example, it may be possible to oppose an interim injunction application on the grounds that:

þ The claimant has acquiesced in (gone along with) the wrong; þ There has been unnecessary and prejudicial delay in making the application; þ Granting the order will cause unnecessary hardship to the defendant; þ The claimant has not sought equitable relief with “clean hands” (i.e. the claimant

has withheld important information relevant to the application or is not “blameless” in what has occurred);

þ Equity does not act in vain (i.e. if the wrong is already in the public domain any harm may already have been done).

Alternatively, if the defendant does not want to risk having an interim injunction granted against them, they can give an undertaking to the court to do, or refrain from doing, whatever is asked of them on the application. Courts will normally stay any further proceedings on the injunction application if such an undertaking is given.

Breach of an injunction, or undertaking, is contempt of court. If proved, this can result in imprisonment and/or a substantial fine.

5. Inspection of Property

A specialist form of interim order is for the inspection of property belonging to, or in the possession of, one of the parties to the proceedings. Under CPR 25.1(1)(c) the court may grant, as an interim remedy, an order for the:

þ detention, custody or preservation of relevant property; þ inspection of relevant property; þ taking of a sample of relevant property; þ carrying out of an experiment on or with relevant property; þ sale of relevant property which is of a perishable nature; þ payment of income from relevant property until a claim is decided; þ Interim Delivery up of goods

The “property” in question only relates to physical objects and the property must be ‘relevant’ to some issue in the proceedings. The court’s powers extend, if necessary, to authorising a person to enter land or a building to carry out detention, inspection etc.


6. Freezing Injunctions

A freezing injunction (formerly called a Mareva injunction after the case in which it came to prominence – Mareva Compania Naviera v International Bulk Carriers [1975] 2 Lloyds Rep 509) is an interim order which restrains a party from disposing or dealing with his/her assets. It can be sought at any stage of proceedings, even before they have begun (see section on “pre-action” proceedings below), to preserve the defendant's assets until judgment can be enforced. A freezing injunction can be made in respect of assets within England and Wales and, in exceptional circumstances, worldwide.

The court’s power to grant such orders comes from section 37(1) Senior Courts Act 1981. The court may (as an equitable remedy, it is discretionary) grant a freezing order if:

þ Claimant can bring a claim recognised by English Law (e.g. contract, tort, infringement of copyright). Freezing injunctions do not “stand alone”, they can only be used to support a recognisable cause of action;

þ Claimant has a “good arguable case”; þ Defendant has assets within the jurisdiction; þ There is a “real risk” that the defendant will dissipate those assets before judgment

can be enforced. The claimant will have to show a “good and arguable case” that the defendant will dissipate the assets. This will require some evidence that the defendant is dishonest, untrustworthy, or has already begun to move or dispose of assets.

Procedure is similar to any other interim injunction (see above) except:

þ Application must be to the High Court only; þ Application is without notice to the defendant (for obvious reasons); þ Affidavit in support required, which must make “full and frank disclosure” of all the

material facts – failure to do so, such as failing to disclose the existence of proceedings elsewhere on the same subject, failing to disclose a weakness in the claimant’s own financial position, or misstating (or failing to reveal) the source of the information relied on in the evidence, will result in the injunction application being refused;

þ The judge in this type of application will always expect a draft of the proposed order to be handed up at the hearing (a pro forma is available in CPR PD 25);

þ In addition to the “normal” undertakings in damages, the claimant must also undertake to:

o notify the defendant of the order; and o pay the reasonable costs and expenses of any third party incurred in

complying with the order.

It should be borne in mind that, just like any other injunction, this is an equitable remedy and so is discretionary and may be refused as an exercise of discretion or upon exercise of the equitable principles set out above (clean hands, equity does not act in vain etc.)

Once an order is made, this takes effect immediately to freeze all the Defendant’s assets within England and Wales, usually up to a maximum amount sufficient to cover the claimant’s damages, interest and costs, and may also identify specific assets (such as land, ships, vehicles etc.). The most commonly frozen asset is the defendant’s bank account(s).


The order will also require the defendant to provide a witness statement/affidavit disclosing the nature and whereabouts of all his assets within a specified number of days.

The court granting a freezing order must:

þ Make allowance for the fact that the defendant will still have living expenses – usually a monthly “living allowance” will be specified in the order

þ Permit the defendant to pay his legitimate trade and household debts þ Allow the defendant access to funds to obtain legal advice þ Provide a date, the “return date”, upon which the court will re-consider the

injunction and at which the defendant may appear þ Include a statement that the defendant has a right to apply to set aside or vary the

order at the return date, but, in the meantime, if the defendant disposes, or assists in the disposal, of assets, he will be in contempt of court.

On the return date, the defendant may ask for the injunction to be discharged or varied. Typical grounds for discharge/variation are:

þ One of the qualifying requirements for the grant of an order has not been made out, or no longer subsists (i.e. risk of moving assets has been removed).

þ Claimant has failed to give full and frank disclosure in the supporting evidence. þ Defendant is able to provide security by bond or paying money into court þ The order acts unfairly or oppressively against the Defendant þ The order does not make sufficient allowance for the Defendant’s expenses þ There has been unnecessary and prejudicial delay in pursuing the substantive claim.

The court may also allow, under CPR 19.2(2), a non-party who is also affected by the terms of the freezing injunction to intervene in the action.

7. Search Injunctions

A search injunction (formerly known as an “Anton Piller” order after the case in which it came to prominence – Anton Piller AG v Manufacturing Processes Ltd [1976] Ch 55) is in reality more than just one order. It is a bundle of interim orders requiring the Defendant to allow another party to enter the Defendant’s premises for the purposes of searching for and preserving evidence which might otherwise be destroyed or concealed. It has been described as a form of ‘legalised burglary’. Such orders are not routine and are granted only as a last resort.

Court has the discretion to grant such injunctions if:

þ There is an “extremely strong prima facie case”; þ The defendant’s activities are proved (on the balance of probabilities) to result in

very serious potential or actual harm to the claimant’s interests; þ There is clear evidence that incriminating documents or materials are in the

defendant’s possession; þ There is a real risk that such items may be destroyed or disappear before trial if the

order was not made.

The procedure for applying is similar to freezing injunctions:


þ Application is normally made to High Court judge. Under the County Court Remedies Regulations 1991, orders are available in county court proceedings, so long as judge dealing with application is a High Court or Court of Appeal judge;

þ Application is made without notice (again, for obvious reasons); þ Application is made on Form N16A (not the standard N244); þ Evidence in support must be by affidavit (witness statements are not acceptable for

this type of application). Duty of full and frank disclosure (see “freezing injunctions” above) applies to this type of injunction also. The affidavit should explain the reason for seeking the order and why the Claimant believes that the relevant material will disappear if the order is not made;

þ Court will expect a draft of the order sought (The CPR PD25 pro forma can be used and/or adapted);

þ Application/affidavit must name and provide the experience of the proposed “supervising solicitor" who is responsible for overseeing the execution of the order and must be from an independent firm.

þ Application can include “multiple” searching and freezing injunctions in suitable cases (such as fraud or “pirating” claims).

