CCP Subject Guide

Civil and criminal
procedure
R. Jago
This subject guide was prepared for the University of London International Programmes by:
uu Robert Jago, MPhil (Cantab), Lecturer in Law, Department of Law, University of Surrey.
Acknowledgements
In addition to the author mentioned, thanks must be given to the following:
uu Patrick Gallimore, LLM (London), Lecturer in Law, Department of Law, University of Surrey.
This is one of a series of subject guides published by the University. We regret that owing
to pressure of work the authors are unable to enter into any correspondence relating to,
or arising from, the guide. If you have any comments on this subject guide, favourable or
unfavourable, please use the form at the back of this guide.
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Published by the University of London Press

© University of London 2009. Reprinted 2011
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means, without permission in writing from the publisher.
Civil and criminal procedure page i
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Reading and resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Allocating your time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Abbreviations used in this subject guide . . . . . . . . . . . . . . . . . . . . 7
2 Introduction to civil procedure . . . . . . . . . . . . . . . . . . . . . . 9

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 The civil process at a glance . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 Imagining civil justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 Civil Procedure Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.4 The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.5 The overriding objective and human rights . . . . . . . . . . . . . . . . . 18
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3 Preliminary matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.1 Funding litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.2 Pre-action protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.3 Alternative dispute resolution . . . . . . . . . . . . . . . . . . . . . . . . 30
3.4 Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4 Commencement of proceedings and responding to a claim . . . . . . . 39

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 Issuing and serving proceedings . . . . . . . . . . . . . . . . . . . . . . . 41
4.2 Renewal of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.3 Service outside the jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 45
4.4 Responding to a claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.5 Default judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.6 Statements of case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5 Case management, additional claims and interim applications . . . . . . 59

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.1 Track allocation and case management . . . . . . . . . . . . . . . . . . . 61
5.2 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
5.3 Requests for further information . . . . . . . . . . . . . . . . . . . . . . . 66
5.4 Parties and joinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
5.5 Additional claims under Part 20 . . . . . . . . . . . . . . . . . . . . . . . 70
5.6 Part 8 claims and petitions . . . . . . . . . . . . . . . . . . . . . . . . . . 71
5.7 Interim applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
6 Summary judgment and related matters . . . . . . . . . . . . . . . . . 77

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
6.1 Summary judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
6.2 Striking out, discontinuance and stays . . . . . . . . . . . . . . . . . . . . 82
page ii University of London International Programmes
6.3 Interim payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

6.4 Security for costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.5 Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
7 Issues before trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
7.1 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
7.2 Norwich Pharmacal and related disclosure orders . . . . . . . . . . . . . . 98
7.3 Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
7.4 Witness statements and affidavits . . . . . . . . . . . . . . . . . . . . . 104
7.5 Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
7.6 Admissions and documentary evidence . . . . . . . . . . . . . . . . . . 106
7.7 Interim injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
7.8 Freezing injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
7.9 Search orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
7.10 Listing and pre-trial review . . . . . . . . . . . . . . . . . . . . . . . . . 113
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
8 At trial and beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
8.1 At trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
8.2 References to the European Court of Justice . . . . . . . . . . . . . . . . 125
8.3 Judgments and orders . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
8.4 Offers to settle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
8.5 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
8.6 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
8.7 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
9 Introduction to criminal procedure . . . . . . . . . . . . . . . . . . . 145

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
9.1 From criminal process to criminal procedure . . . . . . . . . . . . . . . . 147
9.2 A system with aims and values? . . . . . . . . . . . . . . . . . . . . . . 148
9.3 Scene setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
9.4 The Criminal Procedure Rules . . . . . . . . . . . . . . . . . . . . . . . . 150
9.5 The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
9.6 Classification of offences . . . . . . . . . . . . . . . . . . . . . . . . . . 153
10 Police and prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . 157

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
10.1 PACE and police powers . . . . . . . . . . . . . . . . . . . . . . . . . . 159
10.2 Arrest and summons . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
10.3 Police questioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
10.4 Search powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
10.5 Special groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.6 Deciding to prosecute . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
10.7 Alternatives to prosecution . . . . . . . . . . . . . . . . . . . . . . . . . 168
Civil and criminal procedure page iii
11 Bail, mode of trial decisions, disclosure of evidence and funding of

criminal litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
11.1 Remand on bail or in custody . . . . . . . . . . . . . . . . . . . . . . . . 177
11.2 Mode of trial decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
11.3 Disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
11.4 Funding of criminal litigation . . . . . . . . . . . . . . . . . . . . . . . . 183
12 Summary trial and the magistrates’ court . . . . . . . . . . . . . . . 189

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
12.1 Jurisdiction of a magistrates’ court . . . . . . . . . . . . . . . . . . . . . 191
12.2 The information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
12.3 Appearance of the accused . . . . . . . . . . . . . . . . . . . . . . . . . 193
12.4 Pre-trial hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
12.5 Course of a summary trial . . . . . . . . . . . . . . . . . . . . . . . . . 195
12.6 Committal for sentencing . . . . . . . . . . . . . . . . . . . . . . . . . 196
12.7 Transfer of cases to the Crown Court . . . . . . . . . . . . . . . . . . . . 198
12.8 Committal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 198
13 Trial on indictment and the Crown Court . . . . . . . . . . . . . . . . 203

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
13.1 The indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
13.2 Pre-trial proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
13.3 Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
13.4 Triers of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
13.5 The course of the trial . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
13.6 Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
14 Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
14.1 Sentencing theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
14.2 Procedure before sentencing . . . . . . . . . . . . . . . . . . . . . . . . 232
14.3 Determining the sentence . . . . . . . . . . . . . . . . . . . . . . . . . 235
14.4 Mitigating and aggravating factors . . . . . . . . . . . . . . . . . . . . . 238
14.5 Custodial sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
14.6 Non-custodial sentences . . . . . . . . . . . . . . . . . . . . . . . . . . 244
15 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
15.1 Appeals from the magistrates’ courts . . . . . . . . . . . . . . . . . . . . 255
15.2 Appeals from the Crown Court . . . . . . . . . . . . . . . . . . . . . . . 259
15.3 Appeals against conviction . . . . . . . . . . . . . . . . . . . . . . . . . 261
15.4 Appeals against sentence . . . . . . . . . . . . . . . . . . . . . . . . . 263
15.5 Appeal procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
15.6 Criminal Cases Review Commission . . . . . . . . . . . . . . . . . . . . . 264
Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

page iv University of London International Programmes
Notes
1 Introduction
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Reading and resources . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 Allocating your time . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Abbreviations used in this subject guide . . . . . . . . . . . . . . . . . 7

page 2 University of London International Programmes
Introduction
The procedural rules governing the civil and criminal process are of critical importance
to the delivery of justice in the legal system. It is the rules of procedure in the civil
process that allows the system to operate, from the point at which a client wishes
to instruct a solicitor through to the conclusion of a case where costs are allocated.
In the criminal justice process the procedure is there to protect the defendant from
the power of the state and the rules of procedure are there to safeguard the rights
of the defendant. These rules govern the disclosure of evidence and the trial process
from admissibility of evidence through to the point of verdict. Once the trial is over an
appeal may be launched or a sentence passed. These processes all work within a legal
framework which contains a number of important and complex rules. These rules are
all central concerns of this course.
Civil and criminal procedure 1 Introduction page 3
1.1 Reading and resources
Recommended texts† †
It is very important that you
obtain the latest editions
The most up-to-date and appropriate textbooks for this subject are:
of any books that you use,
¢¢ Sime, S. A Practical Approach to Civil Procedure. (Oxford: Oxford University Press, whether textbooks or statute
2008) eleventh edition [ISBN 9780199542536]. Please note a new edition of this books.
book is due to be published in August 2009. From now on, we will refer to
these texts in an abbreviated
and form, using the author’s name
and paragraph references. For
¢¢ Sprack, J. A Practical Approach to Criminal Procedure. (Oxford: Oxford University example: Sime 10.07–10.12 or
Press, 2008) twelfth edition [ISBN 9780199535392]. Sprack 15.6–15.25
Other suitable texts include:
¢¢ Ashworth, A. and M. Redmayne The criminal process (Oxford: Oxford University

Press, 2005) third edition [ISBN 9780199273386].
¢¢ Gearey, A., W. Morrison and R. Jago Politics of the common law (Abingdon:
Routledge Cavendish, 2008) [ISBN 9780415481533].
¢¢ Gerlis, S.M. and P. Loughlin Civil Procedure (Abingdon: Routledge Cavendish,

2004) second edition [ISBN 9781859417751].
¢¢ Hungerford-Welch, P. Criminal procedure and sentencing (Abingdon: Routledge

Cavendish, 2008) second edition [ISBN 9780415442923].
¢¢ Jackson, J., M. Langer, and P. Tillers Crime, procedure and evidence in a comparative
and international context: essays in honour of Professor Mirjan Damaška (Oxford:
Hart, 2008) [ISBN 9781841136820].
¢¢ Jolowicz, J.A. On civil procedure (Cambridge: Cambridge University Press, 2000)

[ISBN 9780521584197].
¢¢ McConville, M. and G. Wilson The handbook of the criminal justice process

(Oxford: Oxford University Press, 2002) [ISBN 9780199253951].
¢¢ Ormerod, D. and Lord Justice Hooper Blackstone’s criminal practice 2009

(Oxford: Oxford University Press, 2008) [ISBN 9780199553020].
¢¢ Sanders, A. and R. Young Criminal justice (Oxford: Oxford University Press, 2006)
third edition [ISBN 9780406971395].
¢¢ Sime, S. and D. French Blackstone’s Civil Practice 2009 (Oxford: Oxford University
Press, 2008) [ISBN 9780199549641].
¢¢ Trechsel, S. and S. Summers Human rights in criminal proceedings (Oxford: Oxford

University Press, 2006) [ISBN 9780199271207].
¢¢ Zuckerman, A. Civil justice in crisis (Oxford: Oxford University Press/Clarendon,

1999) [ISBN 9780198298335].
¢¢ Zuckerman, A. Zuckerman on civil procedure: principles of practice (London: Sweet

and Maxwell, 2006) second edition [ISBN 9780421919105].
Statute book
Under the Regulations you are allowed to take one authorised statute book into the
examination room plus one ‘Queen’s Printer’ copy (or one photocopy of a ‘Queen’s
Printer’ copy) of the Codes of Practice issued under Police and Criminal Evidence Act 1984 (see
section 1.3.1 below). You will be provided with a copy of Blackstone’s Statutes on Criminal
Justice and Sentencing (OUP).
Information about the statute books and other materials that you are permitted to use
in the examination is printed in the current Regulations, which you should refer to.
Please note that you are allowed to underline or highlight text in these documents –
but you are not allowed to write notes or attach self-adhesive notelets, etc. on them.
See also the Learning skills for law study guide for further guidance on these matters.
The current Regulations for the LLB state:
Students may underline and/or highlight passages with a coloured pen in the materials,
but all other forms of personal annotation on statutes and other materials permitted to
be taken into the examination room are strictly forbidden.
Statute books are regularly updated: make sure you are using the latest edition.
Other books and resources

There is a rather limited collection of valuable monographs which deal with aspects
of civil and criminal procedure. They will be referred to throughout this subject guide.
You are not advised to purchase these specialised texts, but may find them useful and
stimulating to refer to.
Journals
You may find it useful to refer regularly to journals that specialise in civil and criminal
procedure. The two most useful journals are Civil Justice Quarterly and Criminal Law
Review.
Online resources
As well as the University of London Online Library and Laws Virtual Learning
Environment (VLE), there are a number of useful websites for students of civil and
criminal procedure. For example:
www.bailii.org
[website of the British and Irish Legal Information Institute, containing statutes
from 1998 and cases (HL, CA and High Court) from 1996]
http://www.cjsonline.org
[website of the Criminal Justice System for England and Wales]
www.intute.ac.uk/socialsciences
[Intute:Law provides guidance and access to legal information resources on the
internet]
http://www.justice.gov.uk/civil/procrules_fin
[Ministry of Justice website containing the Civil Procedure Rules]
http://www.justice.gov.uk/criminal/procrules_fin
[Ministry of Justice website containing the Criminal Procedure Rules]
www.parliament.uk
[website of the Houses of Parliament which includes the text of House of Lords
judgments within two hours of delivery and also Hansard]
www.statutelaw.gov.uk
[the UK statute law database, giving revised versions of primary legislation].
1.2 Allocating your time

Civil and criminal procedure has a wide and diverse syllabus and adequate time must
be set aside in order to master the details of the law. It is impossible to state with
precision how much time you will need for studying Civil and criminal procedure
because students learn at different speeds.
Some topics on the syllabus will require considerably more time than others. For
example, in civil procedure the law relating to the overriding objective and its
application, although detailed and rather complex, should require considerably less
of your time than the law relating to case management and costs. There will be similar
unequal divisions in your study of the criminal procedure, which comprises over 50
per cent of the syllabus. The section on the issues at summary trial, for example, will
take considerably less time to study than, possibly, trial on indictment and sentencing.
Also, the law and procedure relating to sentencing is a large and complex subject and
far more time will need to be devoted to it than, for example, the matter of how and
when evidence is disclosed at criminal trial.
You should set aside a specific amount of time each week to study this subject,
increasing the amount in the six weeks before the examination. Remember, though,
that individuals vary greatly in their needs; the time to stop studying is when you know
the topic thoroughly and not until then. It is very important to plan your time carefully.
Do not forget to leave time for revision every week and month, not just in the period
before the examination. Revision must be a continuous process.
1.2.1 How to use the subject guide

The guide closely follows the syllabus and has much the same pattern as the
textbooks. Chapters 2, 3, 4, 5, 6, 7 and 8 concern issues relevant to the study of civil
procedure, including the overriding objective, case management, issues at trial and
costs. Chapters 9, 10, 11, 12, 13, 14 and 15 look at the issues relevant to studying the
criminal justice process from the point of entry to the system through to appeals and
the opportunity for overturning a guilty verdict.
You are advised to read the relevant chapter of this subject guide before reading the
textbooks in order to get an overall view of the topic. Note, however, that this subject
guide is not a substitute for the textbooks. When you have read both the subject
guide and the textbooks, return to the subject guide in order to answer the Activity
questions that have been set for you. Feedback to many of the Activities can be found
at the back of the guide. Do as many of the Activities as you can: they will help you
learn – and help you remember!
1.2.2 Topics not included in the guide

Topics which are within the syllabus but which are rarely examined are omitted from
the subject guide: these will become apparent as you work through the guide. We
presume that you are familiar with the courts involved in the legal system, along with
rules of precedent, etc, from your study of the English legal system in Common law
reasoning and institutions.
1.2.3 The Human Rights Act 1998

As with other areas of English law, in civil and criminal procedure there is a growing
body of case law which deals with the incorporation into English law of most of the
European Convention on Human Rights and Fundamental Freedoms by virtue of
the Human Rights Act 1998. Rather than forming a single chapter in this guide, the
application of rights under the Act will be considered at relevant points throughout
the subject guide.
1.3 The examination
1.3.1 Format of the examination

Important: the information and advice given here are based on the examination
structure used at the time this subject guide was written. However, the University
may alter the format, style or requirements of an examination paper without notice.
Because of this, you must check the instructions on the paper you actually sit.
The examination lasts three hours and you will be required to answer four questions.
Students are permitted to bring into the examination room the following specified
documents: one ‘Queen’s Printer’ copy (or one photocopy of a ‘Queen’s Printer’ copy)
of the Codes of Practice issued under Police and Criminal Evidence Act 1984 and one copy
of Blackstone’s Statutes on Criminal Justice and Sentencing (OUP). Please note the rules
about annotating these materials stated in 1.1 above and in the Regulations.
1.3.2 Examination technique

Examination papers in Civil and criminal procedure usually comprise both problem
questions and essay questions. These two types of question obviously require very
different techniques.
In the case of problem questions, you need to be able to:
uu identify the relevant area of law under discussion
uu identify the relevant facts in the question
uu apply both statute and case law to those facts.
It is important to remember that of all the areas of law you study, civil and criminal
procedure is probably the most rule-bound and so realistic conclusions can be
reached from the facts presented. Try not to sit on the fence but to reach a reasoned
conclusion based on authority. If you are asked to ‘advise X’, for example, you should
make sure that you do so.
In Civil and criminal procedure the case law is obviously important. When studying
this subject you should make careful notes on each topic, including the most
important cases, so that when it is time for revision you have a good set of notes
on which to base that revision. This can be difficult as some of the case facts are
very complicated. Don’t worry if you do find this hard, but try to tease out what the
relevant legal principle stemming from the case is. Be careful when taking notes that
you are clear which particular case you are citing. All too frequently Examiners in this
subject find that students have not mastered the case law to the point where they
can cite the relevant cases. It is only by allocating sufficient time to careful note-
taking throughout your course of study that you will be able to revise effectively and
successfully.
In most of civil and criminal procedure there are a whole host of detailed and
comprehensive statutory provisions which must be interpreted and applied to
examination questions. Rather than copying these provisions out, you should be able
to briefly cite the relevant provision and then proceed to interpreting and applying
the law.
If you are answering essay questions,† a different set of skills is required. The †
For guidance on writing
Examiners are looking for good critical answers to often difficult questions and issues. essays in exam conditions see
Only by being able to demonstrate a clear understanding of these issues, and the also the Learning skills for law
manner in which they are reflected in the law, will your answer attain higher marks. study guide.
Good luck with your studies!
Robert Jago.
1.4 Abbreviations used in this subject guide

AJA Access to Justice Act 1999
CCA 1984 County Courts Act 1984
CCR County Court Rules 1981
CEA 1968 Civil Evidence Act 1968
CJJA 1982 Civil Jurisdiction and Judgments Act 1982
CJJA 1991 Civil Jurisdiction and Judgments Act 1991
CLSA 1990 Courts and Legal Services Act 1990
CPA Civil Procedure Act 1997
CPR Civil Procedure Rules 1998
HL House of Lords
HRA Human Rights Act 1998
IA 1986 Insolvency Act 1986
LA 1980 Limitation Act 1980
PD Civil Procedure Rules Practice Directions
SCA Supreme Court Act 1981
SoGA 1979 Sale of Goods Act 1979
The following abbreviations for journals cited are used in this guide.
CLQ Civil Law Quarterly
CLJ Cambridge Law Journal
CLR Criminal Law Review
CLP Current Legal Problems
IJEP International Journal of Evidence and Proof
LQR Law and Quarterly Review
LS Legal Studies
MLR Modern Law Review

Notes
2 Introduction to civil procedure
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 The civil process at a glance . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 Imagining civil justice . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.3 Civil Procedure Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.4 The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.5 The overriding objective and human rights . . . . . . . . . . . . . . . . 18
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Introduction
Most people hope to avoid ever having to go to court. The experience as a form of
dispute resolution is rarely a positive one.
That said, just as we are all capable of close relationships, we are also capable of
conflict. In the context of that conflict it is sometimes necessary to seek recourse to
the justice system. For the majority of the time this will be the civil justice system. A
hapless builder may continue to fail to fix the roof of the conservatory he has built;
a clumsy hairdresser may have spilt ammonia on your expensive designer jacket,
ruining it, and refuse to compensate you. Such events are often sources of annoyance,
of nuisance and even the subject of television entertainment! The civil justice system
may go some way to alleviating the irritation caused by such events. They can upset
the order of our lives but their occurrence rarely does lasting damage to our soul.
However the civil justice system does not just deal with hapless builders and clumsy
hairdressers. It also deals with negligent doctors who amputate limbs in error and
provides interim relief (where the law steps in with provisional assistance) for a wife
who finds herself at the mercy of a bullying husband.
These images serve to remind us of the wide-ranging nature of civil justice. With such
a variety of disputes to resolve, the civil justice system has to be all things to all men.
This is not an easy task and the civil justice process has to work on different terms to
the criminal justice process, which involves the power of the state and its extreme
forms of censure. Civil justice has to negotiate, resolve, arbitrate and mediate in a way
not expected within the criminal justice process. In many ways the trial day in the
civil justice system can be seen as a moment of failure, where all previous attempts
to avoid the courtroom have failed. The criminal trial is often a magnificent symbol of
state power punishing evil deeds but the civil trial is far more mundane. Since there
is, in most instances, no performance to a jury, the advocacy is more detailed, more
careful and more specific. The civil justice system is far more concerned with costs and
outcomes than its criminal counterpart. As a result, much of the process is designed to
avoid the trial rather than building up to it. That is why much of what you study in civil
procedure will be concerned with trial avoidance rather than trial preparation.
Learning outcomes for this chapter

By the end of this chapter and the relevant readings you should be able to:
uu secure an introductory understanding of the civil justice process and how civil
procedure fits into that process
uu imagine the impact that the civil justice system can have on individuals
uu describe the purpose and scope of the Civil Procedure Rules
uu comprehend the different courts used in the civil justice process
uu evaluate the application of the overriding objective
uu consider the impact of the Human Rights Act 1998 on civil justice.
Civil and criminal procedure 2 Introduction to civil procedure page 11
2.1 The civil process at a glance

Essential reading
¢¢ Sime, Chapter 1: ‘Introduction’.
¢¢ Jolowicz, J. ‘Adversarial and Inquisitorial Models of Civil Procedure’, International

and Comparative Law Quarterly 52(2) 2003, p.281
As has already been suggested, the trial in the civil justice system is a sign of failure.
This means that much emphasis is placed on what takes place before a trial in an
attempt to resolve a dispute and at the same time to do justice between the parties.
It is an old axiom, dating back to Magna Carta, that justice delayed is justice denied so
there is often pressure placed on parties to deal with their disputes swiftly. Of course
the complexity of the dispute may mean that a speedy resolution is not possible. With
these matters in mind we begin our study of the civil justice system by laying a few
foundations upon which a loftier construct may be built.
We begin by reminding ourselves of those who are protagonists in this process: the
lawyers. You will recall from your Common law reasoning and institutions course
that the legal profession in the UK is split between solicitors and barristers. Solicitors
in the civil process provide most of the legal services for their clients and they serve
as a direct point of contact during a case. Barristers offer a referral service which may
involve the drafting of more specialist advice or the provision of more particular
advocacy. It is worth remembering that the lawyers (both solicitors and barristers)
have an overall duty to the court. Solicitors are officers of the court and they must
do their best for their clients but must never mislead or deceive the court in the
process. Barristers are under similar obligations and must always assist the court in the
administration of justice.
Activity 2.1
Conduct a web search for the term solicitor advocate in the UK. Why is the
development of this profession an innovative development in the legal system?
In the civil process events will begin with the initial instructions. This is where a first
interview between solicitor and client takes place. It might be a member of the public
has entered a solicitor’s office on the high street and the solicitor has asked them
about the problem they face. During this initial interview the member of the public
(who has now become a client) will be encouraged to provide an account of the
problem in his or her own words. This will then enable the solicitor to decide whether
to take on the client’s case. This initial statement will also be used for the basis of the
client’s written statement if proceedings are issued. The solicitor will draw up the
statement and it will be signed by the client. If the solicitor has decided to accept the
case then a course of action agreed with the client will follow. Witness details will
be explored and the solicitor will decide if an expert witness is required. All relevant
documentation will be passed from the client to the solicitor and, if the problem is
a continuing one, a continuing note of all relevant events will be kept by the client.
At this early stage the solicitor will ascertain whether a claim is worth pursuing.
Questions will be asked as to the defendant’s status because if they prove to be
without sufficient resources then it will not be worth bringing a claim against them.
Once this initial process has begun the solicitor will be expected to discuss the
matter of payment with the client. The claim may be capable of receiving public
funding and the options for this should be considered as soon as possible. If the case
is to be privately funded then the solicitor will decide either to accept the case on a
conditional fee arrangement (where the fee to be paid will depend on the outcome)
or on a private and continuing retainer (where fees are paid if and when invoices
are issued, regardless of the outcome of the action). It is worth remembering at this
early stage that litigation can be very expensive! As a result solicitors have a duty to
estimate to their clients what the fees for such an action could be. If the client loses
the case then they will usually be expected to pay the other side’s costs as well as their
own. The arrangements for costs are considered later in this guide but for the moment
solicitors should always proceed with caution, mindful of the potential costs involved.
The solicitor is expected to keep the client continually informed of the progress of the
case and to explain exactly what the nature of the solicitor’s authority is in relation
to the dispute. What began as a straightforward inquiry as to the potential of a claim
could become an advanced piece of litigation which has huge cost implications. The
solicitor must advise the client of these developments if and when they occur. They
must also encourage settlement, if and when possible, in line with the framework
provided for by Part 36 of the Civil Procedure Rules. Part 36 is a crucial aspect of the
framework devised to avoid trial and its operation is considered in more detail later in
this guide.
Although the member of the public wandering into the solicitor’s office is a common
image of the beginnings of civil litigation, the reality can often be far more mundane.
Many solicitors receive their instructions in written form from established clients.
These clients may be used to the litigation process and so will know what materials
they need to send in with their written instructions. This is not always the case,
however, and solicitors may be required to make a request for further information
before the claim can continue.
A solicitor will, as a matter of course, owe a duty of confidentiality to his or her client.
This means that a solicitor must not discuss any part of a client’s case with anyone
outside of the solicitor’s office without the client’s permission. The documents and
information possessed by the solicitor in connection with a client’s case are protected
by legal professional privilege. On some occasions when a solicitor is contacted
by a potential client, the solicitor is already acting on behalf of the person that the
potential client wishes to bring an action against. If this happens then the solicitor
will usually act for only one party for fear of a conflict of interest. It may be that the
parties, following full and frank disclosure, will decide to allow the solicitor to act
for both of them. This is unusual and unlikely for fear of a conflict of interest. It was
confirmed in Re a Firm of Solicitors [1992] QB 959 that if a solicitor is in possession of
relevant confidential information they will be restrained from acting against a former
client. If the case involves a firm who were previously retained by a client, partners
and employees who may be in possession of the confidential information may be
restrained from acting against the former client. This remains the case if they move to
another solicitor’s firm.
Activity 2.2
Read Re a Firm of Solicitors [1992] QB 959 and consider the position where there
are members of a firm who have never had possession of relevant confidential
information with regards to a case. What is the conflict of interest situation here?
Activity 2.3
Read the case of Bolkian v KPMG [1999] 2 AC 222 and consider how a ‘Chinese wall’
could offer some protection when there is a concern about information transition
in these complex situations.
Once the solicitor has taken instruction from the client he or she will then enter into
correspondence with the other party to the dispute. A series of negotiations are then
likely to take place prior to court proceedings being actioned. Sometimes the issuing
of a solicitor’s letter will demonstrate that the client is taking the dispute seriously and
this will prompt the other side to settle the dispute without recourse to the courts.
In other cases a solicitor’s letter can inflame the dispute further. If the former is the
case then pre-action correspondence will take place and this includes the providing
of the full details of the claim and giving the other side the opportunity to reach terms
before proceedings begin.
If negotiations fail then either the case will be dropped or court proceedings will
follow. If the case is dropped then no further action will be taken. A client may feel
that they have pushed as far as they can without wishing to risk further cost and
anxiety. If proceedings do begin then decisions will need to be taken about where the
dispute should be heard. Usually the client (who now becomes the claimant) will have
a completely free choice to either issue the claim in the High Court or in the county
court. Usually the High Court will be the preserve of the most serious claims, where
the stakes are at their highest.
Activity 2.4
Read Sime 1.23–1.35 and devise a flowchart to identify the main stages in the court
proceedings.
Summary
The civil justice system is charged with resolving an ever-more eclectic collection of
disputes, ranging from a minor claim of breach of contract to a major claim involving
medical negligence. Given the range of disputes that the civil system has to respond
to, the process is necessarily a complex one. It may be multi-faceted, depending on
the nature of the claim. That said, the initial process will largely follow a standard
pattern of either personal or written instruction to a firm of solicitors. If specialist
expertise is required to advise on a case then a barrister may be instructed by the
solicitor. Lawyers owe a duty to the court and to their clients to advise at all times
on matters of costs and the desire to settle if it is in the client’s best interests to do
so. Solicitors owe a duty of confidentiality to their clients and if a conflict of interest
emerges they have a responsibility to resolve it in a legally defensible way. All relevant
documentation is protected by legal professional privilege. If negotiations falter and
a settlement cannot be reached then the trial process will begin. The proceedings
require much preparatory work but once this process is complete then a dispute will,
one way or another, be resolved.
2.2 Imagining civil justice

When looking at the civil justice process at a glance it would appear that it is a series
of events leading to an outcome which is either a client victory or a client loss. The
reality for those ‘in the clutches’ of the system is far more complex. At one level, civil
procedure could be reduced to a list of rules for you to memorise and recount when
prompted. But before that you need to gain a deeper understanding of why? Why is
this process important and who has suffered from its workings? Activity 2.5 should
provide you with some useful context.
Activity 2.5
Read Chapter 12 of The Politics of the Common Law (Routledge Cavendish, 2008)
(available on the VLE). Consider the examples Gearey et al. use to allow us to
imagine civil justice. Compile a 250 word summary of their view of civil justice with
a view to placing the system into context. Who are the winners and losers in the
way the system presently operates?
No feedback provided.
Summary
No legal system operates in a vacuum and to understand the relevance of civil
justice it becomes necessary to consider the system in its current context. From your
reading you will have seen that the failings of the civil justice system are not a new
phenomenon. Criticisms have been abundant since before the writings of Dickens,
who highlighted many such failings. On a more contemporary note, you will have
identified, for example, how the civil process has been used to distribute medical
resources in a more just fashion or noted those minorities within society (such
as gypsies) who appear to be left victims of the planning authorities. You will also
have been introduced to the nature of alternative dispute resolution, which will be
considered later in this guide. The aim is to avoid court proceedings at all costs and
in some instances this in itself will prove a very costly exercise. Finally you will have
returned to the view of Dickens and considered whether the present system is any
more just than it was in his day. Reforms have taken place but victims remain.
2.3 Civil Procedure Rules

Essential reading
¢¢ Beier, J. ‘The Woolf Report and Civil Procedure’, Liverpool Law Review 19(1) 1997,
p.67. This reading is available on the VLE.
The civil process works within a legal framework. In the High Court and the Court
of Appeal it is the Supreme Court Act 1981 (SCA) which governs the procedure. In
the county courts it is the County Courts Act 1984 (CCA). These statutes are usually
expressed in very wide terms which mean that the procedures for the court to
function are usually set out in the rules of the court. There exists a Civil Procedure
Rule Committee whose task it is (as authorised under s.2 Civil Procedure Act 1997) to
outline the practice and procedure to be followed in the civil courts. The key rules this
committee make are the Civil Procedure Rules (CPR). Section 1(3) of the Civil Procedure
Act 1997 requires the rules to be simple in form and substance. These rules are divided
into a number of parts which each contain a number of rules. Some of these rules are
preserved from the Supreme Court as devised in 1965 and can be found in Schedule 1.
Rules preserved from the county court as devised in 1981 can be found in Schedule 2
of the new CPR. Both are useful guides as to how certain rules have been interpreted
by the courts in the past. However the creation of the CPR was meant to serve as a new
procedural code under rule 1.1(1) CPR and so references to past practice is meant to be
used sparingly. Many of these rules are supplemented by detailed practice directions
which take into account any legislative changes.
Activity 2.6
Access www.opsi.gov.uk/acts.htm and click on 1997 and the Civil Procedure Act
(web version). Then visit www.justice.gov.uk/civil/procrules_fin/index.htm and
spend 5–10 minutes looking at each of the pages and seeing what a valuable
resource they can be for students and practitioners of civil procedure. Make notes
on what you find on these sites.
As well as statutory sources, the operation of the civil process has sometimes been
informed by old rules and old case law (although this is to be discouraged as the
CPR take on their own personality). There does exist a loophole in the CPR by virtue
of s.76 CCA 1984 which states that if there is a case in the county court which is not
provided for by existing rules then recourse to High Court practice is allowed. This
has decreased in usefulness since the CPR were created in an attempt to stem this
practice. The High Court is a successor to the common law courts and has therefore
retained its inherent jurisdiction to control its procedure so as to avoid injustice.
Activity 2.7
Read Lord Diplock’s dicta in Bremer Vulkan Schiffbau und Maschinenfabrik v South
India Shipping Corporation Ltd [1981] AC 909 at 977 and compile a 50 word summary
as to how this general inherent jurisdiction power works.
2.3.1 The overriding objective

The overriding objective of the CPR is outlined in Part 1, which states:
These rules are a new procedural code with the overriding objective of enabling the court
to deal with cases justly.
The application of the overriding objective will be considered later in this chapter
but for current purposes it is important to realise that one of the key ways that this
overriding objective is applied is in the use of active case management. Active case
management is outlined by rule 1.4(1) of the CPR and its form is considered in rule
1.4(2). This suggests that the court should be:
a. encouraging the parties to co-operate with each other in the conduct of the
proceedings;
b. identifying the issues at an early stage;
c. deciding promptly which issues need full investigation and trial and accordingly
disposing summarily of the others;
d. deciding the order in which issues are to be resolved;
e. encouraging the parties to use an alternative dispute resolution procedure, if the

court considers that appropriate, and facilitating the use of such procedure;
f. helping the parties to settle the whole or part of the case;
g. fixing timetables or otherwise controlling the progress of the case;
h. considering whether the likely benefits of taking a particular step justify the cost of
taking it;
i. dealing with as many aspects of the case as it can on the same occasion;
j. dealing with the case without the parties needing to attend at court;
k. making use of technology;
l. giving directions to ensure that the trial of a case proceeds quickly and efficiently.
Case management
Cases will be ‘actively managed’ by judges throughout the process. This case
management will begin at the allocation stage and will continue where the court gives
directions on the evidence it is presented with. When the court compiles the order of
cases for trial this will be done mindful of the injustice that may occur where there is
delay. The court will control the time used at the trial itself as it takes the lead role in
controlling the sequence of events. There is also the allotment of costs at the end of
the trial, where the court will reduce costs which are out of proportion with the claim.
As part of this process the court will also be encouraged to make sufficient use of
technology. The use of the telephone (instead of requiring attendance at court, usually
for witnesses but occasionally claimants and defendants) and video conferencing (as a
way of examining witnesses who cannot attend the court) are two features of a system
which recognises that the old processes, with their old and delaying polity, can no
longer be defended in an age where technology makes communication so much more
efficient. Examples of active judicial case management will be considered throughout
this guide.
Precedent
When interpreting the CPR the standard rules of precedent apply. If the higher courts
have ruled as to how a particular rule should operate then the lower courts must
follow this decision. This means that the House of Lords is not bound by its previous
decisions but the Court of Appeal is bound by the decisions of the House of Lords. It
follows that the decisions of the High Court and county court are only persuasive. It
would appear that, given the civil process’s wish for consistency, the departure from
precedent should only be exercised in extreme cases where a clear injustice would
occur.
Activity 2.8
Read Sime 3.25–3.27 and provide a 50 word summary as to what types of authorities
should not be cited unless they establish a new principle or extend the law.
When interpreting the CPR it has become clear that what court staff have advised
parties to do cannot be relied upon subsequently by the parties. Solicitors should
know what the process is and should not attempt to rely on court staff for this
purpose. It is worth remembering that the CPR have been drafted to use plain English
so that the rules are intelligible for lay people to use in the courts. This has meant that,
although the overriding objective should guide civil court practice, it is not there as
a separate course of action to ‘trounce’ the clearly-worded provisions of the CPR. If

the provision is clear and plainly-worded then it should be followed, even if reliance
on the overriding objective would result in a more just outcome. This is confirmed in
Vinos v Marks and Spencer plc [2001] 3 All ER 784. If there are no express provisions in the
CPR to deal with a particular situation before the court, the court must use whichever
interpretation would best give effect to the overriding objective. It is also important to
remember that when interpreting the CPR a court must be mindful of its obligations
under s.3 Human Rights Act 1998 which requires the court, as best it can, to interpret
the provision in line with Convention rights. We shall consider this in more detail later
in the chapter.
Summary
The civil process is authorised to operate by the Civil Procedure Act 1997. This
process operates using a collection of rules found in the Civil Procedure Rules 1998
as amended (CPR). These rules provide the detailed procedures for dealing with a
case, from commencement of proceedings through to cost allotment at the end. The
CPR requires that the court must, as its overriding objective, deal with cases justly.
To this effect cases must be actively managed by the courts. The courts now make
use of technology far more than they used to in an attempt to deal with cases more
quickly. The overriding objective can be used to fill any gaps in interpreting the rules
but it should not be used to ‘trounce’ a rule which is clear in meaning just because the
overriding objective would lead to what the courts saw to be a more just result.
2.4 The courts
Essential reading
¢¢ Sime, Chapter 2: ‘The civil courts’.
You need to be familiar with the following courts for the purposes of the operation of
civil procedure.
Magistrates’ courts
Unlike in criminal procedure, magistrates have a relatively limited jurisdiction over
civil matters. Magistrates can be lay appointments and are supposed to represent
as wide a cross-section of the community as possible. Magistrates are assisted by a
clerk who advises on matters of law and procedure. While most of the work done by
magistrates is criminal in nature, they do deal with some family law matters and make
orders against those who have defaulted in the payment of local government taxes.
Most of their work in the civil field is regulatory.
County courts
Most civil law matters at the initial stage will be dealt with by the county court. Most
civil cases can be commenced in any county court but if it is to be defended the case
is likely to be transferred to the court serving the district in which the defendant
resides or carries on his or her business. Each court is presided over by a circuit judge.
This is a professional lawyer with a 10 year Crown Court or county court qualification.
Circuit judges sit in the Crown Court as well as the county court to give them a broad
spectrum of judicial experience. County court trials are mainly conducted by circuit
judges and by recorders. These recorders are part time judges. Each district will also
have a district judge who must have seven years general qualification. District judges
are usually charged with conducting most of the interim proceedings in the county
court. They will also preside over small claim hearings. The staff who support these
judges are civil servants. These staff members are usually involved in drawing up,
issuing and serving court documents and maintaining court records. A discussion of
the track system later in this guide will cover where the county court and the High
Court’s jurisdictions lie.
High Court
The High Court, Crown Court and Court of Appeal together comprise the Supreme
Court Judicature of England and Wales. They will be renamed the Senior Courts of
England and Wales when the House of Lords, in its judicial function, becomes the
Supreme Court. This is to avoid confusion. The main offices of the High Court are
located at the Royal Courts of Justice. There are also district registries of the High Court
which serve the districts of county courts. All claims involving disputes in London must
be served in the Royal Courts of Justice. If the claim is based on a dispute outside of
London then the proceedings may be commenced in the Royal Courts of Justice or the
appropriate district registry. This will be a matter of claimant choice.
There are three Divisions within the High Court. The Queen’s Bench Division (QBD)
deals with all judicial review, admiralty and commercial matters. The Chancery Division
(ChD) deals with all cases concerning property and probate. The Family Division
(FamD) deals with all matrimonial matters. Trials in the High Court are conducted
by justices of the High Court, who are also known as ‘puisne judges’, and by deputy
judges. They must have 10 years’ standing within the legal profession. If there are
interim applications† then in London these will be dealt with by masters of the High †
These are applications for
Court (for the majority of civil business this is the procedural judge) but in the district temporary orders, particularly
registries these are dealt with by district judges. in family law, which are only
good until they are varied
Specialist courts by another interim order or
the issues are finally decided
Court of Appeal (Civil Division) following trial.
The basic civil appeals structure is contained in the Access to Justice Act 1999 and the
Appellate Jurisdiction Acts 1876 and 1887. Usually an appeal to the Court of Appeal (Civil
Division) will be from the High Court. Generally permission to appeal (granted by the
High Court or Court of Appeal under rule 52.3(1)(a) CPR will be required. The basic test
for granting permission is whether the appeal has a real prospect of success. If the
prospect of successful appeal is fanciful then permission will not be granted. Appeals
against costs and the process of case management are generally discouraged.
House of Lords
The highest court in the land is the House of Lords (soon to become the Supreme
Court under the Constitutional Reform Act 2005). The House of Lords can be
appealed to from the Court of Appeal (Civil Division) under s.1 of the House of Lords
(Administration of Justice (Appeals)) Act 1934.
Appeal to the House of Lords is subject to a restriction: the matter must be one which
is of public importance and therefore should be considered by the House of Lords. If a
decision from the High Court is to be appealed to the House of Lords, this is governed
by ss.12–15 of the Administration of Justice Act 1969.
European Court of Justice

Since the passing of the European Communities Act 1972 it has been possible for any
English court to request a preliminary ruling on a point of European Community law.
This can be a civil law matter and the reference takes place under s.234 of the EC Treaty.
All courts have discretion to make this referral if they are the last point of appeal.
European Court of Human Rights

Since 2000, when the Human Rights Act 1998 came into force, all courts are under an
obligation under s.2 to take into account the jurisprudence of the European Court of
Human Rights in Strasbourg. However, if an individual feels that the domestic courts
have failed to protect a right within the Convention he or she retains the right to
petition to Strasbourg.
Activity 2.9
Read 2.38–2.43 of Sime and write a single sentence which summarizes the function
of the following specialist courts.
uu Technology and Construction Court

uu Commercial Court
uu Admiralty Court
uu Companies Court
uu Patents Court
Decide where the following cases would be most likely to be heard.
a. A claimant alleges that he suffered two arm amputations on a ship as a result of

a crew member’s negligence.
b. A company director wishes to hear details of his disqualification from the

company.
c. A claimant alleges their contract for the carriage of goods by sea was frustrated
by events outside his control.
d. A defendant architect is due to appear in court for a case where his designs and
advice led to the collapse of a new building.
e. A designer in possession of a registered design wishes to assert his right over

that design before it is revoked.
Summary
Given the complexity and range of cases covered by the civil process it is not surprising
that there are a wide range of courts to resolve this array of disputes. The two major
courts for most civil matters will be the county court and the High Court, with their
jurisdiction being determined by the potential cost and complexity involved in the
case.
2.5 The overriding objective and human rights
Essential reading
¢¢ Sime, Chapter 3: ‘Overriding objective and human rights’.

You will recall that the overriding objective requires the court to do justice (rule
1.1 CPR). With this in mind it seems that it would not be just to ‘shut the door’ to a
claim which was technically in breach of the rules. This was confirmed in Chilton v
Surrey County Council (1999) LTL 24/6/99 where it was stated that the nature of the
real claim would be dealt with rather than what was originally asked for. Likewise in
Cala Homes (South) Ltd v Colchester District Council (1999) The Times, 15 October 1999 a
claim was resolved that had been commenced in the wrong office. Justice dictates
that procedural breaches of this kind are unlikely to result in a rejection of the claim
outright.
The concept of ‘equality of arms’† is a theme often associated with the disclosure of †
‘Equality of arms’ is the
evidence in criminal proceedings. In civil proceedings it could be said to manifest itself idea that the defence
in the concept of equal footing. However the civil process does not require parties should never be placed at a
to have access to the same quality of representation. While equal footing maybe substantial disadvantage to
desirable, it is not in the power of the court to dismiss cases where one party has the prosecution in terms of
instructed representation which is far more expensive than the other side. This would its ability to present its case.
be impossible to supervise and implement and so is not seen as part of the process of
dealing with cases justly (see Maltez v Lewis (1999) The Times, 4 May 1999 and McPhilemy
v Times Newspapers Ltd [1999] 3 All ER 775).
It is desirable, as part of the overriding objective, that cases are dealt with expeditiously
and fairly which then saves overall expense. This principle has been used to reject
a request for the court to order separate trials so that a claim could be determined
once long term hospitalisation had been completed. It was felt by the court in Adan v
Securicor Custodial Services Ltd [2005] PIQR P79 that such a move would have exposed the
defendant’s insurers to an uncertain liability for an indefinite period. This was viewed as
oppressive and undesirable. When it comes to the striking out of claims on the basis of
saving expense, the authorities appear to adopt a less consistent tone (see Re Hoicrest
Ltd [2000] 1 WLR 414 and Re Osea Road Camp Sites Ltd [2005] 1 WLR 760).
Given that resources are so highly prized in the civil process it is little wonder that the
courts have been keen to ensure there is a careful allotting of an appropriate share of
the court’s resources. This has sometimes led to an appeal against an interim order
being refused (see Stephenson (SBJ) Ltd v Mandy (1999) The Times, 21 July 1999). Even the
Court of Appeal have used something of a guillotine method to decide that spending
more than an hour sorting through court papers was a waste of court time and so
dismissed an appeal (see Adoko v Jemal (1999) The Times, 8 July 1999).
As the courts wish to deal with cases in a just manner it would appear from the
authority that co-operation within the process is highly prized. Any attempt to take
advantage of your opponent’s error is seen by the court and can have an impact on the
outcome of the case as a whole (see Chilton v Surrey County Council (1999) LTL 24/6/99).
In King v Telegraph Group Ltd [2005] 1 WLR 2282 deliberately provocative language was
used which went against the spirit of co-operation and the solicitors were criticised as
a result. This spirit of co-operation was also breached in Hertsmere Primary Care Trust v
Administrators of Balasubramanium’s Estate [2005] 3 All ER 274 when one party failed to
point out the other party’s obvious error in a Part 36 offer. Judges will now take a dim
view of parties wishing to seek a tactical advantage because the duty to the court is to
deliver justice in as clear and even-handed manner as possible.
2.5.2 Human rights and civil procedure

Like other areas of law that you have studied, the Human Rights Act 1998 has had an
effect on civil procedure. The 1998 Act brought into effect the European Convention
on Human Rights and within the civil process there are three rights which are of
particular importance (see below). If a party seeks to rely on a provision or right or
seeks any remedy available under the Human Rights Act 1998 then this must be stated
in their statement of claim with precise details of why they believe there has been an
infringement of their Convention rights.
The first of these provisions having a direct impact on civil procedure is Article 6 and
the right to a fair hearing. This is guaranteed under Article 6(1) of the Convention. This
right has four facets to it for these purposes: fair hearing, equality of arms, all relevant
evidence considered and reasons should be given for a court decision.
Activity 2.10
Read Sime 3.41–3.44 and compile two sentences which summarise each of these
facets of Article 6, with reference to the accompanying cases.
¢¢ Fair hearing: R (on the application of Pelling) v Bow County Court [2001] UKHRR 165.
¢¢ Equality of arms: R v Secretary of State for the Home Department ex p Quaquah

[2000] HRLR 325.
¢¢ Minimum delay: EDC v UK [1998] BCC 370.
¢¢ Duty to give reasons: English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409.
Article 8 and the respect for privacy and family life is also a key Convention right for
civil procedure. This is a qualified right and so allows the court to depart from it in
some instances. The case law on this Article suggests that often a balance is required
between the right to a fair trial in Article 6 and the right to privacy and family life in
Article 8. It would seem that Article 8 overrides Article 6 when it concerns children
but it is the other way round when it involves adults. There is a concern that covertly
shot video footage in personal injury claims – which often involves an invasion of an
individual’s privacy – will be shown, but only to a limited extent (see Rall v Hume [2001]
3 All ER). Thus 20 minutes’ worth of video footage may be shown, rather than several
hours of it. The effect of this Convention right has been limited by the House of Lords
in Wainwright v Home Office [2004] 2 AC 406.
The final article of relevance here is Article 10 and freedom of expression. The
relevance here appears two-fold. Firstly it is raised where someone asserts their
right to freedom of expression and the other party says that their reputation needs
protecting. Secondly it is used where a newspaper is restrained from publishing
articles that invade the claimant’s privacy. The claimant raises the right to privacy
under Article 8 whereas the newspaper raises its own Article 10 right. Here a balance
will be struck and the case law suggests that each case will turn on its own facts (see
Cream Holdings v Banerjee [2005] 1 AC 253 and Douglas v Hello! Ltd [2002] QB 967).
Activity 2.11
Read Sime 3.56–3.66 and produce a 200 word summary of the ‘Procedural Aspects on
Raising Human Rights Points’. Once you have done this, decide which of the following
scenarios would be the most likely to lead to a declaration of incompatibility.
a. A piece of legislation claims that once a child is taken into local authority care
the parent’s rights are automatically extinguished and the local authority
assumes all rights over the child for the purposes of that child’s future.
b. A piece of legislation remains silent on what happens to parental rights once a

child is taken into local authority care.
Summary
Critical to your understanding of how the civil process works will be the understanding
of how the overriding objective has worked in practice, its interplay with the Human
Rights Act 1998 and the growing jurisprudence of that legislation within the context
of civil justice. Dealing with cases justly will necessitate a balancing of competing
interests. Whilst principle must govern, it would appear the courts are also pragmatic
when the prospect of injustice emerges.
Activity 2.12
Read the following articles.
¢¢ Schmidt, F. ‘A critical analysis of recent developments in German law on civil

procedure’, Civil Justice Quarterly 28(2) 2009, p.273
¢¢ Meggit, G. and F. Aslam, ‘Civil justice reform in Hong Kong: a critical appraisal’,
Civil Justice Quarterly 28(1) 2009, p.111
Write a 250 word summary of the recent developments in German law on civil
procedure and civil justice reform in Hong Kong.
As this is a comprehension exercise no feedback is given.
Conclusion
Throughout this introduction to civil procedure it has been necessary to understand
why civil justice is relevant, what courts it is administered in and what principles guide
its operation. A combination of all three will serve as a useful guide as you begin to
grapple with the complex web of rules which allow the system to function. Remember,
though, the rules mean nothing if the overall aim is unclear.
Sample examination questions

Question 1 Critically evaluate the significance of the overriding objective on the
conduct of civil litigation.
Question 2 ‘The variety of cases that might be labelled “civil litigation” has ensured
that no single set of rules and procedures can provide an efficient system of justice
for all litigants.’
Discuss.
Advice on answering the questions

Question 1 The overriding objective is a key feature of the reformed civil process
under the Civil Procedure Rules (CPR). As rule 1.2 CPR states, the court must give effect
to the overriding objective when exercising any power or interpreting any rule.
That means that the whole of the rest of the CPR must be read subject to the aims
of the overriding objective. However, it would be dangerous to overstate how much
impact this will have. There are many discretions set out in the CPR (for example the
discretion to exclude evidence under rule 32). It is worth noting that these discretions
are, in most cases, triggered by the code of rules under the CPR and these rules are
clear in their meaning (however much rule 1.2(b) may influence their interpretation).
However, rule 1 does not simply state the overriding objective, it also places both
parties and the court itself under further obligations. Parties are under a duty to help
the court and the court has a duty of ‘active case management’. In effect this means
that (in contrast to the rule systems pre-dating the CPR) the court must ensure that
the case runs according to the wishes of the court as a neutral party to proceedings.
The duty of active case management, therefore, allows the court to control the
litigation timetable efficiently (rule 1.4 (f), (g), (i)–(l)) and to determine issues to be
litigated (rule 1.4(d)). These duties, combined with powers elsewhere in the CPR, allow
the court to ensure, so far as it is able, that litigation does not become the exclusive
preserve of the wealthy.
However, the overriding objective might be subject to criticism in that it does not offer
clear guidance as to which objective is the most important to be achieved. Although
‘dealing with cases justly’ is the core objective, aspects of the overriding objective are
given equal weight.
Question 2 It is certainly true that ‘civil litigation’ could encompass quite a range
of cases, from pseudo-criminal cases like Anti-Social Behaviour Order hearings and
actions under the Protection from Harassment Act 1997 on the one hand, to chancery
and commercial proceedings on the other. However, it is not true to say that the
Civil Procedure Rules (CPR) have sought to promote a ‘one size fits all’ model for civil
justice.
First of all, the CPR sit alongside a group of other sets of rules governing other types
of litigation. For example, the Family Proceedings Rules govern the conduct of cases
concerning children, matrimonial property and other ‘family law’ areas. Equally,
whatever the harmony of the CPR, cases are heard in different courts of different levels
of importance.
Equally (and somewhat confusingly), the CPR itself makes allowance for differing
cases. This is done particularly by using pre-action protocols that provide particular
guidance (and set particular expectations) for different types of cause of action (e.g.
medical negligence, landlord and tenant claims, etc). The protocols provide guidance
that is specific to the conduct of the particular type of litigation and, by doing so, saves
time and complexity at court. At the same time, civil procedure provides for cases of
different complexities and values to be dealt with on different ‘tracks’; these cases are
then subject to different sets of standard rules and directions.
A good answer to this question would therefore identify that the rules accommodate
a certain quantity of diversity. The question assumes that ‘efficiency’ cannot be
achieved in this way. In absolute terms this may be true if ‘efficiency’ is associated
with standardisation and inflexibility. However, arguably, what the CPR have achieved
is a considerable degree of consistency within a framework that permits particular
approaches in particular cases. Arguably this focus on specific cases provides a
different and more just concept of ‘efficiency’.
Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the

principles outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter
very difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to Need to Need to

move on revise study
first again
I can secure an introductory understanding of the civil   
justice process and how civil procedure fits into that
process.
I can imagine the impact that the civil justice system can   
have on individuals.
I can describe the purpose and scope of the Civil   