The order, if granted, will permit the named supervisory solicitor, a partner from the claimant’s solicitors’ firm and a specified number of people to enter the defendant’s premises (including vehicles) and search for, inspect, take photographs of, and remove specified items and documents (or classes of items and documents). The specified items/documents must have some relevance to the proceedings. The injunction will also require the defendant to deliver up any documents specified in the order but not located on the premises.

Because of the draconian nature of search orders, and the way in which they were used (abused) when they first became popular, there are strict rules about how search orders are served and carried out. A breach of these requirements can invalidate the order and/or amount to contempt of court and can lead to liability in damages.

Service of the order must be carried out in person on the defendant by the independent supervising solicitor. The order must be accompanied by:

þ a notice of application with a “return date” (see ‘freezing injunctions’ above); þ the affidavit; þ any exhibits to the affidavit.

Unless the court orders otherwise, service and execution must be carried out between 09:30 and 17:30 Monday to Friday.

The search injunction is not a search warrant – force, reasonable or otherwise, cannot be used to gain entry. The supervising solicitor must explain the terms and effect of the order to the defendant in plain English before entering the premises, and must inform the defendant that he is entitled to seek legal advice, apply to discharge or vary the order at the return date, and avail himself of legal privilege and privilege against self-incrimination.

If the order covers multiple addresses, all search orders should be executed simultaneously. A location cannot be searched unless the defendant or a responsible employee is present.


The “search party” should contain at least one member of each gender. The police should be informed if there is likely to be a breach of the peace.

Any items seized and removed in the search must be recorded on a list by the supervising solicitor and must be returned by claimant’s lawyer within a maximum of two days. If ownership of an item is in dispute, the defendant’s lawyer should retain it pending trial, subject to an undertaking to keep it safe and produce in court.

If the defendant fails to comply with the order, this is treated as contempt of court, and the defendant may be committed to prison. The defendant has a right to apply to discharge or vary the terms of the order – The rules which apply to this are the same as for freezing injunctions (see above).

In Interactive Technology Corp Ltd v Ferster [2016] EWCA 614, ITC had obtained freezing, search and preservation of property orders against its main shareholder and “prime mover”, F, in support of an action alleging that F had set up a number of companies through which he channeled money from ITC’s online gambling business for his own benefit. F applied to set all the orders aside on the grounds of material non-disclosure of correspondence, reports and emails, which contained certain admissions damaging to ITC’s case from the other shareholders, who were F’s brothers. The Court of Appeal held that the explanation for the admissions had not been challenged by F and was inherently plausible, the information did not undermine the clearly fraudulent nature of the disputed transactions, and the admission were made by or on behalf of F’s brothers, not ITC. There was no material non-disclosure and the orders would stand.

8. Pre-Action Applications

Applications under Part 23 take place once proceedings have commenced. However, CPR 25.2(2)(b) allows the court to consider, in exceptional circumstances, applications for interim remedies even before proceedings have started. Such applications can only be made if:

þ the matter is urgent; or þ it is otherwise desirable to grant the order before the claim is brought in the interests

of justice.

The application should be in the form used for post-issue applications and must be accompanied by:

þ Evidence in the form of witness statement or affidavit, setting out the basis of the substantive claim and the reasons why the matter is so urgent or important that the application cannot wait for the issue of the claim. If the application is to be without notice to the other parties, an explanation of why that is the case should be provided.

þ A draft of the claim form to show the basis of the substantive claim þ A draft of the order sought (the CPR PD 25 pro forma can be adapted for this

purpose also) þ An undertaking from the claimant’s solicitors to issue the claim form as soon as

possible.


If the order is granted, the court will:

þ Direct that the party against whom the order is made has a right to appeal the order within 7 days after the order is served;

þ Direct that the substantive proceedings be commenced within a specified number of days and how those proceedings should be served on the defendant;

þ If the order was made without notice, direct how the order is to be brought to the attention of the defendant and provide a “return date” for the order to be re-considered.

A pre-action application can be for any matter connected to the substantive proceedings. However, the most common types of pre-action orders are for:

þ Freezing injunctions (as above) þ Search injunctions (as above) þ Inspection of property likely to be the subject matter of the dispute (as above) þ Disclosure of documents in the possession, custody or power of the other party under

section 33 of the Supreme Court Act 1981 and section 52 of the County Court Act 1984.

In many cases, not only will such applications need to be made before proceedings are commenced, they will be needed in order to commence proceedings.

9. Costs on Interim Applications

Where an interim application is disposed of in less than a day, which will be the case for most interim applications, costs are to be summarily assessed straight after the making of the order.

This means the costs of the interim application will be payable within 14 days regardless of anything else which happens in the proceedings

In the case of without notice applications, under CPR 44.10, a successful applicant is deemed to have been awarded his costs of that application if he is successful in the substantive claim, unless the court orders otherwise.

In the case of pre-action applications, with or without notice, the normal order is for the applying party to pay its own costs and in some cases may have to pay the Defendant’s costs of complying with the order. However, a court may order that such costs are recoverable as costs in the claim against an unsuccessful defendant.

Chapter 4


þ the procedure and costs following trial; þ the rules and procedure in relation to the costs of litigation; þ the rules and procedure on court orders, judgments and enforcement; and þ the routes of appeal in civil matters.


4.1 The Trial

1. Trial Procedure

Before the trial starts there are still a number of preparatory steps necessary to ensure your client’s case is presented at its best. These include:

þ warning witnesses of the trial date; þ preparing trial documentation; and þ instructing counsel.

1.1 Warning witnesses of the trial date

Witnesses must be notified to attend on the given time and date at the relevant court. A reluctant witness may be summoned using Form N20.

The summons may also compel them to produce documents at the trial instead of, or in addition to, giving oral testimony (CPR 34.2(4)(b)). The witness summons may be served by either the court or by the solicitor for the party calling the witness, but must be done at least 7 days prior to trial starting. Refusal to attend without good reason is contempt of court. If a witness is unable to attend court for a genuine reason, e.g. ill health, incapacity, consider: a) arranging a “bedside” deposition under CPR 34.8 (giving evidence and being cross-examined outside court) at least 21 days before trial; b) attempt to agree that witness’s evidence with opposition; or c) serve a “hearsay evidence” notice under the Civil Evidence Act 1995 (see below).

1.2 Preparing trial documentation

These will include:

þ A Trial Bundle – All the documents, including statements of case, witness statements, experts’ reports, all documents produced at disclosure stage, and all other documents to which any party wishes to refer at trial are copied and placed in paginated files. Copies are needed for each party, the judge and the witness box. The bundle needs to be agreed with all parties and filed with the court between 3-7 days before trial (CPR 39.5(2)). The claimant’s solicitor is responsible for producing and filing the trial bundle;

þ A Reading List – the claimant is also responsible for producing, at the same time as the bundle, a reading list of all authorities, textbooks, articles, scientific papers etc to which reference is intended to be made for the judge, together with an estimated length of time required to read these materials;

þ A case summary and skeleton arguments setting out each parties’ submissions on the law and the facts also have to be filed with the trial bundle.