Procedure Rules.
I can comprehend the different courts used in the civil   

justice process.
I can evaluate the application of the overriding objective.   
I can consider the impact of the Human Rights Act 1998 on   

civil justice.
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done
2.1 The civil process at a glance  
2.2 Imagining civil justice  
2.3 Civil Procedure Rules  
2.4 The courts  
2.5 Overriding objective and human rights  

3 Preliminary matters
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.1 Funding litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.2 Pre-action protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.3 Alternative dispute resolution . . . . . . . . . . . . . . . . . . . . . . 30
3.4 Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Introduction
We have already indicated that much of the work in civil procedure is geared towards
a settlement of a dispute that has arisen, as opposed to a straightforward move to
trial. The cost of litigation is expensive and, in response to the concerns raised about
the financial cost of justice, there are now much clearer guidelines on how civil
litigation is funded. To mitigate the potentially large costs of litigation the process
has developed a series of pre-action protocols which help structure the response to
the claim in a way that can utilise alternative forms of dispute resolution. Another
method of limiting costs is the limitation period. Although limitation periods could
be seen as a way of limiting access to justice, it is argued that they are necessary to
ensure the swift resolution of alleged claims and to encourage disputes to be resolved
without having to rely on evidence that could become lost or antiquated as a result of
indefinite time limits. Parties are therefore encouraged to deal with claims promptly
so as to avoid later injustice.
Essential reading
You will need to read the following complete chapters, which are quite short.
¢¢ Sime, Chapters 4–7.
Learning outcomes
uu critically explore the different ways that civil litigation is funded

uu display a sound knowledge of how pre-action protocols work in a number of
areas of civil procedure
uu explain what the alternative forms of dispute resolution are and when they may
be effectively utilised
uu evaluate the current rules concerning the limitation defence and how limitation
periods operate in the civil process.
Civil and criminal procedure 3 Preliminary matters page 25
3.1 Funding litigation
Essential reading
¢¢ Sime, Chapter 4: ‘Funding litigation’.
¢¢ Kritzer, H. ‘Fee regimes and the cost of civil justice’, Civil Justice Quarterly 28(3)
2009, p.344
As well as being expensive to launch, civil litigation can also be expensive to conclude.
Due to the potential costs involved, solicitors are under a professional duty to advise
their clients on the likely cost of bringing matters to court and what will happen in the
event that the claimant loses. It is a general rule of thumb that if a claimant loses they
will have to pay their own costs and those of the other side (rule 44.3(2) CPR). Similarly,
if a claimant wins then the losing defendant will have to pay the costs of the claimant.
Given that much of these costs will actually be the cost of paying lawyers’ fees it is no
wonder that lawyers are expected to warn and explain to their clients how much any
litigation is likely to cost. The usual practice is for lawyers to seek payment on account
as the case proceeds. If the client has paid in ‘instalments’, he or she is not likely to be
quite so surprised when they are confronted by a very large bill at the end of the case.
Before costs can be incurred, a potential litigant is often concerned about whether a
lawyer will actually take on a case. If funds are tight then lawyers may not be willing to
take on the case without receiving a payment on account, however small. If the lawyer
refuses to take on the case then the claimant will have to seek external funds to pay
for their case or abandon their claim.
3.1.1 Duty to advise clients on funding

The Solicitors’ Costs Information and Client Care Code 1999 outlines the duties of a
solicitor to discuss with their client how, when and by what means the client will be
securing funding for their litigation. Having explained the position of how cases are
funded in the event of either a win or a loss, solicitors should ensure their clients
understand their options for funding. Whilst a breach of these rules will not render
an action illegal (Garbutt v Edwards [2006] 1 WLR 2907), they may mitigate any losses
incurred by the client at a later date. The following options should be considered.
uu Will the client be eligible for help under the Community Legal Service?
uu Should a conditional fee arrangement be considered as an option?
uu Are the client’s costs already covered by insurance?
uu Will the client’s liability for their own costs be covered by an employer or a trade
union or other organisation of which the client is a member?
uu Will pre-purchased insurance cover the other party’s costs or will after-the-event
insurance cover them?
3.1.2 Traditional retainer

Historically a client would be expected to pay a solicitor for their costs of conducting a
case at an agreed hourly rate. Arrangements were often notoriously lax and the client
simply relied upon the solicitor to charge a reasonable rate. If billing was irregular
then a client could expect a large bill at the end of the case. Rule 15 of the Solicitor’s
Practice Rules 1990 does require a client care letter to be sent to a client which
confirms who is dealing with their case and confirms any cost estimate. This is only
an estimate but it should be a ballpark figure which will inform the client of what sort
of monies are anticipated for the claim to be resolved. A scale of charges is used to
estimate what fees are likely. These scales will be used in accordance with who actually
does the work on the case. The time of senior solicitors is clearly more expensive than
junior solicitors and the scales reflect that. The fees also reflect regional variations. It is
usually the case that a high profile city firm will charge higher rates than a low profile
small town firm. The client care letter should include details of this hourly rate. Clients
will also have to pay for photocopying and any other fees incurred by the solicitors
during the course of the litigation. If the client understands and agrees with the
contents of the client care letter they should sign it and return it to the solicitor.
It is commonplace for those with motor or home insurance to pay a premium which
includes legal expenses insurance. This is often referred to as before-the-event
insurance. The insurers will cover all costs in relation to a claim in this instance but will
require the client’s lawyers to confirm that the case is a meritorious one and whether
continued litigation can be justified.
There is an additional form of insurance available called after-the-event (ATE)

insurance which is, as the title suggests, taken out to cover the other side’s costs.
Given the certainty of claim (it is taken out after the event) clearly the availability of
this form of insurance is limited and the premiums can be very expensive.
3.1.4 Champerty and maintenance

Sometimes a client simply has not funds to pay for a claim. If a solicitor believes that
such a claim has merit and there are no sources of funding available then they may
decide to defer any payment for the work done and only claim a fee if the litigation
is successful (‘no win, no fee‘). Any such claim is perilous because the solicitor may
find they ultimately receive no monies at all if the claim fails. That said, this practice is
common in the US where often an additional advantage is sought by the lawyer if they
win. This is usually in the form of a share of the damages.
Historically in England and Wales these agreements were treated as crimes or torts but
since the Criminal Law Act 1967 they are only contracts which are illegal and therefore
contrary to public policy. This is because they ‘savour of champerty and maintenance’.
Activity 3.1
Read the case of Giles v Thompson [1994] 1 AC 142 and in 50 words explain what is
meant by ‘savour of champerty and maintenance’.
3.1.5 Conditional fee agreements

Legal Aid for civil litigation was replaced by the Community Legal Service in 2000,
introduced by the Access to Justice Act 1999. With this change came a reduction in the
amount of money available for the resolution of civil disputes. To counter this, and to
avoid an increase in ‘champerty and maintenance’, parties are to be encouraged by
their solicitors to take out a conditional fee agreement (CFA). Under a CFA a solicitor
may agree that their client will only be liable to pay their own costs if the claim is
successful. If it is successful then the solicitor will be able to claim their usual rate
plus a success fee, which is a percentage uplift of the final costs awarded. This success
fee cannot be more than 100 per cent of the solicitor’s usual fees. Depending on the
insurance obtained, the other side’s costs may still be payable by the client.
Conditional fee agreements were authorised by s.58 Courts and Legal Services Act 1990
(CLSA) and since 1998 it has been possible to use them in all types of civil litigation
other than matrimonial cases. The case of Hodgson v Imperial Tobacco [1998] 1 WLR 1056
confirms that such arrangements cannot be attacked for maintenance and champerty.
A CFA must be in writing, must relate to a civil case (other than a matrimonial matter)
and the success fee cannot be for more than 100 per cent of the fees due. This does
leave the matter of the costs for the other side. An after-the-event insurance policy
may be available for the other side’s costs only and, along with any disbursements,† †
Disbursements are the sums
this may be the only costs that a client incurs. Once this has been agreed then the paid by the firm during the
solicitors must notify their opponents that they are acting under a CFA. Upon award course of litigation. These
the unsuccessful party will be expected to pay part of the uplift fee which refers to the may include experts’ fees and
risks of litigation. If there have been delays in payment of fees or expenses then these photocopying costs.
cannot be recovered by the successful party.
3.1.6 Community Legal Service

Since 2000 the public funding of litigation has been administered by the Legal Services
Commission. The funding for civil cases is provided by the Community Legal Service.
The courts have no power to provide litigants with such funding. Given that resources
are finite, public funds will only be used to support claims that most need assistance.
There are differing levels of service available under the Community Legal Service and
they depend on the needs of the individual case. The levels are:
uu legal help
uu help at court
uu legal representation
uu help with mediation
uu general family help
uu specific directions
uu excluded categories.
Activity 3.2
Read Sime 4.23–4.29 and place up to ten words under each heading to confirm what
each of these levels of service mean.
The Community Legal Service operates to offer financial support to those people
who cannot afford to litigate. This requires means testing set at a very low level and
realistically only the very poor are given full assistance. There are some limits here
and cases brought under the Children Act 1989 are not subject to any form of financial
eligibility. Those who are better off than the very poor, but are still not considered to
be sufficiently able to fund litigation, will be able to pay contributions towards the
cost of the legal services, usually by a one-off payment or by instalments.
The criteria for such limited funding are extensive. A Funding Code was produced by
the Legal Services Commission under s.8 Access to Justice Act 1999. This code considers
alternative means of funding or an alternative means of redress. If an application
is premature, another level of service is appropriate or if the request for funding is
unreasonable then funding maybe refused. If the case is trivial and allocated to the
small claims track then this is likely to defeat a claim for funding. If a CFA is suitable
then funding may be refused and if the prospects of the case are unclear then public
funding is unlikely. The Funding Code uses a series of categories to determine the
potential success rate of a case. If the case has an 80 per cent chance of success this
is deemed as very good. If it has a less than 50 per cent chance of success then this is
deemed poor. Cost benefit grounds can prevent access to funding. This means that
funding may be refused if the benefit to be gained does not justify the level of costs
likely to be incurred. The only time this is unlikely to be refused is if there is a wider
public interest or if it is of overwhelming importance to the client. Overwhelming
importance is likely to include an action will affect the life, liberty, physical safety or
housing of the applicant.
Guidelines on the merits of cases for the purposes of obtaining funding are usually
devised by barristers and can be found in Annexe E of the Code of Conduct of the Bar
of England and Wales. Under s.10(7) Access to Justice Act 1999 any money recovered
in a publicly-funded claim will automatically become the subject of an unwanted
charge (statutory charge) in favour of the state. This means the state will be able to
reimburse itself for any costs it has incurred. This liability only applies once the total
costs incurred by the publicly-funded client have been adjusted to reflect a deduction
of contributions paid by the publicly-funded client and any costs by the other side. The
statutory charge will be for the balance. The solicitor will have a duty to advise their
publicly-funded client of the effects of the statutory charge. This arrangement means
that any costs or damages recovered by a publicly-funded party are subject to the first
charge in favour of the Legal Services Commission and so only the publicly-funded
solicitor can give a valid discharge for the amount paid.
Sometimes funding, once granted by the Community Legal Service, will be revoked or
discharged.
uu Revocation can happen if there is misconduct on the part of the publicly-funded

client.
uu Discharge is usually where the client has died or the work has been completed.
If funding is revoked then the client is treated as if they never received public funding.
All costs to the Legal Services Commission would then be recoverable. If a client
receives public funding then they are, like their solicitor, obliged to comply with
the Access to Justice Act 1999. All parties are under a continuing duty to inform the
Commission of any change in circumstances which may affect previous entitlements. If
a litigant is publicly-funded they are generally protected from having to pay the costs
of the other side if they are unsuccessful.
Summary
Funding litigation is a tricky issue. Society demands that access to justice should not
be formally dependant on access to funds but substantively this is often the case.
Solicitors have a raft of duties that are owed to clients to ensure they are aware of the
pitfalls of litigation so that litigation is not entered into lightly. There are a number
of ways for clients to fund their litigation. One such way is via public funding but the
criteria for this sort of funding is heavily restricted and subject to particularly exacting
criteria. Once secured, public funding can be revoked.
3.2 Pre-action protocols
Essential reading
¢¢ Sime, Chapter 5: ‘Pre-action protocols’.
In accordance with the overall commitment of the civil process to resolving disputes
before a trial, it is normal practice in nearly every case for the claimant to enter into
correspondence with the defendant to give them a chance to negotiate a compromise
to the dispute. If successful, such a compromise will save both parties time and money
and will save the court the inconvenience of formally resolving the dispute. There are
exceptions to this general rule. If a limitation period is about to expire or an injunction
is sought then pre-action correspondence is actually unwise. For most cases the court
will expect the parties to make clear the allegations and answers to a claim and to co-
operate with all pre-action investigations. From a clear understanding of all the issues,
clear settlements can emerge which may result in a trial being avoided.
The tools by which these negotiations are framed are called pre-action protocols.
In order to secure some form of consistency in approach, the Department of
Constitutional Affairs (now the Ministry of Justice) published nine pre-action protocols
which cover a wide range of civil litigation areas. These protocols are: personal injury,
clinical negligence, disease and illness, rent arrears, housing disrepair, construction
and engineering, professional negligence, defamation and judicial review cases. The
court will expect parties to conform to the relevant pre-action protocol. Any departure
from its practices will require justification before the court.
Some cases are not covered by a pre-action protocol, for example commercial claims
and contractual claims. If there is no protocol then the court will expect the parties,
in accordance with the overriding objective, to act reasonably in the exchange of
documents and information. Parties will be expected to do all they can to avoid the
start of proceedings.
Activity 3.3
Read Sime 5.06–5.15 and provide 100 word summaries of the professional
negligence and personal injury pre-action protocols.
3.2.1 Experts
Expert testimony is clearly important in some civil disputes. The instruction of these
experts can vary according to the different protocols. Often parties will wish to
instruct an expert who will best support their case. Sometimes a protocol will demand
a joint instruction of an expert. This involves an expert being agreed on by the parties.
There is also the opportunity for joint selection of an expert. Here a claimant will give
the other party a list of the names of experts who they think are suitable to instruct.
Within 14 days the defendant can indicate any objections to any of these experts. If no
objection is forthcoming then a mutually acceptable expert will be instructed. If all
experts are rejected then the defendant will have to appoint their own experts. If this
rejection of the experts is deemed unreasonable by the court then the defendant may
face increased costs.
Sometimes a potential claimant will consult a solicitor very close to the end of the
limitation period. In such instances the solicitor will have to give the defendant
as much notice as is practicable. A stay of proceedings may be requested pending
completion of the steps required for any protocol. Alternatively the courts may be
asked to extend the time available for the protocol to be actioned.
3.2.2 Failure to comply

Sometimes both parties fail to comply with the requirements of a protocol. Sometimes
this will be defensible and the courts will see this. On other occasions the failure to
comply will not be defensible and if there has been a failure due to deliberate flouting
then a claimant may be justified to commence proceedings without following a
pre-action protocol. The parties may find themselves subject to penalties at a later
stage in the court process if they fail to comply with a protocol. If commencement of
proceedings has resulted from a failure to comply with a protocol when it would not
have done if the protocol had been followed then costs may be incurred as a result (see
Practice Direction Protocols, paragraph 2.3, quoted in Sime 5.22). The courts will not be
interested in minor infringements but will be concerned with major breaches.
3.2.3 Motor accidents

Under s.145 Road Traffic Act 1988 all drivers are required to obtain compulsory
insurance against liability in respect of death or bodily injury of any person, or in
respect of damage to property caused by the use of a vehicle on a road. As long as the
claimant gives notice to the defendant’s insurer within seven days then the insurer is
obliged to satisfy any judgment awarded.
Compulsory insurance will not assist if the motorist fails to stop at the scene of the
accident or the motorist is not insured. In these circumstances the Motor Insurers’
Bureau (MIB) provides compensation to be payable to the claimant. Two agreements
are in place with the MIB. Firstly the Motor Insurers’ Bureau (Compensation of
Victims of Untraced Drivers) Agreement 2003 applies to cases where someone is
killed or injured by an untraceable motorist. There is a three year limitation period
on the application for this form of compensation. Under the Motor Insurers’ Bureau
(Compensation of Drivers) Agreement 1999 a prescribed form must be followed. If the
form is followed then the MIB will pay the amount in full.
3.2.4 Pre-action Part 36 offers

If, upon receipt of the pre-action letter of claim, the proposed defendant sees that
there is merit in the claim then they should be encouraged by their solicitor to
make an offer to settle. Offers to settle can be by telephone, face to face meeting,
electronically or by letter. An offer made (usually by letter) which states that it is to
be ‘treated without prejudice save as to costs’ is also known as a Part 36 offer. It can
be referred to on the question of costs. A Part 36 offer must be made in writing and,
if accepted, it takes effect in accordance with the terms of the Part 36 offer. If the
Part 36 offer is not accepted then, if the judgment does not exceed the amount of
the offer, the claimant will be responsible for both sides’ costs from the expiry of the
relevant period. The moral of this story is that claimants should think very carefully
about rejecting a Part 36 offer as, if they win on liability but costs are more than the
offer, then they, the claimant, become liable for all costs. Proposed claimants can also
make Part 36 offers. These are usually in the form of ‘I would settle for £X’. If these are
rejected then the court may award costs with enhanced rates of interest.
Summary
In accordance with the commitment to the swift resolution of disputes, pre-action
protocols are used to guide the exchange of information and evidence prior to
proceedings being commenced. If these protocols are not followed then there may be
cost implications later in court proceedings. There are special rules in place for motor
accidents involving uninsured or untraceable drivers. Part 36 offers will be encouraged
as a further commitment to early settlement.
3.3 Alternative dispute resolution

Essential reading
¢¢ Sime, Chapter 6: ‘Alternative dispute resolution’.
¢¢ Brunsdon-Tully, M. ‘There is an A in ADR but does anyone know what it means

any more?’, Civil Justice Quarterly 28(2) 2009, p.218
As much of this chapter is interested in pre-action activity, it is not surprising that

some mention should be made here of the different forms of alternative dispute
resolution (ADR). Most ADR procedures can be accessed using a commercial dispute
resolution service. As litigation is seen as a last resort, ADR is usually recommended.
That said, the courts also recognise that ADR does not work if it is not agreed to by
all parties. Parties ignore the call to ADR at their peril because the courts will impose
a cost sanction on parties who refuse ADR unreasonably. If a remedy is required
which only a court can provide then the use of ADR is not really an option. Here the
context of the complaint will be key as it will be necessary to assess what outcome the
claimant requires.
Activity 3.4
Read Sime 6.03–6.08 and make a list of the five most important advantages and
disadvantages of the use of ADR.
3.3.1 Which type of ADR ?

There are many different forms of ADR. To help you understand which type of ADR suits
which dispute, the following activity may be useful.
Activity 3.5
Read Sime 6.09 and consider which form of ADR would you recommend for the
following problems.
a. Your neighbour refuses to cut down his high hedge.
b. You are a contractor carpenter and the builder you have carried out some work
for is refusing to pay, arguing they cannot afford your charges.
c. You are considering a claim against a commercial damp proofer but want to
check whether the damp is due to their defective building work or because of
your failure to clear your gutters.
d. You have had your refuse bin stolen and the local authority will only replace it
for a fee.
e. You are trying to sue a carriage company for failing to deliver your goods to an
overseas location. In your agreement it states that you will seek arbitration to
make a claim against the company.
3.3.2 The cost of ADR

Although ADR is often espoused as a cost-cutting measure it can still be an expensive
process. This will tend to depend on the nature of the dispute. If you are using
community mediation, for example, then this is usually free with only participant
expenses being paid. Commercial arbitration can be very expensive. The registration
fee alone can be as much as £2,500. These fees are understandable as you are asking
arbitrators (who are often qualified lawyers) to adjudicate on complex matters whilst
considering particularly detailed documentation in the process. Time spent by the
arbitrator is usually recouped at some stage via the fees paid.
Activity 3.6
Read Sime 6.13–6.83 and compile a 50 word summary of the key issues for the
process of each of the following.
uu Arbitration.
uu Adjudication in construction disputes.
uu Mediation and conciliation.
uu Early neutral evaluation.
uu Expert determination.
uu Grievance and complaints procedures.
uu Ombudsman.
3.3.3 Refusal to use ADR

As has already been suggested, much emphasis is placed upon individuals using ADR in
an attempt to avoid the need for going to trial (see Cowl v Plymouth City Council (2001)
The Times, 8 January 2002). Pre-action protocols dictate that, to avoid the court, ADR
must be considered. Once proceedings have commenced then the court has to, in
accordance with the overriding objective, deal with cases justly by encouraging the
use of ADR.
If one party adopts an unreasonable attitude towards ADR, either refusing to engage
in any discussion of avoiding court proceedings or being clearly obdurate in the actual
ADR process, the case law suggests that to withdraw from mediation shortly before
trial may have cost implications for the party who has withdrawn (Leicester Circuits
Ltd v Coates Industries plc [2003] EWCA Civ 333). Alternatively in Dunnett v Railtrack plc
[2002] 1 WLR 2434 it was seen that the promotion of ADR should not be at any cost
and the financial circumstances need to be considered alongside use of the court as
a forum for the resolution of disputes. If the ADR will cost a lot more than the court or
is more than was originally offered to settle the dispute then it needs to be clear why
ADR would be a better process to adopt.
If unreasonable refusal is alleged then the burden will be on the unsuccessful party to
disallow a successful party’s costs for unreasonably refusing to use ADR. The factors
to be considered here will include the nature and complexity of the dispute, the
merits of the case, the extent to which ADR was attempted and the costs and delays
involved in using ADR procedures. Each case will depend on its own facts. There is no
presumption against those who refuse ADR. If a party loses a case at trial but made a
Part 36 offer before trial which is more generous than the award at trial then they will
usually be awarded their costs from the point of the offer expiring.
Summary
Alternative dispute resolution procedures cover a very wide range of procedures in
response to a wide range of types of dispute. From arbitration through to mediation
the purpose and relevance of each procedure will largely depend on the nature of the
dispute. There is an expectation that parties will endeavour to use ADR and that only
when this has failed will they ask the court to resolve the dispute. Failure to engage
in ADR could have cost implications but this is not a presumption against those who
do not use ADR. The context of each case will be considered before such penalties are
applied.
3.4 Limitation
Essential reading
¢¢ Sime, Chapter 7: ‘Limitation’.
¢¢ Brown, S. ‘Limitation: still something of a lottery?’, Journal of Personal Injury Law

2 2008, p.176
The last of our preliminary issues involves a discussion of limitation periods. It has long
been a feature of the civil justice system that limitations would be imposed on the
commencing of proceedings. The reason for this is well-documented in civil cases but
is nicely summarised by Lord Griffiths in Donovan v Gwentoys Ltd [1990] 1 WLR 472 when
he said:
The primary purpose of the limitation period is to protect a defendant from the injustice
of having to face a stale claim, that is a claim with which he never expected to have to
deal.
The major concerns about bringing a claim so long after the alleged events occurred is
that evidence which may have been crucial may be unavailable as it has been lost. It is
also regarded as contrary to public policy to keep people perpetually at risk. Limitation
works as a procedural defence. The court will not apply this limitation defence of its
own volition. The defendant must raise it as a defence to a claim and apply to have a
claim struck out on the basis that there is an abuse of process. The only consequence
of a limitation period is that the cause of action remains but it cannot be enforced.
3.4.1 Limitation periods

These are generally laid down by the Limitation Act 1980 as amended (LA 1980). Other
statutory provisions also provide for limitation periods in certain types of civil action.
Activity 3.7
Read Sime 7.04 and consider what limitation period would be most likely to apply
to the following cases.
a. Your spouse is killed in an industrial action at work and you want to make a
claim for compensation.
b. You are claiming that a public authority has breached your human right to
privacy under Article 8 of the European Convention on Human Rights.
c. You want to bring an action against a local newspaper which alleges that you are
a corrupt business person.
d. You are a private landlord and you want to secure unpaid rent from your tenant.
e. You had an unnecessary limb amputation performed by a doctor who

mistakenly thought that you had gangrene.
Clearly this wide range of varying limitation periods can cause problems of
categorisation. Some actions have no limitations periods at all (such as fraudulent
breach of trust) whereas others have a very tight limitation period of three months
(unfair dismissal under Employment Rights Act 1996). It is interesting that personal
injuries or fatal accident cases involving an invasion of bodily integrity have a three
year limitation period whereas cases involving a violation of property (recovery of
land) have a 12 year limitation period. Clearly we wish personal injury cases to be
resolved as quickly as possible but does that mean that land recovery should be able
to be stale for longer than a personal injury case? The rationale is that you may find
it more difficult to recover land than demonstrate personal injury and it is worth
remembering why the limitation periods are in place: to avoid keeping people
perpetually at risk of civil suit. No such limitations are in place in criminal proceedings.
Categorisation problems do occur in trust and equity claims (Nelson v Rye [1996] 1 WLR
1378) and also in personal injury cases (Letang v Cooper [1965] 1 QB 232 and Stubbings v
Webb [1993] 2 AC 498). The well known case of Factortame is relevant here as a claim for
damages for infringement of a European Communtiy right amounts to a breach of a
statutory duty and so is subject to a six year limitation period (R v Secretary of State for
Transport, ex parte Factortame Ltd (No 7) [2007] 1 WLR 942).
3.4.2 Accrual of the cause of action

The limitation period will run from accrual, which is effectively when all the necessary
elements for the cause of action are in existence. This can mean that, if the claimant is
attempting to recover land then the point at which the adverse possession begins is
the moment from which time will run. When a contract has been breached then time
will run from the point at which breach takes place. When the claim concerns a breach
of an implied term then the period will run from when delivery of the goods takes
place. If claim is as to title of the goods then time will run from the date of the contract
when title was due to pass. In tort claims the time will run from the date when the
damage is sustained. In personal injury cases time will either run from the date the
cause of action accrued or, if later, the claimant’s date of knowledge.
Activity 3.8
Read the cases of Ali v Courtaulds Textiles Ltd (1999) The Times, 28 May 1999 and
Copeland v Smith [2000] 1 WLR 1371 and read s.14(1) Limitation Act 1980. Explain in
100 words how the term ‘date of knowledge’ has been construed by the courts in
case law.
3.4.3 Calculating the limitation period

Time will run from the day after the day on which the cause of action arose. This
is because parts of a day are generally ignored. If the claim involves a child then
time will not run until the child has reached his or her eighteenth birthday (s.28
LA 1980). Cases involving someone of unsound mind as a result of an accident are
not subject to the limitation until they have recovered. If a claim is based on fraud
then the period begins when the claimant discovers the fraud or could reasonably
be expected to have discovered it (s.32(1)(a) LA 1980). If a fact has been deliberately
concealed then time will not run until that concealment has been discovered (s.32(1)
(b) LA 1980). If a claim is based around the consequences of a mistake then it will not
run until the mistake is or could have reasonably been discovered (s.32(1)(1) LA 1980).
There are special statutory provisions in place to deal with the problem of actions
based around latent damage which would otherwise be time-barred (s.14A Latent
Damage Act 1986).
3.4.4 Discretionary extension of limitation periods

In certain types of civil action there does exist a discretionary power to extend the
limitation periods. In judicial review proceedings the three month time limit can be
extended if there is a good reason to do so. In defamation cases the usual one year
limitation period can be extended if it appears to the court that it is equitable for the
action to proceed (s.5 Defamation Act 1996).
Activity 3.9
Read s.33 LA 1980 and the case of Thompson v Brown [1981] 1 WLR 744. Then explain,
in 100 words how s.33 works in practice, with reference to Lord Diplock’s judgment
in Thompson v Brown.
Summary
Limitation periods operate to prevent stale claims being brought against defendants
and to prevent people from being kept perpetually at risk of a civil action against
them. There are different statutory provisions to apply to different types of civil
actions but the court will be able to extend the limitation period in certain types of
cases if it appears just and reasonable in the circumstances to do so. Personal injury
claims would appear to raise the most important procedural issues here due to the
tight limitation period of three years and the fact that the law has had to be more
flexible when it comes to latent damage.

Question 1 Critically evaluate the extent to which reforms in the last decade have
enhanced access to civil justice for persons of limited means.
Question 2 Callum and Bernadette were injured in a car accident in December

1997. Callum was 12 (he was born in March 1985). Bernadette was 19 and was put
into a coma by the injuries she suffered. At the time, the accident was assumed to
be Bernadette’s fault. However, in August 2000 a TV programme revealed that the
make of car Bernadette had been driving had been produced with a defect that
made it suddenly veer out of control in a rare number of cases. Callum’s parents
sought details of the manufacture of the car from the manufacturer, Donka Cars
Ltd. Donka refused to provide any such details until May 2004. Callum brought
an action for damages for personal injury against Donka Cars Ltd in April 2007.
Bernadette’s representatives have still not brought an action as she remains in a
coma.
Advise Donka Cars Ltd.

Question 1 The question invites not only identification of recent reforms that have
increased access to justice but, in inviting critical evaluation, opens the possibility that
an answer will consider whether such reforms go far enough – or whether they go too
far.
While the question is quite broad and could permit of a number of areas of analysis,
a good answer would focus chiefly on the funding of litigation, changes in civil
procedure and the increased use of alternative dispute resolution (ADR). All of these
areas have been the subject of ‘reforms in the last decade’ under the Community Legal
Service Act 2000 and the Civil Procedure Rules 1998.
Critical analysis of changes in the funding of litigation would point out that the
old Legal Aid system has been replaced by the Community Legal Service and by
conditional fee arrangements, which are intended to reduce the costs of litigation.
Payment for litigation under the latter system does not come from the winning
litigant but from the losing one as part of costs awards. Both systems, however,
might be criticised as maintaining disincentives to litigate. Parties may not feel that
they have a sufficiently good case with which to proceed. On the other hand, strong
critical analysis could argue that unlimited access to the courts is not an unqualified
social good. Potential litigants should have an arguable case before they proceed and
systems that place some costs risks on a potential litigant will focus that litigant’s
mind on the strength of the case to be pursued.
At the same time, changes under the Civil Procedure Rules have ensured that parties
do not fritter away resources on litigation. Pre-action protocols are intended to
provide information quickly and efficiently and therefore to reduce the expense
and time (which is generally also likely to cause expense) of trial. Equally, ‘active
case management’, exercised under the provisions of the overriding objective,
ensures that the court uses its powers to ensure that cases are dealt with in a way
that is proportionate to both the issues and the financial position of the parties (rule
1.2(c) CPR) and keeps parties on an equal footing (rule 1.2(e)). This latter provision is
important in ensuring that wealthier parties cannot necessarily increase the costs in
a case in the hope of pricing less well off parties out of litigation. Further, the duties of
‘active case management’ include the duty to encourage parties to engage in ADR.
ADR is widely thought of as a means of saving costs by offering less formal (and
therefore less expensive) solutions. Clearly, where ADR procedures work, this cost
saving is likely. However, ADR does generally entail the absence of a power to impose
solutions in the way a court can impose a solution at trial. This means that if a party
is not interested in an ADR solution, expense could have been wasted and the parties
still have to resort to the expense of litigation.
Overall, the reformed system of civil procedure could not be said so much to have
reduced the costs of litigation as to have equipped litigants with devices to simplify
(and therefore reduce the cost of) litigation or, at least, to ensure that such costs are
less likely to spiral.
Question 2 This question concerns limitation of actions.
As Callum has brought an action, the question is whether his action is time-barred.
Note that if he has brought an action which is time-barred, the action is not
automatically struck out; rather the limitation point must be raised in Donka’s defence
(PD 16, paragraph 13.1).
Under s.11(4) of the Limitation Act 1980, the time period for limitation runs from the
date of accrual of the cause of action or from the date of knowledge, whichever is
later. The date of knowledge is specified under s.14. Section 14(1)(b) specifies that the
claimant must know that injury was attributable to a negligent act or omission and
s.14(1)(c) specifies that the identity of the defendant is a fact that must be known in
order for the date of knowledge to be set. Although Bernadette was suspected as a
defendant, the reference in the 1980 Act is to the defendant against whom an action is
brought. As the defects in the car were unknown until the TV programme revealed this
fact in August 2000, the court will have regard to what the claimants might reasonably
have been expected to know before then under s.14(3) as interpreted in Adams v
Bracknell Forest Borough Council [2005] 1 AC 76. This will depend on whether it was
reasonable to expect the claimants (or Callum’s parents) to suspect the car rather than
Bernadette’s driving.
It is possible, therefore, that the date of knowledge will not arise until the claimants
knew, or could have known, of Donka’s potential responsibility. It might also be
argued that the basis of any cause of action (the defects in the car) was concealed
and therefore the limitation period would not start until the concealment had been
discovered (arguably 2000 when the TV documentary exposes the fact) (s.32(1)(b)
Limitation Act 1980). This operates in a similar way to s.14 but would require proof
of active and deliberate concealment according to Brocklesbury v Armitage [2002]
1 WLR 598. It might be possible to argue that the concealment has not in fact been
discovered until Donka revealed the truth about the car in May 2004 (in which case
Callum is ‘in time’ to bring his action). However, it seems more likely that the court
would consider Callum to have been ‘on notice’ of the problems from 2000 and
therefore the limitation period will have expired in August 2003. This is particularly
so because a party could obtain evidence using pre-action protocols and, if such a
route was unfruitful, could commence litigation to obtain discovery of the required
information.
Callum was a minor at the time of the accident and so the three year limitation period
under s.11 Limitation Act 1980 would not apply until he reached his eighteenth year in
March 2003 (s.28).
The Latent Damage Act 1986 would not apply because it is not the damage (i.e. the
injury for which compensation is being sought) which is latent but the cause of action.
Bernadette is still able to commence an action for the injuries she has suffered. The
three year limitation period would not start until she had recovered enough to be able
to instruct lawyers (s.28 Limitation Act 1980).
Reflect and review



first again
I can critically explore the different ways that civil   

litigation is funded.
I can display a sound knowledge of how pre-action   

protocols work in a number of areas of civil procedure.
I can explain what the alternative forms of dispute   

resolution are and when they may be effectively
utilised.
I can evaluate the current rules concerning the   
limitation defence and how limitation periods operate
in the civil process.
revise?
Must Revision
revise done
3.1 Funding litigation  
3.2 Pre-action protocols  
3.3 Alternative dispute resolution  
3.4 Limitation  
Notes
4 Commencement of proceedings and responding
to a claim
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 Issuing and serving proceedings . . . . . . . . . . . . . . . . . . . . . 41
4.2 Renewal of process . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.3 Service outside the jurisdiction . . . . . . . . . . . . . . . . . . . . . . 45
4.4 Responding to a claim . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4.5 Default judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4.6 Statements of case . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Introduction
When all else fails the claimant may decide to proceed with a case against the
defendant. ADR may not have worked and the claimant may still believe that the court
is the only effective forum for resolution of the dispute. Commencing proceedings
can be a costly exercise and is subject to particular requirements in terms of form and
substance. Proceedings need to be issued and served and there is a renewal process
which is available, within limits, when the limitation period has lapsed. Sometimes
service will need to take place outside of the jurisdiction and the rules concerning this
process can be quite complex. Once a claim has been issued the defendant can either
respond or a default judgment can be entered where a defendant fails to defend a
claim. If the claim is defended then a statement of case will follow and will need to be
presented in a particular form before the court.
Essential reading
Learning outcomes
uu display a sound knowledge of how proceedings are issued, served and renewed
uu critically explore how service takes place outside of the jurisdiction
uu explain what happens when a defendant to a claim responds and when he or
she fails to respond
uu critically consider how statements of case are compiled and presented.
Civil and criminal procedure 4 Commencement of proceedings and responding to a claim page 41
4.1 Issuing and serving proceedings
Essential reading
¢¢ Sime, Chapter 8: ‘Issuing and serving proceedings’.
The standard practice for commencing civil proceedings is a claim form. For this
purpose a form N1 is required.† Once this form has been issued the court will seal †
See http://www.justclaim.
the form with its official seal. This is an important step because it stops time running co.uk/index.php?page=n1
for the purposes of the limitation period and starts time running for service. A claim
form must usually be served within four months of it being issued. It will be the
responsibility of the claimant’s solicitor to prepare the claim form N1 before issue. The
form N1 is a standard form suitable for most claims.
The claim form will set out the names and addresses of the respective parties. It will also
provide a concise statement of the nature of the claim with a reference to the remedy
sought. Finally it will contain a statement of value where the claim has some monetary
value. This statement of value will provide a figure for the amount sought. This is
particularly important in actions for debt. If damages are being sought then the
amount should be mentioned for track allocation purposes but if the amount cannot
yet be stated, this must be clearly stated on the form. Sometimes, especially if the case
is to be heard in the High Court, the form must be endorsed with a statement as to the
starting point of the claim. This is called a jurisdictional endorsement.
Activity 4.1
Read the sample claim form at Sime, Figure 8.2 and explain:
a. the value of the claim
b. what sort of business the claimant is involved in
c. under what heading the statement ‘I am duly authorised by the Claimant to sign
this statement’ appears.
4.1.1 Particulars of claim and the issuing of the claim

Particulars of claim is the term used to describe the formal written statement which
sets out the nature of the claimant’s case, together with the remedy or relief sought
from the defendant. It can either appear within the claim form or as a separate
document. If it is separate it must be served with the claim form or within 14 days after
service of the form.
Once completed this form will be copied so that the solicitor has a record and there
are sufficient copies for the court and the defendant. The forms for the court and the
defendant are then sent to the court office, with a prescribed fee, and a covering letter
asking for the claim to be issued. Often solicitors will attend the court personally to
ensure the claim is registered efficiently. It is important to remember that issuing a
claim is not the same as bringing a claim for limitation purposes. The court issues the
claim when it seals it. The court will allocate a claim number to the case and then a
notice of issue form is sent to the claimant’s solicitor which provides a record of all court
identifying information about the claim.
It is possible for most claims of up to £100,000 to be issued electronically using a

scheme called ‘Money Claim Online’. These claims are issued by a central office at
Northampton County Court by sending the court service an online claim form and
paying the fee electronically. The particulars of claim must be included on the online
claim form and must be restricted in length. This is a very useful process for simple
claims. Service will then be effected by the court and this is presumed to have happened
on the fifth calendar day after issue. Defendants can then respond electronically or in
hard copy. If no electronic or hard copy response is received then judgment can be
entered in default by filing an electronic request.
4.1.2 Service
Essential reading
¢¢ Zuckerman, A. ‘New provisions for service: a great improvement threatened by
discretion’, Civil Justice Quarterly 28(1) 2009, p.1
Service on a defendant in England and Wales must take place within four months of
the date of issue. This means that a claim form is strictly valid for four months and one
day. If the defendant is served outside of the jurisdiction then this becomes six months
from the point the form is issued. The term ‘service’ means serving the other side with
documents. The term ‘filing’ means providing the court with documents. Service will
usually take place at the defendant’s last known address but the rules depend on the
status of the defendant.
On 1 October 2008 the 47th update of the CPR substituted rule 6 with a new rule 6. This
happened after the 2008 edition of Sime was published so the rule numbers given in
the textbook may be out of date. Go to www.justice.gov.uk/civil/procrules_fin/ to see
the CPR with all the latest updates incorporated.
Activity 4.2
Read Table 8.1 in Sime and answer the following.
a. Where would you serve a defendant who was the proprietor of his or her
business?
b. Where would you serve a company?
c. Where would you serve an individual?
For the purposes of service it is possible for a claim form to be served to the
defendant’s solicitors if they are authorised to accept service (rule 6.13(2) CPR). The
‘last known address’ is often the place for service to be actioned. This has led to a
number of cases deciding where the last known address is. It has been held that a
house owned by another but occasionally used by the defendant when he visited
England was not the defendant’s last known address (Chellaram v Chellaram (No 2)
[2002] 3 All ER 17). This is last known to the claimant rather than the defendant and
the defendant may have moved on since (Collier v Williams [2006] 1 WLR 1945). If the
defendant is abroad at the time of service it will still be deemed to have been effective
(City and County Properties Ltd v Kamali [2007] 1 WLR 1219).
Service will involve the delivery of documents to the defendant. These documents
will include the completed claim form N1, the particulars of claim (which may follow)
and a response pack. This response pack will include acknowledgement of service,
admission, defence and counterclaim. This service is available in a variety of forms and
will depend on the action being sought. The methods of service are outlined in rule
6.3(1) CPR. They include personal service, post, leaving the documents at the address
for service, document exchange (DX) and electronic methods of service.
Personal service
Personal service is effected when documents are left with the defendant. Once
mention has been made of the nature of the documents then an unco-operative
defendant will still have been served if documents are left near him or her. Personal
service to a company requires a person within a senior position to be served (PD 6,
paragraph 6.2). Personal service on partners sued in the name of the partnership will
be effected by leaving the claim form with a person or partner who has control of the
company.
Postal service
Under rule 6.3(1)(b) CPR it is clear that any postal delivery method that involves next
day delivery (such as first class post) will be permitted. If slower post is used then
postal service will not have taken place. It is possible to leave documents at an address
though the letter box or leave them at a reception desk. The DX system can also be
used. This is a system used by solicitors and barristers for the exchange of documents.
Documents sent this way will usually be received the next business day.
Electronic methods
Service can also take place using electronic methods. This is usually by fax or email. For
this to be acceptable the defendant or his or her representatives must have made it
clear, in writing, that this is an acceptable method of service. If acceptance is obtained
then service through these methods will be deemed acceptable and no hard copy
need follow.
Sometimes a contract will contain a term providing that proceedings can be served
in a particular way and sometimes, if there is mutual agreement, an ad hoc agreement
on service will be effective (Kenneth Allsion Ltd v AE Limehouse Ltd [1992] 2 AC 105 as
affirmed in Cranfield v Bridgegrove Ltd [2003] 1 WLR 2441). Service will generally be
undertaken by the court but there are some exceptions. These usually apply to cases
for the Commercial Court rather than for general litigation.
If, upon enquiry, it becomes clear that service cannot take place within the jurisdiction,
then service outside the jurisdiction will have to be attempted.
As long as one of the prescribed methods of service have been followed then rule
6.14 CPR deems documents to have been served on the day stated. If an actual date
of receipt can be demonstrated this will rebut the deemed date of receipt but for the
most part these deemed dates will be followed.
Activity 4.3
Read Table 8.2 in Sime and identify when the following methods of service will have
been deemed to be valid.
a. Document exchange (DX).
b. Fax.
c. Personal service before 5pm on a business day.
4.1.3 Variants of service

If service is deemed irregular because a party has started a claim on the wrong form or
has relied on the wrong statutory provision they are likely to be granted permission to
make good their mistake. If it becomes clear that the claimant has missed the period
of validity then rule 7.6 CPR will be applied and the claimant will try to rectify their
late or defective service. These are usually rejected. There is one clear exception here
– an order can be made which dispenses with service under rule 6.16 CPR if there are
exceptional circumstances.
Service will sometimes not be possible using one of the methods outlined. It may be
very difficult to find the defendant and he or she may be deliberately evading service.
The claimant can ask the court to allow service by an alternative method, but this
can only work prospectively. This means that the claimant must seek permission to
use an alternative method in the future. They cannot use an alternative method to
correct previously irregular service. To apply for alternative service there must be
written evidence which states the reason why alternative service is sought and what
steps have been taken to secure service thus far. These alternatives could include a
newspaper advertisement or service to another address which the defendant may
frequent (Abbey National plc v Frost [1999] 1 WLR 1080).
According to Godwin v Swindon Borough Council [2002] 1 WLR 997 an application for an
order dispensing with service can be made after the event. Service can be dispensed
with under rule 6.16 CPR. In Home Office v Dorgan [2003] 11 WLR 2441 dispensation was
sought after a fax was sent at 4.03pm on the final day of service. Dispensation can also
be requested, in exceptional circumstances, where some of the relevant documents
are missing (for example an original English claim form where the German translation
was issued in Phillips v Symes (No 3) [2008] 1 WLR 180).
4.1.4 Filing
Service is where documents are served on the defendant. Filing is where documents
are filed at court. Most important documents which are used in litigation will need to
be filed at court. The court maintains its own copies of files. Files have to be delivered
and this will have been deemed to have taken place even if the court is closed and
they are placed in the court’s letter box. Filing is possible electronically but only where
a fee is not payable.
Summary
Once a claim form has been completed it must be served on the defendant. Service
can take many forms but must be actioned within prescribed time limits to be valid.
Depending on the method of service a deemed date of delivery will be specified.
Variants to this process are possible but only in exceptional circumstances. The court
will require its own copies of a case file and this is termed filing at court.
4.2 Renewal of process
Essential reading
¢¢ Sime, Chapter 9: ‘Renewal of process’.
Once a claim has been issued a period of validity begins, normally lasting for four
months, during which time service can take place. The claimant is entitled to use the
full limitation and the full validity period, although it may not be wise to do so. The
result is that a defendant may be advised of a claim some significant time after the
limitation period has come to an end. At the point of service the defendant is now on
formal notification that legal proceedings have been actioned. An extension may be
granted to extend the validity period although this will be rare. The court will usually
be reminded that it is contrary to public policy to allow what are called ‘stale’ claims
to proceed. This was confirmed by Megaw J in Heaven v Road and Rail Wagons Ltd [1965]
2 QB 355 at 366:
it is unfair to defendants, and it makes the administration of justice more uncertain, if

litigation is delayed so that witnesses die or cannot be traced; or memories fade; and
defendants are entitled to know definitely, at the expiry of some defined time, whether or
not they are to be pursued in the courts.
4.2.1 Period of validity and the power to renew

The rules outlining the validity period are contained in rule 7.5 CPR. They confirm that
once a claim has been issued it must be served on the defendant and this service must
be within four months after the date of issue. This period will be six months from the
date of issue if service is to take place outside of the jurisdiction. This means that a
claim form served on the day it is issued will then not include that day for calculating
the period of validity. This means that a claim form issued in England and Wales on 5
January would still be valid on 5 May but would have expired on 6 May.
Under rule 7.6 CPR it is possible for the claimant to apply for an order to extend the
validity period. This must usually be done during the validity period. If they apply after
this period then the court will only make such an order if the court has been unable
to serve the defendant or the claimant has taken all reasonable steps to serve the
claim form but has been unsuccessful. Any request to extend must be supported by
evidence. If an extension is granted then the defendant can only object after the claim
has been issued. If this objection is successful, then the order granting the extension
will be set aside.
Activity 4.4
Read the case of Hashtroodi v Hancock [2004] 1 WLR 3206 and clarify the guiding
principles for renewal of process during the period of validity.
Understandably it is even more difficult to obtain an extension once the validity period
has passed, as it should have been sought at an earlier stage. The criteria under which
the court will grant an extension after the validity period has passed are prescribed in
rule 7.6(3) CPR. This is most likely to be used successfully in cases where the claimant
(for good reasons) believed that the court was effecting service and then discovered
that it was not (see Amerada Hess v Rome (2000) The Times, 15 March 2000).
If claims are made in respect of cargo then special rules apply under the Hague-Visby
Rules, Article III, rule 6 and there is no power to extend the validity period. If claims
are being made to multiple defendants then all defendants must be served during
the period of validity. If proceedings have been stayed, then the validity period will
continue to run while no proceedings on the claim can take place.
As extensions are sought because the defendant has not been served it is necessary for
these to be made without notice to the defendant. They are usually made without an
oral hearing. All evidence must be disclosed by the claimant. The claimant must also
provide evidence of why and how service has been sought within the validity period.
The claimant must also state how long he or she requires for the extension and why
this extension is required for that duration. Defendants can appeal to have the order
set aside but can only do so once they have acknowledged service. If the defendant
has attempted to evade service the fact this time period has been extended is not
likely to entice them to reappear.
Summary
Once the claim has been issued a period of validity begins during which service must
take place. This period of validity can be extended during the validity period or after
the validity period has been concluded – but the court will need compelling evidence
to do so, since public policy has always tried to defeat what it terms ‘stale’ claims.
4.3 Service outside the jurisdiction
Essential reading
¢¢ Sime, Chapter 10: ‘Service outside the jurisdiction’.
Service will normally take place in this jurisdiction (that is, in England and Wales).
At common law it was usually the case that service could only take place against a
defendant while he or she was in England or Wales. The Common Law Procedure
Act 1852 did create a discretionary power to allow proceedings against a defendant
outside the jurisdiction. This power is now governed by rule 6.30 CPR and is often
referred to as the common law rules.
4.3.1 Statutory rules

Since s.2 Civil Jurisdiction and Judgments Act 1982 (CJJA) was introduced this gave
effect to the Brussels Convention on Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters Act 1968. This is often referred to as the Brussels
Convention and it laid down a general rule that a defendant who was domiciled in a
contracting state must be sued in the courts of that state. The contracting states to
the Brussels Convention were the Member States of the EU. This convention has since
received a titular change so that it is now known as the Jurisdiction Regulation. As of 1
July 2007 the Regulation covers:
uu Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland,

France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden
and the UK.
A parallel Convention known as the Lugano Convention also exists which covers
Iceland, Norway and Switzerland. The UK is also treated as separate parts (England,
Scotland, Wales and Northern Ireland) and a separate Modified Convention, set out
in Schedule 4 of the CJJA 1982 as substituted by SI 2001/3929, Schedule 2, allocates

jurisdiction between the courts of each part. The key is to locate where the defendant
is and then to check which regulation or convention applies. If the defendant is
domiciled in the EU then the general rule is that they must be sued in the country
where they are domiciled.
If a claim could be brought in the courts of more than one country then, to avoid
possible inconsistency in approach, the English court has a power to stay its
proceedings or to grant injunctions to restrain foreign proceedings. Most courts in
countries within the Jurisdiction Regulation will adopt the same approach of staying
or restraining.
4.3.2 Service and submission of foreign defendants

According to common law rules a foreign defendant will be amenable to the
jurisdiction of the courts in England and Wales if process is served upon them whilst
they are in this jurisdiction. For example a process was served on a foreign defendant
while they were visiting this country to attend the Ascot Races (Maharanee Seethadevi
Gaekwar of Baroda v Wildenstein [1972] 2 QB 283). This is no longer the situation for
cases which are governed by the Jurisdiction Regulation. It is possible for a claim form
to be marked ‘Not to be served out of jurisdiction’. Here it will usually be the case that
the intention is to effect service on the defendant during a temporary visit or to secure
the defendant’s agreement to service within the jurisdiction. When this is done, the
period of validity is four months rather than the six months that is the general rule for
service outside of the jurisdiction.
It is possible for a defendant to submit to the jurisdiction of the courts of this country.
It may be that there is some advantage in litigating in England and the defendant can
agree to English proceedings being served at a solicitor’s office in England. It may also
be the case that service takes place outside the jurisdiction using a domestic claim
form and the defendant does not object to the defects in service. If the defendant
does not explicitly submit to the jurisdiction (that is, if there is no express submission),
then submission to the jurisdiction will be implied from the defendant’s conduct. If
the defendant is refusing to submit he or she must acknowledge service within 14
days, disputing the jurisdiction of the court. If the defendant does not contest the
jurisdiction but either instructs a solicitor to accept service or contests the merits of
any case then this will be deemed submission.
4.3.3 Cases outside the general rules

There are special rules in place for some types of actions. The justification for these
special rules is often that, as they affect rights which are granted in rem,† they should †
An action in rem may
be heard in the court which is best placed to apply the laws regarding those rights. include an action against a
ship or other property. It is
Under the common law rules there are special rules for the following.
contrasted with an action in
uu Land disputes. If a claim is founded on a dispute as to title or possession of land personam which is brought
it must be brought in the courts of the country where the land is situated (British against a legal person.
South Africa Co v Companhia de Mocambique [1893] AC602).
uu Intellectual property. If a claim is founded on the validity or infringement of

foreign copyrights, trade marks and patents then they must be brought in the
country where they are registered (Tyburn Productions Ltd v Conan Doyle [1991]
Ch 75).
uu Divorce, nullity and judicial separation. Under s.5(2) Domicile and Matrimonial
Proceedings Act 1973 the courts in England have jurisdiction over proceedings for
divorce, nullity and judicial separation if either of the parties to the marriage, at the
time proceedings are commenced, is domiciled in England or has been habitually
resident in England for the previous year. Service abroad can take place for other
family proceedings although a translation must be provided if the respondent does
not understand English.
uu Insolvency proceedings. Service outside the jurisdiction of any document

in proceedings under the Insolvency Act 1986 or the Insolvency Rules 1986 is
governed by Insolvency Rules 1986 (SI 1986/1925) rule 12.12. This means that
insolvency proceedings are for the most part outside the scope of the Jurisdiction
Regulation.
The Jurisdiction Regulation Article 22 allocates exclusive jurisdiction regardless of

the domicile of the parties. Under Article 25 the courts of that contracting state are
required to declare that they have no jurisdiction. This applies in the following five
types of case.
1. Land. Jurisdiction lies wherever the property is situated. (Article 22(1))
2. Companies and associations. Whenever there is a legal challenge to the validity of

the constitution, nullity or dissolution of a company or association then this action
must be brought in the country where the relevant body has its ‘seat’. Its seat is
where the company or association was incorporated or formed or where its central
organisation is managed and controlled. (Article 22(2))
3. Public registers. If there is a dispute as to an entry in a public register then the

courts of the state where the register is kept must be used. (Article 22(3))
4. Intellectual property. As with the common law rules, the courts of the state where
the intellectual property was registered will have exclusive jurisdiction.
(Article 22(4))
5. Enforcement of judgments. Where a judgment is to be enforced then the courts of

the state with this task will have exclusive jurisdiction. (Article 22(5))
4.3.4 Jurisdiction under the Jurisdiction Regulation

Article 293 of the EC Treaty gives effect to the Jurisdiction Regulation. The aim of this
Regulation is to determine the international jurisdiction of the courts of the Member
States, to facilitate recognition and to introduce a simple procedure for securing the
international enforcement of judgments. The main rule of the Jurisdiction Regulation
is that a claim must be brought in the courts of the country where the defendant is
domiciled. There are exceptions to this rule. Where the Jurisdiction Regulation applies
to a defendant who is outside the jurisdiction then English proceedings may be issued
and served without permission of the court. Clearly it is possible for the courts of
more than one country to have jurisdiction over such a case. There are provisions to
decline jurisdiction or stay subsequent claims (as discussed in 4.3.1 above). Questions
of interpretation of the Jurisdiction Regulation may be referred to the European
Court of Justice (ECJ). The ECJ has often referred to the Jurisdiction Regulation having a
community meaning. Uncovering this meaning has proved a tricky task.
The scope of the Jurisdiction Regulation is governed by Article 1, where it states that
it applies to civil and commercial proceedings whatever the nature of the court.
There are some exclusions which are considered by Sime at 10.31. The general rule
that jurisdiction will be based on where the defendant is domiciled does need
elaboration. Domicile is defined under ss.41–46 CJJA 1982. It states that domicile is
where a defendant is resident in the UK and the nature of their residence means that
they have a substantial connection with the UK. To acquire a greater understanding of
‘substantial connection’ see Cherney v Deripsaka [2007] 2 All ER (Comm) 785.
Although Article 2 of the Jurisdiction Regulation does lay down the general rule
concerning domicile, the claimant often has the choice of suing in another country.
Under Article 3 persons who are domiciled in one Member State can be sued in the
courts of another Member State if certain rules are followed. The basic rule seems to
be that under rule 6.19 CPR the courts of England and Wales will have jurisdiction to
hear and determine a claim if:
uu the case falls within Articles 5–24 of the Jurisdiction Regulation
uu there are no other proceedings pending on the same case in another Member
State
uu the defendant is domiciled in a Member State.
This final requirement will be dispensed with where exclusive jurisdiction has been
fixed or the requirement has been modified so that any party can be domiciled in a
Member State.
Activity 4.5
Read Sime 10.39–10.72 and write a 350 word summary which explains how service
works under the Jurisdiction Regulation for contractual claims, maintenance
claims, tort claims, branches, agencies and establishment disputes, trusts claims
and salvage and freight disputes.
4.3.5 Additional matters under the Jurisdiction Regulation

†
The Jurisdiction Regulation has particular provisions for co-defendants (Article 6(1)). Lis pendens (Latin) = ‘suit
Counterclaims and additional claims under Part 20 are also dealt with in Articles 6(2) pending’. It means that
and 6(3). The rule of lis pendens† exists under Article 27. This rule means that if the same another action referring to
cause of action between the same parties has already been brought in courts of other the property concerned is in
Member States then the first court where the action was brought (seised) will take existence.
priority and all subsequent courts will decline jurisdiction in its favour. This procedure
is used to avoid parallel proceedings and the confusion that would follow.
Article 28 deals with related actions (which is different to Article 27 which deals
with the same actions). Under Article 28 the subsequent court to the first seised
may stay the proceedings depending on how far it is felt the hearing would result in
irreconcilable judgments. Interim relief can be granted under this scheme (s.25(1) CJJA
1982).
Where proceedings are served outside of the jurisdiction then service may be effected
without the permission of the court under rule 6.32–6.34 CPR. The claim form will
contain a statement of grounds as to why the claimant is serving the form outside the
jurisdiction. A statement that no parallel proceedings are running at the same time
must also be made.
4.3.6 Assumed jurisdiction

If service is to be effected outside of the Jurisdiction Regulation and the Brussels and
Lugano Conventions then permission must be obtained from the English court before
service is permitted. The grounds for granting permission are found in rule 6.36 CPR.
If this permission is not obtained then the claim form will be stamped with a ‘not for
service out of the jurisdiction’ note. The rules governing the court’s view on applications
for permission in these special cases are found in Seanconsar Far East Ltd v Bank Markazi
Jomhouri Islami Iran [1994] 1 AC 438 as amended by rule 6.37. If granted, service will be
without notice and the court may decide to refuse service outside of jurisdiction on
the basis of what is termed forum non conveniens. This means the court has a general
discretion (even if grounds are met and the application for permission has been followed)
to refuse service outside jurisdiction where the court has identified the forum in which
the case can be most suitably tried in the interests of all the parties and for the ends
of justice. (See Spillada Maritime Corporation v Cansulex Ltd [1987] AC 460 for details
of how this discretion can work. See also Sime 10.99–10.101 and 10.111–10.118 for more
information.)
4.3.7 Service abroad and judgment in default

The general rule for service abroad is that it must be effected in accordance with the
law of the country where it is sought to effect service. In practice this can be done
informally by the client under local law or through diplomatic channels. The Hague
Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil
or Commercial Matters (1965) provides that each contracting state (there are 52
contracting states) has designated a central authority to receive and transmit requests
for service from other contracting states. Here a claim form may be issued using this
central authority (this is the diplomatic channel).
The Hague Convention gives way to the Service Regulation within the EU which covers
all EU Member States except for Denmark. Under the Service Regulation claimants
will need to file the claim and translations at the Foreign Process Department in the
Member States. They will pass the documents to the corresponding Foreign Process
Department, which will then serve the documents on the defendants. This should take
no more than a month.
Once a claim is received within the EU a defendant has 21 days to acknowledge service
or file a defence. If the defendant acknowledges service first then he or she has a total
of 35 days from the date of service in which to file a defence. If the defendant is outside
of the EU then he or she will have even longer. This time is usually set in the practice
direction and will depend on the remoteness of the jurisdiction where service is
sought.
In cases of assumed jurisdiction, judgment in default will proceed as long as the

enhanced period for response has lapsed. Where service has been effected outside
the jurisdiction, without permission under the Jurisdiction Regulation, then judgment
in default can only be entered under application via Part 12 CPR. Where service was
effected under the Service Regulation, default judgment cannot be entered until it is
clear that service took place.
4.3.8 Injunction to restrain foreign proceedings

It is rare – but possible – for an English court to grant an injunction which restrains the
institution or continuance of foreign proceedings. This only happens where it is in the
interests of justice to do so. See Société Nationale Industrielle Aérospatiale v Lee Kui Jak
[1987] AC 871 to see how such injunctions may be granted.
Self assessment questions

State briefly what jurisdictions are covered by:
1. the Brussels Convention on Jurisdiction
2. the Lugano Convention
3. the Modified Convention set out in Schedule 4 of the CJJA 1982.
Summary
Service outside of the jurisdiction gives rise to a complex web of rules which are
followed according to which jurisdiction applies. Much of this web has been simplified
by the rules for service under the Jurisdiction Regulation but complexities remain
when service is to be effected outside of the EU. It is best to remember that within the
EU the Jurisdiction Regulation applies and outside of the EU rule 6.36 CPR applies, but
only with the permission of the court. If service takes place outside the jurisdiction
then the response time allowed is longer. If no response is forthcoming then judgment
in default can be entered as long as permission to serve was sought. If it was not
sought under the Jurisdiction Regulation then permission to enter the judgment in
default must be granted.
4.4 Responding to a claim
Essential reading
¢¢ Sime, Chapter 11: ‘Responding to a claim’.
Once a defendant have been served notice of proceedings against them they must,
if they decide to contest the case, fill in an acknowledgement of service and/or file a
defence. The defence to a claim becomes part of the case management system. The
court will send the parties an allocation questionnaire so that a judge can allocate the
case to a case management track and then give directions as to how the case should
be conducted in the future. If a defendant does nothing then it is likely that a default
judgment (see section 4.5 below) will be entered against them. It may be that the
defendant does not have any answer to the claim but wishes to secure more time to
pay. It may also be the case that the defendant disputes the jurisdiction of the court.
In all of these cases the defendant will be responding to a claim whether actively or
passively.
4.4.1 Time limitations and purpose of acknowledgement

Once the particulars of a claim have been served the defendant has 14 days to:
uu file or serve an admission (rule 10.3(1) CPR)
uu file a defence, which may be combined with a counterclaim (rule 14.2(1))
uu file an acknowledgement of service (rule 15.4).
This means that the defendant need not take immediate action if the particulars of
claim to a claim form are to follow. However if the particulars of claim do arrive with
the claim form then they must act swiftly.
If a defendant is filing an admission then they should fill in the correct admission
form in the response pack and admit the claim. The forms do permit the defendant to
admit part or all of the claim. If they admit the whole claim then they are advised to
pay within 14 days. This will limit their liability for the claimant’s costs. If they choose
to leave it for a longer period they can apply to pay in instalments. To request this
option, they will have to disclose significant financial and personal circumstances;
the claimant will then consider the offer. If accepted then a judgment will be entered
for payment by instalments. If rejected the court will decide the rate and period of
payment.
If a defendant is filing a defence then he or she should fill in the correct form in the
response pack – which can include notification of a counterclaim. If defendants so
choose, they may draft a defence using ordinary paper. This is usually undertaken by
solicitors who like to set out the case with full facts. The form in the response pack
may not be large enough to accommodate this detail and so normal paper is used.
If a defendant is acknowledging service then this is usually because they are not yet
able to file a defence during the 14 day period or they are going to dispute the court’s
jurisdiction. If they acknowledge service they are then, under rule 15.4(1)(b) CPR,
given a further 14 days for filing a defence. A form is available in the response pack
for acknowledgement of service and once this has been filed the court must notify
the claimant in writing. This will usually be done by sending a copy of the form to the
claimant’s solicitor.
It is possible for the parties to agree to extend the time for serving a defence but
any agreement can only be for a further 28 days (rule 15.5(1) CPR). The court must
be notified of this agreement in writing. This restricted period enables the court to
maintain a hold on the litigation and to fulfil its case management obligations under
the overriding objective.
4.4.2 Disputing service or the court’s jurisdiction

The defendant may decide to dispute service or the court’s jurisdiction. They do this
by completing the acknowledgement of service form. They then ‘buy themselves’
a further 14 days within which they must issue an application notice seeking an
order which will declare that the court has no jurisdiction over the case or should
not exercise any jurisdiction it may have. This 14 day period can be extended at the
court’s discretion. If the defendant is successful it may be that the claim is set aside
or proceedings are stayed. If unsuccessful, the defendant will be given 14 days from
the date of the hearing to file a second acknowledgement after which the claim will
proceed in the usual way.
4.4.3 Transfer
There exist automatic transfer provisions so that defended claims can be transferred
to the defendant’s home court. If a case has been allocated to the wrong court then
the court may order a transfer to the correct court. This will usually be decided on the
basis of the financial value of the claim, the simplicity or complexity of the case facts
and whether it would be more convenient to try the case in a different court.
Activity 4.6
Read Sime 11.17–11.20 and explain, in a 50 word summary, what the rules of transfer
are for specialist claims.
Summary
The usual process (which may differ for specialist claims) is that a defendant must
actively respond to a claim by acknowledging service or filing a defence which may
include details of a counterclaim. This response must be done within 14 days of service
of the particulars of claim. An acknowledgement of service will extend the period for
responding to 28 days and these periods can be further extended by a court order in
exceptional circumstances. Proceedings can be transferred to a more appropriate
court if the circumstances demand such an action. A passive response (that is, no
response to the claim at all) may result in a default judgment being entered by the
claimant.
4.5 Default judgment
Essential reading
¢¢ Sime, Chapter 12: ‘Default judgment’.
Once the period for responding to a claim has passed and the defendant has failed to
defend a claim then a judgment in default may be entered. This produces a judgment
in favour of the claimant without holding a trial. The process exists to prevent
unnecessary expenditure of time, money and court resources in protracted claims
which are, after all, undefended. Much civil litigation is debt recovery and once service
has been effective this will usually either prompt payment by the defendant or the
defendant may simply choose to ignore the claim. When this latter event takes place
and the response period has lapsed, the claimant may then think about entering a
summary judgment.
This process is quite straightforward and simply involves the claimant returning
a request form to the court asking for judgment to be entered. A member of the
administrative team at the court will then action this and a judgment will be entered.
This judgment will then bind the defendant and can be enforced in the usual way. The
result is the same as it would be if the defendant had lost at a contested trial.
4.5.1 When and how?

An ordinary non-specialist claim (Part 7 CPR) which has been served with the
particulars of claim will provide the defendant 14 days in which to respond. If this time
lapses with no response then the claimant can seek default judgment. If the defendant
has acknowledged service but has then failed to file a defence, 28 days must pass
from service of the particulars of claim before a default judgment can be entered. In
specialist claims† the time limit is 14 days. The claimant should enter judgment shortly †
Specialist claims include
after filing has expired and within six months of the period during which a defence Admiralty proceedings,
could have been filed. arbitration proceeding,
possession claims and
Some cases are excluded from the rules for default judgment. These include Part 8
contentious probate
claims, which are particular types of proceedings specified by statute. These would proceedings.
include children’s settlements where proceedings have not been commenced. Some
Part 7 claims will be excluded (although this is not the norm) and the types of claims
that will be excluded are found in rule 12.2 CPR and PD 12. They include arbitration
proceedings and this exclusion acts as a bar to obtaining default judgment. It is also
possible that some steps taken by the defendant will prevent the claimant from
entering judgment in default. These steps are set out in rule 12.3(3) CPR.
Activity 4.7
Read Sime 12.13–12.19 and compile a 150 word summary to explain how default
judgment can be entered.
4.5.2 Final judgment and judgment for an amount to be decided

The first and best judgment obtainable in a money claim is final judgment, where the
defendant will be required to pay a set amount of money, usually within 14 days. This is
a relatively quick and straightforward way for the claimant to recover moneys owed. In
these cases liquidated demands† may have been made which means rent must be paid †
Liquidated demands are
or a loan must be settled. claims such as the price of
goods or services, for rent or
Cases where damages need to be decided by the court can include an assessment by
for the repayment of a loan or
the courts of the value of goods or how much interest is to be awarded. This second
bank overdraft.
form of judgment is often referred to as an interlocutory judgment where liability
has been established but the amounts of money involved and how it is to be paid has
yet to be decided. In these cases unliquidated damages are for sums not yet decided.
These require judicial judgment and usually apply to personal injury cases or for the
unsatisfactory quality of goods sold. These judgments will usually be delivered at a
disposal hearing where the amounts payable will be decided. The threshold is £5,000
and if less than this is sought then the case will be allocated to the small claims track
for resolution. If it is for more than £5,000 then the court will still decide at the disposal
hearing but the ordinary rules on costs will apply. In cases involving damages the
hearing is usually listed before masters and district judges. That said, the court can
direct which court will deal with the case.
4.5.3 Setting aside default judgments

Under rules 13.2 and 13.3 CPR it is possible for the court to set aside or vary a judgment
in default. The court may decide to do this of their own volition or an application may
be made by the defendant for the judgment to be set aside. Under rule 13.2 there are
limited cases where the court must set aside a default judgment. These are usually
where there has been some procedural error which means the judgment should never
have been entered. (See Credit Agricole Indosuez v Unicof Ltd (2003) LTL 4.2.03). Under
rule 13.3 the court may set aside the default judgment if there is a particular reason
for doing so or it appears the defendant has a real prospect of successfully defending
the claim. These principles are considered in Thorn plc v MacDonald [1999] CPLR 660.
Requiring a defendant to show a defence with a real prospect of success has been held
not to infringe Article 6(1) of the European Convention on Human Rights (see Akram v
Adam [2005] 1 WLR 2762).
Where service was effected outside of the jurisdiction then the court does have the
discretion to relieve the defendant from the effect of a default judgment in specified
circumstances (see annex to PD 6B). If the court decides to set aside a default
judgment then it may do so on terms. These terms might include the claimant’s
costs to date or a specified sum has to be paid into court before the final amount is
determined.
Summary
Once the period for responding to a claim has come to an end a judgment in default
may be entered. The rules for entering a default judgment differ according to the type
of claim involved. Questions concerning quantum of damages will be resolved by the
courts as allocated. A default judgment will be set aside if it was entered incorrectly. A
default judgment may be set aside if there is a good reason or a strong prospect of the
defendant successfully defending the claim. Conditions can be attached to the setting
aside of a default judgment.
4.6 Statements of case
Essential reading
¢¢ Sime, Chapter 13: ‘Statements of case’.
The early stage of civil proceedings which have been commenced by ordinary claim
form will be dominated by the exchange of statement of case by the claimant and,
possibly, by the defendant. These are formal documents which will then be used in
litigation so that it is clear what each party has said about the case. These statements
of case have three functions.
1. They inform the party on the other side of the case that will have to be met.
2. They define the issues which need to be decided.
3. They provide the judge who is dealing with the case with a concise statement of
what the case is about.
4.6.1 Statement of case

‘Statement of case’ is defined by the CPR to include the following documents.
a. The claim form.
b. Particulars of claim (where this document is not included in a claim form).
c. Defence.
d. Counterclaim.
e. Additional claims under Part 20.
f. Reply to defence.
g. Any further information given in relation to the above.
Activity 4.8
Read Sime 13.05–13.35 and provide 20 words for each of (a), (b), (c), (d) and (f) to
explain what the key features of each are for the purposes of recording this detail
for the statement of case.
4.6.2 Subsequent statements

Statements of case after the defence or counterclaim are very rare. They are termed
rejoinders with a surrejoinder and a rebutter following. The court can order a claim
to continue without any further statements of case. This may be useful in cases which
involve points of law which do not raise issues of fact. Once the defence has been filed
the case management process will be triggered. This sees the court intervene and
send out track allocation questionnaires. The court may also make case management
directions. These are considered in Chapter 5.
When using statements of case at trial it is clear that the statement can be used to
define the issues in a claim. When doing this a party is quite within his or her rights
to not prove matters which could be relevant to the other side but are not contained
within that party’s own statement of case. In fact it would not be proper for a judge to
give judgment relying on issues which are not in the statement of case. That said, the
courts have, on occasion, taken a relaxed view about any defects in the statements
of case (see Lipkin Gorman v Karpnale Ltd [1989] 1 WLR 1340). In recent years, though,
the courts have stressed the importance of a properly stated case and defence for
trial (see Hockaday v South West Durham Health Authority [1994] PIQR P275). Given the
growing importance of the written statement in civil proceedings, where it is now
preferred over oral testimony, the accuracy and completeness of such statements
would appear more important than ever. Some amendments can be made at trial but
we will see in Chapter 5 that these are subject to strict limits.
Summary
Statements of case are an important feature of the civil trial process as this
documentation will identify the issues to be considered and will be the focus for case
management and the trial itself. The substance of these statements will vary according
to each claim but the form will follow a certain sequence. This will enable the court
to proceed with a collection of written documents which have been obtained with
consistency and in accordance with the CPR. Too much rigidity may deny the court the
opportunity to proceed to deal with cases justly. Too much flexibility and the court’s
time will be wasted working out what type of document is required and in what form.
The CPR ensures a balance is aimed for – and in most cases achieved.
Conclusion
This chapter has involved a consideration of how proceedings are issued and served
within this jurisdiction. Renewal of process is possible in exceptional circumstances.
Service can take place outside of the jurisdiction but this usually involves following
some very complex rules, depending on whether service is within the EU or outside
it. Once served, the defendant can acknowledge service or file a defence and/or a
counterclaim. If they fail to respond then the claimant can apply to enter a judgment
in default. Much of the documentation at this stage contains the statements of case.
These are crucial for the civil process because of its reliance on written documents.

Question 1 Take the date for the purposes of this question to be 29 April.
On 1 January, Milo filed claims against:
uu Niall, the sole owner of a shop, Staples and Such, under which name he traded.
The shop supplied Milo with office supplies and the claim relates to defective
products.
uu Olive, his accountant, and her firm, the Stenson Partnership, in respective of her
negligent work.
Knowing that an action was about to be commenced, Niall closed Staples and Such
and sold the business and its trading name to Quentin, who opened a shop under
the same name at a different address. Niall then left the country. The claim form
was sent to the new address by second class post on 13 April. On 28 April, Quentin
returns the letter including the claim form to Milo with a note stating that he has
only just taken over the business. Milo has just learnt that Niall will return to the
country on 3 May. It is not possible to serve upon him until he returns.
The claim against Olivia is taken in person to the offices of the Stenson Partnership
on 19 April. No partners are available so the claim form is left with the receptionist.
Advise Milo.
Question 2 Robert, a car dealer, issues two claims, one against Sylvia and the other
against Tom. Both are properly served, sent by first class post on Tuesday 14 April.
Against Sylvia, Robert claims £12,500 plus interest at 8% per day from the date of
the claim, this being the amount Sylvia promised to pay for the car she bought from
Robert. Against Tom, Robert claims £14,000, being the profit Robert has lost on
other cars sales as a result of Tom’s negligence. The particulars of claim allege that
Tom carried out work at Robert’s car dealership negligently and so caused it to shut
for a week. The £14,000 is based on the projected number of car sales that were lost
during the week minus the amounts saved (in expenses such as lighting and staff
costs, etc.).
Sylvia does not respond to the claim. Tom files an acknowledgment of service
on 20 April but has taken no further action. On Thursday, 7 May, Robert obtains a
default judgment against both Sylvia and Tom and is awarded £12,500 and £14,000
respectively plus the interest amount in each case.
Sylvia was away on a two month tour of South America when the claim was served
and has only just returned (it is currently Monday, 14 May). She denies that she
was liable to pay for the car as it was so defective that she was entitled to (and
did in fact) reject the car. She alleges that she is therefore not obliged to pay any
amount at all. Tom does not admit that he was negligent but has only just been
able to consult his lawyer. He also argues that the amount Robert is claiming is an
exaggeration of his actual loss.
Advise Robert.

Question 1 This answer covers a number of issues, although note that the bulk of
them apply to Niall and his business. A well-constructed answer will not duplicate the
main points in respect of the claim against Olive. Note also that there is a deemed date
to the question. This is to help you focus on the various time periods and limits that
apply in litigation. Remember, in such cases, to look at what is about to happen and
advise on that as much as what has happened already.
The first point to note is that there is a four month time period in which the claim
needs to be served (rule 7.5 CPR). This means that service must be affected by 1 May.
Clearly the question is set at a point that invites consideration of the rules relating to
renewal of process. However, in each case it is necessary to determine whether there
has been valid service within the period of validity.
Although the shop has a name of its own, Niall is the owner and so service must be
upon him – it is him who is being sued. An attempt has been made to deliver the claim
by post and so, under rule 6.3(1)(b), must be made by next day delivery. This would
mean that service in this case would be irregular but could be validated under rule
3.10.
However, there is also the issue of the address to which the claim form has been
posted. Under rule 6.9, service against the proprietor of a business must be at the
place of business or the last known place of business or the last known residence of
the proprietor. Unfortunately, this is not the case here – simply sending the letter to
the current location of the trading name is not the same. The various rules relating to
service at the last known address would not apply here. That would be the address at
which Niall had conducted the business. Therefore service cannot be ‘deemed’ under
rule 6.14 and there has been no service on Niall at this point.
Service against Olivia is also defective. There was an attempt at personal service. When
this is the case, it is necessary (under rule 6.5(3)(b)) to leave the claim form with a
partner or ‘person having control or management of the partnership business’. The
receptionist is not going to be such a person.
Where service is defective, there are a number of further steps that might be taken.
It will be necessary for the irregular service to be remedied under rule 3.10. Milo
would have to show that all reasonable steps have been taken to remedy the failures
(Nanglegyan v Royal Free Hampstead NHS Trust [2002] 1 WLR 1043). However if the period
of validity has passed (and it will in two days’ time), then the court will require an
application under rule 7.6. As it is not stated that Milo has done anything to remedy
service in this situation, it is unlikely that an application under rule 3.10 would
succeed. In Niall’s case, the claim form has been returned and so another attempt at
service could be made.
Alternative service under rule 6.15 is not possible as service has been attempted.
Alternative service is only possible if the evasion of service (or other difficulty) prevents
service at all, rather than causing defective service. For this reason it is also not possible
for alternative service to be ordered retrospectively (Elmes v Hygrade Food Products plc
[2001] EWCA Civ 121). It will not be ordered if one of the usual methods of service would
achieve the effect or if service could be achieved with an extension of time under rule 7.6
(Paragon Group Ltd v Burnell [1991] Ch 498). The court could make an order dispensing
with service under rule 6.16 where service has been defective in a minor way (Godwin v
Swindon Borough Council [2002] 1 WLR 997). This order will be made after defective service.
The effect is that the claim may continue despite the irregularity of service. It may be that
an application could be made on this basis in respect of both claims. The difficulty is that,
in Niall’s case, rather than a minor irregularity there has been a failure to effect service on
Niall at all. It is submitted that even Niall’s attempts at evasion will not overcome problems
with service of this scale. Again the sorts of situations in which the courts have dispensed
with service involved minor defects in claims that did get served properly under rule 6.3.
This is not the case in Olivia’s case either. It is worth noting, however, that it is not certain
that the court would not dispense with service in either case; it is just unlikely.
In the case of Niall, the claim form could possibly be served on him after he has
returned. However, this will be outside of the four month period of validity for service
in the jurisdiction. If service were to be achieved outside the jurisdiction, the period
of validity would be six months. However, to serve upon him when he does return, the
period of validity will have to be extended under rule 7.6. The application will have to
be made within the period (that is, by 1 May) under rule 7.6(2)(a).
Question 2 This question concerns default judgments.
There is no suggestion in this case that service was defective, although you should
note that a question about default judgment and defective service is quite possible
(the failure of a party to issue a defence to a claim will often be the result of the claim
not having been properly served on them).
Service has been effected by post. The deemed date of service will be 16 April (being
the second day after postage) under rule 6.14 CPR. Once service has been deemed,
the time limit for acknowledging and responding to the claim begins. A party
receiving a claim form may admit the claim (rule 10.3), file an acknowledgement of
service (rule 15.4) or file a defence (rule 14.2) within 14 days of that date. Tom did file
an acknowledgment within time but this gives him 14 days to issue a defence (rule
15.4(1)(b)), which expired on 4 May. Therefore a default judgment was permissible, in
principle, against both parties.
The claim against Sylvia is for a liquidated sum, as it is the price to be paid under the
contract. This means that the court could enter final judgment so long as Robert has
followed the correct procedure. The court may make an order for a ‘specified sum’
under rule 12.5. There seems little doubt that this includes a ‘liquidated sum’ like the
price to be paid under a contract. Therefore the default judgment seems valid. Sylvia
could, however, seek to have the judgment set aside under rule 13. On the facts of the
question as presented, Sylvia would not have a basis for alleging that the judgment
must be set aside under rule 13.2. Instead she would have to convince the court to
exercise its discretion under rule 13.3 on the grounds that she has ‘a real prospect of
successfully defending the claim’ or where there is some other ‘good reason… why the
defendant should be allowed to defend the claim.’ As Sylvia has raised a defence the
first of these criteria might be established. However the court would in fact look at the
validity of the defence and Sylvia would need to provide some evidence to support her
defence (in other words the court will not simply accept her assertion that she does
have a defence). The court could impose costs against Sylvia or other conditions upon
setting aside the default judgment under rule 3.1(3).
In Tom’s case it could be argued that the court did not have the power to enter a
default judgment (see Sime, 12.22) because the amount was not liquidated. However,
rule 12.5 makes reference to a ‘specified sum’ rather than a ‘liquidated sum’. An
unliquidated sum is one that requires the courts to exercise judgment but this might
fall within the meaning of ‘specified’ if, at the point of the default judgment, the
claimant has specified a particular amount of damages. It is therefore not yet clear
whether the court has a power to enter a default judgment in respect of a specified
unliquidated sum. If the court had no power to do so, Tom could appeal the grant of
the order. Technically he would not seek an order that the default judgment be set
aside on the ground that judgment had been wrongly entered (rule 13.2) because this
rule only applies under specified circumstances.
Reflect and review



move on revise first study again
I can display a sound knowledge of how proceedings   

are issued, served and renewed.
I can critically explore how service takes place outside   

of the jurisdiction.
I can explain what happens when a defendant to a   

claim responds and when he or she fails to respond.
I can critically consider how the statements of case are   

compiled and presented.
revise?
Must Revision
revise done
4.1 Issuing and serving proceedings  
4.2 Renewal of process  
4.3 Service outside the jurisdiction  
4.4 Responding to a claim  
4.5 Default judgment  
4.6 Statements of case  

5 Case management, additional claims and interim
applications
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
5.1 Track allocation and case management . . . . . . . . . . . . . . . . . . 61
5.2 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
5.3 Requests for further information . . . . . . . . . . . . . . . . . . . . . 66
5.4 Parties and joinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
5.5 Additional claims under Part 20 . . . . . . . . . . . . . . . . . . . . . 70
5.6 Part 8 claims and petitions . . . . . . . . . . . . . . . . . . . . . . . . 71
5.7 Interim applications . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Introduction
One of the crucial ways for the overriding objective to be fulfilled is for a case to be
managed effectively. This is a judicial task and has generated a sea change of judicial
culture in that, in the civil process, as opposed to the criminal process, judges take
on a far more active role at a far earlier stage to attempt to deal with cases justly. This
case management process involves track allocation, where the nature of the case
will determine what court it is heard in and what remedies are available in light of the
sums of monies and the complexity of issues involved.
Once this allocation has taken place it can be subject to amendment and this process
of amendment involves a number of key issues. If statements received are viewed
to be incomplete by the other side then requests for further information may take
place. It is crucial that the drafting of claims is done carefully and the rules concerning
who the parties to the claim are, and how any claimants or defendants may be
joined as parties to a claim, are rigorous in their application. There are complex rules
governing additional claims under Parts 8 and 20 of the Civil Procedure Rules (CPR) and
sometimes it will be necessary to seek orders and directions from the court in advance
of the final substantive hearing of a case. These rules all operate in an attempt to
ensure that all cases are dealt with justly and in accordance with the CPR.
Essential reading
¢¢ Sime, Chapters 14–20, 25–27.
Learning outcomes
uu describe how the track allocation scheme works

uu evaluate the way in which amendments to a case can be made, along with how
requests for information function within the civil process
uu critically explore the rules concerning parties and joinders
uu explain the function of additional claims under Part 20 and Part 8 claims and
petitions and how they operate
uu consider the purpose of interim applications and how they can be applied for.
Civil and criminal procedure 5 Case management, additional claims and interim applications page 61
5.1 Track allocation and case management
Essential reading
¢¢ Sime, Chapter 14: ‘Track allocation and case management’.
Case management is one of the key methods of ensuring that civil litigation aspires
to meet the overriding objective. It is crucial to understand how case management
works. Central to the process is what is called the ‘track’ system. Defended claims are
assigned to one of three tracks, according to their monetary value and the complexity
of the case. The smallest and simplest cases are normally allocated to the ‘small claims
track’. If a case is likely to last one day or less, the monetary value of the case ranges
from £5,000 to £25,000 (£15,000 for claims begun before April 2009) and there are no
particularly complex issues to consider then the case is usually allocated to the ‘fast
track’. If the case is complex and has to be listed for longer than a day or it is a claim
worth more than £25,000, then it is likely to be allocated to the ‘multi-track’.
5.1.1 The small claims track
Essential reading
¢¢ Sime, Chapter 25: ‘Small claims track’.
The overriding objective identifies that cases should be dealt with proportionately.
As a result the importance of the case, along with the amount at stake, has to be
considered. Broadly speaking, claims which have a value not exceeding £5,000 will
be allocated to the small claims track. There are some notable exceptions here, in
accordance with the CPR, which include interim remedies and standard disclosure of
documents. Expert testimony is heavily restricted and requests for information can
only be made with the permission of the court. Part 36 offers are not made in cases
allocated to the small claims track.
When a case has been allocated to the small claims track, the court will usually give
a set of standard directions. These deal with matters of disclosure, notice of the
hearing date and its length and inform the parties that experts will only be allowed
to testify with the court’s express permission. Sometimes these standard directions
will not be enough and the court may decide to formulate special directions. If all the
parties agree then a small claim can be determined by the district judge on the papers
without a hearing (rule 27.10 CPR). Consent will be essential to avoid infringing Article 6
of the ECHR.
If a case goes to a final hearing in the small claims track then it will usually be dealt
with by a county court district judge and conducted in the judge’s rooms rather than
in one of the court rooms. There are severe costs restrictions to small claims cases.
These restrictions are there for the benefit of both parties and include a ceiling on
experts’ fees, if appropriate, and no more than £50 awarded for loss of earnings. These
restrictions can be altered by the judge if either party has behaved unreasonably. If a
party does not attend the final hearing then they can apply to have the order set aside
in their absence and for a rehearing to take place. This must be done within 14 days
of the absent party being notified of the judgment and there must be a compelling
reason to rehear the case.
5.1.2 Fast track
Essential reading
¢¢ Sime, Chapter 26: ‘Fast track’.
The fast track is used to deal with the majority of cases with a value of between
£5,000 and £25,000. It is also responsible for dealing with non-monetary claims for
injunctions, specific performance and declarations. Sime refers to the fast track as
‘providing a no frills procedure for medium size cases’. This means that the cases do
not require the complex consideration of a multi-track case but, equally, are more
significant in monetary value than those in the small claims track. Once the claim
has been allocated to the fast track then directions will be given which set out the
timetable that needs to be followed. This usually means a fixed trial date within 30
weeks of the track allocation.
Once allocated to the fast track, the court will provide case management directions
for the case and set up a timetable for the process through to trial. Under rules 28.2(2)
and 28.3 CPR the directions will deal with disclosure of documents, service of witness
statements, expert evidence and the fixing of a date for trial or a window for the trial
period. Standard fast track directions provide for the parties to file completed pre-trial
checklists no later than the specified dates which have been set out in the timetable.
Activity 5.1
Read Sime 26.13 and consult the standard fast track timetable. Make a note of which
week the step for proceedings takes place and the time limit applied.
As this is in tabular form there is no feedback. The activity is there so that you can
familiarise yourself with how cases are dealt with in the fast track.
Once the timetable has been set then the parties will be encouraged to try and secure
agreed suitable directions which are then submitted to the court with the allocation
questionnaire (see 5.1.5 below). If a party wishes to vary the date fixed for returning the
allocation questionnaire then they will have to apply to the court and demonstrate
why the change should be made. This variation is unlikely if it involves the loss of a trial
date, although decisions to alter the trial date or not will be made in accordance with
Once the pre-trial checklists have been received, the court will fix the date for trial, or
confirm the date if this has already been fixed, and then issue any further directions.
The standard direction will involve the provision of trial bundles and case summaries.
Once the case gets to trial this will usually take place in the county court or civil trial
centre. Costs in fast track cases are dealt with in a similar way to multi-track cases.
Trial costs are fixed and, in an attempt to expedite proceedings, at the end of the trial
the court will make a summary assessment of the costs of the whole claim as soon as
judgment has been given.
5.1.3 Multi-track
Essential reading
¢¢ Sime, Chapter 27: ‘Multi-track’.
This is the track for the most important cases. There are a vast number of cases dealt
with on this track but the standard guide is if the case is worth over £25,000 and/or it
deals with issues which are deemed particularly complex. Case management on these
cases will reflect this criteria and the location of the trial for these cases will usually
be the Royal Courts of Justice. Once allocated to the multi-track the court will give
directions and hold such proceedings as may be appropriate to progress the case to
trial.
Activity 5.2
Read Sime 27.04–27.36. Consider Figure 27.1 and the process for multi-track cases.
Then construct a 100 word summary to demonstrate what key issues are important
for the conduct of multi-track cases.
All commercial list claims are treated as being allocated to the multi-track. They
follow much the same procedure as already identified but their case management
procedures are heavily developed. They have their own forms and each case has a case †
See http://www.hmcourts-
memorandum and a case management bundle. The complexity of these cases requires
service.gov.uk/publications/
them to be treated differently and there is a special Commercial Guide† to explain how
guidance/admiralcomm/
such cases should be dealt with.
index.htm
5.1.4 The role of the judge

The role of the judge is crucial to civil litigation as he or she will be responsible for the
case management. However the judge’s involvement could be expensive and might
cause further delay if it is not used in a proportionate way. This means that for most
cases the track system enables a basic form of management to take place. This will
involve a fixed timetable and a standard procedure where directions as to the case will
be given without hearings. This means that:
uu most defended cases will proceed between filing of a defence and trial with
directions in a standard form, with the case being tailored to the particular needs
of the parties
uu the parties do not need to attend court for a directions hearing
uu case management hearings are only used with the more difficult and costly cases.
A decision concerning case management can be taken by any judicial officer (rule
2.4 CPR). This includes a district judge, master or judge. Practice Direction (PD) 29
paragraph 3.10 states that, generally, in multi-track cases masters will perform case
management functions if the case is at the Royal Courts of Justice, district judges in
District Registry matters and circuit judges or district judges in county court cases. If a
case is to be heard in the Chancery and Queen’s Bench Division than it will be assigned
to individual masters. If an interim injunction application or an application affecting
the liberty of the individual is to be considered then this must be dealt with by a judge.
5.1.5 The track allocation process

Each defended claim must be allocated to one of the three tracks by order of a
procedural judge. So that this decision is taken as effectively as possible, the parties
to the litigation will be required to file an allocation questionnaire on a form N150
shortly after defences have been filed. This will enable the court to see what progress
has been made with the case and any attempts at resolution. It will also consider what
evidence is required for trial and what information there is to guide the court on the
likely length and cost of trial.
Once every defendant has filed this allocation questionnaire, or where the period
for filing the questionnaire has expired, the procedural judge will decide on track
allocation. Although rule 26.5(1) CPR only refers to when the defendants have filed the
questionnaire, it will also be expected that the court will have received the claimant’s
questionnaire by the end of the specified period. There are some additional provisions
dealing with track allocation in special cases (see Sime 14.09 for details).
Once the defendant has filed a defence the court will serve allocation questionnaires
in form N150 (see Figure 14.1 in Sime for an example). This requirement will be waived
if the court has already seen an application (for example for summary judgment)
where the facts will have been made known. The questionnaire has to be served by the
court where the proceedings were commenced. The time limits are clearly stated and
any allocation questionnaire will state the date by which the questionnaire must be
filed. This should be at least 14 days after the date it was served on the party. This date
cannot be varied by agreement between the parties. A fee will become payable when
the questionnaire has been filed.
During the completion of the allocation questionnaire, parties are encouraged to

consult with each other and co-operate in completing their allocation questionnaires
(this consultation should not delay the filing of their questionnaires). Allocation
questionnaires are not generally used in specialist cases automatically allocated
to the multi-track. There are special rules depending on the type of case. The
Commercial Court, for example, uses a case management information sheet instead
of an allocation questionnaire (see Sime, Figure 14.2). Chancery Division cases will,
however, use allocation questionnaires when they are automatically allocated to the
multi-track.
If a party fails to file a questionnaire they will not be in a position to complain if the
allocation and directions are not to their liking. Under rule 3.7 CPR claims will be
struck out automatically if the allocation or listing fees have not been paid after due
warning. If this happens then, unless the claimant applies within 14 days for the claim
to be reinstated, defendants will usually apply for their costs against the defaulting
claimant. Once struck out a claim can be reinstated but only if the fee is paid within
two days. The Court retains the right to conduct an allocation hearing under rule
26.5(4) CPR, but only if this is thought necessary.
Activity 5.3
Read Sime 14.17–14.28 and consider which track the following cases would be
allocated to.
a. Genevra is claiming £24,000 for psychiatric injury. There are likely to be about
six experts testifying as to the nature of the psychiatric injury and three experts
who are disputing that any psychiatric injury has taken place.
b. Horace is claiming £3,000 for unlawful eviction by his landlord.
c. Imogen is claiming £4,000 for cosmetic surgery which went wrong and resulted
in pain and suffering.
d. Jonah is requesting a kidney he donated to his wife to be returned. They are

getting divorced.
e. Kerys is claiming £300 because she alleges that the closure of her Amateur
Dramatic Society by Council Officials on health and safety grounds will affect
the cultural fabric of her village, which has no other form of local exposure to
culture.
Once the case has been allocated by the court a notice of allocation will be sent. The
court may also make allocation directions. This could involve the court directing that
the case is to be prepared properly and that parties must avoid unnecessary expense.
It may also direct what evidence needs to be provided by either party. Under rule 26.10
CPR the court may order for the reallocation of a case to a different track if the judge
believes this is necessary. If a party is dissatisfied with an allocation decision then he or
she may challenge it by appealing to the judge who made the decision, outlining why,
or appealing to the next higher court.
A key part of the case management process is to facilitate settlement of disputes

prior to trial. One method of doing this is for the court to order a stay of proceedings
to allow for settlement. The allocation questionnaire does permit a party to include
a request for the proceedings to be stayed while the parties try to settle the case.
This can be granted for a specified time under rule 26.4(2) CPR. These periods of stay
are heavily regulated to avoid them becoming a way of simply extending the time
available for the case.
Summary
Track allocation is a key mechanism for ensuring that cases are allocated to the correct
track, which then determines the correct court for them to be heard in. The general
rule is that the lower the monetary value of the claim the lower the court that will
subsequently hear the claim. There are exceptions to this general rule. Track allocation
does not take place until parties have been given the opportunity to complete an
allocation questionnaire which identifies all the key issues to be considered by the
case. If these allocation questionnaires are not completed or relevant fees not paid
then the case will either proceed on this basis or will be struck out according to the
judge’s direction.
Figure 1 Likely allocation of cases to tracks

Complexity Monetary value Likely duration Type of rights
covered
Simple Less than £5,000 Brief Small claims
No particular £5,000 to £25,000 One day or less Fast track

complexity
Complex More than £25,000 More than one day Multi-track
Please note that Figure 1 is a rough guide only. For more detail see Sime, Chapter 14.
5.2 Amendment
Essential reading
¢¢ Sime, Chapter 15: ‘Amendment’.
It is not unusual for parties to acquire more knowledge as the case progresses. In
addition papers submitted may contain drafting errors. This means the civil process
has to support a system of amendment. Amendment can be by consent (rule 17.1(2)
(a) CPR) or it can take place without consent (rule 17.1(1) CPR). Under rule 17.1(2)(b) CPR
there are principles governing permission to amend. There may also be requests to
amend after the limitation period has passed.
Under rule 17.1(2)(a) CPR any statement of case can be amended at any stage of the
proceedings if the written consent of all parties has been obtained. The reasons for
these amendments can often be to save costs. If there is an unreasonable refusal to
amend to save costs then the refusing party may lose their claim for costs if these
costs could have been avoided.
Under rule 17.1(1) CPR a party can amend a statement of case before it has been served.
Once it has been served it can only be amended without consent if permission has
been granted by the court. The use of discretion for this permission to be granted is
not prescribed by the CPR. Instead the courts have suggested that, as there is a public
interest in allowing a party to deploy its real case and as long as amendment can be
made without injustice to the other side, then it should be permitted (see Clarapede
and Co v Commercial Union Association (1883) 32 WR 262 and Charlesworth v Relay Roads
Ltd [2000] 1 WLR 230). As the court is being asked to exercise its discretion then it can
refuse to allow amendment. It is only likely to do this if there is no prospect of success
or if it makes little difference to the claim.
When the request for amendment is late (and in some instances very late, for example
during closing speeches) then, as Lord Griffiths commented in Ketterman v Hansel
Properties Ltd [1987] AC 189 HL, the court must consider where justice lies. This means
that late amendment may be allowed to clarify an issue but not where, for example, it
involves a defence being raised. Sime makes the point that the factors considered by
Lord Griffiths in Ketterman only apply where applications to amend are made at a very
late stage. If the case is not ready for trial then the general principle in Clarapede will
apply.
The general rule is that where an amendment is allowed the party seeking the
amendment must pay the other party’s costs of, and occasioned by, the amendment.
This would involve correspondence, preparation for and attendance at the application
and any costs relating to consequential amendments of any statements of case. A very
late amendment may result in onerous costs but this will be defensible on the basis
that the request has come so late.
A classic example of an amendment is where one of the parties to the claim has to be
removed due to an error in identification. This is a technicality and rarely problematic.
A more extreme example is where a completely new party needs to be added to the
claim. When this happens, all the stages in the claim need to be repeated with the new
party. The main test of whether a change involving the addition or substitution of a
party may be made is whether this change is ‘desirable’. This is considered in rule 19.2
CPR. The application of this rule should be in accordance with the overriding objective.
The obvious problem that could occur here is where a person has been added as a
defendant for the first time by amendment and this is sought close to the expiry of
a limitation period. If this occurs then the court order should grant permission to
amend with a condition that service on the additional defendants must take place
before the expiry of the limitation period. If amendment is sought after the expiry
of a limitation period then the court has to manage the problem that the defendant
will be deprived of the limitation defence and will usually suffer injustice which is not
compensatable. As a result the rule is that such amendments are not permitted (see
s.35(3) LA 1980). There are, however, exceptions to this rule.
Activity 5.4
Read Sime 15.26–15.45 and produce a 300 word summary on the exceptions to this
rule.
The procedure for amendment is that a party seeking permission must issue an
application notice under rule 19.4(2) CPR. Supporting evidence must be provided. If
permission is granted then an order will be drawn up and served. Those affected must
be notified (rule 19.4(5) CPR). Court fees will also be payable when new parties are
brought in. If words are added to a document then these must written or typed in red
ink. Reamendments are then made in green ink and subsequent amendments in violet
ink and then in yellow ink. The court can direct how amendments should be made. If
there has been an addition, removal or substitution of a party then under rule 19.4(6)
CPR consequential directions may have to follow.
Summary
Amendment is possible with consent prior to service. Once service has been affected
amendment can only take place if in accordance with one of the established
exceptions. Those who wish to amend bear the costs of doing so and amendments to
change parties after the expiry date of limitation are usually only allowed if there was
a mistake.
5.3 Requests for further information
Essential reading
¢¢ Sime, Chapter 16: ‘Requests for further information’
It will sometimes be the case that when a party receives the statement of case
provided by the other side there are issues which require clarification. For example,
it may not be very clear or it may not adequately set out the other side’s case in as
precise a form as it could. In these instances a request for information may be made
about facts on which the other side’s case is based. The general view is that such
requests should be made as promptly as possible once the relevant statement of case
has been received.
There are other occasions when it may be appropriate for a request to be made for
further information. Any matter in dispute not outlined in the statement of case may
require clarification. This may be where facts are required from a witness statement
which is not present in the information received. Requests may also be made by the
court on its own initiative and might involve queries as to the facts being relied upon by
a party or, for example, the nature and extent of insurance cover for meeting a claim.
5.3.1 The request for information

The party who is seeking clarification or information is known (under PD 18) as the
first party. The person of whom the request is being made is known as the second
party. The first party should serve the second party with a written request for the
information with a date set by which the response should be received. The date should
not be unreasonable. This type of request is preliminary, in that the court has not yet
issued directions on this request. The request should be specific and limited to the
matters required and necessary for the first party to conduct their case. An example of
how this might look is provided in Sime, Figure 16.1.
The response
If the request is in the format prescribed, with queries on the left of the page then
responses can be made on the right of the page. Otherwise it must be presented in
accordance with PD 18 paragraph 2.3. The response by the second party must be filed
at court and, unlike the request for information, this is treated as part of the statement
of case and therefore needs to be verified by a statement of truth (see Sime Figure 16.2
for an example).
Objections
If the second party objects to answering the request because the time frame is too
short then they should inform the first party of the objection promptly. There may be
reasons for this objection. The request:
uu may be disproportionate to the claim
uu may infringe privilege
uu may counter the overriding objective.
These objections must be made in writing. If the objection concerns the length of
time for the request to be actioned then a new date must be provided as to when the
response will be forthcoming.
Orders for responses

If a request for further information is not responded to then the first party may apply
to the court for an order requiring the second party to reply in a stated period of time.
Applications are made in the usual way under rule 23 CPR. There is no need to inform
the second party of the application for such an order because they failed to make any
response to the preliminary request.
5.3.2 Principles governing requests

Historically it was often thought that requests for information were used as a
method for racking up costs or to make it difficult for the other party to answer the
query. When applying the overriding objective it is clear that such requests must be
reasonably necessary and proportionate.
Activity 5.5
Do you think the following requests for information would be sanctioned by the
court if an order was requested?
a. A first party requests the minutes of every meeting and email sent regarding the
appropriate levels of hygiene in a hospital over the past 10 years in a negligence
claim based on an alleged case of germ transmission by a doctor.
b. A first party requests all information concerning staff induction, training and use
of a new piece of hospital equipment by all staff in a case of an alleged negligent
use of the equipment by a hospital member of staff.
Requests in freezing injunctions

Under rule 25.1(1)(g) CPR the court is able to make an order which directs a party to
provide information about the location of relevant property or assets. This information
will usually be provided even if there is a pending application to set aside the freezing
injunction. All information provided must be confirmed by affidavit.
Collateral use
Under rule 18.2 CPR the court can direct that information which is provided voluntarily
or after judicial direction will not be used for any other purpose than for the
proceedings in which they are given. If the information is considered sensitive then
this may impact upon the decision to grant the request for information. Much of this is
considered when looking at disclosure.
‘Fishing’ requests
‘Fishing’ is where a party makes a request for information that is unlikely to support
the cause of action or a defence, in the hope that something useful may turn up in
response to the request.
Summary
Requests for further information are undertaken by the first party to proceedings and
the person providing that information is known as the second party. Although the
response can be straightforward or complex it must be accompanied by a statement
of truth. Orders for responses can be used when requests for further information have
not been adhered to. There are principles guiding the granting of orders for requests
for information and these orders should never be used as ‘fishing’ requests. Requests
can be made in freezing injunctions but the information disclosed should not be used
for any other proceedings or purpose.
5.4 Parties and joinder
Essential reading
¢¢ Sime, Chapter 17: ‘Parties and joinder’.
The remedies granted by the courts are usually only effective between the parties who
are stated in the case and so careful drafting must take place so that no mistakes are
made. Although mistakes can be rectified by amendment at a later stage, the passing
of the limitation period may prevent this and if the amendment was avoidable then
there will be costs implications at a later date.
5.4.1 Description and classes of party

In Sime 17.03 the description of the parties according to the nature of the court
proceedings are set out, as are the form of words to be used to describe different
types of parties in the heading of statements of case and other court documents.
Activity 5.6
Read Sime 17.04–17.45 and construct a 400 word summary of the different rules for
different parties.
No feedback is provided as this is a comprehension exercise.
Vexatious litigants
There are some individuals who arguably abuse the principle of access to the courts.
They spend their lives launching large unmeritorious actions or numerous interim
applications which then cause a great deal of anxiety and trouble to those they are
bringing claims against. There is usually little prospect of recovering costs from these
people and so the legal system has developed a process to deal with them. Under
s.42 SCA 1981 the High Court is given the power on the application of the Attorney
General to make a civil proceedings order against a litigant who has ‘habitually and
persistently and without reasonable cause’ instituted proceedings or applications
which are vexatious, that is to say annoying because their purpose is to harass or
intimidate an adversary. If this order is made the vexatious litigant is prevented from
launching any civil proceedings without the permission of the High Court. If this
permission is granted then defendants may apply to set aside the permission under PD
3, paragraph 7.9.
To be denied access to the courts is fundamentally quite serious. There are measures
in place to deal with less serious cases and this is where the court may make a civil
restraint order under rule 3.11 CPR. These are limited, extended or general and they
restrain a person from issuing claims or making applications in proceedings or courts
which have been defined in the order. They are used particularly where a litigant has a
history of issuing claims or making applications which are without merit. The process
begins when a court strikes out a statement of case or deals with an application or
appeal which it believes is totally without merit. It may decide to record this in the
order made and then consider whether to make a civil restraint order.
5.4.2 Joinder and representative proceedings