1.3 Instructing counsel

Counsel will need to be booked to attend trial and briefed in time to produce a skeleton argument of his client’s case in accordance with the time scale above. Counsel’s fee will also be agreed at the time of booking.


2. Types of Evidence

The best evidence is that provided by “live” witnesses giving oral testimony on oath in open court. However, such evidence may not be available for all aspects of a case or may be supplemented by other forms of evidence, such as:

þ Physical objects: These can be produced in court either to prove that the object exists and is genuine (if this is in issue in the case) and/or so that the court can draw inferences from its physical properties or location where it was found about its value as evidence of the truth (or otherwise) of a party’s case. Such objects could include, e.g. an item of clothing, a weapon, a partly damaged document etc. Objects adduced in evidence are normally handed to the judge during the presentation of a party’s case at trial.

þ Photographs: Always useful if available to set the scene, allow the court to ‘visualise’ what happened, or to confirm the presence, position or location of a person or thing at a material time

þ Recordings of events or conversations: This could come from CCTV, home made recordings or taped telephone conversations

þ Sketch plans and drawings: Also useful to help the court visualise a scene and locate parties, witnesses or objects at the time of the incident giving rise to the claim.

þ Any other documents not included in the above disclosed by the parties during the pre-trial procedure.

þ Documents produced from official records: These are deemed to be authentic, truthful and accurate without further evidence being necessary to establish that. These will usually cover all forms of official record (birth, death, marriage certificates, tax records, council records etc), unless the information on the record is itself an issue in the case.

þ Site visits: In complex cases, the court will adjourn to allow the judge, counsel and parties to visit the location of an accident or incident as part of the evidence.

All the above types of evidence are collectively known as “real evidence”. It should be noted that, whilst photocopies can be used for disclosure, inspection and trial bundle purposes, the originals of any copy documents should be available at court.

3. Order of Events

A typical civil trial will abide by the following sequence of events:

1 Claimant opening speech

These are now kept very brief since the inception of the CPR and some judges do not allow them at all – they just want the parties to “get on with it”.

2 Each of claimant’s witnesses is called in turn to give ‘evidence in chief’

The general rule is that the witness statement of that witness stands as evidence in chief (CPR 32.5). The witness will be asked to swear on oath (or affirm) and verify his/her identity and confirm the contents of his/her witness statement are true. This is why all witness statements must contain a “statement of truth”. With the permission of the judge, the witness may add to or clarify the contents of the statement. Agreed evidence will be read out without the witness attending court. Any exhibits pertinent to that witness’s statement (such as documents, objects etc.) are handed up


to the judge as and when relevant after asking the witness to confirm their authenticity.

3 Cross Examination Each of claimant’s witnesses having confirmed the contents of his witness statement, will be cross-examined by the defendant’s advocate. The aim of cross-examination is to test the accuracy, veracity and reliability of the witness’s evidence. Unlike in evidence in chief, the defence advocate can ask “leading questions”.

4 Re-Examination At the end of cross-examination, the claimant’s advocate may re-examine the witness, to address any points raised in cross-examination (and hopefully repair any damage done in cross-examination).

5 Defendant’s Witnesses At the close of the claimant’s case, when all the evidence the claimant is relying on has been called, the defendant may then call his/her witnesses, following the same pattern of examination, cross-examination, re-examination as for claimant’s witnesses. The defence may make an opening speech, but this is very rare.

6 Closing Speeches At the end of all the evidence, the defendant’s advocate makes his closing speech; followed by the claimant’s advocate with his closing speech. The closing speech will deal with any legal issues and what facts the advocates want the judge to find from the evidence heard.

7 Judgment The judge announces his decision, or will announce an adjournment to a later date at which he will hand down the full judgment and reasons for it.

If a party does not appear at trial, either the hearing will be adjourned to a new date (assuming there is a convincing and genuine reason for the non-attendance), or the trial or hearing will proceed in the party’s absence, or the judge may strike out the non-attending party’s statement of case and enter judgment for the attending party.

4. Evidence at Trial

A case in won or lost on the quality and veracity (credibility) of the evidence which a party can adduce (present as acceptable evidence in court). As such it is vital that the best evidence is placed before a court. As discussed above, the best evidence is ‘live’ witness testimony based on witness statements and cross-examination of the witness in court. However, there are rules about how this evidence should be presented, and how evidence can be adduced where “live” witness testimony is not available or not necessary.

CPR Part 32 provides the court with general powers to control what evidence is presented and how it is presented. The court may control evidence by:

þ Limiting the issues on which it requires evidence; þ Directing the nature of the evidence which it requires to decide those issues; þ Directing the way in which the evidence is to be placed before the court; þ Excluding evidence that would otherwise be admissible; þ Limiting cross-examination.

The CPR make various provisions for the admission of documents, photographs, plans, diagrams etc. in evidence. The most important consideration in deciding whether


evidence should be allowed in evidence (admissible evidence) is that it must be relevant to the facts in issue between the parties and/or to the credibility and reliability of the rest of the evidence.

4.1 Hearsay evidence

One of the most important ways of introducing evidence, of any kind, without live witness testimony is through the rules on hearsay evidence. These rules are quite complex.

Hearsay evidence is "a statement made otherwise than by a person while giving oral evidence in court which is tendered as evidence of the matters stated”. In order for a statement to be classed as hearsay, the purpose of introducing it must be to prove its contents are true.

Examples of Hearsay evidence include:

þ Witness A says “X told me that Y hit Z”. Assuming A did not witness the assault him/herself, this would be hearsay if the purpose of the evidence is to prove that Y actually did hit Z.

þ Witness B says “C told me that D is a fat ugly bastard” is not hearsay if designed to prove that C made that statement to B, but IS hearsay if the purpose is to prove that D is overweight, unattractive and illegitimate.

The generally rule at common law is that hearsay evidence is not admissible in legal proceedings. However, this common law position is overruled by the Civil Evidence Act 1995 (CEA). CEA 1995, s 1(1) provides that: ‘In civil proceedings evidence shall not be excluded on the ground that it is hearsay’. Hearsay is permitted, provided that it falls within the terms of the Act. Sections 7(2) and (3) CEA provide that 6 exceptions to the common law prohibition on hearsay evidence are preserved by the Act. These exceptions are:

1. Published works dealing with matters of a public nature (for example, histories, scientific works, dictionaries and maps)

2. Public documents (for example, public registers of births, deaths, marriages and those eligible to vote)

3. Public Records (for example, records of previous court proceedings)

4. Evidence of a person's reputation is admissible for the purpose of proving his/her good or bad character (i.e. should their evidence be believed)

5. Evidence of reputation or family tradition is admissible for the purpose of proving or disproving pedigree or the existence of a marriage

6. Evidence of reputation or family tradition is admissible for the purpose of proving or disproving the existence of any public or general right or of identifying any person or thing.

If a party wishes to introduce hearsay evidence, and it does not fall within one of the above exceptions, then advance notice of an intention to call hearsay evidence is required. Section 2(1)(a) CEA permits the use of hearsay where advance notice is served and the provisions of the Act are met. These are:


þ The party seeking to rely on hearsay evidence serves a copy of the witness’s witness statement on the other parties;

þ The statement is accompanied by a notice identifying the hearsay evidence upon which the party intends to rely;

þ The notice states that the party serving the notice proposes to rely on the evidence as hearsay evidence;

þ The notice must inform the other parties that the witness is not being called to give oral evidence;

þ The notice must state the reason why the witness will not be called.