Under s.49(2) SCA 1981 there is a general principle that all matters of dispute between
parties shall be resolved before the court. To further this general principle there are
specific rules for the joinder of causes of action or the joinder of parties. It is possible
to bring a separate claim for each cause of action or for each alleged claimant to bring
a separate action against the defendant but there is always the worry that separate
cases will increase costs and the risk of irreconcilable judgments. To this effect the CPR
does provide for joinder of causes of action under rule 7.3 and for joinder of parties
under rule 19.1. Although these rules do permit joinder the court does maintain the
discretion to order separate trials to ensure the case proceeds quickly and efficiently
(rule 3.1(2)(1) CPR).
The rules concerning representative proceedings are outlined in rules 19.6(1) and
19.6(4) CPR and are best explained by considering the case of Duke of Bedford v Ellis
[1901] AC 1 where it was held that six fruit growers were entitled to represent all other
fruit growers claiming rights over stands at the defendant’s markets. The key is that
the interest must be the same. If there is any sense of competing interests then it will
not be appropriate to allow representative proceedings to be brought. If there are
unascertained persons in a claim (the unborn or people who cannot be found) then
applications for representation orders are normally stated on a Part 8 claim form. The
rules concerning intervention by a non-party are governed by rule 19.2(2) CPR. For
an example of how these may work see Re Westinghouse Electric Corporation Uranium
Contract Litigation [1978] AC 547.
One last tool to assist in this overall process is where closely connected claims can be
ordered to be consolidated under rule 3.1(2)(g) CPR. This is a process which is likely to
prove popular where there is a strong overlap between two claims or where there is a
case of irreconcilable judgments. If there is minimal overlap then consolidation will be †
An interpleader is a court
inappropriate. If this is deemed inappropriate it is possible for the claims to be tried by action which may be filed
the same judge one after the other. in an existing case to be the
initial action.
5.4.3 Interpleader, assignment and group litigation Sime (17.65) uses a good
example of where A books in
Interpleader† proceedings can be used in two circumstances. his car into a garage for minor
1. Where a person who holds goods or money or is liable on a debt expects to be repairs. Prior to completion of
sued by two or more people making adverse claims to the property in question. the work the garage receives
a claim to the car from B who
2. Where an enforcement officer or bailiff who has taken or intends to take goods in says she is the true owner of
execution of a judgment receives a claim to those goods from a person other than the car. The garage may not
the judgment debtor. know whom to return the
car to and so protects itself
Here the claimant is required to make the claim in writing, stating the grounds relied
by commencing interpleader
on. Notice of the claim must be given to the judgment creditor by the enforcement
proceedings. Therefore it
officer or bailiff and the judgment creditor must reply within seven days. If the
is an action which enables
judgment creditor disputes the claim then the enforcement officer or bailiff can apply
the garage to bring both
for interpleader relief. If successful a trial may follow in the usual way.
claimants before the court so
that the issue of ownership
can be determined.
Assignment is provided for in rule 19.2(4) CPR and it allows a new party to be
substituted for an existing one. If this takes place once proceedings have been served,
then permission from the court is required. If an order is made then it must be served
on all parties.
Group litigation is where a number of claims give rise to common or related issues
of fact or law. If this happens then the court may make a group litigation order (GLO).
Only a senior judge can grant consent for a GLO to be made. The cost arrangements for
GLOs is governed by the usual rule in rule 48.6A CPR.
Activity 5.7
The rules concerning group litigation are often referred to in other jurisdictions
as ‘class actions’. Conduct an internet search on class actions and identify three
advantages and three disadvantages of class actions.
Summary
The rules concerning parties and joinders are quite specific and it is important at the
drafting stage that the correct parties to the litigation are identified. Some litigants
are declared by the court to be vexatious. This means that they abuse their freedom
of access to the courts by using them as a tool to annoy and harass their victims.
Interpleading, assignment and group litigation are possible but are tightly governed
by the CPR.
5.5 Additional claims under Part 20
Esssential reading
¢¢ Sime, Chapter 18: ‘Additional claims under Part 20’.
A defendant to an existing claim is permitted, within certain limits, to bring a claim

against a third party. This is governed by Part 20 CPR and is referred to as the Part
20 procedure. It is used to pass the defendant’s liability on to the third party. It may
be that separate proceedings could be issued but it is usually easier to bring an
additional claim under Part 20 as it keeps costs to a minimum and it avoids the danger
of inconsistent judgments. If an additional claim is brought then it should be done
issuing a special claim form in the ordinary way.
The situations in which a defendant may bring an additional claim are set out in rule
20.2 CPR. There are three examples.
1. Where there is a counterclaim brought by the defendant against the claimant and
counterclaims against the claimant and a third party.
2. Claims brought by the defendant seeking a contribution or an indemnity or some

other remedy either from an existing party or against a non-party.
3. Claims brought by third parties against other persons which are referred to as
fourth party proceedings.
Activity 5.8
Read Sime 18.04–18.23 and the case of Royal Brompton Hospital NHS Trust v Hammond
[2002] 1 WLR 1397 and compile up to a 500 word summary of how CPR rule 20.2
works in practice.
An example of how a form would be completed in an additional claim case can

be found in Sime, Figure 18.1. If a contribution notice is required then this will be
governed by rule 20.6(2) CPR. It is worth remembering that for limitation purposes an
additional claim is commenced when the claim form in the additional claim is issued
by the court. Contribution notices can be issued at any time. Permission to issue an
additional claim against a non-party is not required as long as it is issued before or at
the same time as the defence to the original claim. Once the defence has been filed
then permission will be required. Additional claim forms have to be served within
14 days of being issued and as the general rules apply to additional claims so the
rules concerning default judgment will also apply. The case management process
also applies to additional claims and this means that both the main claim and the
additional claim will be managed according to the CPR.
5.6 Part 8 claims and petitions
Essential reading
¢¢ Sime, Chapter 19: ‘Part 8 claims and petitions’.
Part 8 claims and petitions are forms of originating process. This means that they can
be used only for commencing certain specific types of proceedings. Here statute,
statutory instrument or rules of the court govern how the proceedings should be
commenced. Important examples of these proceedings are divorce, bankruptcy and
the winding up of companies.
5.6.1 Part 8 claims

The main type of originating process here is the Part 7 claim form but the alternative
procedure is in Part 8. It is used where there is any likely dispute of fact. Part 8 claims
are brought using form N208 and must be served in the usual way. They are used
when there is no substantial dispute of fact. Sime cites the example of a claim brought
by a trustee of a will seeking the court’s ruling on the true meaning of a clause in a
trust deed or will. There is no dispute here, merely a desire to understand a clause’s
true meaning. If the claimant is relying on evidence to support their claim this must
accompany the claim form. These claims are usually allocated to the multi-track
under rule 8.9(c) CPR although the court can decide to override this. Where there is
no dispute the court will usually fix a date once the claim has been issued as the case
should be dealt with as soon as is practicable.
5.6.2 Petitions
In cases of bankruptcy, judicial separation or divorce a petition will be filed in form
N200. The petition should identify the court in which the petition will proceed and
state ‘in the matter of’ the Act which gives it power to be entertained. It will then
contain the statement of case and the grounds on which the petitioner claims to be
entitled to the relief or remedy which is applied for. The names and addresses of the
people who should be served with the petition are then documented at the bottom of
the petition. Once properly issued, a date will be fixed for a final hearing or a directions
hearing. The hearing will usually involve the use of witness statements or affidavits.
5.6.3 Winding up petitions

Under the Insolvency Act 1986 and the Insolvency Rules 1986 a company can be
compulsorily wound up by petition. The grounds for making this order will usually be
that the company is unable to pay its debts as they fall due. To be deemed unable to
pay its debts a company will either:
uu have been served with a statutory demand for a debt exceeding £750 and have
failed to pay it 21 days after service, or
uu judgment has been entered against it and execution has been returned unsatisfied
in whole or in part.
The usual person who issues a winding up petition is an unpaid creditor but the
company itself or directors of the company, or indeed the Secretary of State, can
issue such a petition. This petition will usually be brought in the High Court (if the
share capital is over £120,000) otherwise it may also be heard at the county court.
To commence proceedings a court fee must be paid and a fee to cover the official
receivers must also be deposited.
Activity 5.9
Read Sime 19.15–19.26 and consider what a winding up petition may look like. Then
provide a 200 word summary as to how the petition is dealt with by the court.
Winding up petitions in the High Court are heard on Wednesdays in open court. At the
hearing the court will either dismiss the petition, adjourn the hearing conditionally
or unconditionally or make an interim order and any other order deemed useful. If
a winding up order is made then the court will notify the official receiver, who will
become the liquidator of the company. They then begin liquidating assets to pay the
creditors. Once completed the liquidator files a report with the registrar of companies
and three months later the company is liquidated.
Summary
Part 8 claims are brought where there is no dispute as to fact. Petitions use a specified
form in cases of judicial separation, bankruptcy and divorce. Winding up petitions
are a useful tool for unpaid creditors to use against a company which has not paid its
debts. The process for these petitions is heavily prescribed.
5.7 Interim applications
Essential reading
¢¢ Sime, Chapter 20: ‘Interim applications’.
Circumstances may require orders and directions from the court in advance of the
final, substantive hearing. If the case is defended then directions will be made at the
track allocation stage. Directions are formal requirements laid down by the court (for
example, times for evidence to be submitted, timetable for trial). Orders are granted
only by judges and an order is a formal decision by the court granting a remedy or
relief to a party, usually in the stages before the final determination of a case. An
interim order may include an interim injunction or security for costs and these are
considered later in this subject guide. At this stage you just need to be familiar with
how all interim applications are dealt with.
Most orders are sought on an application made by one of the parties. They are usually
granted on notice, which means the other side have had the opportunity to argue
against the order being made. Orders can, however, be made by the court on its own
initiative and in certain circumstances orders will be made without notice to the other
parties. If interim orders or directions on notice are being sought then a form (N244)
has to be completed and a fee paid with written evidence to support the application.
An interim application must generally be made to the court where the claim is
presently being dealt with. They are usually dealt with by a judge, master or district
judge. The most significant exception here is the granting of a freezing injunction
or a search order. These must be made by a High Court judge. Interim applications
should be made as quickly as possible in accordance with the overriding objective
and a claimant may, exceptionally, make an application for interim relief before the
commencement of proceedings if the matter is urgent or in the interests of justice
(see rule 25.2(2)(b) CPR).
Activity 5.10
Read Sime 20.20–20.54 and compare and contrast the rules concerning applications
with notice and those without.
Conclusion
Cases are allocated to a track according to their monetary value and their complexity.
Amendments to a case can be made but the rules for these amendments differ
according to whether the case has been served on the other side or not. If it has, costs
may be incurred. Requests for information often come after the other side has read
the case and there are particular rules governing how these requests should be dealt
with. It is important to ensure that all claims correctly document who the parties are
within the claim and there are special rules governing joinders and interpleaders.
Part 8 claims and petitions are forms of originating process and the form of the
proceedings are heavily prescribed by statute, statutory instrument or rules of court.
Finally interim applications may be made either with or without notice where the
matter is one of urgency and waiting for full trial would not be appropriate for the case
in hand.

Question 1 To what extent does the track system further the principles of the
overriding objective?
Question 2 Daniel commences an action for breach of contract against Charlie on 4

April 2008. In his particulars of claim Daniel alleges that Charlie had entered into a
contract to provide an air conditioning system for Daniel’s antiquarian book shop.
The limitation period was due to expire on 18 April 2008. Charlie enters a defence
on 18 April in which he denies that Daniel had contract with him, asserting that
the contract was actually with Charlie’s Air-conditioning Systems Ltd, a company
owned by Charlie.
Charlie wishes to argue that the defects with the air-conditioning were due to flaws
in certain parts that were provided to him by Johnson Ventilations Ltd. He also
wants to claim (on behalf of his company) the outstanding £10,000 owing under
the original contract with Daniel.
Advise Charlie.

Question 1 You will notice that this question relates back to the overriding objective.
This will be a common feature of any critical evaluation of the Civil Procedure Rules
(CPR).
The overriding objective, as its name suggests, provides an over-arching set of
principles that should inform the way in which civil litigation works. The principles of
the objective are, however, simply aspirations; it is the detailed provisions of the CPR
that put them into practice. It is always worth evaluating, therefore, the relationship
between the two.
Rule 1.1 CPR provides a framework for analysis and it is useful to use the detailed
provisions of the overriding objective to identify what needs to be discussed. It would
help, however, when writing an answer to start off by outlining the nature of the track
system (i.e. that there are three tracks and that initial track allocation is based on the
value of the claim). Then it seems best to adopt a structure to the answer that uses
the key provisions of the overriding objective as themes to address. This is better than
simply writing about the track system and looking at each track in turn, as it is likely to
provide an answer that is more focussed on the core of the question; the principles of
Although the core aim of the overriding objective is simply to deal with cases justly
(rule 1.1(1)), this is less helpful in answering this question as there is little precision as
to what ‘justly’ means in this context. Rather, it is better to take each of the provisions
specified in rule 1.1(2) in turn.
As not all of the provisions of rule 1.1(2) are reflected to the same extent, it makes sense
to start not with the first on the list but the one that seems most readily represented
by track allocation, namely proportionality (rule 1.1(2)(c)). This refers not just to the
value of claim but also to the importance and complexity of the issues. This could be
argued to be the core premise of the track system; cases are first allocated according
to value and that has an impact upon how much complexity (and therefore cost) is
involved in pursuing a case. It is worth, therefore, identifying the practical effect of
being allocated to each track to illustrate this point. Allocation is regulated by rule 26.6
and is based on the value of the claim but other issues of proportionality have to be
considered too (rule 26.8). Further, rule 26.6(5) requires the court to consider how long
a case will last and how much expert evidence is likely to be needed in reaching an
allocation decision. In other words, while proportionality to value is the starting point,
other issues reflected in rule 1.1(2)(c) can change the appropriate track.
A good answer will go on to show that the the simplest cases are allocated to the small
claims track, keeping costs in check (and seeking to actually achieve proportionality).
Small claims cases have the heaviest restrictions on expert evidence, the greatest
regulation of procedure (by means of standard directions) and involve a short semi-
formal trial or even a decision by the judge based simply on the written evidence
(sometimes called a ‘paper hearing’) (rule 27.10). In contrast, if a case involves a higher
value claim or non-monetary claims (which, one would argue are generally more
complicated than small value claims) proceedings will start in the fast track. While
there is more provision for complexity than in the small claims track, the timetable
and most directions are standard (rules 28.2 and 28.3) and can only be departed from
unusually (for example rule 28.4). Finally, allocation to the multi-track only occurs if the
case is financially, factually or legally complex. When a case is in the multi-track there is
greater scope for the parties to control how litigation works. However, it is important
to recognise that the court still keeps active control over the process (in contrast to
how things worked before the CPR were introduced) by means of case management
conferences, etc (rule 29.3). Therefore, it is the value and complexity of the case that
regulates how it shall be allocated. Equally, the amount that can be recovered by way
of costs (rule 46) is also limited according to track. Therefore the rules seek to ensure
litigation is proportionate to value by discouraging parties from spending too much in
pursuit of their remedies.
While proportionality is key to the track system, you should also identify how other
aspects of the overriding objective are reflected within it. Clearly the aims of reducing
costs (rule 1.1(2)(b)) and allocating resources appropriately (rule 1.1(2)(e)) are
furthered by the use of costs limits and standard timetables in the small claims and
fast tracks and by case management in multi-track cases. Equally directions and case
management hearings are intended to ensure that a wealthier party does not gain an
advantage over a less well-off party. In other words, the rules provide stages for the
courts to ensure (as much as possible) that the parties are on equal footings (rule 1.1(2)
(a)). The restrictions upon costs awards under rule 46 are also intended to achieve this
but Michael Zander has rightly pointed out that to restrict the recovery of costs does
not in fact prevent a wealthy party from spending lavishly for the sake of winning their
case (Zander, M. ‘The Government’s Plans on Civil Justice’ (1998) 61 MLR 382).
Remember also that the courts are enjoined to engage in ‘active case management’
under (rule 1.4) as part of the overriding objective. As we have already stated, the sets
of rules and directions that result from track allocation embed the principles of active
case management into the litigation process.
A good conclusion would therefore be that the overriding objective is primarily
furthered through the strong principle of proportionality that the track system
embodies. Proportionality, in turn, furthers the aims of reducing costs and equalising
litigation while the detailed provisions for each track ensure that cases are pursued
expeditely and are kept under active control by the judiciary.
Question 2 Daniel can seek permission to amend the particulars of claim to change
the name of the defendant under rule 17.1(1) CPR. The court has a discretion whether
or not to allow this change and should exercise it if amendment can be made without
injustice to the other side (Charlesworth v Relay Roads Ltd [2000] 1 WLR 230). However,
as the amendment involves adding what is, in law, a new party (the company rather
than Charlie himself), the matter must be resolved using rule 19.2. To complicate
matters further, because the limitation period has expired, it is necessary to use rule
19.5 to justify the amendment. The test in rule 19.5 is that the substitution of the
company is ‘necessary’. Here the necessity, arguably, follows rule 19.5(3)(a), that ‘the
new party is to be substituted for a party who was named in the claim form in mistake
for the new party’.
Charlie could bring an action against Johnson Ventilations independently of the
litigation against Daniel but it is often cost effective to add Johnson into the same
claim through a Part 20 claim. Charlie’s company will (assuming they are now the
party to the proceedings) seek a contribution (i.e. partial payment) or indemnity (i.e.
full payment) from Johnson in respect of the damages the company ends up paying
to Daniel. Charlie would have to ensure that the Part 20 claim is not caught by its own
limitation period. Also, as a defence has been issued against Daniel, Charlie will need
permission from the court to issue the Part 20 claim (rule 20.6(2)).
Charlie’s company can obtain the payment against Daniel by means of bringing a
‘counterclaim’ in the original action. This, again, is a Part 20 claim and, as a defence has
been entered, the permission of the court would have to be obtained (rule 20.4).
These decisions to grant permission will have to have regard to the overriding
objective. Clearly issues regarding the limitation periods that may have expired will
exercise the mind of the court. However, if the limitation periods have not passed, the
court will have to consider whether it would be just to refuse to allow the application
(rule 1.1(1)). Equally the court should consider the potential cost implications of
refusing to allow the joinder of the claims and whether such a decision could lead to
the court having to devote more time and expense to resolving issues that could be
tried together (rule 1.1(2)(b) and (e)).
Reflect and review



I can describe how the track allocation scheme works.   
I can evaluate the way in which amendments to a case   

can be made, along with how requests for information
function within the civil process.
I can critically explore the rules concerning parties and   
joinders.
I can explain the function of additional claims under   

Part 20 and Part 8 claims and petitions and how they
operate.
I can consider the purpose of interim applications and   
how they can be applied for.
revise?
Must Revision
revise done
5.1 Track allocation and case management  
5.2 Amendment  
5.3 Requests for further information  
5.4 Parties and joinder  
5.5 Additional claims under Part 20  
5.6 Part 8 claims and petitions  
5.7 Interim applications  

6 Summary judgment and related matters
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
6.1 Summary judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
6.2 Striking out, discontinuance and stays . . . . . . . . . . . . . . . . . . 82
6.3 Interim payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
6.4 Security for costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
6.5 Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Introduction
This chapter deals with summary judgments, early dispensing with claims, interim
payments, security for costs and sanctions.
If a defendant fails to defend a case then a default judgment can usually be entered.
Defendants may also go through the motions of advancing a defence as a delaying
tactic in a hopeless case. At this stage summary judgment may be entered as a way
of dealing with this problem. Defendants can also enter summary judgment as a way
of attacking weak claims. The court has the power to order the whole or any part of
a statement of case to be struck out and a case can be discontinued if a party realises
he or she will not win. To stay a proceeding is to halt it temporarily and there are often
sound reasons for doing this.
Interim payments can be made as a way of providing the claimant with money on
account of the likely monetary award at trial. The court can also make an order to
secure costs which will require a claimant to provide a fund which can then be used by
the defendant to pay its costs if it defeats the claim. Security is only available against
claimants. Other sanctions are available to the court to ensure their directions and
orders are followed. These are the tools by which the civil process attempts to ensure
that the overriding objective is met wherever possible.
Essential reading
¢¢ Sime, Chapters 21–24 and 28.
Learning outcomes
uu critically evaluate the process for summary judgment

uu explore the ways an action can be struck out, discontinued or proceedings can
be stayed
uu describe how interim payments are administered
uu consider how security for costs works in the process
uu understand what sanctions are available to the court to ensure its orders and
directions are followed.
Civil and criminal procedure 6 Summary judgment and related matters page 79
6.1 Summary judgment
Essential reading
¢¢ Sime, Chapter 21: ‘Summary judgment’.
When a case goes undefended a default judgment can be entered. It may prove
tactically advantageous to defend an order, even if a party knows that he or she
will not win the case, on the basis that such a defence will delay judgment actually
being entered. Aware of this, the CPR has developed a number of ways to prevent
it from happening. Striking out is one of these methods but here we shall discuss
entering summary judgment. This is used where a defence can be shown to have to
real prospect of success at trial and there is no other reason why the case should be
disposed of at trial. Practice Directive 3 paragraph 1.7 recognises that there will either
be an application to strike out the claim or an application for summary judgment.
A party may believe he can show without a trial that an opponent’s case has no real
prospect of success on the facts, or that the case is bound to succeed or fail, as the case
may be, because of a point of law (including the construction of a document). In such a
case the party concerned may make an application under rule 3.4 or Part 24 (or both) as
he thinks appropriate.
It is not just claimants who may wish to rely on summary judgments. A defendant
can also apply for summary judgment as a way of attacking a weak claim brought
by a claimant and the court can use summary judgment of its own volition to stop
weak cases from proceeding. It is also possible for summary judgments to be used to
determine issues that will reduce the complexity of the trial at a later stage.
6.1.1 Time and procedure for applying

Under rule 24.4(1) CPR a claimant can apply for summary judgment after the
defendant has filed either an acknowledgement of service or a defence. Under
rule 25.2(2)(c) CPR a defendant can apply for summary judgment after filing an
acknowledgement of service or a defence. If the claimant fails to comply with a
relevant pre-action protocol then an application for summary judgment will only be
entertained after the period for filing a defence has expired. These applications should
usually be made in the period between acknowledgement of service and filing of
the applicant’s allocation questionnaire. This is the most appropriate time as at that
stage it will become apparent that there is no real prospect of success and the parties
can avoid unnecessary costs. There is a point on the allocation questionnaire which
reminds the parties whether there is an intention to apply for summary judgment.
If the application for summary judgment is made after filing the acknowledgement
of service, but before filing of the defence, there is no need to file a defence. If a party
applies for summary judgment before the claim is allocated to a track then the court
will not allocate the claim before hearing the application. The court may review
the opportunity for entering summary judgment at any time and usually does so at
the track allocation stage. A hearing will be arranged giving the parties notice but
track allocation will not take place. If a defendant applies for summary judgment an
application for default judgment by the claimant cannot be then made.
There are some proceedings against a defendant where an application for summary
judgment is directly excluded under rule 24.3(2) CPR. These are:
uu a residential possession proceeding against a mortgagor or a tenant or a person

who has a protected tenancy under the Rent Act 1977 or Housing Act 1988
uu an Admiralty claim in rem.
If the application is against a claimant then there are no excluded proceedings.
The procedure for applying for summary judgment is like that of all interim
applications (see Chapter 5). However, there are some slight differences. For example,
the notice period is different (it is 14 clear days instead of three) and the respondent
must file his or her reply, if any, at least seven clear days before the hearing. If the court
has fixed the hearing of its own volition then all evidence must be filed at least seven
clear days before the return day and if a response to filed evidence is required then
this must happen at least three days before the return day.
If an application by a claimant for summary judgment is made the court cannot

dismiss the claim without the claimant being put on notice and being given an
opportunity to address the court. If an application is refused then the court will give
case management directions for the future conduct of the case.
6.1.2 Orders available

Practice Directive 24, paragraph 5.1 states that the range of orders available on a
summary judgment application include:
uu giving judgment on the claim
uu striking out or dismissal of the claim
uu dismissal of the application
uu making a conditional order.
The test for summary judgment is laid out in rule 24.2 CPR which states that summary
judgment can be granted against a claimant or defendant if there is no real prospect
of the claim or issue succeeding for either party and there is no other compelling
reason why the issue should go to trial. The applicant will bear the burden of proof
that the respondent’s case has no real prospect of success. The standard of proof is not
the usual balance of probabilities and actually refers to ‘no real prospect of success’. If
a case is arguable but summary judgment is granted then that would be grounds for
appeal.
If the claimant applies for summary judgment then the defendant can seek to
show that he or she has a real prospect of success by advancing one or more of the
following.
uu A substantive defence.
uu A point of law destroying the claimant’s cause of action.
uu Denial of the facts supporting the claimant’s cause of action.
uu Further facts answering the claimant’s cause of action.
Advancing a defence will not automatically mean that summary judgment is not
entered. Just as a case can be weak, so a defence can be. A series of cases have
considered how weak cases should be treated (see United Bank Ltd v Asif (2000) LTL
11/2/00 and Public Trustee v Williams (2000) LTL 10/2/00) and it would appear the courts
are quite content to reject defences they think are fanciful or clearly sham. Alongside
this, it is important for the court to ensure that an application for summary judgment
does not become a mini trial. It will sometimes be the case that the defective drafting
of a statement of case will emerge during an application for summary judgment. If the
defect is one of form rather than substance then the court has a wide power to allow
an amendment.
As a general rule it is difficult for a negligence claim to result in summary judgment

because invariably the factual details are disputed. An exception was considered in
Dummer v Brown [1953] 1 QB 710. The same is largely true for libel claims although,
unlike negligence claims where it is theoretically possible but unlikely that summary
judgment will be granted, it will not be granted where there is a material issue of
fact between the parties because these issues need to be decided by a jury. Finally
summary judgment will usually be inappropriate where there are allegations of
reprehensible conduct (see Allied Dunbar Assurance plc v Ireland (2001) LTL 12/6/01).
Activity 6.1
Read Sime 21.28–21.51 and provide up to 10 key words to summarise the rules
concerning each of the following.
a. Complex claims and points of law.
b. Cross-claims.
c. Set-offs.
d. The cheque rule.
e. Conditional orders.
6.1.3 Other compelling reasons to go to trial

An important check on whether summary judgment is granted or not is whether there
is some other compelling reason to go to trial. These reasons could include that the
respondent has been unable to contact a material witness who could provide material
for a defence or that the case is so complex that only a mature consideration at trial
will serve the overriding objective. If the facts are wholly within the applicant’s hands
it may be unjust to enter judgment without providing an opportunity for a defence to
be heard. Finally the court may take the view that the applicant has acted harshly or
unconscionably. See Miles v Bull [1969] QB 258 where possession proceedings appeared
to be being used as a strategy for evicting the defendant.
6.1.4 Speedier rules for obtaining summary judgment

If the case is for specific performance, rescission or forfeiture in property cases
then under PD 24 a speedier process is available. This is where summary judgment
can be sought at any time after the claim is served rather than having to wait for
acknowledgement to take place. Where there is a request for accounts to be tabled or
inquiries to be made then the court can make an interim order under rule 25.1(1) CPR.
It is also possible for the High Court to make an order authorising trustees or personal
representations to act in reliance on an opinion of counsel (of experienced standing)
on the construction of a will or a trust. These applications will be made in the Chancery
Division of the High Court without notice. The judge in these cases will consider the
papers without a hearing.
6.1.5 Possession claims against trespassers

Part 55 CPR provides a machinery for obtaining possession against trespassers
and similar categories of unauthorised occupiers without undue delay. Under this
machinery there is no conventional trial and so it is only used where the defendants
have no real defence. The aim of these rules is to avoid the need for the claimant
to investigate the identities of the people in unauthorised occupation and to allow
possession orders to be made against ‘persons unknown’ (see Sime 21.61–21.77 for
more details). It is also possible to seek an interim possession order in a claim for
possession against trespassers. This can only be used if the claim is only for possession
(no money claims), where the claimant has an immediate right of possession and the
application has been made within 28 days of the claimant knowing of the wrongful
occupation.
Summary
Summary judgment is a useful tool available to the court as a way of resolving a case
which has little prospect of being defended or succeeding at trial. The court can
enter summary judgment of its own volition or on behalf of a claimant where there
is no real defence or on behalf of a defendant where the case against them is weak.
Summary judgment should be distinguished from default judgment and, if successful,
they result in judgment without trial. The process is used to further the overriding
objective.
6.2 Striking out, discontinuance and stays
Essential reading
¢¢ Sime, Chapter 22: ‘Striking out, discontinuance and stays’
Rule 3.4 CPR grants the court the power to order the whole or any part of a statement
of case to be struck out. This power will usually be relied upon when an application is
made by a party seeking to attack the statement of case drafted by the other side. It
may also be used by the court of its own volition because there has been a failure to
provide a concise statement of facts or there are no reasons offered for any denial in a
defence. It may also be used if it is alleged that a statement of case, even if true, does
not amount to a sustainable claim or defence as a matter of law. Striking out can be
used to prevent the misuse of the right to issue proceedings if there appears to be an
abuse of process. Striking out can also be used to enforce compliance with the general
provisions of the CPR.
It is clear that striking out is similar in character to summary judgment. If the court
regards a case to be so weak that there is no reasonable prospect of success then
summary judgment should be entered.
6.2.1 The rule, its procedure and the test

The rule is outlined in rule 3.4(2) CPR and states that a court may strike out a statement
of case if it appears to the court that:
uu the statement discloses no reasonable grounds for bringing or defending the claim
uu the statement is an abuse of process or will obstruct the just disposal of the
proceedings
uu there has been a failure to comply with a rule, practice direction or court order.
The rule also means that where a claim is struck out and the claimant is ordered to pay
the defendant’s costs, if the claimant commences a second claim within the limitation
period and it emerges out of the same facts, then the defendant will be able to apply
for a stay until the first claim has been paid (see Gardner v Southwark London Borough
Council (No 2) [1996] 1 WLR 561). The power to strike out is also part of the courts’
inherent jurisdiction.
The procedure involves an application being made by a party where they issue an
application notice in accordance with Part 23 CPR. The completed form should have
supporting evidence. The application should be made as it becomes desirable and
will usually be made between acknowledgement of service and filing of the allocation
questionnaire. If this is not the case then the intention should be included as extra
information. The striking out application can then be heard at the allocation hearing.
A claim form that has been lodged for issuing can be referred to a judge by a
court official if it is felt the claim form is amenable to being struck out or if it is
totally without merit. The judge may decide that the claimant should be given
the opportunity to put the claim on a proper footing and may provide a stay for
the claimant to do this. The defendant can make an application to strike out once
proceedings have been served. The same procedure is available where the court
official believes that a document which claims to be a defence is also amenable to
being struck out. Once the court strikes out a statement of case it can enter such
judgment as the successful party appears entitled to and make any order it considers
appropriate.
Striking out should be used sparingly. This was always the view of the courts and was
affirmed in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1. Striking
out should only be used in plain and obvious cases. The test is whether there are
no reasonable grounds for bringing or defending the claim. The statements of case
may be open to attack where they lack specificity or where the cause of action is one
unknown to law. Striking out can also be refused in developing areas of law and, as the
power is supposed to be used sparingly, the courts may prefer to allow amendment
rather than simply striking out a claim (see Finley v Connell Associates (1999) The Times,
23 June, 1999).
6.2.2 Abuse of process

The court has always had the power to strike out a claim on the basis of an abuse of
process (see Hunter v Chief Constable of the West Midlands Police [1982] AC 529). Examples
of abuse of process include:
uu a claim where the limitation period has expired
uu where a claimant is complaining about a public authority’s infringement of the

claimant’s public law rights to seek redress
uu where proceedings are issued with no intention of taking the case any further
uu where the statement of case is incurably incapable of proof.
Relitigation may also amount to an abuse of process where issues raised in an earlier
claim are identical to the issues raised in a later claim unless fraud or collusion is
alleged. Settling a claim can also act as a bar to later proceedings which could then be
struck out for an abuse of process.
6.2.3 Obstructing the just disposal of the proceedings

Under rule 3.4(2)(b) CPR the court can strike out a statement of case which obstructs
the just disposal of the proceedings. Under PD 3 this is explained where a claim is
vexatious, scurrilous or obviously ill-founded. Courts will recognise these claims when
they see them. Examples of this have included claims for slander where the defence has
set out their own, rather different, version of what had been said. A defence has also
been struck out where it does not make clear how much of the claim is admitted and
how much is denied (see British and Colonial Land Association v Foster (1887) 4 TLR 574).
Activity 6.2
Read Ashmore v British Coal Corporation [1990] 2 QB 338 and explain why the
applicant’s claim was struck out as being frivolous and vexatious.
6.2.4 Discontinuance
It may be the case that a claimant decides that, having issued proceedings, he or she
now wishes to pull out without incurring all the costs of litigating at trial. A claimant
wishing to discontinue proceedings must file a notice of discontinuance. Once a claim
has been discontinued the claimant will have to pay the defendant’s costs of the claim.
A claimant may want to discontinue the whole claim or part of the claim and this may
be against all defendants or some of the defendants. The claimant can discontinue
without permission but there are some circumstances where permission is required.
This is usually where an interim injunction has been granted or where the claimant
has been granted an interim payment. If there is more than one claimant then the
claimant wishing to discontinue must obtain the court’s permission or written
permission from the other claimants. If a claim has been brought by a person with a
disability then the approval of the court will be required if a discontinuance is sought.
Once permission is obtained, if required, a notice of discontinuance is filed with the

court. If permission was required, but has not been obtained, then a defendant can
apply for an order setting aside a notice for discontinuance served without consent
or permission as long as the application is made within 28 days of the notice. Notice
of discontinuance takes effect and brings the proceedings to an end against each
defendant on the date it is served upon the defendant. The claimant will then be
liable, unless the court directs otherwise, for the defendant’s costs up to the date of
service. If only part of the claim has been discontinued then the claimant’s liability will
limited to the discontinued part. Once discontinued a claimant cannot commence
new proceedings against the same defendant arising out of the same or substantially
the same facts as the original claim unless the court gives permission.
6.2.5 Stays
The power to stay is the power to delay. This is part of the courts’ case management
power, to delay either part or all of the proceedings or judgment until a specified date
or event. This power is derived from s.49(3) SCA 1981. A stay may be desirable where
it is felt to advance the efficient progress of the proceedings. The courts may also
impose a stay as a means of enforcing compliance with its orders. There is a general
public interest in avoiding a multiplicity of claims and sometimes a stay can be used to
protect concurrent claims.
Summary
Striking out is the power used by the courts, either with the support of the claimant
or defendant or of its own volition, to strike out a claim on the basis of how the
statement of case has been formulated or if there has been an abuse of process. It is
often run alongside an application for summary judgment which is concerned with
the merits of the case. If a party realises the case is unlikely to succeed they can apply
for it to be discontinued. They will still owe money for costs but these are likely to be
less than if the case went to trial. Stays are temporary halts in proceedings granted at
the discretion of the courts.
6.3 Interim payments
Essential reading
¢¢ Sime, Chapter 23: ‘Interim payments’.
Under rule 25.1(1)(k) CPR an interim order can be made by the court to order a sum
of money to be paid by a defendant on account of any damages, debt or other sum
(except costs) which the court may hold the defendant liable to pay. These orders
are likely to be made in claims where it appears that the claimant is going to achieve
some success and where it may be unjust to delay until after the trial. The reason for
this procedure is to alleviate any hardship that claimants might experience in respect
of any wrongs they have suffered. This means claimants will be in receipt of much-
needed resources prior to the conclusion of a trial and could, for example, enable the
claimant to pay for medical treatment. If an interim payment is made then this will
reduce the defendant’s liability to pay interest. Most of these interim payments are
made in multi-track cases where the amounts are large or there is going to be a delay
because of the complexity of the issues involved.
6.3.1 The procedure, the grounds and the amount

Once the period for filing an acknowledgement of service has expired, and not
before, an application for an interim payment order can be made. Applications must
be made on notice and must be served at least 14 clear days before the hearing
of the application. The application should explain, with supporting evidence, the
amount sought and what the money will be used for. The amount of money likely to
be awarded must be documented, along with the reasons as to why the ground for
granting interim payments has been satisfied. If the claim is for personal injury, then
details of special damages and past and future losses must be explained. If the claim is
being made under the Fatal Accidents Act 1976 then confirmation of who the claim is
being made on behalf of must be advanced.
Activity 6.3
Read Sime 23.07–23.16 and provide a 300 word summary as to what the grounds are
for being awarded an interim payment by the courts.
When the court comes to calculate the amount to award as an interim payment
they shall not, according to rule 25.7(4) and (5) CPR, make more than a reasonable
proportion of the likely amount of final judgment. This will have to include any
contributory negligence and any relevant set-off or counterclaim. Judges tend to
err on the side of caution (see Spillman v Bradfield Riding Centre [2007] EWHC 89 (QB)
where 25% of the likely overall award was advanced). An interim payment can be paid
by instalments where this is just in the circumstances, although the purpose of the
payment must not be forgotten or defeated by this option.
6.3.2 Following award

The claimant is allowed to make more than one application for an interim payment
under rule 25.6(2) CPR. In practice this will only be permitted if there is a significant
change in circumstances. Once an award of an interim payment has been made this
must not be disclosed to the trial judge until all questions of liability and quantum
have been decided. This is to avoid the judge being influenced, even unknowingly, by
the interim payment. The court retains the power to order all or part of an interim
payment to be repaid, varied or discharged. Interest can be ordered in favour of the
defendant. These powers will usually be exercised at trial.
Summary
Interim payments can be made to avoid overarching injustice due to delaying
payment where a case is likely to be successful. The grounds for granting an interim
payment are set out in the CPR and judges tend to be conservative when granting
these payments. Further applications can be made although in practice this is unlikely.
The fact interim payments have been made cannot be disclosed to the trial judge until
decisions as to liability and quantum have been settled. Adjustment can be made if
the court subsequently orders it.
6.4 Security for costs
Essential reading
¢¢ Sime, Chapter 24: ‘Security for costs’.
¢¢ Ching, J. ‘Security for costs and the foreign resident claimant’, Civil Justice
Quarterly 28(1) 2009, p.89.
The question of costs is usually determined at the end of the trial, once liability has
been established. This is the normal rule on the basis that the winner recovers costs
from the loser and this will only have been established once the trial has come to an
end. Despite this there are mechanisms to overcome potential injustice, in accordance
with the overriding objective. Firstly interim payments mitigate the injustice of a
claimant having to wait for payment when a case is clearly going to be successful. The
other mechanism is where it appears there is a significant risk of defendants suffering
the injustice of having to defend proceedings with no real prospect of being able to
recover costs if they are ultimately successful.
An order for security for costs can only be made against the party who is in the
position of a claimant. Once security has been granted it can be retained, subject to
the court’s discretion, pending any appeal. An order for security for costs will usually
require the claimant to pay money into court as security for the payment of any costs
order that may eventually be made in favour of the defendant. This will delay the claim
until the security has been provided. Once an application has been made it will be for
the court to decide what grounds there are for making the order, whether the court’s
discretion should be exercised in favour of making the order and, if so, how much
security will be required.
6.4.1 The procedure, the respondent and the order

An application for security should be made at the first case management conference.
It should be supported by written evidence which includes the grounds and any
factors which may influence the court’s exercising of its discretion. The application
should be made on notice to the claimant and served on the claimant at least three
days prior to the appointment for hearing the application.
Security for costs is not used in cases on the small claims track.
The order can only be made against a party who is acting as a claimant under rule
25.12(1) CPR. This means that an order can be made against a defendant who is
counterclaiming against a claimant. It can also be made against a party who is in the
position of a claimant even where they are not strictly termed the claimant by the
court because they are, for example, the petitioner. An order may also be made against
someone who is the appellant to an appeal or if the court takes the view the individual
is assigned to the claim by the claimant or has contributed to the claimant’s costs in
returns for a share of the anticipated amount of monies for recovery.
The order will usually be taken as payments into court, although bonds and
guarantees can be alternatives, as will solicitor’s undertakings. Until security is given
a claim will be stayed. If the claimant fails to provide security after the order has
been granted then the defendant can apply for the claim to be struck out. If security
is obtained then the trial will proceed. If the claimant is successful at trial then the
security money will be repaid to the claimant. If the defendant wishes to appeal then
the court may impose a stay on the release of funds to provide continued security.
6.4.2 The conditions, the discretion and the amount

An order of security for costs can only be made if one of the conditions is met as set
out in rule 25.13(2) CPR. Once it has established that the case comes within one of the
conditions, the court then has a general discretion whether to grant an order or not.
Activity 6.4
Read Sime 24.09–24.29 and consider whether an order of security for costs would be
awarded in the following circumstances.
a. Mariah is the claimant in a personal injury claim where she alleges that her
hairdresser Nina used too much peroxide and her hair fell out. She has indicated
to Nina she is only bringing the action against Nina because she wants to ruin
Nina’s business. Mariah has now emigrated to Australia to avoid paying costs as
she knows she will lose. She still has a house and business in the UK.
b. In a case of alleged breach of contract BRS Associates Ltd have indicated to

Robin that they will liquidate their assets by paying excessive dividends to their
shareholders before they wind up the company. This will mean there will be no
money to pay costs when they lose the case. They only issued the case to avoid
paying damages for bad workmanship on Robin’s newly built conservatory.
The amount of the order of security for costs should be that which the court believes
to be just in all the circumstances (see Procon (Great Britain) Ltd v Provincial Building Co
Ltd [1984] 1 WLR 557). The court maintains a wide discretion on this question and the
factors considered by the court in granting the award or not will also be considered
at this stage of proceedings. The lateness of the application and the difficulty faced
by the claimant in providing security may be considered (see Innovare Displays plc v
Corporate Broking Services Ltd [1991] BCC 174 and in contrast Roburn Construction Ltd v
Williams Irwin (South) and Co Ltd [1991] BCC 726).
Summary
An order for security for costs requires a claimant to provide a fund which can then be
used by the defendant to pay his or her costs if the claim is defeated. It is only available
against those who are in the position of claimants and the main grounds for granting
the order are where the claimant is resident outside the jurisdiction or a limited
company is impecunious and unlikely to be able to pay its debts. If the ground is made
out then the court may still not make the order depending on how it wants to exercise
its discretion. The amount to be ordered is subject to the court’s discretion and once
granted there is a stay on the claim until the order has been met by the claimant.
6.5 Sanctions
Essential reading
¢¢ Sime, Chapter 28: ‘Sanctions’.
We have continued to emphasise that to work to the overriding objective the process
of case management must be complied with – particularly the directions and orders of
the court. The court needs to maintain control over the conduct of litigation and to do
this it needs powers to enforce its will. The CPR provides these coercive powers in the
form of sanctions. These can range from interim payments to striking out the whole or
part of the claim. When imposing a sanction the court will have two purposes in mind.
1. It will want to ensure that its order and directions are complied with so that the
case can proceed for trial without undue delay.
2. It will also want to punish defaulting parties for the past default.
When considering each sanction it is useful to see which of the two purposes is taking
priority in any one given sanction.
6.5.1 Non-compliance with directions

It is not unusual for parties to sometimes fail to comply with the directions timetable
issued by the court. As long as the parties co-operate to ensure key dates are met for
allocation questionnaires, case management conferences, pre-trial reviews, pre-trial
checklists and trial, then slippage will not be punished. In addition if non-compliance
is outside the control of the defaulting party then, with co-operation, a new timetable
can be agreed upon that preserves the key dates. If breach is mutual then a sanction
just on the claimant would not be reasonable. It is in the interests of everyone,
especially the court, to meet the key dates and so the court will not only frown at the
defaulting party but will also not tolerate the party not in default simply sitting back
and letting the matter be delayed even further. This means there will be an obligation
on the innocent party to write to the defaulting party referring to the default and
asking for it to be rectified (usually in seven to fourteen days). They then have to give a
warning that they will be applying for an order if the default is not remedied. If there is
continued default the innocent party will then be able to apply for an order to enforce
compliance or to impose a sanction. The innocent party can apply for both. The
innocent party should not delay as this delay may count against them. The applicant
seeking the imposition of a sanction will have the burden of proving default. If the
application is for sanctions after non-compliance with an unless order then the onus is
on the defaulting party.
6.5.2 Imposing a sanction

In pursuing the overriding objective the court may decide to make an order against
the defaulting party by imposing a sanction. The most severe sanction would be the
striking out of a statement of case if it appears there has been a failure to comply
with a rule, a practice direction or a court order. This is usually reserved for the most
serious repeat offenders and should not be used for minor transgressions (see UCB
Corporate Services Ltd v Halifax (SW) Ltd [1999] CPLR 691; Lambeth LBC v Onaymake (2007)
The Times, 2 November 2007 and Biguzzi v Rank Leisure plc [1999] 1 WLR 1926). To impose
this sanction is to deprive the claimant of access to the court and this can have human
rights implications (see Taylor v Anderson [2003] RTR 305 and Powell v Boladz (2003) LTL
22/9/03) but this should not prevent the sanction where the prejudice to the innocent
party is still an important factor (Purdy v Cambran [1999] CPLR 843). However, the
response must not be disproportionate (Grundy v Naqvi (2001) LTL 1/2/01).
The court may choose, in less serious cases of default or breach, to impose a more
commensurate penalty and so it may strike out only the part of the statement of
case which deals with the issue in default (see QPS Consultants Ltd v Kruger Tissue
(Manufacturing) Ltd (1999) LTL 10/9/99). The powers of the court include ordering a
party to pay certain costs, debarring a party in default from adducing evidence in a
particular form or from using a particular witness. The court can also increase the
amount payable by the party in default.
If a party has not complied with a pre-action protocol and this leads to the
commencement of proceedings which might otherwise not have happened or costs
which might not have been incurred then the orders the court can make are outlined
in PD protocols paragraph 2.3. These will most commonly involve costs awards being
made against the defaulter.
6.5.3 Preservation of the trial date and unless orders

PD 28 and PD 29 both demonstrate that the general approach of the courts will be
that the trial date should be preserved unless the circumstances are exceptional.
This means that where possible the original window of time for the trial will be used.
Where this is not possible then the postponement should be for the shortest period
possible. As confirmed in Collins v Gordon (2008) LTL 12/1/08) postponement really is
the last resort.
Orders containing sanctions must specify the time and date within which the step
under consideration must be taken. A useful way of ensuring compliance is by using
an unless order. This means that if the terms of the order are breached the other party
can then file a request for judgment to be entered and costs to be paid. The form of
the unless order must be very specific and can suggest that ‘unless X takes place by Y
time then the claim will be struck out and judgment entered for the defendant’. This
is the preferred form as it leaves no doubt as to what will happen if the conditions are
not met.
6.5.4 Non-compliance with an order, extending the time and correcting

any errors
If a party fails to comply with a rule, practice direction or court order which has
imposed any sanction then the sanction will take effect unless the defaulting party
applies for and obtains relief from the sanction under rule 3.8 CPR. Rule 3.5 CPR
outlines the procedure where a party wants to obtain judgment on non-compliance
with the order. The sanction for an unless order takes effect without the need for any
further order.
The court does have the discretion to extend and abridge time. This is usually done
where the party who has been unable to comply with an order or direction in time,
and who has not been able to gain an extension with the other side, may then make
an application asking the court to extend the time for compliance. There is a clear
difference between applying for an extension before a time limit has expired and
seeking relief from a sanction after the event.
It may also be the case that a default has arisen because of the defective performance
of the requirements of a rule, practice direction or court order. This may be where the
wrong form has been used or it was sent to the wrong address. In these circumstances
under rule 3.10 CPR the court may make an order invalidating a step if it was badly
defective and led to the other side being misled. The court also retains the right under
rule 3.10(b) to remedy any error of procedure.
6.5.5 Relief from sanctions and non-explanation for the delay

A party who is in breach of a rule, practice direction or order imposing sanction for
non-compliance may apply for relief from the sanction under rule 3.8(1) CPR.
Activity 6.5
Read Sime 28.25–28.30 and provide 20 key words to summarise how the system of
relief from sanctions works.
It is not uncommon for applications for relief from sanctions to omit any adequate
reason for the delay. It may be that there are no reasons and in Thorn plc v
MacDonald [1999] CPLR 660 it was confirmed that the court should consider all of the
circumstances and remember the overriding objective when considering the reasons,
or not, for delay. Having no reason should weigh heavily when deciding whether to
grant relief from sanctions.
Conclusion
Summary judgment is the process by which frivolous or vexatious claims can be
dispensed with at the earliest opportunity, saving the courts time and the interested
parties money. An action can be struck out, discontinued or proceedings can be stayed
in accordance with the progress of the case. Interim payments can be made by the
defendant as a way of providing some monetary support for claimants who have a
particularly strong case. Similarly an order for security for costs can be applied for by
the defendant where the claim against them is weak and the claimant is unlikely to
meet the costs after trial. The court also has a range of sanctions at its disposal in an
attempt to enforce compliance with its orders, directions and timetable. These are
exercised in accordance with the overriding objective.

Question 1 Angela brings an action against Ian in respect of, Angela alleges,
Ian’s negligent installation of computer software on Angela’s business computer
system. Angela issues and serves particulars of claim in which she alleges that
Ian had breached terms of the installation contract by (a) failing to complete the
installation on time and (b) failing to install some key pieces of software, which led
the computer system to crash repeatedly. Angela alleges that the late completion
caused her a loss of £20,000 from internet sales she had hoped to make. She has
also claimed £35,000 for losses due to the subsequent crashing of the computer
system and £85,000 for the costs of obtaining a replacement computer system. As
Ian was away when the claim form was received, Ian’s secretary issued a holding
defence which denied that there had been any late installation and also denied
that the installation, when it occurred, was in breach of any contractual terms as
to quality. The defence does not admit the extent of loss or damage suffered by
Angela.
Angela needs money to pay the first instalment for the replacement computer
system and to keep her business afloat in the absence of the income she hoped to
gain through Ian’s computer system. She estimates that she needs about £25,000.
Advise Angela on the steps she can take to obtain some or all of her damages as
soon as possible.
Question 2 ‘Litigants should not be able to ignore or abuse the rules of civil litigation
so as to put other parties to undue cost or inconvenience nor should unwarranted
actions be allowed to continue at unnecessary cost to innocent parties.’
In what ways do the Civil Procedure Rules seek to achieve this aim?