Under CPR 33.3 there is no need to serve a Civil Evidence Act notice for:

þ Evidence given orally at hearings, even if it contains hearsay; þ Statements relied upon which do not have hearsay in them; þ Where the need for notice is remove by a Practice Direction.

Under section 2(4) CEA and CPR 32.5(5) if a party serves a witness statement under the rules, but does not call that witness at trial, then any other party may rely on that evidence as hearsay, without notice, and may, with permission of the court, call that witness to be cross-examined on the statement as if it was his evidence in chief.

Adducing the evidence at trial is one thing, whether the hearsay evidence is accepted is another. Where hearsay evidence is adduced at trial by any party, the weight to be attached to that evidence and the competence and credibility of the maker of the original statement will have to be assessed by the judge. The courts are given some guidance by sections 4(2) and (3) CEA in that the court may have regard to:

þ Whether the witness could and should have been called to give live evidence; þ Whether the original statement was made at the time of the events; þ Whether the evidence is merely repeating hearsay from another source; þ Whether the source of the original information had motive to conceal or

misrepresent matters; þ Whether the original statement was an edited account, or was made in

collaboration with another or for another purpose other than court proceedings; þ Evidence called by any party which supports or attacks the credibility of the maker

of the hearsay evidence; þ Evidence called by any party which shows that the maker had, either before or after

the statement was made, contradicted himself.

If a party fails to serve a notice under the Civil Evidence Act 1995 (see above), this is not necessarily fatal to that evidence. Section 2(4) CEA provides that failure to serve a notice does not affect the admissibility of the evidence but may: (a) adversely affect the weight to be given to the evidence by the court under section 4 of the Act; and (b) be taken into account when considering the question of costs i.e. whether party not serving notice should get its costs of adducing the evidence or even have to pay wasted costs of an adjournment to consider the late evidence.


5. Admissions

As a general rule, each party has to prove each and every fact upon which it bases its case. However, it is not necessary to do this, and so saves court time, if some facts are admitted prior to or at trial. If a fact is admitted, e.g. “yes, I was the driver of the vehicle at the time of the accident”, it is no longer an issue in dispute and the parties do not need to adduce evidence on the matter. Indeed, once a fact is admitted, any costs incurred in trying to prove that fact will not be recoverable even by a successful party.

Admissions can take the form of statements made outside court, on the acknowledgment of service, in a statement of case, at a case management conference (CMC) and by counsel for a party at trial.

Even if a party has not made a formal admission of facts before trial, it is possible to seek an admission of undisputed facts prior to trial. CPR 32.18 permits any party to serve any other party with a notice to admit facts. The purpose of such a notice is to ensure that the court’s time is not wasted in having to determine facts and issues that could reasonably and readily be admitted without undermining the admitting party’s case. Such notices must be served no less than 21 days before trial and answered within 7 days of service. Courts love notices to admit facts, and, if used properly, these can narrow the issues down to what is really in dispute between the parties.

As discussed above, the CPR make provision for documents, photographs, plans, diagrams etc to be allowed in evidence. Under CPR 32.19(1) parties served with a disclosure list are deemed to admit the authenticity of documents and other information disclosed, unless the receiving party serves a notice (Form N268) to prove they are authentic. This will involve calling the author/maker of the disputed document or proving its authenticity by other, admissible evidence.

6. Costs After Trial

CPR 44.1 defines “costs” as all “fees, charges, disbursements, and expenses” incurred by a party to the proceedings and includes any remuneration allowed to a litigant in person and any fee or reward charged by a lay representative for acting on behalf of a party in proceedings allocated to the small claims track. Under CPR 44.7 an order for costs means payment must be made by the paying party within 14 days, unless the court orders a different time scale.


Under CPR 27.14, the court may not order a party in a case allocated to the small claims track to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except the fixed costs attributable to issuing the claim and the other fixed costs allowed under Part 27. In some circumstances, it may be possible to claim other disbursements, but, generally, in the small claims track it is not possible to recover legal costs.

6.2 Fast track and multi-track cases

CPR 44.3(2) preserves the general common law rule that:


“The unsuccessful party will be ordered to pay the costs of the successful party”.

This is generally referred to as the “costs follow the event” rule. Under this rule, a successful Claimant will be awarded his costs, which will be added to the judgment debt; a successful defendant will have his costs paid by the losing claimant (or a losing defendant). However, the “costs follow the event” rule will not apply where:

þ the proceedings relate to family or probate cases in the Court of Appeal – the court will decide who should bear the costs in such cases; or

þ the court orders otherwise in the exercise of its discretion.

The most important general rule is that “costs are always at the court’s discretion”. Even the “costs follow the event” rule is subject to the court’s discretionary powers to award costs. Under CPR 44.2, the court’s discretion extends to:

þ whether cost are payable by one party to the another; þ the amount of those costs; and þ when those costs are to be paid.

In exercising its discretion, the court is directed to take into account all the circumstances of the case and in particular the following:

þ The conduct of all the parties (before and during the proceedings, including the extent to which pre-action protocols were followed);

þ The reasonableness or otherwise of the claims made in the proceedings and/or the manner in which they were pursued;

þ The reasonableness or otherwise of allegations made in the defence of the proceedings and/or the manner in which they were pursued;

þ The extent to which each party has succeeded on his claim; þ The extent to which any party, even a successful one, has exaggerated its claim; þ Any offers to settle which are not Part 36 offers.

CPR 44.13-16 introduced “Qualified One Way Costs Shifting” (QOCS): These provisions only apply in personal injury and Fatal Accident Act 1976 cases, but are a variation on the “normal” costs follow the event rule. Under these provisions, orders for costs against claimants may only be enforced without permission of the court to the extent of any damages and costs (in total) awarded in favour of the claimant. There are exceptions to this rule where the claimant’s case has been struck out as disclosing no reasonable cause of action, being an abuse of the court process or due to the conduct of the claimant (in such a situation the claimant’s damages are likely to total nil in any event). The rules also provide that permission will be granted if the claim is found to be “fundamentally dishonest”. QOCS will be considered in more detail in the costs pleadings and other process documents module.

As we have seen, civil litigation claims can raise set-offs, counterclaims and additional claims. This can result in one party being “successful” on its claim, but unsuccessful in defending a counterclaim. Similarly, a party’s action may raise several claims, some of which may be successful and others not. Interim applications may also result in unfavourable costs orders against a party which “succeeds” at trial.


The amount of costs to be paid by the paying party will be decided by either a summary at the end of the trial or by a detailed assessment at a later date (if costs are not agreed beforehand). The process of assessment is dealt with in the section on “assessment of costs” below. However, in fast track cases, the trial costs (the hearing itself rather than the pre-trial preparation work) are fixed by CPR 45.37-38.

Value of the Claim Amount of fast track trial costs which the courts may award

No more than £3,000 £485 More than £3,000 but no more than £10,000 £690 More than £10,000 but no more than £15,000 £1,035 More than £15,000 £1,650

Additional amounts to those in the table above may be allowed in some cases, e.g.

1) An additional £345 in respect of a legal representative’s costs of attending trial (but only if such attendance was necessary to assist the advocate);

2) Partial costs of defending a counterclaim; 3) A minimum of £485 for the trial of a preliminary issue.

However, the award of any of the above costs is subject to the rule that costs may be reduced (even to nil) if a party (or his legal representative) behaves unreasonably or improperly.

CPR Part 45 contains a number of tables and provisions for fixed costs claimable in various types of proceedings and at different stages of proceedings. Some of the fixed costs relate to overall costs claimable for cases which proceed under the toad traffic accident, employer’s liability and public liability protocols. You should familiarise yourself with these fixed costs provisions when dealing with the type of cases to which they relate.

7. Shorter and Flexible Trials Pilot Schemes

CPR PD 51N was initially introduced in the 81st amendment to the CPR and came into effect in October 2015. By way of the 86th update, which came into effect on 3rd October 2016, the scheme was extended by a further year and was modified to clarify the procedure.

The pilot schemes run in the “Rolls Buildings”. The Shorter Trial Scheme involves a streamlined procedure leading to judgment within a year of issue of proceedings. For commercial parties it offers dispute resolution on a commercial timescale. The Flexible Trial Scheme involves the adoption of more flexible case management procedures where the parties so agree resulting in a more simplified and expedited procedure than the full trial procedure currently provided for under the CPR.

In October 2016, it was clarified that the scheme applies to cases commenced in or transferred into the schemes while the practice direction is in force; to permit Chancery Masters to transfer cases in the Chancery Division into the scheme and to provide that the Statements of Case do not need to be re-pleaded after transfer to bring them within the scheme’s rules; and to allow cases transferred into the scheme to be tried by a Chancery Master if appropriate, or with the consent of the parties.


4.2 Costs

1. Costs Litigation

Costs have been a rich (no pun intended) source of litigation over the years, despite attempts through legislation and the CPR to make the procedure simpler and less of a hunting ground for lawyers. However, because of the importance of costs to the parties (and their lawyers), and the often huge sums involved, costs have spawned their own area of “satellite” litigation. This handout looks at some of the most important current issues on costs litigation. Costs will be dealt with in more detail in the costs pleadings and other process documents module.

2. The Indemnity Principle

Much of the litigation and legislative intervention has been connected to the “indemnity principle”. This principle (which is not to be confused with the “indemnity basis” for costs assessment considered elsewhere) states that the costs claim (usually in the format of a formal bill of costs) between the receiving and paying parties must reflect whatever agreement or arrangement has been reached between the solicitor and the client as to the level and method of charging and payment. Under this principle, the liability of the paying party is limited to the amount that the receiving party is obliged to pay, or has paid, his solicitors. Accordingly, any sum claimed which the receiving party is not obliged to pay his solicitor is not recoverable from the paying party.

The operation of the indemnity principle can work against the successful party to litigation, but can also work in his favour.

One important difficulty stemming from the indemnity principle is that much turns on the terms of the retainer between the solicitor and the client. The terms of the retainer are normally set out in the information contained in the solicitor’s file. Many paying defendants on assessments of costs have requested, based on the General of Berne v Jardine case, sight of the written terms of the contract between the solicitor and the client (which these days, as a matter of professional conduct, has to be set out in the client care letter). Notwithstanding the privileged nature of this document, courts have either ordered disclosure or required the receiving party’s solicitor to show it “confidentially” (at his election) to the court. Some firms have come unstuck and have ended up receiving no costs because they did not create a sufficiently clear obligation upon their client to pay the full amount of their fees.

Although the indemnity principle was heavily criticised by Sir Rupert Jackson in his report on the Funding of Civil Claims in 2011 (the “Jackson Report”), the principle has not been abrogated/abolished as Jackson recommended. The principle is not removed by the legislation which followed Jackson’s report (Legal Aid and Sentencing and Punishment of Offenders Act 2012 (LASPO)) although new rules on non-recovery of success fees and insurance premiums seem to undermine the principle.


3. Costs Management

From 1st April 2013 (amended further with effect from 22nd April 2014) all cases commenced on or after that date fall within the costs management regime introduced by the new CPR 3.13-14. These provisions apply to the following cases:

þ All CPR Part 7 claims (not Part 8); þ All claims, outside the higher value commercial cases, on the multi-track which are

worth less than £10 million; þ All other claims at the court’s discretion.

Although the provisions are only compulsory for multi-track cases, the early indications are that judges are very keen on costs management and it is likely that courts will try to impose these requirements on fast track cases and others outside the compulsory provisions.

The provisions require all parties to file and serve on each other a costs budget (Precedent H) for the case. The costs budget must be filed and served with the directions questionnaire where the stated value of the claim on the claim form is less than £50,000. In any other case the budget must be filed no later than 21 days before the first case management conference. The time limits are strictly enforced by the courts and the sanctions provided for not filing a costs budget when required to do so are severe – the party in default is treated as having filed a costs budget comprising only the applicable court fees (CPR PD 3E para 3.14).

Although these provisions are relatively new and are designed to make things simpler, they have already generated a considerable amount of litigation.

4. Assessment Procedure –Summary Assessment

Whichever basis the assessment is to proceed on (standard or indemnity), the amount of costs will be assessed by either summary assessment or detailed assessment. The procedure for detailed assessment is considered in the next section.

CPR 44.6 provides for the summary assessment procedure and it is clear that this is to be considered the usual procedure for:

þ All fast track claims; þ All other cases and hearings which are disposed of in no more than one day; þ Interim applications which are disposed of in no more than one day.

The idea of a summary assessment is that the court assesses and makes an award of costs, including the amount payable, there and then at the conclusion of that hearing. This avoids the necessity of the court having to consider how much a party should be ordered to pay at a later date.

In order to assist the court in carrying out the summary assessment, not less than 24 hours before the hearing of any interim or final hearing to which the rule applies, both parties must file and serve signed statements of their costs on Form N260. This Form should set out details of:


þ the number of hours spent on attendances on clients, witnesses, the opposing party, counsel etc, reading and preparing documents;

þ the rate charged per hour; þ the grade of fee earner; þ the costs of attending the hearing (including travelling and waiting); þ any disbursements incurred; þ counsel’s fees; and þ VAT.

At the end of the hearing, the judge will read the forms, hear what each party has to say on the question of whether the costs incurred are reasonable and/or proportionate and will make an award in favour of the receiving party accordingly. This order will state the amount to be paid and the date for payment (by default, 14 days if no other date is specified).

The Senior Courts Costs Office (SCCO) has issued a guide for the benefit of judges and practitioners on the summary assessment of costs.

5. Assessment Procedure –Detailed Assessment

If the question of costs is not suitable for summary disposal, then a detailed assessment will take place under the supervision of the court. CPR Part 47 sets out the detailed rules and procedure to be followed in the case of a detailed assessment.