Question 1 Angela may apply for summary judgment of the claim on 14 days’ notice
under rule 24.4 CPR. There is also the power to strike out a defence where it reveals no
‘reasonable grounds’ for defending a claim (rule 3.4(2)(a)). Generally, however, striking
out is to be used only exceptionally (Three Rivers District Council v Bank of England (No
3) [2003] 2 AC 1) and so summary judgment appears more appropriate when there is a
defence given but it is a weak one. The court may grant summary judgment if Angela
convinces the court that Ian has no real prospect of success in defending the claim
(rule 24.2(a)(ii)). The court would have to have regard to the evidence presented by
Angela (on paper) at this point to evaluate the strength of the claim. The court will
only enter summary judgment for a claimant like Angela when it is convinced that
the defence is weak or a ‘sham’ (see Public Trustee v Williams (2000) LTL 10/2/00). The
court will only enter judgment in this way if it is not required to look at the evidence
in the case in detail; if detailed evidential analysis is required, then, on that basis, it is
possible to argue that there is a prospect of successfully defending the claim.
Generally allegations of negligence are more difficult to conclude by summary
judgment and so Angela may be more likely to succeed in respect of her claim for late
installation (which will probably be much simpler to resolve at an early stage) than
the more complicated claim regarding the quality of the software. The matter will be
resolved with written evidence (see rule 24.5). As well as refusing summary judgment
because there is a defence revealed, the court may also refuse if there is another
compelling reason why the matter should proceed to trial (rule 24.2(b)). The court may
enter judgment for Angela and leave open the issue of assessment of damages for a
fuller hearing. This would be appropriate where the liability issue might be simple but
the damages issues more complicated.
If Angela fails to obtain summary judgment, she could seek to obtain the money she
needs by means of an interim payment under rule 25. If Ian was liable to make an
interim payment, whatever he pays would be deducted from any overall damages
awarded against him. The procedure for interim payments is to make an application
on notice, supported by evidence (rule 25.6). Angela would have to show at the
hearing that if the claim went to trial, she ‘would obtain judgment for a substantial
amount of money (other than costs)’ against Ian (rule 25.7(1)(c)). The amount to be
awarded as an interim payment would be limited to a ‘reasonable proportion’ of the
likely final damages (rule 25.7(2)).
Question 2 As ever, it is worth bearing in mind the overriding objective when

answering this question, in addition to the specific rules. Various CPR rules are
relevant. The provisions in rule 3 for the striking out of claims and the rules regarding
summary judgments under rule 24 allow the courts to control litigation and ensure
that parties without a strong case can be dealt with quickly and cheaply. The costs
rules in Part 46 also provide disincentives to unwarranted litigation.
However, the CPR goes further in preventing speculative litigation through the
mechanism of ‘security for costs’. A defendant can seek an order for security for
costs at a case management conference (rule 25.12). The effect is that the claimant
is required to make a payment of a ‘just’ sum (Procon (Great Britain) Ltd v Provincial
Building Co Ltd [1984] 1 WLR 557) into court at an early stage in the proceedings. This
amount paid can later be used to meet the costs incurred by a defendant (if the
defendant wins) in defending the claim. The court must be sensitive to issues of
obstructing access to justice and therefore the court can only make such an order if
one of the conditions specified in rule 25.13(2) is established. These conditions include
proof that the claimant is a company that may not be able to meet the defendants’
costs (rule 25.13(2)(c)) or that the claimant is a private person who the court has
reason to suspect might not meet costs obligations for specific reasons, such as living
in a country in which court orders are not enforceable (rule 25.13(2)(a)) or having taken
steps to evade the payment of costs (rule 25.13(2)(d), (e) or (g)).
Clearly just requiring a certain amount of money to be paid into court does not ensure
that the provisions of the CPR, providing for a speedy and cost-effective trial process,
will be complied with. Therefore the system of sanctions provides material incentives
for all parties to comply with the timetable and the directions set for the litigation they
are conducting. In contrast with the preceding system, the court’s duty of active case
management empowers the court to impose sanctions of its own accord (rule 3.3).
At one extreme, the court, faced with a breach of a court order (including a failure to
comply with standard directions) could order that the party’s claim be struck out (rule
3.4(2)(c)). This sanction is only used in extreme cases (Biguzzi v Rank Leisure plc [1999]
1 WLR 1926), although there is a related power to strike out a case if certain court fees
are not paid (rule 3.7(4)). The power to impose lesser sanctions is contained in rule
3.1 (the general case management powers) and what is imposed will depend on the
overriding objective. While rules 3.8 and 3.9 make provision for appealing sanctions,
there is no clear definition of a sanction in the CPR. Rather, there is the power to
make such orders and directions as are deemed necessary. These are specified under
rule 3.1(2) to include adjournments (rule 3.1(2)(a)), stay proceedings (rule 3.1(2)(f)),
restrictions upon witnesses or issues to be tried (rule 3.1(2)(k)) and to take ‘any other
step or make any other order for the purpose of managing the case and furthering the
overriding objective’ (rule 3.1(2)(m)). Furthermore the court has powers to regulate
costs under rule 44.3 and, in doing so, will have regard to the conduct of each party
(rule 44.3(4)(a)). In this way a party can be disadvantaged by failing to follow the
requirements of the CPR or to follow orders made under the CPR in a variety of ways.
A thoughtful answer to this question might also consider the powers to stay
proceedings or for claimants to discontinue them. Rules are often broken due to
circumstances beyond the control of the parties. As a result the CPR makes provision
for a party facing difficulties in pursuing a claim to end their claim (i.e. to discontinue
under Part 38) or to delay its progress (i.e. to stay at the request of a particular party
under rule 3.1).
Reflect and review



I can critically evaluate the process for summary   

judgment.
I can explore the ways an action can be struck out,   

discontinued or proceedings can be stayed.
I can describe how interim payments are administered.   
I can consider how security for costs works in the   

process.
I understand what sanctions are available to the court   

to ensure its orders and directions are followed.
revise?
Must Revision
revise done
6.1 Summary judgment  
6.2 Striking out, discontinuance and stays  
6.3 Interim payments  
6.4 Security for costs  
6.5 Sanctions  
7 Issues before trial
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
7.1 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
7.2 Norwich Pharmacal and related disclosure orders . . . . . . . . . . . . . 98
7.3 Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
7.4 Witness statements and affidavits . . . . . . . . . . . . . . . . . . . . 104
7.5 Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
7.6 Admissions and documentary evidence . . . . . . . . . . . . . . . . . 106
7.7 Interim injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
7.8 Freezing injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . 109
7.9 Search orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
7.10 Listing and pre-trial review . . . . . . . . . . . . . . . . . . . . . . . 113
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Introduction
For a case to proceed to trial much preparation must take place. This preparation
will involve mutual disclosure of evidence so that the trial is neither ambushed
nor delayed due to late notice of relevant evidence. Sometimes parties need to
be compelled to produce relevant evidence and the civil trial, unlike its criminal
counterpart, relies more on documentary evidence than on oral testimony. Witness
statements and affidavits are commonly used by trial parties and the exclusionary rule
on hearsay evidence is remarkably relaxed in civil proceedings. Sometimes injunctive
relief is required as an interim measure or to either freeze assets or search for them
in anticipation that the defendant may abscond or transfer monies – making a claim
futile with no prospect of recovery. These injunctions do not only apply to funds.
Finally, before trial begins, a listing and a pre-trial review can take place. Although it is
hoped that settlement will come at this stage it is realised that going to trial is a real
possibility and so, to smooth the process, further extensive preparation must take
place.
Essential reading
Learning outcomes
uu critically evaluate the rules governing the disclosure of evidence

uu explore how Norwich Pharmacal and related disclosure orders are used by the
courts
uu describe how experts and witness statements and affidavits are used by the civil
process
uu critically consider the use of hearsay evidence in civil proceedings
uu evaluate how admissions and documentary evidence are used by the courts
uu critically evaluate the use of interim injunctions, freezing injunctions and search
orders in the civil process
uu understand how listing and pre-trial reviews work.
Civil and criminal procedure 7 Issues before trial page 95
7.1 Disclosure
Essential reading
¢¢ Sime, Chapter 29: ‘Disclosure’.
In all civil disputes there is likely to be documentary evidence which one party will be
relying upon in their claim or for their defence. Equally the other party to the dispute
will require advance notice of the intention to rely on this documentary evidence.
The CPR provide a framework for the advance disclosure of this written material. This
disclosure usually takes place early on in the claim when a list of documents is served
on the other side. The list is a formal document which lists all the documents in a
party’s control that are material to the case. This process usually has two stages. The
first is disclosure and the second is inspection. Inspection is where the other side can
request copies of the documents which have appeared on the initial list. They can also
request to attend the offices of the disclosing party to personally inspect the relevant
documentation.
7.1.1 Responsibilities
In the early stages after they have been retained, solicitors are required to inform their
clients of their obligations to disclose relevant documentation. They must ensure that
original documents are available at the disclosure stage. Counsel have similar duties
and must withdraw if a client refuses to disclose.
The primary obligation to meet the requirements of full disclosure of material

documents rests with the client. Standard disclosure in fast track and multi-track
cases involves the client engaging in a reasonable search for relevant documents. They
then have to sign a disclosure statement to the effect that they have understood their
obligations and have complied with them. This obligation is continuing and so covers
all documentation at any stage until proceedings have been concluded.
7.1.2 Stages of disclosure

The main obligation for disclosure comes during fast track and multi-track claims. This
is usually in response to directions made at the allocation stage. Directions will usually
indicate whether a list of documents and a signed disclosure statement are required
and a calendar date by which disclosure will need to be complied with. Allocation will
take place within a few weeks of the filing of defences and disclosure comes soon after.
This usually means that two months will pass after the defence has been filed.
In small claims cases, on the other hand, where there is no obligation to serve lists of
documents, disclosure is usually limited to disclosing the documents that each party
intends to rely upon.
Pre-action protocols have meant that much of the required disclosure will take place
before proceedings have been issued. This is usually because defendants will produce
substantial documentation to accompany their defence and claimants will do likewise
for their claims. If full disclosure has taken place in this way then the court will have to
be informed when the allocation questionnaires are sent in so that directions made on
allocation will reflect the correct position.
When statements of case are served, these will often be accompanied by important
documents. Under rule 31.14 CPR the other side is also entitled to inspect documents
which were referred to in the statements of case without waiting for the standard
disclosures. If there is an interim application in the early stages of litigation then this
will often be disclosed as exhibits to the written evidence which then supports the
application.
Some specialist procedures are also in place but these are only used where there
is a real litigation reason for incurring additional expense. These include Norwich
Pharmacal orders and search orders, both of which will be considered later in this
chapter.
7.1.3 Standard disclosure

Any order to give disclosure is an order to give standard disclosure unless the court
directs otherwise. Under rule 31.5 CPR this will involve each party making a reasonable
search for documents which are material to the case. Then a list of documents will
need to be made and served on every other party. These must identify the documents
which have been disclosed in a concise and convenient form.
Under rule 31.6 CPR standard disclosure requires a party to disclose documents:
uu upon which he or she relies
uu which adversely affect his or her own case
uu which adversely affect or support another party’s case
uu that need to be disclosed by a relevant practice direction.
Deciding whether a document falls into any of these categories is judged against
the statements of case. For example in a personal injuries claim standard disclosure
requires an employer to disclose documentation which relates to other accidents
involving the same machinery. That said, disclosure cannot be used to ‘fish’ for
information. It is rare, however, for orders to require the disclosure of documents as
part of a ‘train of inquiry’ which can enable a party to advance his own case or damage
that of his opponent (an exception can be seen in Commissioners of Inland Revenue v
Exeter City AFC Ltd (2004) LTL 12/5/04).
Under rule 31.4 CPR a ‘document’ for these purposes means anything on which
information of any description is recorded. This could include text messages on mobile
telephones. Under rule 31.8(1) CPR disclosure must be made of documents which are,
or have been, in a party’s control. Control refers to possession or to inspection or to
the ability to take copies (see B v B (Matrimonial Proceedings: Discovery) (1978) Fam 181).
When considering the ‘reasonableness of the search’ rule 31.7 CPR sets out some factors
to be considered. These include the number of documents involved, the nature and
complexity of proceedings, the ease and expense of retrieval of any particular document
and the significance of any document which is likely to be located during the search (see
Nichia Corporation v Argos Ltd [2007] FSR 38). The court may choose to limit or dispense
with standard disclosure depending on their view of the case.
7.1.4 List of documents

This is simply a list of documents that a party has relating to the case. There is a
requirement that the documents are identified in a convenient order and as concisely
as possible. The list must indicate which documents are said to be privileged (see
below) and which documents are no longer available and what has happened to them.
The list of documents must contain a ‘disclosure statement’ which sets out the extent
of the search that has been made and certifies that the party has understood the
duty to disclose. If the party has not disclosed something – suggesting that it would
be unreasonable to do so – then they must identify what document(s) have not been
disclosed. This statement is not a mere technicality as it imposes a duty upon the
each party to give full standard disclosure. It has to be signed by the party in person,
not by their solicitor. If documents have been lost or destroyed then they must still be
identified in the list of documents although there is obviously no requirement to give
inspection.
7.1.5 Privilege
Some documents are described as privileged, which means that they do not need
to be made available for inspection. This means that they must be identified at
the disclosure stage and the party wishing to protect them must state in the list of
documents the grounds on which this assertion is being made.
Activity 7.1
Read Sime 29.26–29.64 and write a 500 word response to the following statement.
‘Justice is better served by candour than by suppression’ (per Lord Edmund-Davies

in Waugh v British Railways Board [1980] AC 521 at 543).
To what extent does the current operation of the rules concerning privilege reflect
this view?
7.1.6 Inspection
The inspection of documents comes after disclosure has been made. Once this stage
has taken place the other party must be allowed to inspect the documents listed
under its control. Normally the whole of a document can be inspected. Alternatively
the inspecting party can conduct this process ‘at arm’s length’ by requesting the
supply of copies of the documents in the list. This will incur costs which the inspecting
party should pay. All requests should be made within seven days in accordance with
rule 31.15(c) CPR.
If a party fails to serve a list of documents or fails to allow inspection then an

application can be made for an order which compels performance. Before issuing
the application the innocent party must write to the defaulting party inviting them
to remedy their default. If this remedying does not take place then the court will
issue an ‘unless’ order which requires the default to be put right. The sanctions for
non-disclosure can be severe and can include the striking out of the defaulting party’s
statement of case.
If there are objections to disclosure or inspection then a process for objection is

outlined in rule 31.19 CPR. If a hearing follows then according to Atos Consulting Ltd v
Avis plc (2007) LTL 5/7/07 the court will consider the evidence and uphold the right
to withhold inspection if there is no challenge to the objection. They will order
inspection if the evidence does not establish a right to withhold documents and
order further evidence to be produced if insufficient grounds have been shown for
challenge. This procedure must conform with the ECHR and Article 6(1) (see Rowe v UK
(2000) 30 EHRR 1).
7.1.7 Specific disclosure

If a party believes the other side has documentation which has not been disclosed
then they can make an order for specific disclosure. If standard disclosure has not
been made then the order will usually be granted. Written evidence must support
the application for specific disclosure and there must be at least three days notice to
the other side. If a document is mentioned in a statement of case, witness statement,
witness summary or affidavit then the other party is entitled to inspect the document.
Incautious reference should be avoided if parties wish to avoid disclosure! Under
32.19(1) CPR a party is presumed to admit the authenticity of documents disclosed by
the other side unless the party serves a notice requiring the document to be proved as
authentic at trial.
7.1.8 Collateral use

If a document has been disclosed under Part 31 CPR then these documents can only be
used for the purpose connected with the proper conduct of the present litigation. Any
misuse of the documents can be restrained by injunction or punished as a contempt of
court. This rule is not absolute and under rule 31.22 CPR if the document has been read
in open court or the court has given permission then this document can be used for
other purposes. Rule 31.22 has been adopted enthusiastically (see Barings plc v Coopers
and Lybrand [2000] 1 WLR 2353 and Singh v Christie (1993) The Times, 11 November 1993).
Summary
Disclosure is an important part of the civil process. Standard disclosure requires
parties to disclose documents which support their own case and also documents
which adversely affect them or which support another party’s case. ‘Document’ has
a wide meaning for this purpose. Disclosure is given by parties compiling a list of
documents. Some documents are protected by privilege. Inspection happens after
disclosure. Copies can be sent, but personal inspection is possible. Parties can apply
for specific disclosure where they feel the other side has failed in its positive duty to
disclose.
7.2 Norwich Pharmacal and related disclosure orders
Essential reading
¢¢ Sime, Chapter 30: ‘Norwich Pharmacal and related disclosure orders’
Having considered general disclosure it is now important to consider other special

forms of disclosure orders. The most significant here is known as a Norwich Pharmacal
order. This order is used where proceedings cannot be brought because the identity
of the true defendant is unknown. In Norwich Pharmacal Co v Customs and Excise
Commissioners [1974] AC133 the House of Lords revived the nineteenth-century Chancery
procedure of the bill of discovery and so a possible means by which the identity of
an unknown wrongdoer could be disclosed. In Norwich Pharmacal itself the issue was
one of disclosing the name of the importers who were known to the commissioners.
The Norwich Pharmacal jurisdiction is not restricted to claims in tort and is of general
application. It can also be used in breach of confidence and breach of contract cases.
7.2.1 Norwich Pharmacal orders

The principle on which the decision for a Norwich Pharmacal order rests is that without
such information proceedings cannot be commenced (Nikitin v Richards Butler [2007]
EWHC 173 (QB)). A Norwich Pharmacal order will only be made if the information
cannot be obtained by other means and if the claimant has a real interest in suing
the alleged wrongdoer. The order will not be made to satisfy curiosity (British Steel
Corporation v Granada Television Ltd [1981] AC 1096). If a person is a tortfeasor, and not
simply someone who has by chance become mixed up in the wrongdoing, then they
will be under a duty to assist the claimant by disclosing the identities of other persons
involved in the wrongdoing. These orders will often be included in freezing injunctions
and search orders. These orders are part of the equitable jurisdiction of the court and
so are discretionary and can be refused. In most of the cases where Norwich Pharmacal
orders have been made it has been clear that some tort has been committed against
the claimant. As long as the court is satisfied that an order should be made it will not
necessarily require that an underlying tort has been clearly made out (see Murphy v
Murphy [1999] 1 WLR 282).
Under s.10 SCA 1981 there is a general protection given to journalists’ sources of
information and this was enacted to protect the strong public interest in preserving
the right to information. This section applies despite any proprietary claim by the
claimant for delivery up of stolen documents if the documents could lead to the
identification of the source. It also applies to information which is not then published,
as long as there was a view that publication was going to take place. Section 10 has
been held to be compatible with Article 10 ECHR (Ashworth Hospital Authority v MGN Ltd
[2002] 1 WLR 2033).
The two main exceptions to the sections which are most likely to arise in Norwich
Pharmacal applications are where disclosure is in the interests of justice and where it
will prevent crime. Lord Bridge in X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1
explained that in the interests of justice would mean ‘that persons should be enabled
to exercise important legal rights and to protect themselves from serious legal wrongs
whether or not resort to legal proceedings in a court of law will be necessary to attain
these objectives’. Lord Oliver in Re an Inquiry under the Company Securities (Insider
Dealing) Act 1985 [1988] AC 660 stated that the prevention of crime would mean ‘the
detection and prosecution of crimes which are shown to have been committed and
where detection and prosecution could sensibly be said to act as a practical deterrent
to future criminal conduct of a similar type’. So, for example, if documents have been
stolen and then used in a journalist’s article, then disclosure may be required.
This means that where a Norwich Pharmacal order is sought against a journalist
then the claimant must first satisfy the court that one of the exceptions applies. The
disclosure must be necessary and the court will have to weigh up the importance of
protecting the source of information and the aim of achieving justice. Questions that
the court must ask when considering the making of an order include:
uu how was the information obtained?
uu how confidential is the information?
uu is there a public interest in concealing the journalist’s sources?
To make the order a claim must be commenced against the facilitator using a claim
form. If the case is urgent then an application can be made without notice.
7.2.2 Mere witness rule

A person who has become mixed up in a tort in such a way that they have assisted
in its commission may be subject to a Norwich Pharmacal order. They must be
distinguished from a mere witness. Although a mere witness can be compelled by a
witness summons to give evidence at trial he or she cannot be compelled to assist a
party before then. The fact that they may know the identity of the tortfeasor does not
mean they have assisted in the commission of a tort (see Ricci v Chow [1987] 1 WLR 1658
and Harrington v Polytechnic of North London [1984] 1 WLR 1293).
7.2.3 Bankers Trust orders

In extending the Norwich Pharmacal principles it is possible to make an order for
disclosure to aid a tracing claim to find out what has been done with the misapplied
money. This is to prevent equity from being invoked in vain by the subject matter of
an action disappearing by the time the case reaches trial. The guiding principles for
these orders comes from the case of Bankers Trust Co v Shapira [1980] 1 WLR 1274. These
orders are only granted in urgent cases. If there is no urgency then the information
should be sought under the Bankers’ Books Evidence Act 1879. To gain a Bankers Trust
order there must be a good reason to believe that the third party either holds or has
held property belonging to the claimant and the potential advantage to the claimant
of obtaining the order has to be balanced against the detriment against the third party
in terms of costs and invasion of privacy. Also the courts will consider whether there
will be any breach of obligations of confidentiality to others. These orders are often
included in freezing injunctions. If the order is granted then the third party will be
required to file and serve written evidence stating whether the property has ever been
in its possession and what has happened to it.
7.2.4 Disclosure before proceedings start

Under ss.33 and 34 SCA 1981 and the equivalent county court proceedings in ss.52 and
53 CCA 1984 the courts possess a number of powers to order the pre-action inspection
of property and disclosure of documents, as well as inspection and disclosure against
non-parties. These provisions are important because they require a party to allow
inspection or to give disclosure only after proceedings are commenced while a
non-party can be required to do so only at trial. These provisions bring forward the
time when the parties can obtain full information and this then promotes an early
settlement if possible – or proper preparation for trial if necessary. If an application
is granted then the person against whom the order is made will usually be awarded
their costs of the application and of complying with the order. These costs are usually
recoverable as damages against the defendant to the substantive claim.
There are five conditions for these pre-action disclosure orders to be made.
1. The applicant must appear likely to be a party to future proceedings (Black v

Sumitomo Corporation [2002] 1 WLR 1569).
2. The defendant must appear to be a likely party.
3. It must appear likely that relevant documents are or have been in the defendant’s
possession, custody or power.
4. If proceedings had started, the respondent’s duty by way of standard disclosure

would extend to the documents or classes of documents of which the applicant
seeks disclosure.
5. Disclosure before proceedings must be desirable to dispose fairly of the

anticipated proceedings, to assist the resolution of the dispute or to save costs.
If the conditions are met then the court has discretion to grant a pre-action disclosure
order. This discretion must be considered alongside the overriding objective and can
still be refused even if the conditions have been met.
7.2.5 Disclosure by non-parties

Under s.34(2) SCA 1981 and s.53(2) CCA 1984 the court has the power to order disclosure
by a person who is not a party to the proceedings. For this order to be granted three
conditions must be met.
1. It must appear that there are likely to be relevant documents in the respondent’s
possession, custody or power.
2. The documents of which disclosure is sought are likely to support the case of the
applicant.
3. Disclosure is necessary in order to dispose fairly of the claim or to save costs.
This means that disclosure against non-parties will therefore only be granted where
the documents sought are likely to be relevant – as opposed to disclosable under
standard disclosure (American Home Products Corporation v Novartis Pharmaceuticals
UK Ltd (2001) LTL 13/2/01). Once it has been decided by the court that the document
is relevant then the court has to decide whether to refuse the order at its discretion
or to impose some limit on disclosure (see Re Howglen Ltd [2001] 1 All ER 376). Once
granted the order must specify the documents which must be disclosed and give the
respondent the opportunity to explain why the documents cannot be disclosed, if this
is the case.
7.2.6 Inspection of property

As discussed in 7.1.6 above, inspection is an important process once disclosure has
been made. The court can also make orders for inspection of property and you will
explore these in Activity 7.2.
Activity 7.2
Read Sime 30.34–30.42 and compile a 150 word summary on how the following
inspections work in civil proceedings.
a. Inspection of property during proceedings.
b. Inspection of property in the possession of non-parties.
c. Inspection of property before issue of proceedings.
7.2.7 Data protection

Under s.7 Data Protection Act 1998 it is possible that, once a request has been made
in writing and a fee has been paid, an individual is entitled to have communicated to
him or her in an intelligible form any personal data which relates to that individual.
This will include any information about the source of that data. ‘Data’ for this purpose
means information which is processed automatically and information recorded as

part of a filing system. For a definition of personal data see Durant v Financial Services
Authority [2004] FSR 28.
This right to information is subject to various exemptions of which an important one is

the restriction on information that would reveal information about other individuals
without their consent. The Data Controller† has to balance the interests of all parties †
The Data Controller is a
and can remove references to the other parties if necessary. All requests must be dealt person who (either alone,
with promptly and can be ordered by the court. The court has unlimited discretion on jointly or in common with
whether to grant an order but the main purpose of access is to correct inaccuracy. other persons) determines
the purposes for which and
the manner in which any
7.2.8 Interim delivery up of goods
personal data are, or are to
Section 4(2) Torts (Interference with Goods) Act 1977 grants the court the power to be, processed.
make orders for the delivery up of any goods which are, or may become, the subject
matter of proceedings for wrongful interference. Applications under this Act are
among the interim remedies available under rule 25.1 CPR. The guidelines for the
granting of these orders can be found in CBS United Kingdom Ltd v Lambert [1983] Ch 37.
Summary
Special orders are available which differ from the standard disclosure process. The
most important of these is the Norwich Pharmacal order which is used to find the
identity of an unknown potential defendant. Bankers Trust orders are also available
to find the whereabouts of stolen funds. Pre-action disclosure orders are used to
bring forward the time when disclosure of documents takes place. There are strict
requirements for pre-action disclosure orders to be granted. Disclosure against
non-parties enables the court to order a witness to produce documents in advance of
the trial, which avoids adjournments when the documents are produced at the last
minute. Inspection is an important part of the disclosure process and data protection
may be important if an applicant wishes to change an error in personal data about
them. It is also possible for the courts to order an interim delivery up of goods. You
may find Table 30.1 in Sime a useful summary of the different disclosure orders.
7.3 Experts
Essential reading
¢¢ Sime, Chapter 31: ‘Experts’.
¢¢ Edmond, G. ‘Judicial Representations of Scientific Evidence’, Modern Law Review

63(2) 2000, p.216
At trial questions of fact are decided by the tribunal of fact. This will, in civil
proceedings, usually be a judge. Increasingly, however, proceedings have come to rely
on very technical and scientific issues which judges cannot be reasonably expected to
decide on without some assistance from expert opinion.
7.3.1 Admissibility of expert evidence

If an issue relates to an artistic, scientific or technical matter then it must be decided
on the basis of expert evidence. This meant that the opinion of an eminent engineer
was admitted in Folkes v Chadd (1782) as to the effect of an artificial bank on the silting
of a harbour. For the admission of expert evidence there are four preconditions.
1. The matter must call for expertise.
2. The area must be an established field of expertise.
3. The witness must be suitably qualified.
4. Permission to adduce the evidence must be obtained from the court.

Experts are, like other witnesses, permitted to give evidence of primary facts within
their own knowledge. That said, the real purpose of calling an expert is for them to
express an opinion on a matter in issue. An expert is permitted to do this only if the
matter calls for expertise. This means that the matter must be outside the expertise of
the tribunal of fact. If the matter is within the experience of most members of the public
then an expert’s evidence would not be admissible (see Re N (A Minor) (Sexual abuse:
video evidence) [1997] 1WLR 153). As well as an expert, s.70(1) SCA 1981 and s.63(1) CCA
1984 allow a judge to call in the aid of one or more assessors. These assessors might, for
example, assess costs in Admiralty claims.
For expert testimony to be used the court must be satisfied that there is a body of
expertise that is capable of influencing the court on the matter in hand. This will
usually be obvious but if the area is a developing area of expertise (Battered Woman
Syndrome in the early 1990s is an example) then the court will have to be satisfied
that there is sufficient value in hearing the expert. A person will be an expert if they
are skilled in the field in question through qualifications or experience. At common
law an expert was never allowed to express an opinion which was directly related to
one of the issues in a case. This was known as the ultimate issue rule. This rule, in civil
proceedings, was abolished by s.3(3) Civil Evidence Act 1972. However it is still the case
that experts are not expected to attempt to make findings of fact. Generally witnesses
who are not qualified as experts will only be able to give evidence as to facts.
Exceptionally, lay witnesses may be allowed to express an opinion about events within
their personal knowledge if describing those events in detail would be unduly difficult
and artificial. This may include, for example, an estimate of a person’s age or their
height or whether a person appeared to be drunk (see R v Davies [1962] 1 WLR 1111).
7.3.2 Control of evidence and choice of expert

Rule 32.1 CPR provides that the court may control the evidence to be adduced in the
course of proceedings, which may involve excluding evidence that would otherwise
be admissible, by directing on the issues which require evidence, the nature of the
evidence required and the way in which the evidence will be placed before the court.
This is all done in accordance with the overriding objective.
Rule 35.3 CPR states that the primary duty of the expert is to help the court and this
duty overrides any obligation to the person from whom instructions have been
received. This is because the CPR has placed an increasing emphasis on the importance
of experts remaining independent of the parties. This means that expert evidence
should be – and should be seen to be – the independent product of the expert (see
Whitehouse v Jordan [1981] 1 WLR 246 and Stevens v Gullis [2000] 1 All ER 527).
If an expert has been instructed to give an opinion in relation to proposed or actual

proceedings then he or she will usually do this in the form of a written report. This
document would be protected by legal professional privilege and does not need to
be disclosed to the other side. This means that if a party does not like the opinion
expressed by their expert, they can find another expert. Privilege will attach to the
report until it is disclosed – usually after directions have been made (see Jackson v
Marley Davenport Ltd [2004] 1 WLR 2926).
7.3.3 Disclosure of experts’ reports

Section 2 CEA 1972 provides for the disclosure of reports of experts that are intended
to be called at trial. These rules do not get round legal professional privilege and a
party will still be able to seek another expert if the first expert’s advice is not useful
to their case. The rules of the court do require prior disclosure as a condition for the
expert evidence to be admissible. This is to avoid ambush at trial and to promote early
settlements.
Activity 7.3
Read Sime 31.20–31.40 and compile a 200 word summary to explain how disclosure
of experts’ reports works in civil proceedings along with written questions and
without prejudice discussions.
7.3.4 Examination by experts

It would be unusual for an expert to be able to give a valuable opinion without first
examining the subject matter relevant to that question. If the party instructing
the expert has control of the subject matter this would not be a problem. Where it
is in possession of the other side or a non-party then the court will need to direct
inspection if consent has not been forthcoming.
If the party instructing the expert wishes to disprove the authenticity or authorship of
a piece of writing then they can adduce three forms of evidence.
1. Factual testimony from a witness who saw the document being written or who can
testify that the alleged author could not have written it.
2. Opinion evidence can be adduced from a person who is familiar with the
handwriting of the alleged author.
3. Evidence from a handwriting expert comparing the disputed writing with a control
sample from the alleged author.
This final option is provided for by s.8 Criminal Procedure Act 1865. Although the
statute refers to ‘witnesses’ it is confirmed that this comparison can only be done by
an expert in the comparison of handwriting (R v Silverlock [1894] 2 QB 766 now doubted
by R v Secretary of State for the Home Department ex parte Abassi (1992) The Times, 16
April 1992).
In cases involving personal injuries the defendant’s medical experts will need to
examine the claimant if they are to be able to give meaningful advice. Clearly this
would be an infringement of the fundamental human right to liberty if a claimant
refused to submit to a medical examination. As a result the court gives the claimant a
choice. They can either submit to the defendant’s medical expert for examination or,
if the claimant refuses, the action is stayed. If stayed this will prevent the claim from
going to trial. This stay will be granted if it is just and reasonable in the circumstances.
It has been confirmed that it is never reasonable to insist that the defendant must
disclose the report compiled after the examination as a condition of the claimant
consenting to it as this report is protected by privilege (Megarity v DJ Ryan and Sons Ltd
[1980] 1 WLR 1237).
7.3.5 Experts at trial

Admissibility of experts’ reports remains in the province of the trial judge (Sullivan
v West Yorkshire Passenger Transport Executive [1985] 2 All ER 134). Experts often sit in
court throughout proceedings and listen to the evidence and advise counsel on any
issues raised during proceedings. When they are called to give evidence their reports
are usually put in evidence at the beginning of their examination in chief. They will
be expected to explain any technical matters and comment on evidence already
given. The expert will be expected to give the court independent assistance by way of
objective unbiased opinion regarding matter within the expertise of the report. If the
expert has been jointly instructed at trial then there should no need for the report to
be tested by cross-examination. If there is a conflict between experts then the judge
must resolve the conflict by making a finding of fact (Sewell v Electrolux Ltd (1997)
The Times, 7 November 1997). If an expert causes significant expense to be incurred
through flagrant disregard for their duties to the court then he or she will be ordered
to pay these costs. Expert reports, unlike other exchanged statements and disclosed
documents, can be used for collateral purposes.
Summary
If the matter before the court is outside the expertise of the court then the court
may permit the use of expert testimony. As expert testimony is only permitted with
the permission of the court it is important that directions are sought as to what type
of evidence will be permitted and the form this evidence should take. An expert’s
primary duty will be to the court, not to the party paying the fees, and they will be
expected to give their independent opinion on issues within their areas of expertise.
There are specific requirements as to how experts’ reports should be compiled. They
will require a statement of truth.
7.4 Witness statements and affidavits
Essential reading
¢¢ Sime, Chapter 32: ‘Witness statements and affidavits’.
There are a number of rules concerning the use of written evidence in civil
proceedings. Historically, evidence in civil trials was either given orally or by way
of affidavit. Under the CPR evidence is still given from the witness box, but with
written statements exchanged well before the trial standing as evidence in chief
of the witness. This should result in a saving of time and costs at trial and it should
enable the parties to conduct a full and frank evaluation of their dispute with a view
to settlement. If the request is for an interim application then this can be given
by a variety of different methods. The principal method is by using signed witness
statements.
7.4.1 Types of written evidence

There are six main types of written evidence that you should be aware of. These are:
uu witness statement
uu witness summaries
uu affidavits
uu affirmations
uu statements of case
uu paragraph 10 of an application notice.
Activity 7.4
Read Sime 32.09–32.34 and compile a 150 word summary which provides a working
definition of the six different types of evidence. Then decide what type of evidence
should be used in the following situations.
a. Daisy refuses to swear on oath the truth of a statement because she says she
does not believe in God.
b. Ewan is running out of time for the exchange of signed witness statements and
is keen to avoid costs.
c. Fosia is concerned that details of her sexual past will be used in a claim for
breach of contract as the defendant, Gary, has said he will say in his witness
statement that she was previously a prostitute and this will be read aloud in
open court.
7.5 Hearsay
Essential reading
¢¢ Sime, Chapter 33: ‘Hearsay’.
It is no longer the case, unlike in criminal cases, that civil proceedings automatically
exclude evidence on the basis that it is hearsay. However, judges continue to be
suspicious of the use of hearsay evidence and as a result a number of procedural
requirements are in place. If a party wishes to adduce hearsay evidence then they will
be required to serve notice of this intention.
7.5.1 Hearsay evidence

Hearsay evidence is a statement, whether of fact or opinion (no matter how it is made)
which is made otherwise than by a person while giving oral testimony in court and is
relied on as evidence on the truth of its contents (R v Sharp [1988] 1 WLR 7). Historically
such evidence was excluded on the basis that it was said to flout the ‘rule against
narrative’, where statements made in court could not be used to corroborate earlier
statements. There was always an important exception to this rule: where the previous
statement is being relied upon not to prove that the statement was true but that the
statement was made. This is termed original evidence (see Rattan v R [1972] AC 378 PC).
7.5.2 Real evidence

A distinction is made between hearsay evidence and real evidence. Real evidence,
unlike hearsay, is admissible at common law. Real evidence consists of physical
objects that are produced for the inspection of the court. This would include a gun
allegedly used for a murder or a baseball bat allegedly used for a serious physical
assault. The use of this evidence is clearly distinguished from hearsay evidence in these
instances. However the line is rather less clear when the courts are asked to consider a
computer printout or recordings made by various machines (see The Statute of Liberty
[1968] 1 WLR 739). Although some doubt may remain as to the boundaries between
hearsay and real evidence it is now clear that the court in civil proceedings, if in doubt,
is likely to decide that any such evidence is real and therefore admissible without
notice.
7.5.3 Admissibility of hearsay evidence

Under s.1(1) Civil Evidence Act (CEA) 1995 hearsay as an exclusion rule was abolished
for all civil proceedings. Under s.1(2)(b) admissible hearsay can include any form of
hearsay. However under s.6(2) CEA 1995 there is an exclusionary rule which is used to
try and prevent abuse by witnesses manufacturing supporting evidence which would
have fallen foul of the old rule against narrative. This rule means that a party which
has called or intends to call a person as a witness may, in general, not also adduce
previous statements made by that witness. There are two exceptions to this exclusion.
1. Where the court grants permission for the previous statement to be used.
2. Where it is sought to use the earlier statement to rebut a suggestion of fabrication

made in cross-examination.
Witnesses can still choose to adopt their exchanged statements as their evidence in
chief – s.6(2) CEA 1995 does not prevent this. It is important to remember that under
s.14(1) CEA 1995 the new inclusionary position does not make inadmissible evidence
admissible just because it is hearsay. In civil trials it is now generally the rule that
evidence being tried by a judge will be admissible and the judge can be left to decide
what weight to give to the evidence (which would generally appear to be very little).
There were always six common law exceptions to the hearsay rule, which have now
become statutory exceptions to the hearsay rule and are found in s.7(2) and (3) CEA
1995. These exceptions are:
uu published works on matters of a public nature
uu public documents such as official registers
uu records of certain courts
uu reputation adduced to establish good or bad character
uu reputation or family tradition or question of pedigree
uu evidence for the purpose of proving or disproving the existence of a public or

general right or of identifying a person or thing.
7.5.4 Notice procedure

A party who wishes to rely on hearsay evidence at trial will be required to serve notice
of that intention in advance of the trial under s.2 CEA 1995.
Activity 7.5
Read Sime 33.16–33.25 and compile a 100 word summary identifying how the notice
procedure works in the admission of hearsay evidence in civil cases.
7.5.5 Hearsay at trial

If the hearsay being used at trial is contained in a business record then it will be
enough to supply the record and a certificate which complies with s.9 CEA 1995. If the
statement is contained in a document then the document must be authenticated in
accordance with s.8(1) CEA 1995. If the hearsay is oral then the witness who heard the
hearsay will need to be called to confirm they heard the hearsay statement.
Under s.5(2) CEA 1995 evidence is admissible to attack or support the credibility of
hearsay statements at trial. In assessing the weight to be given to hearsay evidence the
court is required by s.4(1) CEA 1995 to have regard to the circumstances from which
inferences can reasonably be drawn as to the reliability of the evidence or otherwise. A
number of factors to be considered are identified in s.4(2) CEA 1995.
Summary
Hearsay was historically not admissible at common law. Since the CEA 1995 it is now
admissible but a notice procedure has to be followed. Hearsay evidence must be
distinguished from original evidence, where the purpose of use is different. The
statutory process for admitting hearsay evidence cannot make other evidence which
would normally be excluded (that is, inadmissible evidence) inclusible just because it
is also hearsay. Hearsay notices will not be required for interim hearings. If one party
intends to rely on hearsay evidence then the other side can apply for an order to make
the maker of the statement attend trial for cross-examination. Judges rarely give much
weight to hearsay evidence.
7.6 Admissions and documentary evidence
Essential reading
¢¢ Sime, Chapter 34: ‘Admissions and documentary evidence’.
Admissions can be formal or informal. Formal admissions will have the effect of
establishing the facts admitted. This means the matter will no longer be in issue
and neither side will be able to adduce evidence on it. These formal admissions may
sometimes include evidence which is adverse and could include an acknowledgement
of service or an admission made and recorded at a case management hearing. The
admission must be one of law rather than fact (Ashmore v Corporation of Lloyds [1992]
1 WLR 446). Informal admissions could include oral out-of-court statements made by
a party against their own interests. They are items of evidence that can be proved or
disproved by other evidence.
In accordance with the overriding objective, pre-action protocols should enable

defendants to assess the strength of the claim being made against them and then they
can decide whether to admit liability at an earlier stage. What of pre-action admissions
of liability? At common law there is no restriction on a defendant withdrawing a
pre-action admission. However in personal injury cases under rule 14.1A CPR it is now
only possible for pre-action admissions to be withdrawn if all parties consent or if
the court grants permission. This permission will be required if it is a personal injury
claim and the court will be required to have regard to all circumstances of the case in
accordance with PD 14 paragraph 7.2.
So that the court’s time at trial is not wasted on matters which could have been dealt
with at an earlier stage a party may serve the other side with a notice to admit facts
under rule 32.18 CPR. This should be served no later than 21 days before the trial. Courts
always look favourably on notices to admit because they have the effect of narrowing
the issues which are then decided at trial. Admissions which are made in response to
a notice to admit are formal admissions and in the spirit of Part 44 CPR a party who
refuses or neglects to make an admission after they have been served with a notice
to admit will be liable for costs for proving those facts at trial (see Lipkin Gorman v
Karpnale Ltd [1989] 1 WLR 1340).
Activity 7.6
Read Sime 34.16–34.21 and devise a 50 word summary of how the court proves
documents in a civil case. You should then read your summary aloud as if explaining
how to someone with little knowledge of the legal process.
7.7 Interim injunctions
Essential reading
¢¢ Sime, Chapter 35: ‘Interim injunctions’.
Interim injunctions are temporary orders which can be made to regulate the position
between the parties to an action pending trial. To impose an interim injunction is
regarded as a serious matter and should only be used in serious cases. These orders are
particularly useful for cases where there is an indication that the respondent’s alleged
wrongdoing will cause some type of irreparable harm before the matter will come
to trial. Interim injunctions are distinguishable from perpetual injunctions. Perpetual
injunctions are final orders made at trial. Interim injunctions can be made without
notice. Interim injunctions restrain a party from doing something whereas mandatory
injunctions require a party to do something. Any party to the proceedings can apply
for an interim injunction.
As interim injunctions are regarded as serious matters which have significant

consequences as a result of breach they are only able to be granted by a judge, rather
than a master or a district judge. There are some exceptions here and the general rule
is that a freezing injunction and a search order will need to be sought from a High
Court judge whereas a county court district judge can grant an injunction in a case
over which they have trial jurisdiction.
7.7.1 Interim injunctions before trial

Under rule 25.2(1) CPR the court can grant an interim injunction before a claim form
has been issued as long as there has been no rule or practice direction prohibiting the
granting of the order and the matter is urgent or it is in the interests of justice that
the order be granted. In a less common scenario it may be that the application comes
from a potential defendant, but this is rare.
These injunctions are granted in urgent cases. A case will be urgent where there is a
true impossibility of giving the requisite three clear days notice or in arranging for
the issue of process (see Bates v Lord Hailsham of St Marylebone [1972] 1 WLR 1373).
There must be a very good reason for departing from the general rule that notice
must be given (Moat Housing Group-South Ltd v Harris [2006] QB 606). This could be
that there is an element of threat or damage which requires immediate intervention
(Mayne Pharma (USA) Inc v Teva UK ltd (2004) LTL 3/12/04). Where the matter is urgent
there may be a relaxation of the usual procedural requirements and a special form
is required for injunctions (form N16A). This application form must be accompanied
by evidence unless the court orders otherwise. Pre-action interim injunction
applications will usually be considered at a hearing but without full notice to the
respondent. As the case is urgent it will usually be heard at the beginning of a judge’s
list on the morning of a working day. Where this is too late the matter can be dealt
with late at night by telephone although this will be rare (PD 25 paragraph 4.2). If
available, a draft of the order sought will usually be required to be sent by fax to the
duty judge.
If the order is granted then the court may give directions requiring a claim to be
commenced (rule 25.2(3) CPR) and, as the injunction may have been made without
notice, it will be necessary to give undertakings to the court that the respondent will
be notified as soon as practicable and a return date for a further hearing when the
other party can be present.
7.7.2 Interim injunctions at trial

Once proceedings have been issued and a party decides they need an interim
injunction they will need to provide a draft order and a skeleton argument. Where the
court is to serve the application sufficient copies should be provided for the court and
each respondent and service should be effected as soon as possible. If an application is
made on notice then the respondent should disclose their evidence in reply as soon as
possible and in sufficient time in advance of the hearing to avoid an adjournment.
An application for an interim injunction at trial must be supported by evidence unless

the court orders otherwise (rule 25.3(2) CPR). The evidence must cover the substantive
issues and also, if the application is made without notice, explain why notice has not
been given. The order should also be made in accordance with the general principles
(see Activity 7.7). The hearing of an application will be listed in the usual way for
disposal in public. There are some exceptional circumstances where the hearing will
be in private. This is where the hearing involves confidential information or is in the
interests of children.
7.7.3 Principles
Historically a number of principles in the award of interim injunctions have developed
which should be considered by judges when granting this equitable relief.
Activity 7.7
Read Sime 35.26–35.84 and compile a 400 word summary of the different principles
which need to be considered by the court in the granting of interim injunctions.
7.7.4 Defences
It is possible for an equitable defence and a bar to relief to be raised on any application
for an interim injunction. The first of these is acquiescence where the claimant’s
conduct makes the defendant believe something to their detriment. Delay will also
act as a defence where allowing time to elapse may persuade the court to refuse the
injunction. Hardship will be taken into account in the balance of convenience test
(in the American Cyanamid guidelines (see Activity 7.7)). As the applicant is seeking
equitable relief he or she must come ‘with clean hands’ and so their own inequitable
conduct may bar relief. Equity will not act in vain so, for example, if there has been
widespread publication of a book the courts will not grant relief for breach of
confidence. Courts will not grant equitable relief where it cannot be enforced or if it
is difficult for the defendant to comply with it (see Unique Pub Properties Ltd v Licensed
Wholesale Co Ltd (2003) LTL 13/10/03). Finally the court will not grant an injunction to
enforce an agreement for personal services.
7.7.5 The order

An example of how the order looks can be found in Sime Figure 35.1 but it should be
noted that interim injunction orders should be in the standard forms set out in PF39CH
(for urgent injunctions) and PF40CH (for other interim injunctions). A penal notice
should be included to explain that if the defendant fails to comply with the injunction
they face imprisonment or other penalties. Breach of an injunction is a contempt of
court and so it can result in imprisonment or a fine (see Z Ltd v A-Z and AA-LL [1982] QB
558). Such a breach will need to proven beyond reasonable doubt.
7.7.6 Inquiry as to damages, undertakings by the defendant and

discharge
If it transpires that an interim injunction should not have been granted then the
defendant or any other person may seek to enforce the undertaking in damages by
applying for an order for an inquiry as to damages. If there is excessive delay in this
inquiry for damages then this application will be dismissed. An order for an inquiry is
not penal and will not depend on fault on the part of the claimant.
If an interim injunction has been discharged at trial then the court will have a number
of options on an application for an inquiry as to damages (see Cheltenham and
Gloucester Building Society v Ricketts [1993] 1 WLR 1545).
A defendant can contest the application for an interim injunction but can also give
undertakings in similar terms to the injunction. These undertakings will have the same
force as if the injunction was made. If undertakings are not adhered to then contempt
proceedings can start. It is also possible for an application to vary or discharge the
injunction. This will require application notice to a judge and it will often be the same
judge who granted the initial injunction.
Summary
Interim injunctions are a useful device by which another party can be prevented
from doing something, either without notice or after the interim injunction has
been granted. They are remedies and so need to be attached to a substantive cause
of action. These interim injunctions are granted in accordance with the American
Cyanamid guidelines. There are some exceptions to these guidelines. Applicants will
usually be required to compensate the defendant or another party subject to the
injunction if it becomes apparent that the injunction should not have been granted.
Breach of an injunction is a contempt of court which is punishable by imprisonment or
a fine.
7.8 Freezing injunctions
Essential reading
¢¢ Sime, Chapter 36: ‘Freezing injunctions’.
¢¢ Capper, D. ‘Tort liability for breaching asset freezing injunctions’, Cambridge Law
Journal 64(1) 2005, p.26
A freezing injunction is an interim order which restrains a party from removing assets
which are located within the jurisdiction and could be moved out of the country.
The ‘freeze’ will usually only be up to the amount involved in any claim. Until the CPR
came into force these were known as Mareva injunctions. The principal reason for
granting a freezing injunction is to prevent the injustice of a defendant siphoning off
assets which may deprive the claimant of any fruits of a judgment in their favour. It is
important to remember that the freezing injunction does not impact upon insolvency
and so if a defendant becomes insolvent a claimant gains no priority or security over
the defendant just because an order has been made.
7.8.1 The procedure

These orders will usually be granted in the High Court. As the raison d’être of a freezing
injunction is to prevent an unscrupulous defendant from redistributing their assets
to avoid meeting a claimant’s judgment, it is important that these orders are granted
without notice (Oaktree Financial Services Ltd v Higham (2004) LTL 11/5/04). As a result
these applications are made by a judge sitting in private. This will be done prior to
the service of the claim form. The judge should be given at least two hours to read
the application form before the hearing and the application must be supported by
affidavits.
Activity 7.8
Read Sime 36.08–36.25 and compile a 200 word summary to identify what
principles guide the court in the awarding of freezing injunctions.
7.8.2 The order

The court may require the claimant to provide undertakings to the court which are
then incorporated into the order. These can include the requirement that they will pay
damages to the defendant if it transpires that the order should not have been granted.
The court will decide what undertakings are required (see Allen v Jambo Holdings Ltd
[1980] 1 WLR 1252).
Freezing injunctions are divided into three types.
1. General orders which cover all assets.
2. Maximum sum orders which cover the defendant’s assets up to the amount of the
claim, together with any interest or costs.
3. Orders attached to a specific asset (for example a ship or an aeroplane).
Bank accounts are the usual asset covered by a freezing injunction. A joint bank
account will not be affected by a freezing injunction and the bank should honour
all transactions before the order was made. A bank will not owe a duty of care of
negligence to the claimant, even after receiving notice of a freezing injunction (see
Customs and Excise Commissioners v Barclays Banks plc [2007] 1AC 181).
If a freezing injunction affects a ship in harbour then the claimant has to undertake
to reimburse the port authority for lost income. A freezing injunction can be granted
over land. A freezing injunction must allow a defendant a reasonable sum each
week for pay for their ordinary living expenses. Any trade debts accumulated in the
ordinary course of business must also be met. The defendant will be allowed to pay
the ordinary costs of the present claim and the court can make an ancillary order to
request disclosure for further information to ensure the effectiveness of the current
freezing injunction. A freezing order will remain in force until the return date fixed by
the judge. The standard form for the application for a freezing injunction can be found
in PD25.
7.8.3 Effect, variation and discharge

A defendant, or anyone else who has notice of the freezing injunction, will be in
contempt of court if they dispose of any assets belonging to the defendant. If a
defendant acquires assets after the order is granted then the order will cover those up
to the maximum sum.
An application to vary or discharge a freezing injunction is made to a judge. This will

usually be by the claimant for renewal or by the defendant to lift the order. When
considering variation of the order the court will look at how onerous the order has
been and whether it has led to the hardship of a third party (see Camdex International
Ltd v Bank of Zambia (No 2) [1997] 1 WLR 632).
To discharge an order the court will consider whether the case was unsuitable for
a freezing injunction (Cheltenham and Gloucester Building Society v Ricketts [1993] 1
WLR 1545) or whether the defendant has provided sufficient security for the claim
(Technocrats International Inc v Fredic Ltd [2005] 1 BCLC 467). For the freezing injunction
to be granted an application, without notice, must have been accompanied by full and
frank disclosure of any defence or other facts which go against the granting of relief
sought. If it then transpires that there has been material non-disclosure then the court
will discharge the injunction. What amounts to a material non-disclosure can be seen
in National Bank of Sharjah v Dellborg (1992) The Times, 24 December 1992.
7.8.4 Miscellaneous issues

Once judgment has been granted it is possible for a freezing injunction to be used
after judgment to assist in the enforcement of that judgment (see Orwell Steel (Erection
and Fabrication) Ltd v Asphalt and Tarmac (UK) Ltd [1984] 1 WLR 1097).
In cases involving property, the claimant will not be able to use a freezing injunction
where the property in the proprietary claim is alleged to have belonged to the
claimant. Under rule 25.1(c)(i) CPR the claimant may seek an order for the detention,
custody or preservation of the property which is the subject of the claim. This is not a
freezing injunction at all (Fourie v Le Roux [2007] 1 WLR 320).
Finally a claimant may seek to use the writ ne exeat regno, which prevents a person
from leaving the jurisdiction. It originates from the thirteenth century as a prerogative
writ but was adapted by equity and can now be used to prevent a defendant leaving
the jurisdiction until they give security for the debt they allegedly owe to a claimant.
This writ is granted with great caution (Allied Arab Bank Ltd v Hajjar [1988] QB 787).
Summary
The freezing injunction is a form of equitable relief used to prohibit unscrupulous
defendants from dispersing their assets to frustrate any judgment that might be
obtained. Judges are cautious before they grant these injunctions and restrictive
principles apply in their award. They are granted on the defendant personally and so
they do not impact upon insolvency proceedings. They can clearly have a draconian
effect and so should be used sparingly. There are also some safeguards put in place to
try to avoid undue hardship for the defendant. These injunctions are sought without
notice as their very purpose is to avoid the defendant hiding his or her assets prior to
an unfavourable judgment. The usual undertakings apply so that if the claimant loses
their case then costs and compensation can be granted to the defendant. Breach of
the injunction is contempt of court and if full and frank disclosure was not granted by
the claimant at the time of the order then the order will be discharged.
7.9 Search orders
Essential reading
¢¢ Sime, Chapter 37: ‘Search orders’.
Useful further reading

¢¢ Cover, M. ‘Search orders: the draconian option in dispute resolution.’
Employment Law Journal, 36 2002, p.18
A search order is an order which requires the respondent to admit another party to
their premises for the purposes of preserving evidence which could otherwise be
destroyed or concealed by the defendant. This order is granted under rule 25.1(1)(h)
CPR. This form of order was historically known as an Anton Pillar order (see 7.9.2 below).
These orders are injunctive and mandatory. They require the defendant to allow a
named supervising solicitor, a partner from the claimant’s own solicitors and a limited
number of other people to enter their premises so that they can inspect, and take
and remove photocopies of, any specified documents. These documents are likely to
provide evidence to the proceedings which follow. Clearly this is potentially a very
oppressive order and, as these are civil proceedings, they are granted sparingly.
7.9.1 Procedure
Search orders are used by virtue of County Court Remedies Regulations 1991 and
awarded in the High Court, the patents county court, or in a county court by a High
Court or Court of Appeal judge. These orders are only available against those who
are likely to destroy relevant evidence if an application on notice were to be made.
Secrecy, as with freezing injunctions, is therefore essential. The application is made
without notice and the court will sit in private. These applications may also be urgent
and are often made before proceedings have been issued. The general procedure in
applying for interim injunctions applies and the claimant will have the usual duty of
full and frank disclosure. This is viewed as particularly important in these cases and the
claimant, with supporting evidence, needs to explain, very fully, why the order is being
sought and why there is a risk that the relevant material will disappear if the order is
not made.
7.9.2 Principles and practice

The key guidance for the granting of a search order was compiled by Ormrod LJ in
Anton Pillar KG v Manufacturing Processes Ltd [1976] Ch 55.
Activity 7.9
Read Sime 37.07–37.27 and compile a 250 word summary to explain the principles
which apply to the issuing of a search order and how the order is served and
executed.
7.9.3 Discharge and variation of search orders

As with freezing injunctions it is possible for an application to be heard to discharge
or vary the search order. This is done in the same way as for freezing injunctions. If,
however, a search order has been executed then there is a strong argument that to
seek its discharge before trial would be a waste of costs and of the court’s time (see
Dormeuil Freres SC v Nicolian International (Textiles) Ltd [1988] 1 WLR 1362). If the order
was granted on insufficient grounds then the fruits of the order may still demonstrate
that the search was worthwhile. This is not a defensible argument for a failure to
provide full and frank disclosure (Manor Electronics Ltd v Dickson [1988] RPC 618). The
court has the discretion to exclude documents seized under a search order. This
discretion will be exercised in accordance with the overriding objective.
Once the order has been executed the supervising solicitor is required to compile a
report of what happened. This report is then served on the defendant. A return date
will be fixed, at which point a hearing on notice will take place. The court will then
consider the supervising solicitor’s report and at that stage the defendant may apply to
discharge the order. These orders are not to be used for ‘fishing expeditions’ and this
was confirmed in Hytrac Conveyors Ltd v Conveyors International Ltd [1983] 1 WLR 44 where
Lawton LJ stated that claimants ‘must not use search orders as a means of finding out
what sort of charges they could make’.
As with other forms of disclosure the claimant will give an undertaking not to use the
items seized under the search order for any collateral purposes. If there is a proper
case for this rule to be relaxed then the court has the discretion to do so (see Crest
Homes plc v Marks [1987] AC 829).
Summary
The search order is used in cases where a defendant is likely to destroy incriminating
evidence rather than disclose it voluntarily under a scheme of standard disclosure.
The requirements for the granting of this potentially draconian order are exacting and
the principles in granting these orders demonstrate the court’s interest in checking
that the claimant is not using the order as a way of fishing for a claim. These orders
can only be executed with an experienced solicitor supervising and the order will
usually take place during office hours. These orders, like freezing injunctions and
interim injunctions, can be varied or discharged by the court in accordance with the
overriding objective.
7.10 Listing and pre-trial review
Essential reading
¢¢ Sime, Chapter 38: ‘Listing and pre-trial review’.
Prior to trial a case may be settled, could be struck out, or there could have been a
summary or default judgment. If none of this happens then the case will go to trial so
that the resolution of the issue will be determined by the court. To this end a process
known as listing takes place where a fixed trial date, or a trial window of a defined
period, is given. Trial windows are usually between one and three weeks. If a trial
window is used then the parties may only find out the trial date very shortly before it
actually takes place.
Depending on which track the case has been allocated to, different listing times will
take place. If it is small claims it will not take long, whereas multi-track could take
much longer. A pre-trial checklist may be used by the courts to ensure that directions
have been complied with and to find out whether any complications have arisen,
whether any further direction should be given and whether the trial date or window
can be kept. A pre-trial review will have set the date for the start of the trial.
Listing in the Royal Courts of Justice will mean that a direction will have been issued as
early as possible with a view to fixing the trial or trial window. The claimant must then
take out an appointment with the Listing Officer within seven days of the direction and
give notice of the appointment to the other parties. At this listing hearing the claimant
should bring a case summary, the particulars of claim and any other orders relevant
to the hearing. The Listing Officer will then try to provide the earliest firm trial date or
trial window which fits with any case management directions.
Under rule 3.1(2)(b) CPR there exists a general power to adjourn hearings. These are
usually granted where events have taken place which are outside the control of the
parties (see Bates v Croydon London Borough Council (2001) LTL 23/1/01). If, however, the
need to adjourn is due to some failure in preparation by the parties then the court will
usually refuse to adjourn.
Conclusion
Prior to trial evidence should be disclosed in accordance with the CPR. Sometimes
standard disclosure will be insufficient and a Norwich Pharmacal or related order
will be used by the courts. Witness statements are crucial for the consideration
and resolution of a dispute and an expert can sometimes be called to assist the
tribunal of fact in its task. Hearsay evidence is not, as of principle, excluded as long
as its admittance is accompanied by sufficient notice. Admissions and documentary
evidence need to be proven by the court. There are a number of useful forms of
injunctive relief available to the court and the interim injunction, freezing injunction
and search order can be used if the circumstances of the case so require. Once a
decision to go to trial has been made and no settlement or summary or default
judgment has been entered, then a listing of the case needs to be done so that either a
date or a window of time are fixed for the trial to take place.