Detailed assessment can only be carried out once the proceedings have come to an end (CPR 47.1). “End” for these purposes means the final trial or where the proceedings have come to an earlier end for some other reason (e.g. summary judgment, discontinuance, strike out, settlement etc.). The court has no power to carry out a detailed assessment immediately at the end of a hearing.

Time limits are important in detailed assessment proceedings. As a general rule, under CPR 47.7 the detailed assessment should be commenced within 3 months of the “event” giving rise to the detailed assessment. This event could be:

þ Judgment, order or direction awarding costs pursuant to a detailed assessment; þ The lifting of a stay on proceedings for the purposes of pursuing costs; þ Service of a notice of discontinuance or the dismissal of an application to set aside

such a notice; þ Acceptance of a Part 36 offer in settlement of a claim.

However, if there is a delay in meeting this 3-month deadline, it is still possible to commence detailed assessment out of time. Permission to commence proceedings out of time is not required (CPR PD 47 para 6.2). The parties may agree to extend the time, or the “defaulting” party may seek an extension of time from the court. The paying party could also seek an “unless” order from the court to force commencement of the detailed assessment. The “defaulting” party may, however, face sanctions from the court if there is a delay. Without an application by the paying party, this is, however, only limited to the disallowance of all or part of the interest otherwise payable to the receiving party (CPR 47.8(3)).


It should be noted that, under CPR 47.2, just as in the case with the substantive judgment (see above), the time for commencing detailed assessment is not stayed pending an appeal, unless the court so orders.

Detailed assessment is commenced by serving a notice of commencement (N252) and bill of costs on the paying party (note that the court is not involved at this stage).

Points of dispute should be served within 21 days of receiving the notice of commencement of assessment and the bill of costs (CPR 47.9). The points of dispute act in a similar way to statements of case and should set out which parts of the bill are disputed and why they are disputed. Replies to points of dispute (if any) should be served within 21 days of receiving the points of dispute (CPR 47.13).

If no agreement can be reached, the receiving party files the bill, points of dispute (and any reply), relevant disbursement vouchers, invoices, fee notes etc. with the court, together with a request for provisional/detailed assessment (Form N258). The specific documents required will depend upon the circumstances and whether a provisional or detailed assessment is required.

The court then lists the matter either for a provisional assessment (which will be heard on the papers as detailed below) or for a detailed assessment hearing at which all parties can present arguments and the court will decide whether the amounts claimed are reasonable and proportionate (or just reasonable – depending upon the basis for assessment) and how much the receiving party can recover.

A final bill, as assessed by the court, must then be filed with the court within 14 days of assessment.

From 1ST April 2013, a new CPR 47.15(1) was introduced for all claims commenced on or after that date. This new rule introduced the “provisional assessment” procedure into all detailed assessment proceedings. Provisional assessment can be carried out for bills of costs where the amount of costs claimed is £75,000 or less. The parties follow the same procedure as above, but the new version of Form N258 (now called request for provisional/detailed assessment) now requires one of two options to be ticked when filing the bill of costs and other documents at court:

þ I confirm the costs claimed are £75,000 or less and I ask the court to undertake a provisional assessment; or

þ I confirm the costs claimed are over £75,000 and I ask the court to arrange a detailed assessment hearing.

If the case qualifies for provisional assessment, the court will perform the assessment on paper without an oral hearing and without any of the parties being present. In addition to the documents filed at court for a detailed assessment (see above), the receiving party will also have to file with the court a sealed envelope containing all (if any) Part 36 or similar offers of settlement made in respect of the costs issue. The envelope should be marked “Part 36 or similar offers”, but without an indication of which party made them. The idea is that the costs judge will open the envelope at the end of the assessment and decide which party has “succeeded” in beating the Part 36 offers (or as the case may be).


Under a provisional assessment, if either party is dissatisfied with the assessment, he may seek an oral hearing before the judge. However, the party seeking such a hearing will have to pay the costs of the oral hearing if he does not achieve at least a 20% improvement on the provisional assessment.

Under CPR PD 47 Para 14.4(1), on receipt of the request for provisional/detailed assessment and the supporting papers, the court will use its best endeavours to undertake a provisional assessment within 6 weeks.

6. Assessment of Costs

Costs in all proceedings are at the discretion of the court. In the previous section, we looked at some of the factors which the courts consider when they decide the question “who pays?” In this section, we look at how the courts determine “how much?” the paying party has to pay.

Under CPR 44.3, the costs ordered to be paid by the paying party will be assessed by the courts on one of two bases:

1) The standard basis; 2) The indemnity basis.

On the standard basis, the paying party will be ordered to pay all costs which it was reasonable for the receiving party to incur and which are reasonable in amount and are proportionate to the matters in issue. If a cost is considered disproportionate to the issue, that cost may be reduced or disallowed, even if it was a reasonable cost. Any doubt as to the reasonableness or proportionality of the cost is to be resolved in favour of the paying party. This is the most common basis on which costs are assessed.

On the indemnity basis, the paying party will be ordered to pay all costs which it was reasonable for the receiving party to incur and which are reasonable in amount. On an indemnity basis, there is no requirement of proportionality. Any doubt as to the reasonableness of the cost incurred or the amount will be resolved in favour of the receiving party. This is not as common as standard basis and is reserved for cases where the paying party’s conduct is considered to have been unreasonable or has put the receiving party to unnecessary expense.

The new rules on “proportionality” for standard basis costs only apply to claims commenced on or after 1st April 2013. Proportionality will be looked at in more detail in the costs pleadings and other process documents module.

So, the general rule is that the courts will only allow costs which are “reasonable” (on either basis) and which are also proportionate on a standard basis; but what sort of costs might be considered “unreasonable” and/or disproportionate? One obvious example of unreasonable costs would be the costs of investigating liability for an accident (interviewing witnesses, inspecting the scene, obtaining expert evidence etc) when the defendant has already admitted liability. Such costs would not be recoverable from the defendant even if the claimant wins the case.


CPR Part 45: Deals with “fixed costs”. This has already been considered in the previous section above and will be considered further in the costs pleadings and other process documents module. This rule sets out fixed amounts which, unless the court orders otherwise, are recoverable by the receiving party in respect of its legal representatives’ charges in specific situations or at various stages of the proceedings. They are particularly important to trial costs on fast track cases. You should re-familiarise yourself with these provisions at this stage.

CPR Part 46: Deals with “Costs in Special Cases”. This covers a number of rules relating to costs in particular, less common, types of case. This rule, for example, sets out the circumstances and amounts recoverable for payment of expenses, reward or remuneration for time expended by a litigant in person.


4.3 Court Orders and Judgments

1. Introduction

The desired result of any civil litigation is a judgment in your client’s favour.

CPR Part 40 makes various provisions for the production of orders and judgments from the court. As we have already seen, courts have a wide range of powers to make a variety of orders on interim applications, service and amendments of statements of case, and a variety of other case management directions and decisions.

Courts, of course, also have the power to enter “judgment” in favour of one of the parties which is final, either because an opposing party’s claim has been struck out under the CPR or because the judge has found in favour of the successful party at trial.