Question 1 ‘Litigation depends on openness and the full and effective disclosure
of information between parties. Secrecy and the hiding of information imperil civil
justice.’
Evaluate the extent to which the provisions of the CPR balance this openness with
other principles of the overriding objective.
Question 2 Tressida, a famous pop star, had entered into a contract with the
glamour magazine, Howdy, to cover her wedding to a famous footballer, Kevin. The
terms of this contract were that Howdy would have exclusive rights to photographs
and interviews with guests. However, it has recently come to Tressida’s attention
that an infamous internet journalist, Fulco, sneaked into the wedding and took
photographs and taped interviews to post on his website. Fulco operates his
website out of a South American country with which the United Kingdom has no
treaties for recognising judgments. Tressida has also heard that Fulco may have sold
copies of the photographs and interviews to Howdy’s rival magazine, Wotcher, and
that they may be about to publish a one-off scoop edition. Tressida’s solicitors have
learnt that Fulco is currently staying at the Grand Hotel and that he may be about
to leave the country in his private jet, which is located on an airfield just outside of
London. The solicitors’ investigations have also revealed that Fulco probably has a
UK bank account in which he deposits money for use while in the country but they
have not been able to discover any other assets he may have within the jurisdiction.
Tressida and Howdy magazine are concerned that Fulco is about to leave the
country and be beyond reach of the English courts and that Wotcher is about to
publish a special magazine exclusive of the wedding.
Advise Tressida and Howdy as to the steps they should take as a matter of urgency.

Question 1 This question invites consideration of the disclosure rules in civil cases.
However, as ever, it is necessary to draw upon wider CPR principles and systems such
as the overriding objective. A good answer will start by recognising which principles
of the overriding objective are particularly significant on the issue of disclosure. Rule
1.1 CPR enjoins the court and the parties to ensure parties are on an equal footing (rule
1.1(2)(a)) and that the case is dealt with fairly (rule 1.1(2)(d)) – a case can hardly be dealt
with ‘justly’ when information about what happened is partial. On the other hand,
saving expense (rule 1.1(2)(b)) and ensuring that the trial is dealt with expeditiously
(rule 1.1(2)(d)) are aims that can conflict with the passing of extensive information
between parties; the more that has to be revealed, potentially, the longer (and more
money) it could take. In other words, the detailed rules (and the principles under
which they are applied) show a tension between particular aspects of the overriding
objective.
It is necessary to consider disclosure and openness in this wider context. Remember
that pre-action protocols provide a system for the disclosure of information about the
case before it is commenced. Equally, there are other specific procedures under the
CPR for obtaining information, such as Norwich Pharmacal orders and search orders,
that reflect the strong preference under the CPR for allowing parties court-regulated
access to information that assists in getting the right result.
So far as the rules of disclosure themselves are concerned, it is first worth noting that
disclosure is not a feature of the small claims track (rule 31.1), probably because such
added complexity would not be proportionate to the value of the usual small claim.
In fast track and multi-track cases, there is a set of standard directions regarding
disclosure that can only be departed from exceptionally. These directions make
specific provision for the timescale within which disclosure is to take place (see rules
28.3 and 29.2). Therefore disclosure is deeply embedded into the system of moderate
and high value claims. The process consists of both ‘disclosure’ (providing a list of
documents: rule 31.2) and ‘inspection’ (allowing a party to look at them: rule 31.3).
This is a staged approach which therefore ensures that parties’ information can be
exchanged without putting them to the expense of producing copies of documents
that might be unnecessary. Furthermore, because what is to be disclosed is
standardised under rule 31.6 and built into the standard timetable on both tracks, the
costs and complexity of the process of disclosure are simplified (there being no need
to apply to court for it to happen). However the rules also seek to limit the trouble a
party can be put to by disclosure. A party only has to disclose those documents that
can be found with a reasonable search (rule 31.5), which are within that party’s control
(rule 31.8) and which can be specifically related to bolstering or undermining the case
of any party (rule 31.6(b)).
Clearly standard rules reduce cost and complexity, however they can also pose the
danger of injustice or unnecessary expenditure if followed inflexibly or ignored.
Part 31 of the CPR therefore makes provision for applications for specific disclosure
(and inspection) where necessary (rule 31.12). Equally a party may apply to the court
for permission to withhold disclosure or particular documents (rule 31.19). This
means that the system operates in a cost-effective way but does not completely lack
safeguards to achieve justice in individual cases. Furthermore the court can apply
its sanction powers under Part 3 (including striking out) where either standard or
individual directions are not met.
It should finally be noted that another factor does militate against openness:
communications between parties and their legal advisors being subject to privilege.
The doctrine of legal professional privilege means that some communications relevant
to proceedings need not be disclosed. This may seem to encourage secrecy but the
concept of such privilege has been identified as a key aspect of the right to a fair trial
preserved under Article 6 of the European Convention on Human Rights (see, for
example, Three Rivers District Council v Bank of England (No 5) [2003] QB 1556).
Question 2 This question raises a number of issues about the use of injunctive
proceedings. A number of options are available.
First of all, both Tressida and Howdy will want to restrain the publication of the
photographs and interviews. They will therefore need to seek an urgent interim
injunction. Such an injunction can be sought even before commencement of the
claim (rule 25.2(1)(a) CPR) but only if the matter is urgent (rule 25.2(2)) and the court
may require that proceedings be commenced when the court deals with the interim
injunction (rule 25.2(3)). If there are good reasons for doing so, the claim can be made
without notice to the other party or parties (rule 25.3(1)). Good reasons in this case
would include both the urgency of the matter (particular as regards Fulco’s imminent
departure from the jurisdiction) and the fact that giving notice may prejudice the
seeking of the interim injunction. There would be the risk of immediate harm to the
interests of the parties (their commercial interest in the situation in question) which
the court might conclude therefore justifies immediate action, following Mayne
Pharma (USA) Inc v Teva UK Ltd (2004) LTL 3/12/04.
The principles that the court will adopt in deciding whether to grant an interim
injunction are those set out in American Cyanamid v Ethicon (No 1) [1975] AC 396.
There the House of Lords concluded that the interim injunction should not seek to
determine the matters that would be resolved at trial. Therefore an injunction could
be granted if the balance of convenience favoured the party seeking the order. This
meant that the court should compare the loss that would be suffered by Tressida
and Howdy if an order were not granted with the loss that would be suffered by Fulco
and Wotcher if the order were granted. Where the balance did not clearly favour one
party the court should favour the status quo (i.e. non-publication in this case). This
approach was followed in Douglas v Hello! (No 1) [2001] QB 967 but an injunction was
not granted to restrain publication because of the difficulties in quantifying the loss
that the respondent in that case would suffer from being prevented from acting by the
injunction. There is no clear answer as to who would be likely to succeed in the current
case; it is enough that you show that you understand the issues that the court would
have to have regard to in such a situation.
To keep assets within the jurisdiction, so as to make it possible to enforce any damages
claims against Fulco (or Wotcher, although we are not told if they are based outside
the jurisdiction), it will be necessary to seek a ‘freezing order’ over assets within the
jurisdiction (the private jet and the money in Fulco’s account are the only possible
items we are told about). Such an order must be obtained from the High Court and
the application is without notice. Such an order is another type of interim order and is
defined in part by rule 25.1(f) as an order ‘restraining a party from removing from the
jurisdiction assets located there’. This would therefore allow the court to require both
money in the account and an item such as a plane to be kept within the country. The
applicants will nearly always have to make an ‘undertaking as to damages’ (a promise
to pay compensation if the order proves to be unwarranted) (Allen v Jumbo Holdings
[1980] 1 WLR 1252). The order in respect of the bank could freeze all moneys or simply
enough to meet potential damages liabilities. However, the court should not make an
order that leaves Fulco without the means to live. The court could also grant an order
requiring Fulco to identify where other assets are within the jurisdiction (rule 25.1(g)).
If the order is made, Fulco could apply to have it varied. This variation will be granted
if the original order should not have been made or if Fulco has been able to provide
adequate security for the claim against him (Technocrats International Inc v Fredic Ltd
[2005] 1 BCLC 467)
Tressida (and possible Howdy too) will also want to secure the original recordings
of the interviews and the photographs to ensure that Fulco does not remove them
from the jurisdiction in order to foil any attempts to prevent publication. As there is
some fear that an ‘on notice’ application would lead to the destruction or the hiding
of evidence, it would be possible for Tressida and Howdy to seek a search order (rule
25.1(g)) to secure or obtain evidence or material that might be lost following the usual
procedures. As with freezing orders, such applications can be made without notice
and urgently where the circumstances require. The court will follow the approach
specified in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. The requirement
is that there is a ‘very strong prima facie case’ that actual or potential damage of a very
serious nature would occur and that there is clear evidence that defendants possessed
‘vital material which they might destroy or dispose of so as to defeat the ends of
justice’. Evidence to support such an allegation would have to be presented before the
judge at the ex parte hearing. Again, the applicants would have to issue an undertaking
as to damages. The effect of the order is to permit those acting for the applicants to
search the premises of the respondents and to seize items specified in the order.
The purpose of the order is to secure evidence or key assets and there has to be some
basis for believing that the absence of an order would imperil the process of obtaining
evidence through a normal trial process. It is therefore unlikely that the order would
be imposed against either respondent without some clear basis for suspecting they
would damage or destroy what is sought being presented. An ordinary interim
injunction restraining publication would probably be enough in respect of Wotcher.
As far as Fulco is concerned, it would not be enough, in deciding whether to make a
search order, simply to show that he was from a foreign country, although the court
will be concerned about the dangers of losing evidence from the jurisdiction.
Reflect and review



I can critically evaluate the rules governing the   

disclosure of evidence.
I can explore how Norwich Pharmacal and related   

disclosure orders are used by the courts.
I can describe how experts and witness statements   

and affidavits are used by the civil process.
I can critically consider the use of hearsay evidence in   

civil proceedings.
I can evaluate how admissions and documentary   

evidence are used by the courts.
I can critically evaluate the use of interim injunctions,   

freezing injunctions and search orders in the civil
process.
I understand how listing and pre-trial reviews work.   
revise?
Must Revision
revise done
7.1 Disclosure  
7.2 Norwich Pharmacal and related disclosure orders  
7.3 Experts  
7.4 Eyewitness statements and affidavits  
7.5 Hearsay  
7.6 Admissions and documentary evidence  
7.7 Interim injunctions  
7.8 Freezing injunctions  
7.9 Search orders  
7.10 Listing and pre-trial review.  

Notes
8 At trial and beyond
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
8.1 At trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
8.2 References to the European Court of Justice . . . . . . . . . . . . . . . 125
8.3 Judgments and orders . . . . . . . . . . . . . . . . . . . . . . . . . 126
8.4 Offers to settle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
8.5 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
8.6 Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
8.7 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Introduction
The point at which a trial begins is often seen as a failure for the civil justice process,
with its commitment to case management and early settlement of disputes. Unlike
the criminal trial which has complex rules of evidence and an emphasis on ‘the day in
court’, in most instances the civil process prefers a more low-key event. Without the
drama of a jury in most cases and the theatre of surprise being kept to a minimum, the
rules for civil trials are surprisingly slim in volume. What does become evident is that
judgments and orders need to be processed and enforced and offers to settle are still
encouraged, even when the case arrives at trial. Costs in the civil process can be large
and the rules governing their calculation can be complex. References may be made to
the European Court of Justice (ECJ) for clarification on a point of civil law and judicial
review can be used to challenge the process by which a decision has been reached.
There is an appeals process used to remedy a wrong that may have resulted at trial.
However appeals are rare and, unlike in their criminal counterparts, fresh evidence is
rarely used.
Essential reading
Learning outcomes
uu critically evaluate the process for trial

uu explore how and when a reference can be made to the European Court of Justice
uu describe how judgments and orders are produced
uu critically consider the process for dealing with offers to settle
uu evaluate how costs are calculated
uu understand how enforcement of judgments and orders works
uu critically consider the appeals process
uu explore the use of judicial review in the civil process.
Civil and criminal procedure 8 At trial and beyond page 121
8.1 At trial
Essential reading
¢¢ Sime, Chapter 39: ‘Trial’.
The purpose of the civil trial is to resolve the dispute via a judgment of the court. The
civil process is largely geared towards avoiding trial, but sometimes a determination
at trial will be necessary. In accordance with the overriding objective there will still be
a focus on resolving the case justly and without wasting costs. Prior to trial a number
of things must be done. For example, witnesses need to be informed of the trial if
they are voluntary and summonsed if they are not. Trial bundles need to be prepared
and counsel need to prepare and provide skeleton arguments, case summaries and
reading lists. Civil trials are very flexible affairs and the court will often prescribe
how much time will be allocated to examination in chief and cross-examination.
Sometimes the judge will decide that an issue be resolved as a preliminary issue. Most
trials are heard by a judge sitting alone. There are, however, some rare instances where
juries may be used. These include libel cases.
8.1.1 Witnesses
Even if witnesses are reluctant they can still be compelled to attend trial. This is
done by serving them with a witness summons. This may require a named witness
to attend court to give oral evidence but may also require them to provide specified
documents. It is possible to summon documents without the presence of a witness.
A written summons is not to be treated as a form of disclosure and will be limited to
the substantive issues of the claim. If documents are requested then a full description
must be provided. The request for documents by summons can require the witness to
produce them either at trial or on any other date directed by the court. This may be
prior to trial.
To issue this witness summons is an administrative task. A form is completed and

a fee is paid by whoever is calling the witness and the form is sealed by the court.
Unless permission is granted by the court, the summons will only be binding if it
has been received at least seven days before the trial. Conduct money must also be
offered to the witness as a way of compensating them for travel and loss of time. The
court may vary or set aside the witness summons and this is usually done where the
person cannot give relevant evidence or there is another strong reason affecting their
attendance at trial. A judge will not be a compellable witness if he or she is acting in a
judicial capacity.
8.1.2 Evidence by deposition

If the court so wishes, in the interests of justice, the court may order a witness’s
evidence to be given by deposition under rule 34.8 CPR. This will usually be done
where witnesses are over 70 years of age and too infirm to give evidence, or they are
going to be leaving the country before trial. The order for deposition will require the
witness’s evidence to be taken before a judge officer or an examiner of the court. This
can take place at any location so it could be done at a witness’s bedside. The witness
will be examined and cross-examined as usual. The evidence is then reduced to writing
in the form of a deposition and signed by the witness. A report concerning events can
be written by the examiner. If a party wishes to use a deposition at trial they must give
at least 21 days notice (rule 34.11 CPR).
8.1.3 Letters of request and video links

If a witness is already outside of the jurisdiction then the evidence can be obtained
by the High Court or on behalf of a county court. Examination can take place before
the British Consul in the relevant country or if the witness is in an EU Member State
(except Denmark) the request will need to comply with the requirements of Council
Regulation (EC) No 1206/2001. Letters of request can be confined to the production
of documents which may be in the possession of the witness who is now outside
the jurisdiction. These documents have to be identified and restricted to those

which would have been available under a summons (see Panayiotou v Sony Music
Entertainment (UK) Ltd [1994] Ch 142).
Under rule 32.3 CPR the court also has the power to adduce evidence of a witness by a
live video link. This is available to all litigants (see Polanski v Conde Nast Publications Ltd
[2005] 1 WLR 637). The court also maintains the inherent power to adjourn a trial to the
bedside of an infirm witness (see St Edmundsbury and Ipswich Diocesan Board of Finance
v Clark [1973] Ch 323).
8.1.4 Trial documentation

The documents which are likely to be referred to at fast track and multi-track trials
should be placed into trial bundles. These are paginated files (with numbered pages)
which can easily be referred to by all parties. Identical copies should be available
for the judge, the party on the other side and any witness who will be referring to
documentation at court. The idea is that everyone can consult the same document at
any one time, thereby speeding up the process. The greatest source of complaint from
the judge in a civil trial is a poorly prepared bundle.
The bundle should be filed by the claimant not more than seven days, but no less than
three days, prior to the start date of the trial. The claimant’s legal representative has
the responsibility of preparing the bundle for trial. The contents of the trial bundle is
very prescriptive and details can be found at Sime 39.12. This trial bundle should be
carefully paginated and placed in ring binders or lever arch files. Illegible copies should
be reproduced as typed copies and if there are more than 100 pages, numbered
dividers should be used. Colour coding should be used if there are a number of files
required.
In all cases at the Queen’s Bench Division or Chancery Division of the High Court where
trial bundles must be lodged, the claimant or applicant must also provide reading lists
for the judge hearing the case, an estimated length of reading time and an estimated
length for the hearing. These must be signed by all advocates involved in the case.
In a case of any size a case summary will be required. This is a short non-contentious
summary of the issues in the case and of relevant procedural matters. It should, where
possible, be agreed by all parties.
Skeleton arguments and authorities are compulsory for High Court trials and
sometimes required for directions in the county court. They are similar in form to
those used for interim applications. They concisely summarise the submissions to be
made and the authorities to be relied upon. These should be provided in good time – a
matter of professional etiquette. If the case is in the QBD then they must be received
by 9am on the morning of the hearing.
8.1.5 Trial location

Normally the trial will take place at the court where the case has been proceeding but
it may be transferred to another court if this is appropriate. If the case is multi-track
then these will usually have been transferred to Civil Trial Centres but they can be
relocated elsewhere if this is appropriate for the parties involved.
8.1.6 Allocation to judiciary

A district judge can deal with all claims that are either small claims or fast track.
Their jurisdiction is limited to sums up to £25,000. They can also hear Part 8 claims
and some other cases involving landlords and tenants, assessment of damages and
cases allocated to a district judge with the permission of the Designated Civil Judge.
Injunctions and committal applications can be heard by the district judge but only if
the claim is worth £25,000 or less or allocated to the fast or small claims tracks.
If the case is multi-track then it will be tried by High Court judges and in the county
courts by circuit judges and recorders. Cases on the multi-track (except Part 8 claims)
may be tried by a master or a district judge only with the consent of the parties.
Hearings to assess damages may be dealt with by masters and district judges without
limit. The general rule is that the more complex the claim, the more likely it is to be
heard by a judge.
8.1.7 Impartiality of judge

It is a fundamental principle of the legal process that a judge may not sit in his or her
own cause (Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759 and R v Bow
Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 2) [2000] 1 AC
119). This means that not only can a judge not be a party to the case but he or she must
not be involved in a case which is furthering either a pecuniary or political cause of
that judge. Article 6(1) ECHR states that litigants are entitled to a fair hearing before
an impartial tribunal and so a judge will be unable to sit if there is an appearance of
bias (Porter v Magill [2002] 2 AC 357). Guidance on when bias may be construed can
be found in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451. Here it was stated
that religion, age, class and sexual orientation would not be relevant. Neither, usually,
would previous political affiliations or previous extra-judicial commentary. If there was
a personal relationship or animosity between the judge and anyone other than the
lawyers then bias may be made out. The test is whether in all the circumstances a fair-
minded and informed observer would conclude that there was a real possibility that a
judge was biased. If proceedings are abandoned because of the appearance of bias on
the part of a member of the court then the Lord Chancellor is not liable for any costs
incurred at the wasted hearing.
8.1.8 Public or private hearing and rights of audience

Article 6(1) ECHR states that parties have the right to a public hearing. There are
exceptions to this general rule and these usually involve proceedings where publicity
would defeat the object of the hearing. Situations that may call for private hearings
include:
uu matters of national security
uu where it is necessary to protect a child or a patient.
The court can order that the identity of any party or witness may not be disclosed.
Section 27 of the Courts and Legal Service Act 1990 identifies which parties have rights
of audience at trial. These will include:
uu the litigants in person
uu counsel
uu solicitors (who may have rights of audience in the High Court if they have Law
Society higher rights of audience qualification)
uu members of the Institute of Legal Executives
uu members of the Association of Law Costs Draftsmen
uu persons given express permission by the court
uu persons given an express right of audience by statute.
The courts in which they are able to appear are prescribed under the 1990 Act. A
relative or a friend may be able to assist a party acting in person (as a McKenzie friend).
This friend cannot address the court but can assist a party acting in person (see Noueiri
v Paragon Finance plc (2001) The Times, 4 October 2001).
8.1.9 Conduct of the trial

Prior to the hearing the court should be provided with a written statement of the
name and professional address of each advocate, their qualifications and the party
they are acting for. The rules give a great deal of flexibility as to how trials are dealt
with. Generally the claimant will begin and they will bear the burden of proof. If the
defendant has admitted all issues for which the burden of proof rests on the claimant
then the only live issues for the court will have to be proved by the defendant.
Activity 8.1
Read Sime 39.39–39.52 and compile a flow chart explaining how each stage of the
trial works (using no more than one sentence for each stage).
8.1.10 Preliminary issues

As a general rule it is in the interests of the parties and the administration of justice
that all issues arising in any dispute are dealt with at the same time. If the trial is
complex it may be that time can be saved and costs limited if some issues are dealt
with before, or separately from, the main trial. There are three orders which can be
made.
1. For a trial of a preliminary issue on a point of law.
2. For a separate trial of preliminary issues or questions of fact .
3. For separate trials of liability and quantum.
The procedure for these trials is that either applicant or defendant can apply for
the trial or the court can direct one of its own volition. This will usually be done at
allocation stage but can happen later. If the issue is a question of fact then it must
be defined with precision. If it is a question of law then not only must it be precise
but it must also be tried on the statements of case, on a case stated or on an agreed
statement of facts (see Keays v Murdoch Magazines (UK) Ltd [1991] 1 WLR 1184). In
practice these cases should take into account whether the trial of the preliminary
issue will resolve the issue before the full trial and whether it will substantially
increase costs.
8.1.11 Trial by jury

Most civil cases are heard by a judge sitting alone. There are exceptions and these
include claims in deceit, libel, slander, malicious prosecution and false imprisonment.
The right to a trial by jury can apply in the county court or the Queens Bench Division
of the High Court. A request for jury trial should be made within 28 days of service of
the defence. If the trial is deemed too complex then a jury trial may not be granted,
although this is rare. Juries can be used in other forms of civil trial but once again this
is very rare (Williams v Beesley [1973] 1 WLR 1295).
In a county court juries will have eight members. In the High Court there will be 12.
They are selected from a panel by ballot. They may be challenged and asked to stand
down for cause (such as bias). After inquiry the trial judge can discharge a juror and a
jury can be discharged during trial on the ground of necessity. Questions of law are for
the judge. The jury deal with questions of fact. Verdicts will normally be unanimous
but majority verdicts can be used (7:1 in county court and 11:1, 10:2, 10:1 and 9:1 in the
High Court).
8.1.12 Non-attendance at trial

If a party does not attend trial then proceedings can continue, although the court
may decide to simply strike out the claim or defence and any counterclaim or defence
to counterclaim. The proceedings can be restored once struck out but this is usually
done with supporting evidence and can only be done if the applicant acted promptly
to find out why the action was struck out, had a good excuse for not attending and
a reconvened trial has a reasonable prospect of success (see Neufille v Papamichael
(1999) LTL 23/11/99). To be reinstated one of these factors must be made out. See rule
3.9(1) CPR for more details.
Summary
At trial witnesses will attend voluntarily or may be summoned. If attendance is not
possible then evidence can be taken by deposition or by a letter of request. Video links
can be used and the trial can be adjourned to the bedside of an infirm witness. Trial
documentation must follow a prescribed form and the trial location can be revised if it
suits the parties involved. The judiciary will be allocated according to the complexity
and potential cost of the trial. The judge should be impartial and the hearing will
usually be conducted in public. There are clearly prescribed rules as to who has rights
of audience (who can address the court) and the conduct of the trial will follow a
particular form in accordance with who bears the burden of proof. Preliminary issues
may be dealt with separately as a way of reducing court time and costs incurred.
Trial by jury is possible in civil cases but confined to particular actions. Finally non-
attendance at trial may lead to a claim being struck out. It can be restored but this will
have to be due to one of the factors set out in the CPR.
8.2 References to the European Court of Justice
Essential reading
¢¢ Sime, Chapter 40: ‘References to the European Court of Justice’.
If a court is faced with a question which involves European Community law it may
sometimes decide it directly or may refer it to the European Court of Justice (ECJ)
in Luxembourg for a preliminary ruling. If the reference is made then the English
proceedings will be stayed until the ruling is made by the ECJ. Once made the ruling
is binding but it is only a preliminary ruling and the English courts can then apply the
ruling to the facts of the case and give judgment.
References are made using the Article 234 EC procedure and questions can be asked
concerning:
uu the interpretation of the EC Treaty
uu the validity and interpretation of acts of institutions of the Community and of the
European Central Bank
uu the interpretation of the statutes of bodies established by an act of the Council

where these statutes so provide.
References to the ECJ will look at questions on the amending Treaties and questions on
Regulations, Directives and Decisions of the Council or Commission.
References are either mandatory or discretionary. To be mandatory the reference will

be made at the court of last instance in the Member State. In England and Wales this
will usually be the House of Lords. There must be a question asked and the question
must be clear. If the reference is discretionary then the courts below the House of
Lords may make a reference where the decision is necessary for the court to give
judgment on a matter of EC law. To make this discretionary reference the point will
need to be conclusive and consideration will need to be made of previous rulings.
Prior to a reference being made the facts will need to be decided. See Lord Denning
MR in HP Bulmer Ltd v J Bollinger SA [1974] Ch 401 to consider what factors are relevant in
the exercising of the court’s discretion.
Activity 8.2
Read Sime 40.19–40.25 and provide a 100 word summary of the procedure to be
used in England for referring a question to the ECJ and a 100 word summary of the
procedure in the ECJ to review the legality of acts adopted by the EU.
8.3 Judgments and orders
Essential reading
¢¢ Sime, Chapter 41: ‘Judgments and orders’.
Under rule 40.7(1) CPR judgment takes effect from the day it is given. Clearly there may
be a delay between judgment being pronounced and it being ‘sealed and served’,
but once pronounced by the court the judgment must be drawn up. The distinction
between a judgment and an order is that judgment is the final decision of the court
whereas an order is an interim decision. There are, however, no practical differences
between the two and both are enforced in the same way.
8.3.1 Settlements
In the civil process it is common for parties to agree the terms of settlement rather
than having them determined by the court. As already indicated, the civil process is
geared towards early settlement of disputes and so it is rare for actions to get to trial.
It is also common practice for uncontentious matters to be dealt with by settlement. If
a settlement has been agreed then the parties have to decide how it will be recorded.
An important consideration here is how the agreement can be enforced if either party
fails to abide by its terms.
The simplest judgment will be for immediate payment of a sum agreed, together
with costs. Enforcement proceedings can be taken on these judgments on the same
day as they are entered. Clearly civil litigation is not always this clear and simple and
sometimes other ways of recording agreed terms will be required. In Green v Rozen
[1955] 1 WLR 741 Slade J discussed other methods. These include using a consent order,
a Tomlin order (staying the claim save for the purpose of carrying out the terms set in
schedule to the order) or a consent order stating ‘no order’ save as to costs.
If a case is settled prior to a hearing then both parties have a responsibility to inform
the court so that court time can be reallocated to other litigants. If the cancellation of
court time happens at least seven days before trial then all or part of the hearing fee is
refunded. Agreements to settle are sometimes not placed into formal orders although
it is desirable to do this and essential if the parties have agreed that costs should be
assessed by the court. The settlement is a contract and so is binding even if it is not
made into a formal court order. If the settlement is agreed after the proceedings have
been issued then the settlement should deal with the costs of the parties and with the
future status of the claim.
8.3.2 Orders made at hearings

Once judgment has been given by the court, counsel has a duty to take notes of the
court’s judgment and a note of the court’s decision will be endorsed on the back sheet
of their briefs. The instructing solicitor may use this as the basis for drawing up the
court’s order and so accuracy in noting is very important. If the orders are complex
then counsel will often consult to ensure that both parties are clear on what the court
has ordered. In addition the master, district judge or judge will initial the relevant
paragraphs of the application notice or draft minutes of the order or initial together
with making amendments or endorse the order on affidavit. If the judgment is being
made in the QBD then it is certified by the court associate.
Activity 8.3
Read Sime 41.11–41.37 and decide what order would be appropriate in the following
situations.
a. Bert has been diagnosed with a form of cancer which can be attributed to
continued exposure to asbestos during his work in the 1970s. It would appear
that the disease is now as seriously advanced as it is likely to be and doctors
have indicated that further deterioration is unlikely.
b. Cressida’s complex claim for personal injury against a plastic surgeon has been
settled. Her original claim was for £10,000 but she has agreed to compromise
with £7,000 plus a holiday in the Bahamas as an incentive to settle. This will only
be granted if the agreement is not publicised.
c. Valia and David have agreed a settlement figure for their divorce. Valia is
worried that David has only agreed so as to get out of court early to visit his
mistress.
Under rules 40.2(2) and 40.3(1) CPR all judgments and orders have to be drawn up
and sealed by the court. There are some exceptions to this rule but it is usually only
where the court has dispensed with the need or the order is to be drawn up by the
parties because the action was in the QBD, Technology and Construction Court or
Commercial Court. In order to save time and costs rule 40.6 CPR allows certain types of
consent orders to be entered by a purely administrative process without the need for
obtaining the approval of a judge. This cannot be used if there is a litigant in person as
this will mean the order has to be approved by a judge.
The court will draw up orders in most Chancery Division cases. The court may
reconsider a judgment after it has been pronounced as long as this is done before
it has been drawn up (see Spice Girls v Aprilia World Service BV (No3) (2000) The
Times, 12 September 2000). This reconsideration will only take place in exceptional
circumstances. Subject to the slip rule,† once the judgment has been drawn up by †
The slip rule gives the court
the judge it is functus officio, which means that a bar operates to prevent further the power to correct any
alterations by the judge. The slip rule cannot be used to correct any matters of accidental slip or omission in
substance but it can be used to give effect to the intention of the court (see Swindale v any judgment.
Forder [2007] 1 FLR 1905).
8.3.3 Register of judgments

Under s.98 Courts Act 2003, Registry Trust Ltd maintains a register of High Court and
county court money judgments. The courts provide periodic returns to the company,
containing details of unsatisfied judgments. The register is open for inspection on
payment of a prescribed fee. The company is not-for-profit and the information is
used for credit scoring purposes. This register does not contain details of all orders
and some, including Tomlin orders and judgments in family proceedings, are not
registered. Once the judgment is paid a note on the register is made. After six years
entries are cancelled.
Summary
Judgments take effect at the point they are delivered but they do then need to be
correctly drafted, sealed and served. Who draws up these judgments and orders will
depend on where the proceedings were heard. The type of order or judgment will
depend on the claim and the form does depend on the type of claim. A register of
judgments is kept to be used for credit scoring purposes.
8.4 Offers to settle
Essential reading
¢¢ Sime, Chapter 42: ‘Offers to settle’.
¢¢ Ward, D. ‘New Carrots and Sticks: Proposals for Reform of CPR Part 36’ Modern
Law Review 70(2) 2007, p.278
As judgment at court is the last resort in civil proceedings there has long been better
ways of bringing disputes to an end. There are alternative forms of dispute resolution,
considered in Chapter 3. There is also direct negotiation between the parties or their
advisers. Negotiation can be informal, for example over the telephone, or formal, for
example at arranged meetings. So that unfair advantage is not taken of comments made
in negotiations if the case is not settled, communications between the parties who are
seeking to settle a dispute are protected by ‘without prejudice’ privilege. Most of these
communications are attempting to move towards settlement of a dispute and cannot
be disclosed to the court (except to show that a settlement has been reached). If this bar
was absolute there would be no mechanism by which a party who feels the other side
have been unreasonably difficult in negotiations could bring that conduct to the court’s
attention for the purpose of having that conduct reflected in the order for costs.
Part 36 CPR provides the means for a party to make a formal offer in settlement of the
claim. This will then be treated as without prejudice for the purposes of liability and
remedies but can be disclosed when the issue of costs is considered by the courts. To
do this an offer must be made in writing, complying with certain formalities. These
offers remain open for at least 21 days. The function is to place the other side on risk as
to costs if it is not accepted and the offeree then fails to achieve the result in litigation
which is more favourable than the terms of the offer. If the offer is realistic the advice
is always to take it! This system is now called offers to settle. Prior to 2007 it was called
‘payment into court’. An offer to settle within Part 36 CPR can be made at any time,
including before the commencement of proceedings.
8.4.1 Offers to settle

Although not obliged to use the Part 36 format when making an offer, parties are
advised to as the Part 36 consequences only apply to those who have used the format.
An offer must be made in writing, state on its face that it is intended to have the
consequences of Part 36 and it must be made at least 21 days before trial. It should
state whether it relates to the whole claim or part of it and state whether it takes into
account any counterclaim.
The Part 36 offer should state the terms of the proposed compromise and this needs
to be sufficiently precise and certain for an effective contract to be formed if the offer
is accepted. It is crucial that the offeror makes it clear that the offer is in full and final
settlement of all or defined matters between the parties. It will also need to indicate
whether an interim payment has been made. The terms of the offer do need to include
the costs consequences of acceptance.
If the claim is for money then the Part 36 offer by a defendant should be for a single
sum of money. If the offer is to pay all or some of the money later than 14 days
following the date of any acceptance it is not a Part 36 offer – unless the offeree
accepts the offer. The single sum offered is treated as inclusive of all interest to the end
of the relevant period.
Activity 8.4
Read Sime 42.09–42.24 and compile a 200 word summary which explains how Part
36 offers work in personal injury claims, provisional damages claims, making a Part
36 offer and accepting a Part 36 offer.
8.4.2 Rejection, withdrawal and amendment of the Part 36 offer

There is no requirement for the offeree to provide an express rejection of a Part 36
offer. If a counter offer is made this will not operate as a rejection of a Part 36 offer.
Doing nothing allows the offeree to serve a late notice of acceptance if the offer has
not been withdrawn.
It is possible for the Part 36 offer to be withdrawn before the expiry date of the
relevant period or for its terms to be changed, but only with the court’s permission.
Once the expiry date has passed, and if no notice has been received of acceptance,
then the offeror can change its terms to be less advantageous to the offeree without
the permission of the court. A change in terms takes effect when the notice is served
on the offeree. A withdrawn Part 36 offer ceases to have the effects on costs and
interest of a subsisting Part 36 offer. However the court can consider an offer to settle
which does not have the costs consequences set out in Part 36 in deciding what
order to make about the costs. The court has a wide discretion here which should be
exercised according to the overriding objective.
If there is a minor defect in a Part 36 offer then this can be corrected under rule 3.10
CPR (see Hertsmere Primary Care Trust v Administrators of Balasubramanium’s Estate
[2005] 3 All ER 274 and Trustees of Stokes Pension Fund v Western Power Distribution (South
West) plc [2005] 1 WLR 3595).
8.4.3 Failing to beat a Part 36 offer

There will be costs and interest consequences where:
uu a Part 36 offer is not accepted and the claimant fails to obtain judgment more
advantageous than the Part 36 offer made by the defendant
uu judgment is entered against the defendant which is at least as advantageous to the

claimant as the proposals set out in any Part 36 offer made by the claimant (rule
36.14 CPR).
These consequences do not apply where the Part 36 offer was withdrawn or changed
to terms which were less advantageous to the offeree than the judgment or if the
Part 36 offer was made less than 21 days before the trial. The court will decide on a
consideration of the figures whether a judgment is more advantageous than a Part
36 offer. This will include a calculation of interest and any deductable benefits. If it is
not more advantageous then the person who offered will have incurred greater costs
unless the court takes the view that, in accordance with the overriding objective, it
is unjust to do so. Normally a strict approach is taken but under rule 36.14(4) CPR the
court will consider all circumstances. These could include late disclosure, unwillingness
to engage in mediation or deliberate exaggeration of the claim. The key is that if they
have rejected a Part 36 offer and the amount of judgment is the same, the claimant will
probably have to pay the costs of the other side, even if they win the case. The process
is there to encourage parties to think carefully about accepting offers made.
Note the judgment in Carver v BAA [2008] EWCA Civ412. In this case the claimant
beat the defendant’s offer at trial by a sum of £51. The court stated that costs should
not in general be awarded if a claimant fails to obtain a judgment which is ‘more
advantageous’ than the de-fendant’s Part 36 offer. The court at first instance held that
the claimant had indeed failed to secure a judgment which was ‘more advantageous’
than the defendant’s Part 36 offer and that, in practical terms, the defendant was the
successful party. This decision was upheld by the Court of Appeal on the general basis
that it was inappropriate to continue the litigation for many more months over such a
small sum and that the Part 36 offer ought to have been accepted.
8.4.4 Advising on Part 36 offers, non-disclosure to the judge and appeals

As a result of the costs implications there is a heavy responsibility on legal
representatives to advise their clients on whether an offer should be made or
accepted. Clear and unequivocal advice should be given. If a Part 36 offer has been
made it must not be disclosed to the court at trial until all questions of liability and
remedies have been decided; all references prior to trial should be removed. If there
are split trials as to liability and quantum then either party can refer to the fact that
an offer has been made. If the offer is accidentally disclosed then the judge can either
continue or withdraw (see Garratt v Saxby [2004] 1 WLR 2152). The judge will have to
consider whether there has been any prejudice to either side by the judge knowing
about the offer. The Part 36 offer and any costs liability will cover all proceedings up to
final disposal at first instance. A further Part 36 offer for costs protection at appeal can
be made to try to obtain costs protection.
Summary
The Part 36 offer scheme works to try and prevent the frivolous dismissal of offers
to settle. Litigants must take the process seriously and even if they have exhausted
all forms of ADR they should take an offer to settle seriously so as to try and avoid
wasting the court’s time. If a Part 36 offer is made by either party in accordance with
the procedure, and the other party refuses, then even if the other party wins judgment
they may still have to pay the offeror’s costs if the amount awarded by judgment is
equal to or less than the original Part 36 offer. This can be an incentive to settle and
counsel are expected to advise their clients to this effect. These offers should not be
disclosed to a trial judge but the costs liabilities only apply to the case at first instance.
If an appeal is undertaken then a new Part 36 offer can be made with regard to that
appeal process.
8.5 Costs
Essential reading
¢¢ Sime, Chapter 43: ‘Costs’.
Litigants will incur costs from the time a solicitor is first consulted until the solicitor’s
retainer has been terminated. This is usually after the enforcement of any judgment
obtained. The client (unless publicly funded) will bear the primary responsibility for
paying his or her own solicitor’s bill. The bill contains details of the solicitor’s fees
for the work done, together with counsel’s fees, expert’s fees, court fees and any
other charges, expenses or disbursements (including photocopying costs). Costs
for the solicitor will be divided between contentious and non-contentious costs.
Non-contentious costs cover preliminary work, work in proceedings before trial and
inquiries made. Contentious costs, which are the focus here, relate to costs incurred
once the machinery of the court is in full swing.
Whilst each client will be responsible for paying their own solicitor’s costs, these
will usually be recouped from the unsuccessful party. Since there are different
bases for assessing these costs, even a successful litigant will probably have to pay
something to their own solicitor. An unsuccessful litigant will have to pay both their
own solicitor’s costs and a substantial proportion of the other side’s costs. Orders for
these costs will be made at the end of the trial and at the end of any interim hearings
and enforcement proceedings made in the course of, or after judgment in, the
proceedings. These costs are often added to the judgment made.
8.5.1 Predictability
One of the aims of the CPR is to provide a system of civil justice which is reasonably
affordable. As well as affordable, the costs of litigation should be predictable. To this
end solicitors are under a duty to be as full and frank as possible with their clients
about costs at the outset and as the case develops. They should also encourage the use
of conditional fee agreements and the process of judicial case management should
ensure that litigation progresses to trial with minimum delay. Cost estimates should
be provided by the parties’ solicitors. The costs recoverable from the losing party in
small claims track cases are limited to the court fees paid by the successful party, a
nominal fixed sum to cover the claimant’s solicitor’s costs of issuing the claim and
limited witness expenses and experts’ fees. At the end of any fast track trial the judge
will usually make a summary assessment of the winner’s costs of the claim at the point
of judgment. There are also certain types of claims (road traffic accidents for example)
which have fixed costs. All of this is done to ensure reasonably accurate prediction of
the costs involved.
8.5.2 Summary and detailed assessment

Summary assessment of costs usually takes place at the end of a hearing. It can
be quite ‘rough and ready’ and there will usually be reference to the statement of
costs which were served 24 hours before the hearing. If this cost assessment has
not been provided then there may be an adjournment for a detailed assessment, an
adjournment for a summary assessment by the same judge or for it to be dealt with
in writing, or the unsuccessful party can consider a late statement of costs during
a short permitted period. Whatever response is selected by the judge it should be
proportionate (see Macdonald v Taree Holdings Ltd [2001] CPLR 439).
Sometimes with summary assessments the courts will develop standard figures
for specified costs. This may be acceptable in straightforward proceedings but it is
contrary to principle in the majority of claims. The courts must consider a detailed
breakdown of costs actually incurred and the court is entitled to draw on its general
expertise to do so. The test will be one of reasonableness and proportionality. In
making that assessment the court may consider a counsel’s brief fee. These costs are
usually payable within 14 days of the date of the order. The court can decide when they
should be paid but any application to extend time needs to be supported by evidence.
A detailed assessment of costs involves leaving the quantification of costs to a costs

officer who then considers the amount to be allowed at an assessment hearing at
some stage in the future. District judges will usually carry out these assessments in the
county court and the Supreme Court Costs Office will carry it out in the High Court.
Where money is claimed by, or ordered or agreed to be paid to or for the benefit of, a
child or a patient the court must order a detailed assessment of the costs payable.
8.5.3 Basis of quantification

There are two bases of assessment of costs, the standard basis and the indemnity
basis.
uu The standard basis is the one usually applied in costs orders between the parties in
litigation.
uu The indemnity basis is used when a client is paying his or her own solicitor or
where a trustee’s costs are payable out of a trust fund. It can also be used between
competing parties in litigation as a penalty for misconduct or where a Part 36 offer
was refused and a larger amount was awarded at trial.
Costs orders are required to identify the intended basis of quantification. The court
will not, on either basis, allow costs which have been unreasonably incurred or which
are unreasonable in amount.
The standard basis (rule 44.4(2) CPR) is a less generous basis and the court only allows
costs which are proportionate; the courts resolve any doubt as to whether costs were
reasonably incurred or reasonable and proportionate in favour of the paying party. The
indemnity basis (rule 44.4(3) CPR) does not make any reference to proportionality and
any doubt as to whether costs were reasonably incurred is resolved in favour of the
receiving party.
8.5.4 Procedure for detailed assessment of costs

Assessment proceedings must be commenced within three months of the judgment,
order, award, or other determination giving rise to the right to costs. To this end it is
required to serve the party paying a notice of commencement and a bill of costs. The
paying party can dispute any item on the bill but this must be done within 21 days
of service of the notice of commencement. If these points of dispute are not served
within the time then the receiving party can issue a default costs certificate. A reply
to any disputes served can be made although there is no obligation for this to take
place. Any reply should take place 21 days after service. Hearings are informal events
where submissions are made and the costs officer makes a decision as to quantum.
If the costs stem from a fast track trial then they are set by rule 46.2 CPR. If the claim
is a personal injury one then there exists a system of fixed and predictable costs.
Conditional fee agreement success fees are also fixed.
8.5.5 General principles

There are two general principles.
1. That the costs payable by one party to another are in the discretion of the court
(s.51 SCA and rule 44.3(1) CPR).
2. That the unsuccessful party will be ordered to pay the costs of the successful party
(costs follow the event).
This means that the starting point on final costs orders is that the winner should be
awarded the whole of his or her costs. This is a general and well applied rule. The
discretion is there for the court and it is wide but it is exercised sparingly when it
comes to departing from the starting point. The factors which may impact upon the
operation of this discretion can be found at rule 44.3(4) and (5) CPR. See Sime 43.18–
43.24 for more details. If a judge does depart from the starting point then reasons for
the departure must be provided.
If a claimant has claimed substantial damages but has only received nominal damages
then they will normally be required to pay the defendant’s costs. If there has been
misconduct by the successful party then this may result in costs not following the
event (rule 44.3(4)(a) CPR). The court can take into account conduct before, as well as
during, the proceedings and in particular the extent to which the parties followed any
pre-action protocols. An unreasonable refusal to engage in ADR will be reflected in
the order for costs at the end (see Halsey v Milton Keynes General NHS Trust [2004] 1 WLR
3002).
Misconduct is a broad term and the judge will look at the whole of proceedings and
conduct before and during trial to decide what costs will be incurred by either party.
As well as disallowing costs the court has other powers which may include:
uu ordering costs to be paid on the indemnity rather than the standard basis
uu ordering payment of interim costs immediately
uu ordering payment of interest on costs from or until a certain date
uu ordering interest on costs at a rate different from the Judgments Act 1838 rate.
If a claim has been wrongly commenced in the High Court the court must take that
error into account when quantifying costs. This will result in a reduction in costs but
this reduction must not be more than 25 per cent.
Once a costs order has been made against a client who has been legally represented
and the client is not present in court then the solicitor representing the client is under
a duty to inform the client of the costs liability within seven days of the order being
made. This should include an explanation of why the order was made. The court can
require evidence that reasonable steps have been taken to inform the client.
Indemnity principle
This is a principle that a party cannot be liable to pay more to the other side in costs
than the winner is liable to pay its own lawyers. According to British Waterways Board
v Norman (1993) 26 HLR 232 if lawyers have suggested that their client does not have to
worry about the fees then the loser may not be liable either. If the action is arranged
on a contingency fee basis then this too can have an impact upon the order for costs
even if successful. Solicitors are under a duty to provide the best information possible
about the costs that are likely to be incurred and the performance of this duty can
impact upon the amount a party is able to recover.
Range of costs orders

Rule 44.3(6) CPR identifies seven possible variations from the main rule – that the
unsuccessful party should pay the whole of the successful party’s costs. These
variations are used as a tool to restrict the amount of costs that a winning party is
allowed to record from the loser. They are used as a way of signalling the displeasure of
the court at some conduct on the part of the winning party. They are all given a positive
wording so as not to be seen as punitive. They include terms such as ‘a proportion of’
and ‘relating to certain steps taken’. See rule 44.3(6) CPR for more details.
8.5.6 Interim costs orders

Once an interim application has been made, and when it has been disposed of by
consent, an order will be made or agreed declaring which party should pay the costs
of that application. These costs are at the discretion of the court but this discretion is
usually exercised in favour of the party who was successful in the application. As the
nature of the interim application will differ, a variety of interim costs orders can be
made.
Activity 8.5
Read Sime 43.36–43.44 and consider what interim costs order would be required in
the following cases.
a. Justice Banter decides judgment in favour of Letitia’s claim but defers costs until
a later hearing. The hearing never happens.
b. Gill wants the statement of case amended after filing as she forgot to include an
important point of information.
c. Jamie wins his case for breach of contract and takes steps to enforce the
judgment against his telephone company but the judgment is later set aside.
8.5.7 Costs of the claim

Once track allocation takes place to either the small claims track or the fast track then
the costs rules relating to that track will apply to work which has been done before,
as well as after, allocation. There is an exception to this under rule 44.9(2) CPR where
any costs orders made before a claim has been allocated are not affected by any
subsequent allocation. Once a case has been decided there may be an appeal. The
court dealing with the appeal can make orders relating to the costs of the proceedings
which have given rise to the appeal as well as the appeal itself. If the appeal is
successful then the appeal court can order the losing party to pay the costs ‘here and
below’ (see Activity 8.5), can make an order relating to the proceedings at the two
levels or may leave the costs order of the court below undisturbed. The court has a
wide discretion to make a decision in these cases.
Costs follow the event

This is the main rule in awarding costs. It is where the unsuccessful party will be
ordered to pay the costs of the successful party.
Activity 8.6
Read Sime 43.47–43.67 and compile a 200 word summary of the principles which
govern the application of the costs follow the event rule.
Publicly funded litigants

If a publicly funded case succeeds then the court will make an order for costs on
exactly the same principles as applied in unassisted cases. The assisted litigant does
not receive the monies as these are paid to their legal representative. If a publicly
funded party loses a case then an unsuccessful assisted person is protected from the
usual costs consequences by s.11(1) Access to Justice Act 1999. This costs protection
does not cover parties who are receiving assistance from the court, family help or
help with mediation. If a litigant has been publicly funded for part of the time then
the benefit of costs protection will only apply for the part of the litigation that was
publicly funded.
Under s.11(4)(d) Access to Justice Act 1999 and Community Legal Service (Cost
Protection) Regulations 2000 (SI 2000/824) the court making the decision as to the
claim in favour of an unassisted party, against a publicly funded party, can make an
order requiring the Legal Services Commission to pay the unassisted party’s costs. To
gain this costs order against the Commission the proceedings must have been finally
decided in favour of the non-publicly funded litigant. This means there can be no
prospect of an appeal. The non-publicly funded litigant must make the application
for the costs order within three months and the courts must view it to be just and
equitable in the circumstances to make the order. The monies come from public
funds and so it must be appropriate for the order to be made. To gain this order the
applicant must be an individual rather than a company and an order cannot be made
against the Commission where both parties are publicly funded.
Costs against non-parties

Section 51 SCA 1981 as interpreted in Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965
states that it is possible for the courts to award costs against non-parties. These are
exceptionally awarded when the need to protect the successful party by granting an
effective costs order has to surrender to the right of access to the courts to litigate the
dispute in the first place. These orders are sparingly used against an outsider who has
funded the litigation on behalf of the unsuccessful party (Sing v Observer [1989] 2 All
ER 751]).
Wasted costs orders

Section 51(6) SCA 1981 provides that legal representatives can be made personally
liable for any wasted costs. These are cost orders made against the legal
representatives of a party (see Medcalf v Mardell [2003] 1 AC 120). The use of wasted
costs is to act as a deterrent to lawyers and this is used by the courts to remedy loss
and expense which has been caused by the unjustifiable conduct of litigation by either
side’s lawyers. These costs are compensatory in nature (Ridehalgh v Horsefield [1994] Ch
205). The orders can only be made if three conditions are satisfied.
1. The applicant has to show that the lawyer has acted improperly, unreasonably or
negligently.
2. The conduct complained of has caused the applicant to incur unnecessary costs.
3. In all the circumstances it is just to order the lawyer to compensate the applicant.
The procedure for wasted costs applications is set out in PD Costs paragraph 5.3.
Summary
Costs are a key feature of civil procedure. The orders are always discretionary and costs
will usually follow the event. These principles apply to the awarding of both interim
costs orders and costs orders after trial. Courts can depart from the ‘costs follow the
event’ principle where there has been unreasonable conduct by the winner in the
case. Non-parties can occasionally be held liable for costs and lawyers who behave
unreasonably and incur unnecessary costs can incur a wasted costs order. If the litigant
is publicly funded then there are special rules which can limit their liability. This is
termed costs protection.
8.6 Enforcement
Essential reading
¢¢ Sime, Chapter 44: ‘Enforcement’.
The entering of judgment does not provide a litigant with the remedy which has
been sought at trial. Parties will occasionally refuse to comply with the orders and
judgments of the courts. If the court had no powers of enforcement then confidence
in the civil process would be eroded. As a result there are a range of enforcement
procedures which deal with different situations. If a variety of procedures are available
to any one claim then the judgment creditor will decide which procedure is likely
to be the most effective. The one limitation is that attachment of earnings orders
are generally only available in the county courts. There is also a difference in what
personnel carry out which function. In the High Court enforcement is carried out by an
enforcement officer under the Courts Act 2003. These officers are independent of the
courts. In county courts enforcement is carried out by a bailiff who is employed by the
Ministry of Justice. Enforcement officers arguably have a greater incentive to enforce
as their fees are calculated on the basis of what they recover. This is why they tend to
be more successful than bailiffs. The law is in a state of transition and changes will be
made when the Tribunals, Courts and Enforcement Act 2007 comes into force. This has
not yet happened. Therefore the old law still applies (see Sime 44.02 for details).
8.6.1 Enforcement of money judgments

Most enforcement judgments are for money. As a result the process has developed a
range of orders dealing with particular claims. The following activity should assist you
with how this enforcement can take place.
Activity 8.7
Read Sime 44.03–44.38 and consider which order is the most appropriate in the
following situations.
a. Jane has lost her breach of contract claim and cannot pay the costs order made
against her.
b. Noah wants the bailiffs to enforce an order for £400 made against James but
James is suggesting he has no money, only the contents of his flat.
c. Sara has a judgment order against her and a costs order but has no money and
no assets. The winner in her case was Kiki, who now wishes to know how the
county court will enforce the judgment.
d. Horace has no assets other than his house and promises to pay the judgment
order and costs order against him over a period of time. Irene, the winner in the
case, is worried that the periodic payments will not be met.
8.6.2 Enforcement of judgments for delivery of goods, possession of land

and equitable execution
For goods to be delivered a warrant must be issued under s.3 Torts (Interference with
Goods) Act 1977. The writ of specific delivery requires the bailiff or enforcement officer
to seize the goods specified in the judgment. The writ of delivery can also be used
to seize either the goods specified in the judgment or other goods up to the value
specified in the judgment.
At common law a claimant who has obtained judgment for the possession of land can
enter the land after judgment is granted and can take the land back without force. If
the land falls within the scope of the provisions of the Rent Act 1977, Housing Act 1988,
Landlord and Tenant Act 1954 Part 1 and the Protection of Eviction Act 1988 then this
common law right does not apply.
If a receivership order is made it has the effect of appointing a responsible person to

receive the rents, profits and moneys which are receivable in respect of the judgment
debtor’s interest in certain property. This will be used where it is impossible to use
another method of enforcement and the appointment of the receiver will be effective
(see Maclaine Watson and Co Ltd v International Tin Council [1988] Ch 1).
8.6.3 Contempt of court

To be guilty of contempt of court it has to be shown that you have interfered with the
administration of the law. The term ‘contempt’ is widely construed but can mean to
disobey a court order which requires you to do something or requires you to refrain
from doing something. It may also involve you assisting another to breach an order
or taking action which impedes or interferes with the course of justice (see Attorney
General v Leveller Magazine Ltd [1979] AC 440).
Contempt of court is usually punitive in nature but the proceedings do also

ensure compliance with the court’s orders. The punishment can be up to two
years imprisonment and fines and sequestration. Contempt can be purged if the
‘contemner’ (the party guilty of the contempt) has shown suitable remorse and has
complied with all court directions (see Enfield London Borough Council v Mahoney [1983]
1 WLR 749).
The writ of sequestration is used where contempt has been proven. Four sequestrators
are appointed and they can enter the contemner’s lands and seize their personal
property. This can be used until the contempt has been purged. Sime explains that
sequestration was used widely during the 1980s in trade union cases to enforce
compliance with court injunctions.
8.6.4 Enforcement of foreign judgments

A foreign judgment at common law can be enforced in this country by bringing an
English action claiming the amount of the judgment as a debt. According to Grant v
Easton (1883) 13 QBD 302 the foreign judgment gives rise to an implied contract to pay
which is then enforced in England. Clearly, this can only happen if the English court has
jurisdiction.
The UK is also party to international conventions which provide for the direct
enforcement of foreign judgments which have been incorporated into English law. The
following provisions are used and their utility is found in Sime 44.57.
uu Administration of Justice Act 1920.
uu Foreign Judgments (Reciprocal Enforcement) Act 1933.
uu Jurisdiction Regulation.
uu European Enforcement Orders, Certification and enforcement of European

Enforcement Orders as governed by Council Regulation (EC) No 805/2004.
Summary
The orders and judgments provided by the civil process would mean nothing if these
remedies could not be enforced. To this end the process has developed a number
of ways to enforce judgment. A money judgment will usually be enforced by writ
of execution against the debtor’s goods, by a third party debt order against a bank
account or by attachment of earnings against the debtor’s salary. It can also be secured
by using a charging order. If the judgment is a non-money judgment (land or goods)
then a different procedure is used. These enforcement procedures are dealt with
as administrative matters by the court. Court orders will, however, be required for
third party debt orders, charging orders and committal (where contempt is alleged).
Different officers will enforce judgment. In the High Court this will be an enforcement
officer and in the county court it will be the responsibility of the bailiff.
8.7 Appeals
Essential reading
¢¢ Sime, Chapter 46: ‘Appeals’.
In the civil process there exists, as there does in the criminal process, a right to appeal.
Decisions are sometimes made in error and a system exists to ensure that these errors
can be corrected. The result of a decision is not wrong just because the loser does
not agree with it. There are strong reasons for encouraging the decisions of the court
to be final and binding. It encourages confidence in the system and prevents parties
thinking that they can simply appeal all decisions as a way of either trying their luck
with another court or delaying the inevitable result of having to concur with the
court’s decision and paying up on judgments entered. To strike a balance between
finality and the correcting of mistakes is not an easy task and the appeals system
is littered with issues as a result. These issues make the study of the appeal system
important in any course on procedure. When considering the appeals process in civil
matters it is crucial that you understand what court is being appealed to, the period
within which the appeal must be commenced and the grounds on which the appeal
may be allowed.
8.7.1 Routes of appeal
Activity 8.8
Read Sime 46.06–46.08 and construct a flowchart to show how the basic civil
appeals structure works.
Sometimes an appeal will be a second appeal and these are dealt with by Access to
Justice Act 1999 (Destination of Appeals) Order 2000, Article 5. These are exceptional
and see Southern & District Finance plc v Turner (2003) LTL 7/11/03 to see how they
can operate. If there is an appeal in a Part 8 claim then these are not subject to any
exceptions and can follow the general routes of appeal. Sometimes High Court appeals
will be located in an appeal centre and there are centres within each of the six Circuits.
It is also possible for normal first appeals to be diverted from the normal court (High
Court) to the Court of Appeal. This is usually where there is an important point of
principle which needs to be considered. The Master of the Rolls (Head of the Court of
Appeal, Civil Division) will usually exercise this power.
8.7.2 Permission to appeal

Under rule 52.3(1) CPR an appellant or respondent requires permission to appeal.
This is where the appeal is from a decision of a judge in county court or the High
Court. There are exceptions to this rule where the liberty of the subject is considered.
Therefore permission is not required for a committal order, for a refusal to grant
habeas corpus or where a secure accommodation order has been made under the
Children Act 1989.
Permission to appeal will generally be sought from either the lower court at the
hearing at which the decision was made or from the appeal court where the appeal
would take place. All second appeals must be granted permission from the Court
of Appeal. Where the lower court refuses permission it can be sought from the
higher court. These applications in the lower courts are usually made orally whereas
permission is sought in writing to the appeal court. If granted, notification takes place
in writing. If refused, then an oral hearing can be requested. If a case management
decision has been made, involving disclosure, for example, then an appeal is unlikely to
be granted as it would impact upon the overall timetable of the progress of the case.
The test for granting permission is found in rule 52.3(6) CPR and states that permission
to appeal will only be granted where the appeal would have a real prospect of success
or there is some other compelling reason why the appeal should be heard (see Swain v
Hillman (2001) 1 All ER 91). Second appeals will need to gain permission from the Court
of Appeal and this will only be granted, in accordance with rule 52.13(2) CPR, where the
appeal would raise an important point of principle or practice or there is some other
compelling reason for the Court of Appeal to hear it. There is no appeal from a decision
of the appeal court to allow or refuse permission to appeal to that court where an oral
hearing has been granted. If a refusal comes without an oral hearing then a hearing
can be requested under rule 52.3(4) CPR.
If permission is granted then the court can specify the issues to be heard. This will limit
the time used at hearing. Should permission to appeal be refused then the court only
needs to provide short reasons for refusal. These reasons, being short, will not infringe
the requirement for a reasoned decision in Article 6 of the ECHR (see Hyams v Plender
[2001] 1 WLR 32).
8.7.3 Time for appealing

The general rule under rule 52.4(2)(b) CPR is that appeals must normally be initiated
or permission sought for an appeal no later than 21 days from the date of the decision
of the lower court. The lower court can direct some other period for filing a notice of
appeal but this will not normally be longer than 35 days. Judgments and orders take
effect from the date on which they are given or made or some other date specified
by the court. Delays in drawing up the order do not delay the time running for the
appeals process.
Under rule 3.1(2)(a) CPR the court can extend or shorten the time for compliance
with any rule, practice direction or court order. This includes the time for bringing
an appeal. This time for appeal cannot be agreed between the parties. To extend the
time for, appealing an application must be made and the reason for the delay must
be stated. Failure to seek permission is an issue for the courts (Southern & District
Finance plc v Turner (2003) LTL 7/11/03). If an extension is sought and granted then the
respondent has the right to be heard on the question of whether the extension should
be granted. If this is unreasonably opposed the court may decide that the appellant’s
costs can be paid by the respondent. The court will consider carefully all requests for
extensions of time (see Sayers v Clarke Walker [2002] 1 WLR 3095).
8.7.4 Procedure on appealing
Activity 8.9
Read Sime 46.36–46.57 and compile a 300 word summary on how the procedure for
appealing works.
Respondent’s notice
In any appeal the respondent can file and serve a respondent’s notice under rule
52.5(1) CPR. The respondent will usually be asking the appeal court for permission to
appeal or to uphold the order of the lower court for different reasons than those given
by the lower court. Generally those appellants who are interested in upholding the
decision of the court below do not need to serve a respondent’s notice. This notice
is similar to the appellant’s notice and must be filed within the period set by the
lower court. Usually this is, without direction, 14 days after the decision was made.
If the respondent plans to address arguments to the court then they must provide a
skeleton argument.
Application within appeals, stays and striking out of appeal notices

If a remedy is sought which is incidental to the application made to the appeal court
then this can be included in the appeal notice or by an ordinary application notice.
This could include an application for security for costs. An appeal notice can also
be amended with permission (rule 52.8 CPR). Under rule 52.7 CPR an appeal will not
operate as a stay of any order or decision of the lower court unless the appeal court
or the lower court authorise otherwise or the appeal is from the Immigration Appeal
Tribunal (see how Linotype-Hell Finance Ltd v Baker [1993] 1 WLR 321 relaxed the rule
established in Atkins v Great Western Railway Co (1886) 2 TLR 400).
The appeal court can strike out the whole or part of an appeal notice or set aside
permission to appeal or it can vary or impose conditions upon which an appeal may
be brought. There must be a compelling reason to do this as a frivolous exercising of
these powers may lead to an abuse of process (see Burgess v Stafford Hotel Ltd [1990] 1
WLR 1215).
8.7.5 Hearing of appeals and the appeal court’s powers
Activity 8.10
Read Sime 46.71–46.93 and explain the powers of the appeal court and how
hearings take place. This explanation can be a verbal one spoken out loud or you
can make notes as a way of remembering this for examination purposes. The key
will be to explain the general powers vested in the appeal court and the grounds
for allowing an appeal.
As the task is self-directed there is no feedback.
Appeals by way of case stated

Under PD 52 appeals to the High Court by way of case stated may be brought on
questions of law or jurisdiction. These can only be brought from any of the inferior
courts. The appellant must apply in writing to the justices within 21 days of the
decision to state a case for the opinion of the High Court. This can be refused if it is
thought the application to state the case is a frivolous one. The procedure for drafting
the case is governed by rules 76–81 of the Magistrates’ Courts Rules 1981. A notice must
be filed at the appeal court within 10 days of receiving the case.
Appeals to the House of Lords

Exceptionally it is possible for a direct appeal from the High Court to go to the House
of Lords, bypassing the Court of Appeal. This is often referred to as leapfrogging and
can only happen when the appeal involves a point of law of general public importance,
a point of law relating to a statutory provision or a point on which the judge at first
instance was bound. The parties must consent and the trial judge must certify the
matter immediately at the end of trial or within 14 days. Finally the House of Lords
must grant permission to bring the appeal directly to the House of Lords.
An appeal from the Court of Appeal generally goes to the House of Lords. Permission
must be obtained from the House of Lords or the Court of Appeal. Permission to appeal
should initially be made to the Court of Appeal immediately after judgment has been
pronounced. If this is refused then the appellant can present a petition of appeal to
the House of Lords. This petition will set out briefly the case and the appeal committee
will decide whether to grant permission. It will be refused if there is no point of law of
general importance to be considered. Permission will also be required for any cross-
appeal by a respondent.
If permission is granted then a substantial petition is lodged which is then served on

the respondent and £25,000 is lodged with the House of Lords Security Fund. This
amount is not required if the case is publicly funded. In addition to the substantive
petition the appellant must prepare a statement of facts and issues, along with any
appendices of documents, and then the appellant and the respondent’s cases. Within
six weeks of presentation of the petition the appellant must lodge the prepared
documentation with the master, along with seven additional copies. The respondent
then has to lodge eight copies of its case no longer than three weeks before the
hearing is due to begin. Further documentation may be required and must be lodged
no later than two weeks before the hearing.
Summary
Appeals are rare and deliberately restricted as a way of encouraging finality.
Permission must be granted to appeal and it will only be granted where there is a
real prospect of success. The appellant’s notice to appeal must be filed within 21 days
of the decision being appealed. There are special rules for second appeals. Second
appeals will rarely introduce fresh evidence unless there are good reasons for doing
so. Appeals to the House of Lords are expensive and can only be made where there is a
point of law of general public importance.
8.8 Judicial review
Essential reading
¢¢ Sime, Chapter 45: ‘Judicial review’.
You will see from Chapter 15 of this guide that judicial review is available as a process
of appeal in criminal cases. In civil matters judicial review is also available. You will
see from your reading of Chapter 15 that the remedy is much the same, regardless
of whether it is a criminal or a civil matter. As a guide you should be aware from
your reading of both Sime and Sprack (for the criminal part) of the principles of
judicial review, the test for standing, the grounds for review and the development
of proportionality. The procedure for judicial review under Part 54 CPR and s.31 SCA
1981 is beyond the syllabus for this course, as you will recall much of this from your
study of Public law and/or Administrative law. You should, however, be aware of its
relationship with conversion and consent orders. Details of this can be found at Sime
45.68–45.69.
Conclusion
The trial process in civil matters is always concerned with justice and costs. Should a
point of European law emerge in a case which the court does not feel competent to
decide on, then a reference can be made to the ECJ if all channels of appeal have been
exhausted in the legal system. Judgments are made by the court but offers to settle
will often halt proceedings to prevent further costs being incurred. Costs are central to
the civil process as these complex rules can deter litigants from bringing actions. Once
judgments and orders are made they have to be enforced. Judicial review is available
in civil as well as criminal proceedings but the appeals process is heavily restricted to
ensure finality of decisions at first instance whilst recognising the right to appeal. From
trial to appeal is a maze of rules and principles that are generally committed to the
overriding objective.

Question 1 Henry, a timid recluse, brought an action against the Ambleside Tennis
Club for nuisance in the Connorshire County Court. Henry alleged that Ambleside
Tennis Club had been hitting balls into his garden when they played matches. His
case was listed for trial in the County Court (having been allocated to the fast track).
Two weeks before his trial was due to start, he heard that one of his neighbours,
Gerry, who was due to give evidence in support of his case, was due to leave the
country for a year-long work placement in Saudi Arabia. Although Gerry had made
a witness statement, Henry wanted to provide further details of recent events
during which John, the secretary of the club, had shouted at Gerry and threatened
to keep hitting balls into the gardens of both Henry and Gerry if they did not stop
complaining. However, before Henry could get any further evidence from him,
Gerry had to leave the country.
Henry therefore requested of the court that Gerry be allowed to give evidence via
a video link. However the judge listed to hear the case, His Honour Judge Becker,
refused the application on the ground that to do so would be too expensive and
complicated.
On the day of trial, Henry sought permission to allow his brother, Fred, to speak on
his behalf. Henry felt too intimidated by the court to speak on his own behalf. His
Honour Judge Becker refused to allow Fred to do so. When Henry started speaking,
the judge was rude and interrupted his application with a number of statements
like ‘That is nonsense, please stop wasting my time and come up with something
useful’ and ‘Must I really sit through all this rubbish? There are real cases to be
heard, you know?’ The case made slow progress on the first day and was adjourned
to the following week. During the intervening weekend, Henry happened to
notice in the local newspaper that Judge Becker was an active supporter of the
Connorshire County tennis tournament (in which Ambleside Tennis Club compete).
In an interview in the newspaper, the judge described himself as a ‘tennis nut’.
On the date at which the case was due to continue, His Honour Judge Becker said
to Henry, ‘I see that you are back. I hope you are going to come up with something
valid today. I am minded to impose a wasted costs order on you as you have taken
longer than the one day you had estimated for this trial.’ At this point, Henry got
upset with his treatment and stormed out of the court. The judge struck out Henry’s
claim in his absence.
Advise Henry
Question 2 Victoria brought an action against Albert for breach of contract. She
had sought £37,000 damages for lost profit in her particulars of claim. After the
close of pleadings, Albert’s solicitors send an email to Victoria’s solicitors which
states ‘Albert is prepared to offer £16,000 to end this claim at this point. This email
is confidential except on the matter of costs.’ Victoria does not accept the offer
but instructs her solicitors to send a letter to Albert’s lawyers headed ‘Offer to
Settle Under Part 36’. The letter states ‘Victoria will cease her claim upon receipt
of £26,000 in full and final settlement of the claim. If this offer is not accepted
within 21 days, this offer will be referred to should the matter of costs be raised
following judgment.’ When there is no response to this letter, Victoria’s solicitors
contact Albert’s to offer to settle Victoria’s claim by mediation. Albert’s solicitors
refuse to take up this offer, stating that they are not convinced that Victoria will act
reasonably during mediation and that, in any event, mediation will increase the
costs of litigation and cause further delay.
At trial, judgment is entered for Victoria and £12,000 in damages is awarded.

Victoria had hired an expensive firm of solicitors to pursue her claim and wishes to
secure the return of all the costs she incurred pursuing the claim.
Advise Victoria as to the costs that she may have to pay.

Question 1 This question raises a number of issues related to the trial process. There
are two practical steps Henry can take. He could have his claim restored or he could
appeal the various rulings and determinations. It will help to look at the correctness
or otherwise of the various powers exercised by the judge before looking at how the
court will correct any wrongly exercised powers.
There is no obligation to allow a party to use video link evidence, the rules simply
permit the court to allow this (rule 32.3 CPR). This means that the judge would
have discretion on this point. As usual, this discretion would be resolved under
the overriding objective (rule 1.1) and expense and complexity are legitimate
considerations. However, the court should generally take into account other factors,
such as the importance of the evidence of the witness, in accordance with the
overall aim of dealing with cases ‘justly’. Therefore the judge did not necessarily act
wrongly in refusing to permit the live link evidence but it may be that the judge could
be criticised for the exercise of the power he had. The overall principle is stated in
the Practice Direction – Written Evidence supplementing rule 32 CPR which states
that video conferencing should be allowed when it ‘will be likely to be beneficial to
the efficient, fair and economic disposal of the litigation’ (paragraph 2), a principle
promoted in Polanski v Conde Nast [2005] 1 WLR 637.
The judge was not obliged to allow Fred to act as advocate for Henry (unless, of course,
he had legal qualifications to do so). Fred (if unqualified) would be a McKenzie friend
who, generally, is only entitled to provide advice to the litigant. However, the court
may decide to allow a party a right of audience before it (s.27(2)(c) of the Courts and
Legal Services Act 1990). The court will only permit this in exceptional circumstances
(see Official Receiver v Mullarkey [2003] EWCA Civ 404) and therefore the judge could
not necessarily be faulted for refusing to do so in this case.
Being a fast track case, the hearing should only, usually, have taken one day (rule
26.6(5)). However, cases do occasionally overrun and the judge certainly did not have
a power to make a wasted costs order against Henry as that power is only available
against a legal representative, not a litigant (s.51(6) Supreme Court Act 1981).
However, the judge does appear to have adopted a hostile attitude to Henry and, it
would appear, is a very keen tennis player. Therefore there is a possible challenge to
the judge’s actions on the grounds of his bias. The judge should not have an interest
in the proceedings and in R v Bow Street Magistrate, ex parte Pinochet (No 2) [2000] 1
AC 119 it was stated that a judge might be interested if the outcome of the case might
promote a cause in which he was interested, along with a party in the proceedings. In
the Pinochet case, for example, the judge was involved with the pressure group Amnesty
International, which had intervened as a party in the case in which the judge was sitting.
In the case in the question, however, a judge being interested in tennis generally (and
even promoting tournaments in the area) would not necessarily make him interested
in the cause of a particular tennis club in its dispute with a neighbour. Contrast this, for
example, with a situation in which the judge had been a member of the tennis club that
was a party to the litigation. However, there is a wider power to challenge the judge’s
conduct on the basis of apparent bias. The test is stated in Porter v Magill [2002] 2 AC 357,
where the House of Lords stated that the test of bias was whether ‘the fair-minded and
informed observer, having considered the relevant facts, would conclude that there was
a real possibility that the tribunal was biased.’ The conduct of the judge, combined with
his interest in tennis might support an argument that this was so.
The judge had a power to strike out Henry’s claim due to his non-attendance (rule
39.3(1)(a)) but Henry has a power to have his claim ‘restored’. To do so, he would
have to act promptly and show a good excuse for non-attendance and that there was
a reasonable prospect of success (rule 39.3(5) and Neufille v Papamichael (1999) LTL
23/11/99). This does not require proof that the party will win, simply that there is a case
worth trying. Arguably the judge’s bias against Henry may amount to a good excuse for
non-attendance, although this is not certain (the court may expect a party to persist
with a trial and then appeal the judgment that resulted from the bias). Ultimately this
is a question for the court to determine on the facts.
Alternatively, Henry may seek leave to appeal against the judgment against him under
rule 52.3. Permission will only be granted if there is a ‘real prospect of success’ or if there
is some other compelling reason (rule 52.6). The appeal is a review of the county court
trial (rule 52.11(1)) so the court will not hear new evidence. The powers, stated under rule
52.11(3), are for the court to allow an appeal if the decision of the lower court was wrong
(rule 52.11(3)(a)) or unjust due to procedural failings or irregularities (rule 52.11(3)(b)).
Henry’s best chance is to argue that the judge’s bias renders the decision at the county
court unjust. Although the court has a power to impose a new judgment (rule 52.10(1)
(a)), it is more likely, given the ineffective and incomplete trial that took place, to order a
new trial (rule 52.10(1)(c)).
Question 2 The general rule, stated in rule 44(2)(a) CPR, is that the party losing an
action should pay the costs of the winning party (‘costs follow the cause’). Therefore,
as a successful party to litigation, Victoria would ordinarily expect to recover costs
incurred.
There appear to have been attempts to make Part 36 claims in this case however.
It would appear that Albert’s Part 36 offer would not fulfil the requirements of rule
36.2(2) regarding the form of such an offer in that it does not make clear that it is a
Part 36 offer, nor does it appear to have specified a deadline for a response. This would
mean that, although Victoria has not beaten Albert’s offer, she will not be liable for
his costs from that date. Although Victoria’s offer is, on the face of it, written in the
appropriate form, as the amount she was awarded in damages is less than the amount
she had offered to accept in the letter, she cannot use it to obtain her costs back from
Albert. This means that the neither Part 36 offer will have an impact upon the costs
decision. Unfortunately for Victoria this means that she will not be able to seek costs
on an ‘indemnity’ basis as she would if she had been able to rely upon the Part 36
procedure. An indemnity basis of costs would have allowed her to have recovered any
costs that were not unreasonable (rule 44.4(3)).
However, as costs will be decided on the standard basis, the court will consider
whether the costs she has incurred were ‘proportionate’ (rule 44.4(2)). This means that
if she had spent more than is deemed appropriate by the court following assessment
of costs (under rule 45), then the excess amount will not be recoverable from Albert.
Only what she spent in a proportionate manner would be recoverable.
A further factor that Victoria will have to think about is that she refused to engage
in alternative dispute resolution (ADR). The general presumption that costs should
be paid to the winning party is subject to the court’s discretion to make a different
order under rule 44.3(2)(b). In Halsey v Milton Keynes General NHS Trust [2004] 1 WLR
3002, the court considered the extent to which a party’s refusal to engage in ADR
would be conduct that it was appropriate to consider in deciding not to grant costs
to a winning party. The court identified a number of factors that could justify a party
refusing to engage in ADR without suffering an adverse costs decision. These reasons
could include the fact that mediation might extend the litigation and make it more
expensive. Equally, the fact that a party had shown little willingness to settle, and that
mediation therefore did not have a reasonable prospect of success, could justify a
refusal to engage in such a process.
However, Dyson LJ was unwilling simply to accept the view that a party who had not yet
engaged in negotiation would never respond to mediation (paragraph [24]). He stated
that the burden would remain on the losing party to show that the refusal to engage
in mediation had been unreasonable rather than on the party refusing to engage in
mediation having to show that the refusal was reasonable (paragraph [26]). Therefore if
Albert could show Victoria’s refusal to engage in ADR was unreasonable, he might be able
to resist an order that he pay her costs. He might be assisted in doing this by the fact that
she did not manage to gain a higher quantum of damages than he had been willing to
offer at an earlier stage in proceedings.
Reflect and review



I can critically evaluate the process for trial.   
I can explore how and when a reference can be made   

to the European Court of Justice.
I can describe how judgments and orders are   

produced.
I can critically consider the process for dealing with   

offers to settle.
I can evaluate how costs are calculated.   
I understand how enforcement of judgments and   

orders works.
I can critically consider the appeals process.   
I can explore the use of judicial review in the civil   

process.
revise?
Must Revision
revise done
8.1 At trial  
8.2 References to the European Court of Justice  
8.3 Judgments and orders  
8.4 Offers to settle  
8.5 Costs  
8.6 Enforcement  
8.7 Appeals  
9 Introduction to criminal procedure
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
9.1 From criminal process to criminal procedure . . . . . . . . . . . . . . 147
9.2 A system with aims and values? . . . . . . . . . . . . . . . . . . . . 148
9.3 Scene setting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
9.4 The Criminal Procedure Rules . . . . . . . . . . . . . . . . . . . . . . 150
9.5 The courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
9.6 Classification of offences . . . . . . . . . . . . . . . . . . . . . . . . 153

Introduction
Having considered the wide-ranging rules and issues raised within the civil process, it
is now time for us to move on to consider the rules and issues that govern the criminal
process. It is immediately worth remembering the differences between the pursuit
and execution of civil and criminal justice as outlined in the Chapter 1. The fact that
the ultimate punishment for a defendant in the criminal process is imprisonment
does impact upon the way in which procedure operates in the criminal system.
Whilst the maximum penalty for an individual in the civil process is financial ruin, the
deprivation of liberty as a punishment for a criminal offence often leads to the rules
and procedure operating much more tightly in the criminal process. Rules of evidence
are more rigorously adhered to and, with the punishment being potentially such a
high one, many of the issues raised are seen as being of greater importance. This is
the formal reality of the criminal process. Of course there are some who would argue
that financial ruin as a result of losing a civil case is far worse than a couple of months
in prison and so the proper execution of civil justice is just as important as criminal
justice. This may be so, but the system tends to be far stricter in terms of regulation
and submission of evidence in criminal trials and you will see, by comparison, how
rigorous the criminal system appears to be.
Learning outcomes
uu secure an introductory understanding of the criminal justice process and how

criminal procedure fits into that process
uu critically explore the aims and values of the criminal justice system
uu display a sound knowledge of the differences between summary trial and trial
on indictment
uu describe the purpose and scope of the Criminal Procedure Rules
uu comprehend the different courts used in the criminal justice process
uu explain how criminal offences are classified.
Civil and criminal procedure 9 Introduction to criminal procedure page 147
9.1 From criminal process to criminal procedure
Essential reading
¢¢ White, R. ‘The structure and organization of criminal justice in England and
Wales’ in McConville, M. and G. Wilson (eds) The handbook of the criminal justice
process. (Oxford: Oxford University Press, 2002) [ISBN 9780199253951]. This
reading is available on the VLE.
The criminal process is described by Ashworth and Redmayne (2005) as ‘part of the
State response to crime, part of the mechanism by which the State applies substantive
criminal law to its citizens’. With such a wide ambit it is not surprising that the process
covers not just the investigation and detection of crime but also the treatment of
suspects through to the trial of defendants and the sentencing of the guilty offender.
From beginning to end systems have been developed and rules formulated to attempt
to ensure that not only are offenders brought to justice but those who are innocent
are, despite their entanglement in a case, found not guilty. Clearly this is the ideal and
miscarriages of justice do happen. That should not, however, detract from the aim of
the process and throughout this part of the course you should attempt to evaluate
how rules and procedures manage to realise this ultimate aim. It is clear that the
process must be placed into context and, of course, much crime is never detected,
let alone successfully prosecuted. The British Crime Survey regularly considers the
‘dark figure’ of crime – which is that crime which takes place but never comes to the
attention of the criminal process. With this caveat in mind the criminal process still
has to deal with those subversions of the criminal law, when appropriate.
Much of this course is concerned with criminal procedure within the criminal
process. Criminal procedure encompasses a set of legal rules on how the suspected
and accused criminal is to be dealt with by the criminal process. Criminal procedure
provides a framework for the prosecutor, whether it is the police or crown prosecutor,
to decide whether to charge and prosecute. It also provides boundaries for what is and
what is not acceptable action in the detection and prosecution of offences. At trial,
the criminal procedure is there to guide judges and lawyers as to what is acceptable
in terms of evidence submitted. Then upon conviction the procedure allows the judge
to sentence within a specified framework. Rules and procedures are often used as
pejorative terms to suggest bureaucracy and unnecessary restrictions on the State’s
obligation to prosecute criminals. While this may prove popular in some obvious and
immediate cases, it is important to remember that the procedure has to allow the
process to be seen to be legitimate. Legitimacy is important for the defendant as they
need to know that a process has been followed. Legitimacy is also important for those
who work within the system so that their actions are defensible to everyone both
within and outside of the system. If a system lacks legitimacy, it has no right to utilise a
criminal process and that way totalitarianism rages!
Self-assessment questions
1. What are the key tasks of the criminal justice process?
2. How do we know that our crime figures do reflect the true extent of crime?
3. Why is it important for a system to maintain legitimacy?

¢¢ Sanders, A. and R. Young Criminal justice. (Oxford: Oxford University Press, 2006)
[ISBN 9780406971395] Chapter 1: ‘The aims and values of criminal justice’. This
¢¢ Ashworth, A. and M. Redmayne The criminal process. (Oxford: Oxford University

Press, 2005) [ISBN 9780199273386] Chapter 1: ‘Decisions and structure’.
¢¢ Bradley, C. ‘The emerging consensus as to criminal procedural rules’ (1993) 14

Michigan J Int Law 171.
9.2 A system with aims and values?
Essential reading
¢¢ Ashworth, A. and M. Redmayne, The criminal process (Oxford: Oxford University
Press, 2005) third edition [ISBN 9780199273386] Chapter 2. This reading is
available on the VLE.
9.2.1 A system with an aim?

We have already suggested that a criminal process with a procedure must attempt to
maintain its legitimacy. This is not just in its devising of rules but also in its execution
of those rules. This is one of the expectations we have of our criminal process. But it is
not the only one. In their writing Ashworth and Redmayne (2005) argue for a theory of
criminal process which is normative, which means how the process should be.
Activity 9.1
Read 2.1 in Ashworth and Redmayne and write a 500 word synopsis of what they are
arguing for.
As this is a comprehension exercise no feedback is provided.
9.2.2 A system with values

The theory articulated by Ashworth and Redmayne is described as an ‘internal’
theory, in that it is concerned with how the process can work instrumentally to bring
offenders to justice. Just as important is a consideration of values within a system
and these are often seen as being external in that they operate outside of the system
in an attempt to inform and shape what priorities a system has. The first example of
an external value of the English criminal process is that we use lay fact finders (lay
magistrates and juries) who decide on questions of fact. This is not altogether unusual
but remains a clear hallmark of the system. The second example of an external value
is adversarialism. Like the US, we have an adversarial as opposed to an inquisitorial
system such as that in France. Adversarial systems give a far greater role to the parties
who are developing the case and conducting the trial whereas inquisitorial systems
place less emphasis on counsel and far more on the State protecting the interests of
the accused. Both systems have their merits and the fact that the English system is
adversarial is really a result of historical adventure.
It is difficult to consider English criminal procedure without considering another

external value that has become particularly important: the European Convention
on Human Rights. The Human Rights Act 1998 allows reference to the European
Convention so that individuals can utilise the rights contained within that Convention.
As this is a statement of positive rights, never previously enjoyed by English citizens, it
is understandable why it has a significant impact upon process.
Activity 9.2
Read 2.3 in Ashworth and Redmayne and compile a chart explaining which Articles
within the Convention are seen as being particularly significant. How do we manage
competing rights?
9.2.3 Classic conflicting ideas

When evaluating any criminal justice process and the procedure it utilises, it has long
been the practice to rely on two extreme models, as identified by Herbert Packer in his
book The limits of the criminal sanction (1968). Clearly the English process is interested
in controlling crime. It has an obligation to its subjects to do just that. Contrasted with
this, it must also be seen to be protecting an individual’s rights, even more so since the
advent of the Human Rights Act 1998. It is therefore important that in attempting to
control crime it does not compromise due process rights.
Crime control
This model relies on the necessity of controlling crime even if this is to the detriment
of an individual’s human rights. Crime control is concerned with wiping out crime at
any cost. This model has a number of values which run throughout. First, it is said that
the process should be automatic, predictable and uniform. It should be quick and
efficient and should not be distracted by adherence to an individual’s rights. Crime
control stresses quantity over quality and so ‘clear up rates’, at whatever cost, become
the priority. This model also favours informal processes of resolution where the courts
should be avoided and the police should mete out their own form of justice wherever
appropriate. Such a model demands greater use of devices such as plea bargaining to
avoid the expense of court. It also highly prizes the police and relies heavily on them to
deliver justice.
Due process
By contrast, this model attempts to maximise human freedom even if this involves
a reduction in the detection and successful prosecution of crime. There is a working
presumption of innocence until proven guilty and the emphasis is on whether the
court finds the defendant guilty rather than whether they are actually guilty or not. If
a defendant was guilty but evidence had been improperly obtained, then under this
model it could and should never be used as this will encourage law enforcers to bypass
the protections in place. In this model the process is seen as a collection of hurdles
which need to be jumped. Quality is preferred over quantity and a fair and accurate
process is observed so that the prosecution, if successful, is both defensible and
watertight. This model has greater faith in the courts rather than the police and views
the formality of the law as a protection for the individual. The State is mightier than
the individual and as such this protection is a necessity if the system is to maintain any
legitimacy.
Clearly both models are extremes. Taken to the extreme the crime control model
would provide no formal protections for a defendant. Equally the due process model
would struggle to detect and prosecute crime if every case against an offender was
required to be full proof before a prosecution could continue. The guarantee is that
the system will be full proof and will only enable a cast iron case to be prosecuted.
Such guarantees are not available. The point, which Packer acknowledges, is that a
process can be evaluated on how far its procedure has swung towards one of these
competing models.
Activity 9.3
Read 2.4 in Ashworth and Redmayne. List their criticisms of Packer’s models and
write a 600 word summary of their methods for evaluating the criminal process.
How can the rights perspective be developed?
1. What are the key aims of the criminal justice process?
2. How do we articulate the notion of ‘values’ when considering the English

process?
3. Are Packer’s two models useful for understanding the competing values within
the criminal justice process?
4. Does a rights perspective further enable a measure of legitimacy in the way the
system operates?

¢¢ Packer, H.L. The limits of the criminal sanction. (Stanford: Stanford University
Press, 1968) [ISBN 9780804708999].
¢¢ Rutherford, A. ‘Working credos’ in Criminal justice and the pursuit of decency.

(Oxford: Oxford University Press, 1993) [ISBN 9780192852755] Chapter 1.
[ISBN 9780406971395] Chapter 1. This reading is available on the VLE.
9.3 Scene setting
Essential reading
¢¢ Sprack, Chapter 1: ‘Setting the scene’.
There are two types of criminal trial in the English process: the summary trial and the
trial on indictment. Trials of children or young persons in the youth court are often
thought to constitute a third form of trial, but in fact such trials are a special form of
summary trial. Much of the procedure we consider in this part of the course will take
place in summary trials and trials on indictment, but as an introductory matter it is
important to be clear on the remit and scope of the different trials.
9.3.1 Summary trial

Summary trials take place in the magistrates’ courts and deal with the least serious of
offences. At the beginning of a trial the accused pleads either guilty or not guilty. The
case is heard by magistrates (or justices of the peace), who are triers of both law and
fact. Most magistrates are lay adjudicators, although a small number are district judges
who are full-time, paid and legally qualified magistrates. Lay magistrates usually sit
in a panel of three (and in the youth court one of these must be a woman), whereas
district judges can hear cases alone. The clerk to the magistrates’ court often advises
magistrates on matters of admissibility and law, and so has to be legally qualified, but
final decisions are made by the magistrates.
9.3.2 Trial on indictment

Trials on indictment take place in the Crown Court and deal with the more serious
offences. A trial at a Crown Court takes place before judge and jury. The judge presides
over the trial and is professionally qualified and the triers of fact are the jury, who are
randomly selected. They have no knowledge of the law but are expected to listen to all
of the evidence and be guided by the judge as to the relevance or admissibility of the
evidence. Juries have to apply the law as explained by the judge and deliver a verdict
based on their consideration of the evidence.
1. What is a summary trial?
2. What is a trial on indictment?
9.4 The Criminal Procedure Rules
Essential reading
¢¢ Sprack, Chapter 2: ‘The role of the criminal procedure rules’.
Given the importance of the task facing the criminal justice process, it is no wonder
that a uniform procedure which is clear and easily locatable should be in place.
However, until 2005 this procedure was neither uniform nor clear. At that point the
judiciary and the legal profession decided that this did not promote an effective or
efficient system and so developed the Criminal Procedure Rules (CrimPR) 2005, which
are a statutory instrument.
The rules are not new in content, but they are new in form. An act of consolidation has
taken place which brings all of these rules under one umbrella. These rules are divided
into ten major subject areas.
1. General matters (Parts 1 to 6)
2. Preliminary proceedings (Parts 7 to 17)
3. Custody and bail (Parts 18 to 20)
4. Disclosure (Parts 21 to 26)
5. Evidence (Parts 27 to 36)
6. Trial (Parts 37 to 41)
7. Sentencing (Parts 42 to 55)
8. Confiscation and related proceedings (Parts 56 to 62)
9. Appeal (Parts 63 to 75)
10. Costs (Parts 76 to 78).

The overriding objective of the CrimPR is outlined in Part 1, which states:
1.1 Overriding objective
(1) The overriding objective of this new code is that criminal cases are to be dealt with justly.
Activity 9.4
Read Sprack 2.08–2.13 which factors will be considered when dealing with a criminal
case justly. Then summarise Sprack’s view as to how the overriding objective sits
with our obligations under the European Convention on Human Rights.
9.4.2 Case management

Like its elder sister, the Civil Procedure Rules, active case management is a key part of
the CrimPR and Part 3 outlines the obligations of both the magistrates’ courts and the
Crown Court in this regard. This verve for active case management is something the
Court of Appeal has also requested in its recent decisions.
Activity 9.5
Read R v Jisl [2004] All ER (D) 31 and explain how Judge LJ views the importance of
this objective of case management. Then read R v B [2006] Crim LR 54 to see how the
judge ought to utilise the power to case manage.
1. What was the purpose of the Criminal Procedure Rules?
2. Why had it become necessary to consolidate the different rules under one
umbrella?
3. What is the overriding objective of the rules?
4. Why is case management an important feature of criminal procedure now?

What does ‘case management’ mean for these purposes?
9.5 The courts

You need to be familiar with the following courts for the purposes of the operation of
criminal procedure.
Magistrates’ courts
Magistrates’ courts are permitted to try summary cases by virtue of the Magistrates’
Courts Act 1980. These courts also have jurisdiction under s.2(3) and (4) to try an
offence triable either way wherever it was allegedly committed.
Youth court
Magistrates are authorised to hear cases in the youth court as set out in the Children
and Young Persons Act 1933 s.45, which was amended by the Courts Act 2003. The
old juvenile court was renamed ‘youth court’ under s.70 of the Criminal Justice Act
1991. This is a special form of magistrates’ court. A youth can be tried on indictment
in special circumstances, where the offence is particularly serious, but most trials will
take place in the youth court.
Crown Court
The Crown Court was created in 1971 by virtue of the Courts Act. It replaced the old
courts of assize and quarter sessions which formerly dealt with trials on indictment.
The Courts Act 1971 has now largely been repealed and it is now incorporated into
the Supreme Court Act 1981. It has exclusive jurisdiction over trials on indictment. It
also deals with offenders who have been committed by the magistrates’ courts for
sentencing. It hears appeals from the magistrates’ courts against conviction and/
or sentence under ss.108–110 of the Magistrates’ Courts Act 1980 and Part 63 of the
CrimPR 2005.
High Court
Section 111 of the Magistrates’ Courts Act 1980, Part 64 of the CrimPR 2005 and Order 56
of the Rules of the Supreme Court 1965 allow for an appeal by way of case stated. This
is an appeal on a point or points of law, which are identified in a document (the case)
drawn up by the clerk of the magistrates’ court in conjunction with the magistrates
whose decision is being questioned. This appeal is to the High Court. The appeal by
way of case stated is not limited to the magistrates’ court and can also question the
Crown Court’s decisions in matters which relate to trials on indictment under s.28 of
the Supreme Court Act 1981.
Court of Appeal
The roots of this court go back to 1907. The current court of appeal is the Criminal
Division of the Court of Appeal and was created in 1966. This court hears appeals
against conviction, appeals against sentence and applications for leave to appeal from
the Court of Appeal to the House of Lords. It also hears appeals against a finding that a
defendant was unfit to plead or a verdict of not guilty by reason of insanity.
House of Lords
The highest court in the land is the House of Lords (soon to become the Supreme
Court under the Constitutional Reform Act 2005). The House of Lords can be appealed
to from the Court of Appeal under s.33 of the Criminal Appeal Act 1968. Appeal is
subject to a restriction: the matter must be one which is of public importance and
should therefore be considered by the House of Lords. If a decision from the High
Court is to be appealed to the House of Lords, this is governed by s.1(1)(a) of the
Administration of Justice Act 1960.
European Court of Justice

Since the passing of the European Communities Act 1972 it has been possible for any
English court to request a preliminary ruling on a point of European Community law.
This can be a criminal law matter and the reference takes place under s.234 of the EC
Treaty. If it is a criminal matter, the House of Lords is obliged to make such a reference.
All other courts have discretion to make this referral.
European Court of Human Rights

Since 2000, when the Human Rights Act 1998 came into force, all courts are under an
obligation under s.2 to take into account the jurisprudence of the European Court of
Human Rights. However, if an individual feels that the domestic courts have failed to
protect a right within the Convention they retain the right to petition to Strasbourg.
Activity 9.6
Read Sprack 28.05–28.33.
You have a client who believes that her right to a fair trial has been violated. She
is unhappy with the domestic courts’ response to her claim and is considering
petitioning the European Court of Human Rights.
Compile a 750 word advice which explains the status of the European Court of
Human Rights and the way in which they have considered matters relating to fair
trial.
1. What is the jurisdiction of the magistrates’ court?
2. What is the jurisdiction of the youth court?
3. What is the jurisdiction of the Crown Court?
4. What is the jurisdiction of the High Court in criminal matters?
5. What is the jurisdiction of the Court of Appeal (Criminal Division)?
6. What is the jurisdiction of the House of Lords?
7. What role is played by the European Court of Justice?
8. What role remains for the European Court of Human Rights?
9.6 Classification of offences
Essential reading
¢¢ Sprack, Chapter 1: ‘Setting the scene’ and Chapter 8: ‘Mode of trial’.
In order that a decision can be made about whether a suspect will be tried summarily
or on indictment, the offence they have allegedly committed must be examined
so as to see how it has been classified. Offences are classified as being one of three
things. An offence may be ‘summary’, which means that the trial takes place in
the magistrates’ court, or it may be tried ‘on indictment’, which means that the
trial will take place in the Crown Court. This division is defined in Schedule 1 to the
Interpretation Act 1978. There are also offences which are classified as ‘triable either
way’. The Interpretation Act 1978 describes these offences, not surprisingly, as offences
which may be tried either on indictment or summarily.
Activity 9.7
Read Sprack 8.02–8.08 and classify the following offences:
Offence Summary Triable either way Indictment
Prostitution for gain
Robbery
Murder
Dropping litter
Dangerous driving
1. Why is it necessary to classify offences?
2. What is meant by the term ‘summary offence’?
3. What is meant by the term ‘indictable offence’?
4. What is meant by the term ‘triable either way’?
Conclusion
The criminal process demands a procedure, which means a set of rules that govern the
effective detection, prosecution and sentencing of offenders. This process has aims
and values which are important for its continuing legitimacy. Suspects are tried either
summarily in the magistrates’ courts or by indictment in the Crown Court. Decisions
made in the magistrates’ court or Crown Court can be appealed. These appeals can be
heard, depending on where the decision was made, in the High Court, Court of Appeal
(Criminal Division), House of Lords, or even the European Court of Human Rights. If
the appeal concerns an issue of European Community law, a reference can be made,
for guidance, to the European Court of Justice. In order to decide where a suspect will
be tried, the offence they have been charged with will be classified to enable that
decision to be taken.

Question 1 ‘These models are, of course, artificial constructs which list the
features of a “pure” or extreme form of a particular approach. They are designed as
interpretive tools to enable us to tell (for example) how far in a particular direction
a given criminal justice system tends.’ (Ashworth and Redmayne, 2005)
Critically evaluate what the criminal justice process is for and how accurate you
regard Packer’s models to be. What alternatives would you recommend?
Question 2 ‘An essential first step towards the creation of a comprehensive

criminal procedural code.’ (Sprack, 2008)
To what extent does this view accurately describe the formulation and organisation
of the Criminal Procedure Rules?