Whether the decision of the court is an order or a judgment, the formal record of the decision will always look the same. The order/judgment will contain the names of the parties as set out in the statements of case on the first page, and will then contain the name of the judge and where and when the decision was made. This will be followed by the terms of the order itself. The order/judgment must follow the terms of the decision as announced by the judge in court.

Under CPR 40.7(1) judgments take effect from the day they are “given”. However, for these purposes, when the judge announces his judgment in court he is not “giving” judgment, but “pronouncing” judgment. Judgment is “given” when the formal record of the judgment is sealed by the court (CPR 40.2(2)). The “sealed” order then has to be served upon the parties, unless the court orders otherwise under CPR 40.4.

There are many types of judgments or orders. Typical orders/judgments made include:

þ Simple judgment in favour of one party for payment of money either in a lump sum payment by a specified date or by instalments;

þ A judgment setting out or defining the parties relative legal positions (declaration); þ An interim order requiring a party to follow a step prescribed by the CPR or

permitting more time within which to follow that step; þ An order requiring a specific act to be done within a defined time scale, with

consequences/sanctions specified for failure to carry out the act within the time allowed (an “unless” order);

þ An order requiring a party to do an act or refrain from doing an act with the consequence of being imprisoned if the party fails to comply – A “penal” order. Such an order will have to contain a prominent notice of the possible consequences of non-compliance with the order and must be served on the party against whom it is directed in person.

All the above examples normally require a hearing of some kind before a judge, after which the decision is pronounced, recorded, sealed and served. However, CPR 40(6) makes provision for judgments or orders to be given by the consent of all parties. In the case of a consent order/judgment, the parties will draw up a draft of the order, sign it to signify consent, and file or hand it in to the court, which will then use its administrative powers to draw up and seal the final order/judgment.


However, not all matters are considered suitable for consent orders under CPR 40.6.

Occasionally, even judges make mistakes! If there is some error in the pronouncement of the order or judgment, then the judge may reconsider the judgment at any time before the order/judgment is drawn up and sealed. This could be used to deal with a factual error or the mis-naming of a party in the pronounced judgment. Once a judgment has been drawn up it is functus officio and so cannot be changed other than by appeal. However, CPR 40.12(1) allows a court to correct any minor mistake or accidental omission in a judgment or order (the “slip rule”). The “slip rule” is confined to minor errors and cannot be used to:

þ correct a substantive error; þ give the court the chance to have additional thoughts on a case; þ change a decision to avoid an appeal; þ allow the court to think of a matter neither party had in their contemplation as

relevant to the claim.

If the error is an obvious one, the court can deal with it without the attendance of any party at court. If a party wishes to oppose the “slip” amendment, then the matter will be listed for hearing before the same judge who made the “slip”.

2. Enforcement Orders and Judgments

Once a party has successfully obtained judgment, they are then faced with the problem of how to enforce it if the defendant does not comply. Enforcement proceedings can be started as soon as judgment is obtained, although usually the judgment will specify a date by which the defendant has to satisfy the judgment (usually 14 days), and the claimant will have to wait for that period of time before commencing enforcement proceedings.

At this stage, the “titles” of the parties change – They are now the “judgment creditor” and “judgment Debtor”.

The first problem faced by a judgment creditor is to decide the best way in which to try to enforce the judgment. In this making this decision, the creditor will need to know what the debtor’s financial circumstances are and what resources are available to the debtor to satisfy the judgment. The court can, on application of the creditor, order a judgment debtor to attend court. The procedure for such a hearing is set out in CPR Part 71. The creditor must file a Form N316 and pay the appropriate fee in the court which made the order (or seek transfer to the debtor’s home court). The court will fix a date for hearing, at which the debtor will have to attend and answer questions on oath or affirmation about his income, expenses, assets and liabilities. The debtor may also be asked to provide proposals for payment.

Once a creditor has information about the resources available to a debtor, whether discovered from a means inquiry or elsewhere, there are a number of options open to a creditor:

þ Warrant of Execution; þ Third Party Debt Orders; þ Charging Orders; þ Attachment of Earnings Orders; and


þ Bankruptcy.

2.1 Warrant of Execution

Allows the High Court Sheriff/County Court Bailiff to attend at the debtor’s property and seize the debtor’s possessions. The goods can then be sold at auction and the judgment debt, costs, fees and Sheriff/Bailiff’s costs will be deducted from the proceeds of sale. Any surplus will be returned to the debtor. Clothes, bedding, items of household equipment necessary for satisfying basic domestic needs (fridge, washing machine etc), or any tools or equipment necessary for the debtor’s work may not be seized. It is applied for by filing Form N323 and paying the relevant fee at judgment court (or debtor’s home court). Debts of more than £5,000 must be transferred to the High Court for enforcement by this method.

2.2 Third Party Debt Orders

This method can be used where some third party owes money to the judgment debtor. Instead of the third party paying the money to the debtor, the third party is required, but court order, to pay the money directly to the judgment creditor. Application is made by filing Form N349 and paying the appropriate fee. The court will initially grant an interim order without notifying the third party or the debtor (for obvious reasons), which will be made final (or discharged) at a later hearing at which the debtor or third party may put forward arguments as to why the order should not be made final. This method is a favourite one where it is known that the debtor has a bank account which is in credit because, as a matter of banking law, an account in credit is treated as a debt owed from the bank to the customer.

2.3 Charging Orders

A creditor may apply for a charging order over any item of property owned by a debtor, but is most commonly used for land, vehicles, company shares or insurance policies. Charging Order works as a charge (in effect a form of mortgage) to the value of the judgment, costs, fees etc secured against the value of the property. The debt has to be repaid from the proceeds when the property is sold. Application is by Form N379 plus the appropriate fee. As with third party debt orders, the initial order is an interim one, permitting the debtor and/or anyone else who already holds security over the property (e.g. the bank/building society holding the first mortgage), to argue against making the order final. Once a charging order is made final, the creditor is in the same position as any other charge holder and may apply for an order for sale (which will require a further application to the court).

2.4 Attachment of Earnings

Assuming that the debtor is in some form of employment (and it must be regular “employment” rather than some form of self-employment or casual agency work), the creditor can obtain an order for payment of part of the judgment to be deducted from the debtor’s salary each month until the judgment is discharged. Only available in the county court, application is made by filing Form N337 along with the appropriate fee. The court then sends an earnings and outgoings questionnaire to the debtor (with fine for failure to return). The court then decides how much should be deducted from the debtor’s salary and still leave him with sufficient funds for living expenses. The court then orders the


debtor’s employer to deduct a set amount each month from the debtor’s salary and pay it directly to the court before the salary is paid to the debtor.

2.5 Bankruptcy

If a debtor is unable to pay all of his debts, or is unable to pay them all by a certain date, then the courts have the power, on application of either a creditor or the debtor himself, to make the debtor bankrupt (or wind-up the debtor if it is a limited company). The effect of a bankruptcy/winding-up Order is that all assets of the debtor are transferred to a Trustee in Bankruptcy/Liquidator to be used for the benefit of all his creditors. An application for a Bankruptcy/Winding-up Order can be based either on an unsatisfied judgment (applicant will have to show some other enforcement method, usually warrant of execution, has been attempted and failed) or on an unchallenged and unsatisfied statutory demand.


4.4 Appeals

1. Introduction

Appeals will be dealt with in more detail in the costs pleadings and other process documents module. However, it should be noted that, other than appeals from authorised court officers, costs appeals follow the same Part 52 process as appeals generally.

What do you do if you do not agree with the order/judgment of the judge? An appeal is the legal remedy for when you believe a case should have been decided differently.

2. Venue for Appeal

This is determined by the long titled Access to Justice Act 1999 (Destination of Appeals) Order 2000 - SI 2000/1071. In essence, the rules provide for an appeal to the next level up in the court hierarchy. This applies to all orders and judgments, whether made on an interim application or at the final trial of the claim.

Lower Court Appeal Court

Authorised court officer in the SCCO or county court

Costs Judge or District Judge

County Court District Judge County Court Circuit Judge

High Court District Judge or Master

High Court Judge

County Court Circuit Judge High Court Judge

High Court Judge Court of Appeal

Court of Appeal The Supreme Court

The exceptions to the above rule are:

þ A “final” decision on a multi-track case is appealed direct to the Court of Appeal (regardless of level of judge trying case). A “final” decision is one which determines the outcome of the entire proceedings – so does not include interim applications, strike outs or summary judgment

þ Appeals which would normally be dealt with by a circuit judge or High Court judge can be transferred to the Court of Appeal by that judge if he believes the appeal raises important issues of principle or practice.

3. Procedure

The appeals procedure is governed by CPR 52.3. The first stage is to obtain permission to appeal. All decisions require permission to appeal except an appeal against:

þ a committal order (imprisoning someone for breach of a court order or contempt); þ a refusal to grant habeas corpus (release of a person unlawfully detained);


þ a secure accommodation order made under section 25 of the Children Act 1989; or þ as provided by CPR PD 52.

Permission to appeal must be sought from:

þ the court at the hearing at which the challenged decision was made (i.e. there and then when the judge gives his decision); or, if that fails,

þ from the court which would hear the appeal. This is normally done by serving the notice of appeal (see below) and including an application for permission to appeal. The appellate court will then consider the question of permission to appeal first and, if permission is granted, will then go on to consider the merits of the appeal.

Wherever permission is sought, it will only be granted if the test under CPR 52.6(1) is satisfied, i.e.

þ the court considers that the appeal would have a real prospect of success; or þ there is some other compelling reason why the appeal should be heard.

There are special provisions for applying to the Court of Appeal. CPR 52.13 relates to second appeals to the court. CPR 52.7(1) provides that permission is required from the Court of Appeal for any appeal to that court from a decision of the county court or the High Court which was itself made on appeal. CPR r52.7(2) provides that the Court of Appeal will not give permission unless it considers that there is a real prospect of success and:

þ the appeal would raise an important point of principle or practice; or þ there is some other compelling reason for the Court of Appeal to hear it.

If either the original court or the appellate court is minded to grant permission, this can be limited to specified issues – not necessarily the issue that the appealing party wants to appeal about! If permission is refused, normally a brief reason for refusal is given, but usually that is the end of the matter.

An appeal from a decision of an authorised court officer is one of the few exceptions to the rule that permission to appeal is required. There are specific provisions found in CPR 47 in relation to this type of appeal. Under CPR 47.21 any party to a detailed assessment is authorised to appeal and there is no need for leave of the court. An appeal against a decision of an authorised costs officer lies to a costs judge or a district judge of the High Court.

If permission is granted, the appealing party (appellant) has 21 days (CPR 52.12(2)) within which to file and serve a notice of appeal. For an appeal against the decision of an authorised costs officer the same time period applies (CPR 47.23). The time limit can be extended by the court on application by the appellant. The notice of appeal, on Form N161, must set out:

þ The details of the order/decision/judgment appealed against; þ The grounds of the appeal; þ Whether the appeal is on a point of law or a finding of fact; þ The reasons why the appellant says the grounds for appeal apply;


þ Whether the appeal raises issues under the Human Rights Act 1998; þ If permission was refused by the lower court, an application for permission to appeal

and the grounds for that application; þ If the claim is an Aarhus Convention Claim (this is considered in more detail in the

costs pleadings and other process documents module).

The notice of appeal is an important document, as an appellant cannot raise at the hearing of the appeal any matter which is not mentioned in the notice. If an appellant wishes to raise a new issue, he will have to seek permission to amend the notice – this is rarely granted.

Under CPR 52.21(3) the grounds upon which an appeal can be based are as follows:

þ The decision of the lower court was wrong; or þ The decision of the lower court was unjust because of a serious procedural or other

irregularity in the proceedings.

The second ground might be relatively straightforward, but what does “wrong” mean? In the case Abrahams v Lenton [2003] EWHC 1104 an appeal was refused. In the judgment the court made it clear that they had to be persuaded that the Master's decision was wrong and it needed to be proved that that the Master's decision was unsustainable. Unless the decision was shown to be unsustainable the court would not interfere.

A point to note is found in CPR 52.16 which provides that an appeal does not automatically act as a stay of proceedings. The “successful” party to the appealed order/judgment is still entitled to continue on the basis that the order is valid and may enforce the terms of that order. An appeal only acts as a stay of further proceedings where:

þ the lower court or appellate court orders otherwise (this will usually be asked for alongside permission to appeal); or

þ the appeal is from the Immigration and Asylum Chamber of the Upper Tribunal to the High Court/Court of Appeal.

4. Powers of Appellate Courts

If the court finds that the lower court made an error, then the appeal will normally be allowed. For a successful appeal, the court must be satisfied that the lower court made an error in interpreting and/or applying the law and/or failed to identify and apply the correct legal principle. An appeal may also be successful if the decision was made on the basis of an erroneous view of the facts of a case, but an appellate court will not interfere with a lower court’s view of a witness.

On hearing an appeal, the appellate court has the power to:

þ affirm, set aside or vary any order or judgment, in whole or in part, made or given by the lower court;

þ refer any claim or issue back for re-determination by the lower court; þ order a new trial or hearing; þ make directions for the future progress of the proceedings; þ make an order in respect of costs of the appeal and the action in the lower court.


The appeal against the decision of an authorised court officer takes a different form and the procedure is set out in CPR 47.23. In these appeals the court will re-hear the proceedings. The appeal is not restricted to arguments that were raised before the authorised court officer. Hearings before authorised court officers are rarely tape recorded. It is therefore important that practitioners keep a detailed note of the submissions made and the judgments given by the authorised court officer for use at the appeal hearing. Under CPR 47.24 the court has the power to:

þ re-hear the proceedings which gave rise to the decision appealed against; and þ make any order and give any directions as it considers appropriate.

3

ACL Training Herringbone House

Lion Road Palgrave, Diss,

Norfolk, IP22 1AL Tel: 0203 1740 967

Email: [email protected] Web: www.associationofcostslawyers.co.uk.co.uk

ALCD (Training) Limited trading as ACL Training. Registered in England and Wales.

Registered Office: 16 Broad Street, Eye, Suffolk IP23 7AF.

Company Number 04158593.

Civil Procedure (Foundation)

Documents

Transcript of Civil Procedure (Foundation)