Question 1 Students would be expected to consider why the criminal process is
necessary and why the system needs not just an aim but values too. In discussing these
values, students can begin by explaining what Packer’s models mean and then place
them into the context of the quote, which is suggesting that they were never meant
to be absolute measures of a system. Students may find it useful to discuss existing
criticisms of the Packer models but they should also recognise their usefulness as a
barometer of society’s expectations of its criminal justice system, which manifests
itself in its criminal procedure. This is one way of measuring a system and Ashworth
and Redmayne consider other ways. A critical exploration of their human rights
approach would certainly lift the quality of the response. A simple rehearsal of what
crime control vs due process means is unlikely to score highly.
Question 2 Here students are being asked to provide a critical commentary on the
formulation and execution of the Criminal Procedure Rules. Why were they necessary,
and why does Sprack suggest that they are the beginning of a much more substantial
level of review? Are there any problems with these rules? Is it too early to evaluate
their effectiveness? Are there concerns about case management – for example too
much time being spent worrying about finite resources and not enough on suspects’
human rights? The rules are a younger sister of the Civil Procedure Rules. Here it
may be useful for students to make this point but to recognise that criminal law is
different from civil law and thus ask whether case management might jeopardise the
defendant’s right to a fair trial. Good students will do more than simply list the new
rules and will critically explore the limitations that Sprack identifies.
Reflect and review



I can secure an introductory understanding of the   

criminal justice process and how criminal procedure
fits into that process.
I can critically explore the aims and values of the   

criminal justice system.
I can display a sound knowledge of the differences   

between summary trial and trial on indictment.
I can describe the purpose and scope of the Criminal   

Procedure Rules.
I can comprehend the different courts used in the   

criminal justice process.
I can explain how criminal offences are classified.   
revise?
Must Revision
revise done
9.1 From criminal process to criminal procedure  
9.2 A system with aims and values?  
9.3 Scene setting  
9.4 The Criminal Procedure Rules  
9.5 The courts  
9.6 Classification of offences  

Notes
10 Police and prosecutors
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
10.1 PACE and police powers . . . . . . . . . . . . . . . . . . . . . . . . . 159
10.2 Arrest and summons . . . . . . . . . . . . . . . . . . . . . . . . . . 159
10.3 Police questioning . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
10.4 Search powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
10.5 Special groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
10.6 Deciding to prosecute . . . . . . . . . . . . . . . . . . . . . . . . . 167
10.7 Alternatives to prosecution . . . . . . . . . . . . . . . . . . . . . . . 168

Introduction
Much of criminal procedure is interested in the detection and prosecution of crime.
Therefore significant attention is paid to the role of the police and prosecutors in
collecting evidence which is then presented at trial. We shall see that the police have
significant powers to stop and search and then have notable discretion in deciding
whether or not to charge. Once the decision to charge has been taken, files are handed
over to the Crown Prosecution Service (CPS) who then decide whether to proceed with
a prosecution. Like the police, the CPS have significant discretion when considering
whether there is sufficient evidence to prosecute and also whether it is in the public
interest for a prosecution to take place. There are alternatives to prosecution, which
we shall also consider in this chapter.
Learning outcomes
uu obtain a detailed picture of the workings of the Police and Criminal Evidence Act
1984 and what powers the police have in the detection of crime
uu critically explore the powers of arrest, the rules on questioning and the decision
to charge
uu display a sound knowledge of how special groups of suspects are dealt with by
the police
uu describe the purpose and operation of the Crown Prosecution Service
uu explain how the Crown Prosecution Service decides whether or not to prosecute
uu understand the alternatives to prosecution that are available.
Civil and criminal procedure 10 Police and prosecutors page 159
10.1 PACE and police powers
Essential reading
¢¢ Sprack, Chapter 3: ‘Preliminaries to court appearance’.
The police possess extensive powers to assist them in the investigation of crime. The
majority of these powers can be found in the Police and Criminal Evidence Act 1984
(PACE). As this legislation is mostly concerned with police powers, it is not surprising
that, while it is detailed in part, it is accompanied by extensive Codes of Practice. The
legislation would never be able to anticipate every eventuality in the exercise of police
powers and so it was thought better to provide a general framework. This was specific
enough to allow the police and the public to be certain of where the boundaries lie
but at the same time allowed the multitude of scenarios that could emerge to be
covered by general principles within the framework of the legislation. The Codes were
revised as a result of the Criminal Justice Act 2003. The Home Office views the Codes as
a crucial and suitably pithy guide to how criminal investigations should be conducted.
Activity 10.1
Read Sprack 3.08–3.09 and write a 250 word summary of how PACE and the Codes
are enforced. Note that any breach of PACE and the Codes is likely to be a feature of
examination questions.
1. What legislation governs the majority of police powers?
2. Why are the Codes of Practice so important in the exercise of these police
powers?
3. How are PACE and the Codes of Practice enforced?

[ISBN 9780406971395] Chapter 1: ‘The aims and values of “criminal justice”’. This
¢¢ Ashworth, A. and M. Redmayne The criminal process. (Oxford: Oxford University

Press 2005) [ISBN 9780199273386] Chapter 3: ‘Ethics, conflicts and conduct’.
10.2 Arrest and summons
Essential reading
¢¢ Sprack 3.10–3.47
One way for a prosecution to begin is for the police to arrest the suspect without a
warrant and to take him or her to the police station for questioning. After this the
police will decide whether to charge the offender. Alternatively, the CPS can lay
an information before a magistrate or magistrates’ clerk alleging that the accused
has committed the offence which is stated in the information. On the basis of
this information, a summons may be issued and then served on the accused. This
summons requires a suspect to attend the magistrates’ court on a specified day at a
specified time to answer the charge. The usual route for serious offences is the arrest
and question route, whereas the summons to appear is more likely to take place in
less serious cases.
10.2.1 Arrest
The power to arrest without warrant is found in s.24 and s.24A of PACE. The police
may arrest someone if they have reasonable grounds to suspect that he or she has
committed, or may be about to commit, a criminal offence. Lesser powers are given
to private citizens (the citizen’s arrest) who may arrest if they reasonably believe that
an individual is committing an offence rather than about to commit an offence. These
powers of arrest were reorganised under the Criminal Justice Act 2003 and now all
offences are regarded as being arrestable.
The police therefore have the power to arrest in the following cases.
uu If someone is about to, or they have a reasonable belief that he or she is about to,
commit a crime.
uu If someone is in the act of, or they have a reasonable belief that he or she is,
committing an offence.
uu Where an offence has been committed and they have reasonable grounds to
believe that the accused is responsible.
In any of these situations, the arrest must be deemed necessary in accordance with
the criteria laid out in s.24(5) of PACE, which suggests that the arrest is necessary in
order to:
a. enable the person’s name to be obtained
b. enable the person’s address to be obtained
c. prevent physical injury, loss of or damage to property, an offence against public

decency or an unlawful obstruction of the highway
d. protect a child or other vulnerable person from the arrestee
e. enable the prompt and effective investigation of the offence or of the conduct of
the person in question
f. prevent any hindrance of prosecution for the offence by the person’s

disappearance.
You will note that the legislation refers constantly to ‘reasonable suspicion’. Here it is
noted that this must be more than a mere ‘hunch’.† Lord Devlin in Hussein v Chong Fook †
According to Sprack,
Kam [1970] AC 942 at p.948 described reasonable suspicion as ‘a state of conjecture a ‘hunch’ is a suspicion
or surmise where proof is lacking [which arises] at or near the starting point of an that cannot be rationally
investigation’. The Power of Arrest Code of PACE is Code G and suggests that all powers evaluated by a third party.
of arrest are exercised in a non-discriminatory and proportionate manner.
Caution
Once the arrest has taken place, the police should caution the suspect. This caution
should state:
You do not have to say anything. But it may harm your defence if you do not mention
when questioned something which you later rely on in court. Anything you do say may
be given in evidence.
After caution
Once cautioned, the police officer should take the suspect to the police station as
soon as possible, under s.30(1) of PACE. This is seen as an important protection for
the suspect who finds himself under undue pressure from the police in the car to
the police station, especially if they take the ‘scenic route’ home. Once they arrive at
the police station the suspect can be more effectively protected by Code C of PACE,
which deals with the rights of suspects in police detention. Evidence which is obtained
before they get to the police station is likely to be inadmissible, but there are two
circumstances where there will be exceptions to this.
1. Where, under caution, the suspect has agreed to have his home searched and to
find support for an alleged alibi.
2. Where, under s.30A of PACE (as inserted in 2003), an individual is subject to street
bail with a requirement to attend the police station.
At the station the arresting officer(s) and the suspect report to the custody officer,
whose role is to ensure that the suspect is treated properly in accordance with PACE.
The suspect, who is now a detainee, must be told of his right to free, independent
and private legal advice in accordance with Code C of the Codes of Practice. A custody
record is then opened which provides a log containing all the details of the detainee’s
stay at the police station.
Activity 10.2
Read Sprack 3.20–3.22 and write a 250 word statement in support of the following
view. ‘The custody officer is the linchpin of the regulatory regime brought into
being by PACE.’
At the police station

Once the formalities have been completed, the custody officer then has to consider
the evidence against the detainee. If there appears to be no evidence for arrest, they
will be released straight away. If there does appear to be evidence, it becomes a
question of whether to charge immediately or to detain without charge.
Detention without charge is dealt with under ss.40–44 of PACE and there is a timetable
which the police are expected to follow to reach a resolution as to whether or not to
charge. The main milestones of detention without charge are as follows.
a. Within 6 hours A review takes place to decide whether it is

necessary to hold the detainee.
b. Within 15 hours Nine hours after the first review a second review
takes place.
c. Within 24 hours Here a detainee must be charged or released unless

the continued detention has been authorised by the
station superintendent.
d. Within 36 hours Here a detainee must be charged or released unless

a magistrates’ court has issued a warrant of further
detention.
e. After 72 hours The magistrates’ court can extend the detention for
a further 36 hours after the first 36 hours.
f. After 96 hours The magistrates’ court can extend the detention for
a further 24 hours after the first two periods of 36
hours. At the end of this period the detainee must
be charged or released.
Charging and release or detention

Once there is sufficient evidence to charge a suspect with a criminal offence, the
custody officer will caution the detainee once again. The charge is written down and
a record is presented to the accused. A decision is then taken whether to release or
detain. Release is usual unless there is reason to believe that the accused should not
be released. Such reasons are set out in s.38(1) of PACE.
Some individuals may not have been arrested and charged, but this does not mean
that they are not of interest to the police in the course of an investigation. These may
be people who are ‘helping police with their enquiries’. In addition, detainees might
be unco-operative, perhaps because they are in some way incapacitated. If this is the
case the grounds for their arrest only need to be communicated to them ‘when it is
practicably possible’.
10.2.2 The ‘summons’ route

As already indicated, a second route for the construction of a case is possible. Here the
CPS can lay an information before a magistrate or magistrates’ clerk alleging that the
accused has committed the offence which is stated in the information. On the basis
of this information a summons may be issued and then served on the accused. The
summons requires a suspect to attend the magistrates’ court on a specified day at a
specified time to answer the charge. This is usually for less serious offences.
Activity 10.3
Read Sprack 3.33–3.44 and compile a chart which identifies the key stages in the
‘summons’ route.
10.2.3 Recent reforms

Under ss.28–30 of the Criminal Justice Act 2003 it is now possible for the CPS to take
a lead role in the charging of offenders. This is seen as a controversial move as it
conflates the roles of the police and the CPS when it has always been preferred that
their roles are distinctively different. Under s.28 the Director of Public Prosecutions
(the head of the CPS) can issue guidance setting out when it is appropriate for the
police to bypass the CPS. Under s.29 there is a new method of instituting criminal
proceedings which bypasses the need for the court to be involved in certain
circumstances. This process has not yet been implemented.
1. In what circumstances can the police arrest a suspect?
2. What happens after a caution is given?
3. What is the role of the custody officer and why is it seen as being an important
protective measure for the detainee?
4. At what stages will reviews of a detainee’s time at a police station before charge
take place?
5. What is the ‘summons route’ and what recent reforms have been introduced
but are yet to be implemented?
Summary
The majority of police powers involved in the detection of crime are to be found in the
Police and Criminal Evidence Act 1984. These statutory provisions are accompanied
by extensive Codes of Practice which provide substantial guidance as to the way in
which police powers should be exercised. A criminal charge can be brought about in
two particular ways. For serious offences an arrest followed by detention in a police
cell can take place before a decision to charge is taken. For less serious offences the
process of issuing a summons is used.
10.3 Police questioning
Essential reading
Like the arrest and detention of a suspect, the questioning of a police suspect is
heavily regulated by PACE and the Codes of Practice. Code C, the Detention, Treatment
and Questioning Code, is particularly relevant here, but questioning and the obtaining
of confessions also has to be carried out in accordance with s.76 of PACE, according to
which a confession obtained by oppression will be excluded by the court.
Activity 10.4
Read Sprack 3.50–3.51 and choose five words which will prompt you to describe in
detail each of the following.
uu Gathering information.
uu The cautioning stage.
uu Questioning away from the police station.
uu Questioning at the police station.
uu The charging stage.
uu The post-charge stage.
10.3.1 Right to a solicitor

All persons arrested and detained in a police station and being questioned by
the police have the right, except in very limited circumstances, to receive free,
independent, legal advice. This right is found in s.58(1) of PACE and is seen as a crucial
component in upholding the defendant’s right to a fair trial under Article 6 of the
European Convention on Human Rights.
A defendant has the right to request this legal advice. Under s.58(6) of PACE delaying
access to legal advice will only be allowed if the detainee is suspected of committing
an indictable offence and the delay is authorised by an officer who at holds at least the
rank of superintendent. The senior officer may, under s.58(8), authorise delay if he has
reasonable grounds for believing that allowing the detainee access to legal advice will:
uu lead to interference or harm to evidence connected with an indictable offence or

interference, with or physical injury to, other persons
uu lead to the alerting of other persons suspected of having committed an indictable

offence
uu cause hindrance to the recovery of proceeds of an indictable offence.
The right to a solicitor may also be delayed if the officer believes that exercise of
that right will hinder the recovery of a suspect’s share of proceeds in drug trafficking
offences or other offences involving confiscation orders.
It is important to remember that s.58 does not say that the police cannot interview
a detainee until a solicitor arrives, merely that unless delay (and not prevention) has
been authorised they must not actively prevent the detainee from consulting with
their solicitor.
10.3.2 Other rights at the police station

The detainee has two further rights at the police station. First, he or she has the right
to consult the Codes of Practice themselves. Secondly, he or she has the right under
s.56 to have a relative or friend notified that they are being held at a police station. It is
important to note here that, despite the common myth, this is not a ‘right to a phone
call’, as the police themselves can notify the friend or relative as they see fit. The key
point is that the detainee has a right not to be held incommunicado.
10.3.3 Recording what the suspect says

All interviews must now be recorded and note of what the detainee has said must be
made at the same time (contemporaneously). These recordings do not need to be on
tape, although the usual system is for them to be tape recorded. If there is a failure to
comply with the rules regarding contemporaneous note-taking, all evidence obtained
may be excluded as a result.
Activity 10.5
Read R v Delaney (1988) 88 Cr App R 338 and R v Canale (1990) 91 Cr App R 1 and
consider the view taken by the courts when the correct process of recording what
the suspect says is not followed.
Are such safeguards in accordance with crime control of due process principles?
1. What is the relevant Code of Practice covering the questioning of the detainee
by the police?
2. What are the key features of the police questioning process?
3. When might a defendant’s right to consult a solicitor be delayed?
4. What other rights does the defendant have at the police station?
5. How is a record kept of what the suspect says when questioned?
10.4 Search powers
Essential reading
As we have already seen, the police have extensive search powers, which are
permitted and regulated under PACE. These powers are broadly categorised into three
parts. Firstly there are powers to search the person of members of the public who
are merely under suspicion; secondly there are powers to search premises; finally
there are powers to search the person and/or premises of an individual who has been
arrested.
10.4.1 Powers of stop and search

The general power to detain a member of the public without arresting them, for the
purposes of carrying out a search of their person, is governed by ss.1–3 of PACE. Code of
Practice A supports these general statutory provisions by detailing what is acceptable
police practice when exercising this power. The purpose of a search is either to remove
the suspicion or to confirm it.
Under s.1(2) and (3), a police officer can search a person or vehicle if they have
reasonable suspicion that they will find stolen or prohibited articles. Code A provides
detailed guidance on what may or may not be reasonable suspicion. This power can
only be exercised in a place to which the public have access (s.1(1)).
Understandably, these stop and search powers are some of the most controversial of
PACE’s provisions. Individuals can often feel as if they are being targeted unnecessarily
on the basis of their sex or racial background. The use of stop and search powers has
been subject to extensive academic commentary.
Activity 10.6
Read ‘Police stops, decision-making and practice’ by Paul Quinton, Nick Bland and
Joel Miller (Home Office, 2000) (http://www.homeoffice.gov.uk/rds/prgpdfs/prs130.
pdf) and ‘The views of the public on stops and searches’ by Vanessa Stone and Nick
Pettigrew (Home Office, 2000) (http://www.homeoffice.gov.uk/rds/prgpdfs/prs129.
pdf).
Consider the different views of the police and the public with regard to the exercise
of stop and search powers.

Activity 10.7
Other police powers concerning stop and search can be found in:
uu Criminal Justice and Public Order Act 1994 s.60

uu Terrorism Act 2000 s.44(1) and (2)
uu Misuse of Drugs Act 1971 s.23
uu Firearms Act 1968 s.47
Research what each of these powers allows the police to do and use no more than
five words to remember each one.
10.4.2 Powers to search premises

There always existed a wide variety of statutory provisions which gave the police the
power to enter premises to search for incriminating evidence relating to a specified
criminal offence. Historically a warrant was obtained from a magistrate to permit entry
into the premises. Such powers were not without their criticisms and ss.8–14 of PACE
addresses these criticisms.
Section 8 of PACE provides that a magistrate can issue a warrant authorising a police
officer to enter and search premises if there are reasonable grounds for believing
that an indictable offence has been committed and there is material on the premises
which is likely to be of substantial value to the prosecution. This does not include
legally privileged items, and the warrant will only be granted if entry is not possible
because it is anticipated that the suspect may not permit entry. This means that for a
warrant to be granted it must be a serious offence. There are two types of warrant
1. Specific premises warrants where the premises to which the warrant applies must
be specified.
2. All premises warrant which covers any premises which are occupied or controlled
by a specified person.
Material protected
Some material will be protected from seizure under a search warrant. Other material
will require further authorisation to ensure seizure. Under s.10 of PACE material which
is subject to legal privilege is totally protected from seizure. This includes material
which is subject to legal and professional privilege. Under ss.11–12 of PACE some
material, such as personal records containing medical details or the files of social
workers and probation officers, is labelled as excluded. This material can be obtained,
but only if an application is made to a circuit judge. Special procedure material under
s.14 of PACE can include journalistic material and any trade records. This is treated in
the same way as excluded material.
Statutory safeguards
Under ss.15–16 of PACE there exist a number of safeguards which relate to the
execution and obtaining of search warrants. The officer requesting the warrant is
expected to attend and answer questions under oath to explain why the warrant is
necessary. All warrants should be granted ex parte so that the suspect has no notice
of them for fear that incriminating items of evidence may vanish. Finally, a written
report outlining what evidence the warrant hopes to find is required. This is to prevent
general ‘fishing’ expeditions where the police try to find something to incriminate the
suspect.
10.4.3 Searches arising out of arrests

A number of key search powers are connected with the exercise of the power of arrest.
Activity 10.8
Read Sprack 3.88–3.89 and explain each of the following:
uu Search of person on arrest.

uu Search of arrestee at police station.
uu Intimate searches.
uu Search of premises where arrested.
uu Search of arrestee’s home, etc.
Of course, if the police lack authority to search particular premises they can search
with the consent of the occupier. Reasonable force can be used to undertake such
searches if required. Finally, even if evidence is obtained as a result of an unlawful
search it may still be admissible at an accused’s trial. As the trial judge has a discretion
to exclude such evidence, this does not mean that they are guaranteed to do so.
1. What are the police powers of stop and search?
2. Why has the exercise of these powers been controversial?
3. What are the police powers to search premises?
4. What evidence cannot be obtained by simple warrant?
5. What are the searches arising out of arrests?
Summary
The questioning of suspects by the police is heavily regulated by PACE and the
Codes of Practice. Whilst everyone who has been arrested has the right to consult
with a solicitor, this can be delayed in certain defensible circumstances. The
accused has the right not be held incommunicado and there are strict rules as to
how information given by a questioned suspect is recorded. Police search powers
are split into three distinct areas: general stop and search powers relating to people
and vehicles, powers to search premises and searches arising out of an arrest. The
ways in which these powers have been exercised, especially stop and search, are
not without their critics. If these searches are not exercised in accordance with the
statutory framework, they can be excluded as illegally obtained evidence, but there
is no guarantee that this will happen.
10.5 Special groups
Essential reading
Thus far we have discussed police powers and the procedures surrounding their
execution on the basis of the suspect being an adult of normal intelligence. It is not
surprising that extra protection is required for those people who are regarded by
the law as being more vulnerable. We therefore need to consider young people,
the mentally vulnerable and the deaf. At the other end of the spectrum, suspected
terrorists find themselves stripped of rights enjoyed by all other suspects.
Activity 10.9
Read Sprack 3.101–3.107 and explain what special measures are adopted for each of
the following vulnerable groups:
uu young persons
uu mentally vulnerable persons
uu deaf persons.
In what ways do these procedures differ from those for an adult of normal
intelligence?
10.5.1 Suspected terrorists

Given the perceived threat to national security posed by suspected terrorists,
derogations from all national and international standards relating to suspects’ rights
are often permitted. Examples of how such suspects are treated differently include
provisions under the Terrorism Act 2000, which states that some of the provisions
of PACE and Code C do not apply to individuals detained under this legislation. In
addition, the maximum period for which terrorist suspects can be held without charge
was increased by s.306 Criminal Justice Act 2003 from 7 to 14 days and later to 28 days.
Ministers have sought to increase this period further.
1. Why do we treat suspects from vulnerable groups differently?
2. How is our treatment of young people different?
3. How is our treatment of mentally vulnerable people different?
4. How is our treatment of a deaf suspect different?
5. How can more draconian measures be defended for the treatment of terrorist
suspects?
Summary
Most procedures outlined above pertain to those who are of normal adult intelligence.
There are some groups of people – most notably young people, the deaf and the
mentally vulnerable – who require additional provisions to ensure they are treated
fairly within the criminal process. Suspected terrorists, on the other hand, enjoy fewer
rights.
10.6 Deciding to prosecute
Essential reading
¢¢ Sprack, Chapter 4: ‘Prosecutors’ and Chapter 5: ‘The decision to prosecute’.
Historically, the investigation of a crime and the decision to prosecute that crime
were undertaken by the police. Following sustained criticism of the potential for, and
evidence of actual, abuse of these twin tasks, the Prosecution of Offences Act 1985
created a new independent Crown Prosecution Service (CPS) whose task was to relieve
the police of the powers to decide to prosecute. The newly formed CPS was headed by
the Director of Public Prosecutions (DPP). This position had existed since 1879 but only
after 1985 was the DPP tasked with taking over the conduct of all criminal proceedings
commenced by the police.
Other organisations are also able to bring prosecutions. These include the Inland
Revenue for tax offences, Customs and Excise for the illegal importation of drugs and
the Department of Social Security for fraudulent benefit claims. Local authorities can
bring actions for breach of food and health regulations. The Serious Fraud Office is
responsible for the investigation and prosecution of a small minority of extremely
serious suspected frauds. A private prosecution is also possible, but rarely successful.
One exception is the case of Whitehouse v Lemon [1979] AC 617.
We have already explored the two ways that a prosecution can be commenced when
we considered the summons/laying of information route and the arrest/charging route
(see 10.2 above). Once either route has been exercised, a decision needs to be taken
whether to prosecute or not. At the beginning of this section it was suggested that
the decision to prosecute has now been taken away from the police. Formally this is
true, but the police will still have significant discretion in deciding whether to initiate
proceedings. If they do not, an alternative to prosecution may be used (see below). If
they do decide to proceed, the police will send their papers to the CPS where a lawyer
will review the case and decide either to discontinue the case or to proceed.
When making the decision whether to proceed, CPS lawyers abide by the Code for
Crown Prosecutors. This states that two tests have to be satisfied before a prosecution
can continue. First is the evidential test: the CPS must be satisfied that there is enough
evidence for a realistic prospect of conviction in respect of each charge against each
defendant. Second is the public interest test: the CPS as a matter of discretion must
decide whether a prosecution is really in the public interest. If it is not, an alternative
to prosecution can be used.
Activity 10.10
Read Sprack 5.24–5.28. Review the public interest factors that are considered by
the CPS when deciding whether to prosecute. Imagine you are a CPS lawyer. Which
factors do you think are most important? Be prepared to defend your position.
10.6.1 Other factors relevant to the decision to prosecute

Once both of these tests have been answered in the affirmative, there may still be
other factors that will hinder the successful prosecution of an offence. The following
questions still need to be asked are.
uu Does the English court have jurisdiction?
uu Is the offender entitled to immunity?
uu Can the prosecution be commenced in time?
uu Is any consent required?
A detailed discussion of each of these questions can be found at 5.29–5.41 of Sprack.
1. Who was historically responsible for the formal decision to prosecute?
2. Who is the head of the CPS and what is this person’s role?
3. What is the evidential test?
4. What is meant by ‘public interest factors’?
5. What other factors may be considered before a prosecution takes place?
10.7 Alternatives to prosecution
Essential reading
¢¢ Sprack, Chapter 5: ‘The decision to prosecute’.
Except for doing nothing, there are two alternatives to prosecution which can be
considered, depending on the offence. These are the administration of a caution and
the issuing of a fixed penalty notice.
10.7.1 Cautions
The police first developed the caution (or ‘a good telling off’!) as a way of keeping
young people out of the criminal justice system. A typical scenario would have been
where a young person had been caught vandalising a shop window, had never been in
trouble with the police before and was so shocked by what could have happened at
the police station that after the police officer had finished ‘telling them off’ they would
go away, think about their misdemeanour and never trouble the police again. Recent
reforms have meant that this scenario can no longer happen – for young people at
least!
A caution can now only be issued to an adult and for a caution to be administered the
evidence should be strong enough to justify a prosecution. It is not a device to be used
by the police when they do not quite have enough evidence for a prosecution. If there
is enough evidence for a prosecution, then consideration must be given to whether
a caution is in the public interest. These factors are similar to those the CPS consider
when deciding whether to prosecute.
10.7.2 Conditional cautions

Under ss.22–27 of the Criminal Justice Act 2003, a new scheme of conditional cautions
was introduced for adult offenders. Unlike the cautions above, these can only be
decided upon by a public prosecutor. It is conditional because it involves the carrying
out of a task, which is thought to enable the rehabilitation of the offender or to make
reparation for the offence. Conditions have included painting out graffiti and taking
drug treatments.
10.7.3 Fixed penalty notices

These are used for certain road traffic offences, including parking tickets, speeding
tickets, not wearing a seatbelt and breaching of a pedestrian crossing regulation.
These are detailed in Part III of the Transport Act 1982.
10.7.4 Reprimands and warnings

Since 1998 and ss.65–66 of the Crime and Disorder Act, young people are no longer
able to receive a traditional caution. Instead they are subject to a scheme of
reprimands and warnings. The basic idea is that a young person will be reprimanded
for a first offence, warned for a second and then prosecuted for a third – a sort of ‘three
strikes and you’re out’ scheme.
1. What is a caution?
2. How does a conditional caution operate?
3. What is a fixed penalty notice?
4. What is the reprimand and warnings scheme?
Summary
The decision to prosecute was historically undertaken by the police, but now it
is a decision taken by the Crown Prosecution Service. Other agencies can bring
prosecutions, but these are unusual by comparison. To prosecute, two tests must be
satisfied: the evidential test followed by the public interest test. Other factors may also
impact upon the decision to prosecute. If no decision is taken then, as an alternative,
a caution, conditional caution, reprimand or warning can be issued, depending on
the offender and their offence. Fixed penalty notices are also a useful alternative to
prosecution.

¢¢ Ashworth, A. and J. Fionda ‘The new Code for Crown Prosecutors: prosecution,
accountability and the public interest’ [1994] Crim L Rev 894.
¢¢ Baldwin, J. ‘Police interview techniques; establishing truth or proof’ (1993) 33

British J Criminology 325.
¢¢ Brookman, F. and H. Pierpoint ‘Access to legal advice for young suspects and
remand prisoners’ (2003) 42 Howard J Criminal Justice 452.
Bucke, T. and D. Brown (1997) In police custody; police powers and suspects’ rights
under the revised PACE Codes of Practice, Home Office Research Study 174 (London:
Home Office, 1997).
Burton, M. ‘Reviewing Crown Prosecution Service decisions not to prosecute’ [2001]

Crim L Rev 374.
Cape, E. ‘Sufficient evidence to charge?’ [1999] Crim L Rev 874.
Dixon, D. ‘Safeguarding the rights of suspects in police custody’ (1990) 1 Policing and
Society 115.
Lustgarten, L. ‘The future of stop and search’ [2002] Crim L Rev 603.
McEwan, J. ‘In defence of vulnerable witnesses: the Youth Justice and Criminal
Evidence Act 1999’ (2000) 4 E & P 1.

Question 1 PC Harsh is on patrol at night when he sees two figures running from a
house. He can only get a good view of one of them, who is a tall, white male youth
with short ‘reddish’ hair and wearing a grey hooded top and jeans. He sees that that
youth has a red sports bag and that a couple of CDs fall out of it. Having picked up
the CDs and noted that the house is in darkness, PC Harsh runs in the direction that
the two figures fled.
A couple of minutes later, PC Harsh sees a youth of above average height and
wearing a grey hooded top, which he is wearing up over his head. He is running
and carrying a plastic bag in which there are some bulky, square-shaped items. PC
Harsh recognises the youth as Lee whom he has arrested for burglaries on previous
occasions. Lee has been convicted for these previous offences. Lee is black.
PC Harsh runs after him, shouting ‘Stop!’. Lee, however, does not hear PC Harsh
because he is listening to music on his MP3 player. PC Harsh therefore trips him up,
sits on him and searches through his pockets and finds a small amount of cocaine.
He searches the bag and finds three physics textbooks in it. He says to Lee, ‘Right,
sunbeam, you are under arrest.’
Lee tries to protest and asks why he has been arrested. PC Harsh replies, ‘Don’t
worry, sonny. You will find out soon enough.’ When Lee is taken to the police station
the custody sergeant, Sergeant Careless, does not have time to deal with him
because a large number of drunk football fans are being dealt with. He is, however,
told that he has been arrested for burglary and possession of cocaine. Lee is put
in a cell for a couple of hours. PC Harsh then comes along to question him. On the
way to the interview room, Lee asks to talk to the solicitor on duty at the police
station. PC Harsh does not trust the duty solicitor and believes that Lee will use the
opportunity to send a message to the other youth involved in the commission of
the offence and that the stolen CDs will therefore not be recovered, so refuses Lee’s
request. Lee confesses during the interview.
Advise Lee as to the legality of these actions.
Question 2 How do discretions and choices about arrest, charge and alternatives to
prosecution balance due process and crime control concerns?

Question 1 There are a number of issues to be addressed in relation to this question.
It is probably clearest to deal with each issue as it arises.
The first issue to be dealt with is the stop and search of Lee. PC Harsh must have
‘reasonable grounds for suspecting that he will find stolen... articles’ (s.1(3) of PACE). He
certainly has grounds to suspect Lee of involvement in an offence (a burglary appears
to have taken place, Lee is running late at night and has a bag with objects in it).
However, PC Harsh cannot rely on similarities with the person he saw at the scene of
the crime as he knows Lee and this means that he cannot think that Lee, being black,
was the white person he saw earlier. The only reasonable justification PC Harsh can
have for believing that Lee was involved in the offence is if he believes that Lee is the
other person he saw at the house but whose features he did not note. Looked at this
way, PC Harsh is only really basing his suspicion of Lee on the fact that Lee is running
along a street late at night, that Lee has a bag and that he has previously committed
burglaries. Is that likely to amount to ‘reasonable grounds’ for suspicion? There is
no right answer to this, but a student would be expected to evaluate the facts and
suggest a credible conclusion. Arguably these details would not be enough. Perhaps,
however, the fact that Lee continues running might confirm or bolster PC Harsh’s
suspicion. The fact that Lee is not carrying a red sports bag does not provide a reason
why PC Harsh should not be suspicious – the other suspect could have taken it. PC
Harsh should inform Lee of the grounds of the search (s.2(3)) and he has not done so.
The next item to consider is the arrest. PC Harsh has the power to arrest Lee if either
(i) an offence has been committed and he has reasonable grounds for believing that
Lee is responsible (s.24(3)), or (ii) there are reasonable grounds for believing that an
offence has been committed and that Lee committed it. It is important to note the
difference between these two grounds. In the latter situation, if there was in fact no
burglary then PC Harsh only has a power to arrest if he has reasonable grounds for
believing that a burglary did in fact take place. However, he arguably has such grounds
because of the suspicious circumstances in which he saw the two youths. A second
point is, however, that he seems no longer to have reasonable grounds for suspecting
that Lee committed a burglary (any grounds he had based on the contents of the bag
have probably gone once he finds that it contains books rather than CDs). However,
he clearly has reasonable grounds for believing Lee to be committing an offence of
possessing drugs. However, an arrest is only justified insofar as it is necessary (s.24(5)
of PACE) for a particular purpose (see above). It is not clear that any of these grounds
applies. He has not attempted to secure personal details (address and name) before he
arrests Lee (whom he knows in any event) and, insofar as he no longer has reasonable
grounds to suspect Lee of burglary, there can be no suggestion that Lee poses a threat
of damage to property, etc. simply by possessing drugs. Nor would the other needs for
arrest arise if Lee is arrested with possession of drugs. If he was reasonably arrested for
burglary, there might be an argument that arrest is necessary for ‘prompt and effective
investigation’ of that offence (s.24(5)(e)) or to prevent further loss of stolen property
(s.24(5)(c)). Note that Code G, paragraph 2.2 requires the arresting officer to inform the
suspect of the grounds of arrest (i.e. what the reasonable suspicion is of and why arrest
is necessary).
The custody officer should consider the evidence against Lee (s.37(3) of PACE) and
release him if the officer considers that there is not sufficient evidence (s.34(1)).
Furthermore, the custody officer has a duty to inform Lee of a number of rights,
including his right to consult with a solicitor (Code C, paragraphs 3.1, 3.2). The right
to consult a solicitor is set out in s.58 of the Act and can only be delayed in limited
circumstances. First of all, PC Harsh is not of the correct rank to delay access – this
must be done by a superintendent or above (s.58(6)(b)). Additionally, delay can only
be authorised if there are ‘reasonable grounds’ for suspecting that access to the legal
advisor will interfere with evidence, alert the other suspect or hinder the recovery
of the stolen property (s.58(8)). While PC Harsh may suspect that these things might
happen, that is not the same as having reasonable grounds for suspecting that they
will happen by reason of involving the duty solicitor with Lee. PC Harsh would have to
have objectively justifiable suspicions rather than merely a hunch that the solicitor is
not honest.
Question 2 This question refers back to the content of Chapter 9. These introductory
notions of the criminal justice system should not be ignored or treated as something
separate from the specific rules of criminal procedure. A good critical evaluation
of the law, of the sort required in essays like this, will draw upon your theoretical
understanding. A good answer will identify the various discretions that arise in relation
to these areas of police activity.
So far as arrest is concerned, a police officer does have a discretion to arrest but
can only choose to do so insofar as there are reasonable grounds for suspecting the
commission of and involvement in an offence (ss.24 and 24A PACE). This clearly limits
the discretion and does so to further due process concerns of liberty and the existence
of credible evidence before prosecution proceeds. However, there is arguably still a
broad area of discretion that permits police intervention to prevent and control crime
(the police officer does not have to be right about these matters, just reasonable in his
or her suspicions). An answer on this point must show an awareness of the difference
between arrest (which is an early step in the process of investigation) and charge
(which is really the end point at which an investigation ceases and the suspect is
accused of an offence). The custody officer has a duty to consider whether to charge
(s.37 PACE) or whether to issue a caution or a conditional caution under the Criminal
Justice Act 2003. These are alternative to the commencement of prosecution by way of
charging the offender.
A good answer will also note that there is a difference between the alternatives to
prosecution for adults, where cautions are discretionary, and for youths, where the
system of reprimands and warnings (ss.65–66 Crime and Disorder Act 1998) are not.
The issuing of reprimands and warnings are heavily regulated by the statute.
A final point that should be made in this answer is that, if there is a decision to
prosecute, it is now made by the Crown Prosecution Service and subject to review
under the Code for Crown Prosecutors. This code does allow a significant degree of
latitude with regard to prosecution decisions but regulates that latitude under an
evidential test and a public interest test. The effect of this is that the CPS exercises a
constrained discretion as to whether to prosecute rather than having a completely
free hand.
Reflect and review



I can obtain a detailed picture of the workings of the   

Police and Criminal Evidence Act 1984 and what powers
the police have in the detection of crime.
I can critically explore the powers of arrest, the rules on   

questioning and the decision to charge.
I can display a sound knowledge of how special groups   

of suspects are dealt with by the police.
I can describe the purpose and operation of the Crown   

Prosecution Service.
I can explain how the Crown Prosecution Service   

decides whether or not to prosecute.
I can understand the alternatives to prosecution that   

are available.
revise?
Must Revision
revise done
10.1 PACE and police powers  
10.2 Arrest and summons  
10.3 Police questioning  
10.4 Search powers  
10.5 Special groups  
10.6 Deciding to prosecute  
10.7 Alternatives to prosecution  

Notes
11 Bail, mode of trial decisions, disclosure of evidence
and funding of criminal litigation
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
11.1 Remand on bail or in custody . . . . . . . . . . . . . . . . . . . . . . 177
11.2 Mode of trial decisions . . . . . . . . . . . . . . . . . . . . . . . . . 179
11.3 Disclosure of evidence . . . . . . . . . . . . . . . . . . . . . . . . . 182
11.4 Funding of criminal litigation . . . . . . . . . . . . . . . . . . . . . . 183

Introduction
This chapter deals with the issues relevant to a person accused of an offence between
the moment of being charged through to when they appear at trial. The decision to
grant bail or to remand in custody is clearly significant for the accused, especially if
they are then found not guilty at trial. Equally, if the accused has allegedly committed
a triable either way offence then the decision as to the mode of trial they encounter is
crucial. Once at trial it will be important for the prosecution to have disclosed relevant
evidence to the defence. Finally, legal representation is rarely without expense and it is
important for the accused to know what funding is available to him.
Learning outcomes
uu critically explore the decision to remand in custody or to remand on bail

uu display a sound knowledge of the way in which the mode of trial decision is
taken
uu describe how the disclosure of evidence is undertaken
uu comprehend the ways in which criminal litigation is funded.
Civil and criminal procedure 11 Bail, mode of trial decisions, disclosure of evidence and funding of criminal litigation page 177
11.1 Remand on bail or in custody
Essential reading
¢¢ Sprack, Chapter 7: ‘Bail and remands’.
Remand occurs either where a court adjourns a case and allows bail or where the same
court adjourns but remands the accused in custody. The procedure for deciding when
bail is to be granted is set out in the Bail Act 1976. Bail is the release of a person who is
subject to a duty to surrender to custody at an appointed time and place. People on
bail are usually expected to surrender to either a court or a police station. Remand is
the detention of an accused in custody, usually to prevent them from absconding or
because they are charged with a particularly serious offence.
Activity 11.1
Read Sprack 7.02–7.09 and 7.76–7.77. Draw up a list of when the magistrates’ courts
and Crown Court can remand a suspect in custody or grant bail.
11.1.1 Principles governing the decision to grant or refuse bail

Section 4 of the Bail Act 1976 and Schedule 1 to the same Act create what could be
termed a rebuttable presumption in favour of bail. This means that unless you fall into
one of the exceptions in Schedule 1, you are likely to be granted bail. The exceptions
include those who have already been convicted of an offence and who are awaiting
sentence and those who have allegedly breached their probation conditions.
Article 5 of the European Convention on Human Rights provides that ‘everyone has the
right to liberty and security of the person’. This is clearly important for the granting
of bail. The European Court has often stated that no one should be deprived of liberty
in an ‘arbitrary fashion’. Article 5 notes that despite reasonable suspicion that the
accused has committed the offence, hence the pre-trial detention, there must be
other reasons for denying bail. These include the suspicion that the accused would fail
to attend trial, the accused would interfere with evidence or witnesses, the accused
would commit further offences whilst on bail, the accused would be at risk of harm or
a disturbance to public order may result.
Section 25 of the Criminal Justice and Public Order Act 1994 specifies that the court
may not grant bail to an accused who is charged with murder, attempted murder,
manslaughter, rape or attempted rape. If the accused has been convicted of any
of these offences in the past, bail will not be granted. The circumstances to grant
bail would have to be exceptional. This is often thought to be at odds with Article
5 because it seems to present a statutory presumption against bail whereas Article
5 creates a presumption in favour of bail. Kennedy LJ reconciled this point in R(O) v
Harrow Crown Court (2003) The Times, 29 May, stating that s.25 does not provide for a
statutory presumption against bail – it merely presents a neutral burden because the
court has to be satisfied that there are exceptional circumstances.
11.1.2 Custody time limits

Under s.22 of the Prosecution of Offences Act 1985, custody time limits are laid down.
Activity 11.2
Read Sprack 7.23–7.25. What are the maximum periods for which an accused may be
held?
11.1.3 The imposition of conditions for bail

Section 3 of the Bail Act 1976 specifies the rules that a person who has been granted
bail must adhere to and also the various requirements that can be attached to a grant
of bail. Some individuals will be granted unconditional bail, which means that they still
have a duty to surrender to custody but no other conditions.
Duty to surrender to custody

Under s.3(1) of the Bail Act 1976, all persons who have been granted bail are under a
duty to surrender to custody at a specified date and time. This means that the accused
has to surrender to the custody of the court that he or she has been bailed to attend,
or if bailed from a police station the accused must surrender themselves to the
custody of a constable at the station.
Sureties
Before an accused is granted bail, they may be required to provide one or more
sureties. A surety is a person who voluntarily undertakes to pay the court a specified
sum of money in the event that the accused fails to surrender to custody as they ought
to. The surety enters into an undertaking called a recognisance and if the accused
fails to surrender, this recognisance has been estreated† and so they will be fined the †
Estreat (from the Old
amount they pledged as surety. If they cannot pay they may be sent to prison. The duty French estrait) = to forfeit a
of the surety is simply to ensure that the accused attends court. They have no other recognisance.
obligations to fulfil with regard to the accused. Sureties for good behaviour have been
secured by magistrates in the past. This procedure does not appear in the Bail Act 1976
but magistrates utilise their general powers of bind over under the Justices of the
Peace Act 1361 and 1968.
Deposit of security
Section 3(2) of the Bail Act 1976 states that a person cannot stand as surety for
themselves. They can, however, if granted bail, provide security for their surrender to
custody. This means that the accused deposits a specified sum of money or valuables
with the court which will be liable to forfeiture if they fail to surrender themselves to
custody.
Other discretionary requirements

As well as providing a surety and/or security, additional requirements may be imposed
on the accused as appear necessary to ensure that the accused does not abscond,
commit offences whilst on bail or interfere with witnesses.
Activity 11.3
Read the following cases and note the conditions imposed when bail was granted.
uu R v Mansfield Justices, ex parte Sharkey [1985] QB 613.

uu McDonald v Procurator Fiscal, Elgin (2003) The Times, 17 April.
uu R v Bournemouth Magistrates’ Court, ex parte Cross [1989] Crim LR 207.
The procedure
The process by which an application for bail in a magistrates’ court is made can involve
single or successive bail applications. It can involve the taking of sureties and the
recording and giving of reasons for decisions on bail. Variations in conditions can occur
and the decision to either refuse or grant bail can be reviewed on new information.
Most bail applications take place in the magistrates’ court but sometimes applications
will be made to the High Court or the Crown Court. There also exists a right of appeal
for the prosecution against a decision by magistrates to grant bail. This is limited in
scope.
Activity 11.4
Read Sprack 7.34–7.57. Draw a flow chart indicating the process by which bail is
applied for in each successive court.
Consequences of absconding
If an accused does not surrender to custody, then under s.7(1) of the Bail Act 1976 the
court may issue a warrant for the accused’s arrest. There is also a separate offence of
absconding under s.6(1) of the Bail Act 1976 which carries a maximum three month
prison sentence and/or a £5,000 fine. Then, upon conviction the magistrates can
commit the offender to the Crown Court if they consider their own powers to be
insufficient or if the offence for which the offender is absconding was an indictable
one. Finally, failure to answer bail at the Crown Court will be treated as a criminal
contempt and this can invoke a trial with no jury and by judge alone.
As already indicated, the absconding of the accused can result in the surety being
liable for the amount they promised when they agreed to act as surety.
1. When will the magistrates’ court and Crown Court remand on bail or in custody?
2. What principles govern the awarding of bail?
3. What are the custody time limits involved?
4. What is meant by the duty to surrender to custody?
5. What is the difference between a surety and security for bail?
6. What other discretionary requirements can be imposed by the courts when

granting bail?
7. What is the procedure for applying for bail?
8. What are the consequences of absconding for the accused and any surety?
Summary
The decision to remand in custody or on bail is governed by the Bail Act 1976. The
court can refuse bail on the grounds of previous convictions but can also attach
conditions to granting bail which may involve the use of a surety or security. Our law
concerning bail is not incompatible with the European Convention on Human Rights.
Most applications for bail take place in the magistrates’ court but some take place in
the High Court and the Crown Court. The prosecution can appeal against a magistrates’
court’s decision to grant bail in certain specified circumstances. The granting of
bail does require that the duty to surrender to court at a specified time is fulfilled.
Failure to do so amounts to absconding, which is a separate triable criminal offence.
Absconding impacts not just on the accused but on any sureties as well.
11.2 Mode of trial decisions

Sections 18–21 and 23 of the Magistrates’ Courts Act 1980 provide for the procedure
to determine whether an adult charged with an offence triable either way shall be
tried on indictment or summarily. This means that they will either be able to be tried
before the magistrates, where there are weaker sentencing powers but there is the
advantage that there are fewer people to be convinced of the accused’s guilt, or they
will be tried before a jury at Crown Court, where the potential sentences are greater
but it is necessary to convince far more people of the accused’s guilt. Those offences
which are deemed to be triable either way were considered in Chapter 9, section 9.6,
when we considered the classification of offences.
11.2.1 The procedure

There is a standard procedure in place: the clerk to the magistrates reads the charge
to the accused and the clerk explains that the accused should now plea before venue.† †
This simply means that the
The clerk asks whether the accused pleads guilty or not guilty. If he pleads guilty, the clerk informs the accused
trial will be treated as a summary trial. The clerk also has to indicate, though, that the that they should now enter
accused will be committed to the Crown Court for sentencing if the magistrates regard their plea. This allows the
their powers of punishment as inadequate. magistrates to know the plea
before they make a decision
If the accused pleads not guilty, the court will proceed to determine the mode of trial. as to where the trial will
This will initially involve the prosecution and defence being given the opportunity to take place for an either way
make representations as to whether trial on indictment or summary trial would be the offence.
more suitable method of trial. Then the magistrates consider which method of trial is
best. If they believe that the offence is more suitable for summary trial then the clerk
tells the accused of the magistrates’ view, but the accused is still told clearly that he
can still be tried by jury instead. At this point the question of election is asked:
‘Do you wish to be tried by this court or do you wish to be tried by a jury?’
If the accused replies that he wishes for a summary trial, the magistrates proceed. If
the accused opts for a jury trial, committal proceedings are held (Magistrates’ Courts
Act 1980 s.20).
Activity 11.5
Read Sprack 8.19 and Appendix 1. Identify what is contained in Practice Direction
(Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 para 51. Then read 8.45–8.47.
Which of these principles do you think is the most important for the court? And
for the accused? What are the advantages and the disadvantages for the accused’s
decision to opt for summary trial?
11.2.2 Failure to adhere to the procedure

If the magistrates fail to comply with the procedure and proceed to try an accused for
an offence triable either way, they will be acting in excess of their jurisdiction and any
conviction will be quashed by the Divisional Court. Lord Goddard warned against this
failure in R v Kent Justices, ex parte Machin [1952] 2 QB 355 when he said:
The justices took upon themselves, although with the consent of the prisoner, to try
offences without a strict compliance with the provisions of the Act which alone allows
an indictable offence to be dealt with summarily. It was a very venial offence in the
magistrates, but the prisoner is entitled to take advantage of it, and therefore the
committal and the convictions were bad.
11.2.3 Presence of the accused and changing the original decision

The accused should normally be present. However, magistrates can make the decision
about mode of trial in the accused’s absence. This may be due to their disorderly
conduct, or they may have a good reason for not being present. If the magistrates
do consider summary trial to be more apposite, the accused can consent via their
counsel.
The decision in favour of summary trial or trial on indictment is not irreversible.

Section 25(2) of the Magistrates’ Courts Act 1980 allows for the discontinuance of trial
and the holding of committal proceedings at any time before the close of prosecution
evidence. If the decision is in favour of trial on indictment, the magistrates can decide
that the case is not so serious and give the accused the opportunity under s.25(3)
of having it tried summarily. The magistrates maintain a discretion to permit the
accused to withdraw their election. This is usually in the face of an initial decision
taken without legal advice which is then subject to advice which suggests trial on
indictment.
The prosecution are not able to veto the accused’s choice to go to summary trial or
trial on indictment. That said, they maintain the ultimate discretion not to charge for a
triable either way offence. There is also the prospect that if the accused elects trial on
indictment, the prosecution may decide to downgrade the charge to ensure that the
trial takes place in the magistrates’ court. This is not entirely satisfactory as there is a
sense of ‘horse trading’ emerging.
Activity 11.6
Read the cases of R v Canterbury & St Augustine Justices, ex parte Klisiak [1982] QB 398
and R v Brooks [1985] Crim LR 385 and consider how these charge changes operate in
practice.
11.2.4 Special procedure for criminal damage charges

If the accused has been charged with a ‘scheduled offence’, the procedure prescribed
by ss.18–21 of the Magistrates’ Courts Act 1980 must be preceded by a consideration
of the value involved in the offence under s.22(1). If the value of the damage is limited,
the accused may be deprived of the right to elect trial on indictment, notwithstanding
the fact that these offences may be listed as triable either way.
11.2.5 A new allocation procedure

When s.41 Criminal Justice Act 2003 is fully in force† it will make a number of changes †
At the time of writing, no
to the procedure for allocation of offences which includes deciding on mode of trial. date for full enforcement was
yet known.
Activity 11.7
Read Sprack 8.48 and identify what changes to procedure will be introduced when
the allocation procedure is fully in force.
1. What is meant by ‘mode of trial decision’?
2. What is the accused choosing between and what arguments are there in favour
of each choice?
3. What is the procedure for this decision-making exercise?
4. What happens if there is a failure to follow procedure?
5. Does the accused have to be present?
6. Can the decision be changed?
7. What is the special procedure for criminal damage cases?
8. How has this procedure been reformed by the Criminal Justice Act 2003?
Summary
The mode of trial decision is taken at the magistrates’ court. If the accused has been
charged with a triable either way offence they may, after a carefully documented
procedure, elect for either summary trial or trial on indictment. The courts have been
hard on magistrates who do not follow the procedure correctly. The accused does
not have to be present when the decision is being made and the decision can, under
certain circumstances, be altered. There is a special procedure for criminal damage
cases. This procedure has been reformed, in part, by the Criminal Justice Act 2003.
11.3 Disclosure of evidence
Essential reading
¢¢ Sprack, Chapter 9: ‘Disclosure’.
It has always been a central feature of the criminal trial in English law that the
prosecution disclose evidence to the defence. The justification for this apparent
concession to the defence is that the investigative powers at the disposal of the
prosecution have always been far greater than those available to the defence. This
attempt at achieving ‘equality of arms’ meant that the common law developed a duty
owed by the prosecution to the defence. This duty had two aspects to it. First there
was an obligation to notify the defence of all evidence that was to be relied upon by
the prosecution. Second there was a duty on the prosecution to make all evidence
available to the defence even if the prosecution were not planning to use this
evidence. The common law was then developed into a statutory scheme which was
established by the Criminal Procedure and Investigations Act 1996, which has since
been reformed by the Criminal Justice Act 2003.
Activity 11.8
Read Sprack 9.06–9.12 and compile a 500 word summary of the statutory
obligations of the investigator.
11.3.1 Prosecution disclosure

Section 3 of the Criminal Procedure and Investigations Act 1996 (as amended by
s.32 of the Criminal Justice Act 2003) requires the prosecutor to disclose previously
undisclosed material to the accused if:
it might reasonably be considered capable of undermining the case for the prosecution
against the accused, or of assisting the case for the accused.
If there is no such evidence, a written statement to that effect must be given. This
disclosure must take place as soon as is reasonably practicable under s.13. The
prosecution must not disclose material which is subject to public interest immunity.
The prosecutor will judge whether material should be disclosed but this can also be
evidence which undermines the prosecution case. In R v Vasiliou [2000] Crim LR 845
it was suggested that the prosecution should also notify the defence of the previous
convictions of prosecution witnesses.
11.3.2 Defence disclosure

By s.5 of the Criminal Procedure and Investigations Act 1996 it is clear that, once
primary disclosure has taken place and the case has been committed to the Crown
Court, the accused must give a defence statement to the prosecutor and the court.
Defence statements at summary trials are voluntary rather than compulsory. This
written statement by the defence must set out the nature of the accused’s defence,
including any defences they plan to rely on. It also indicates the matters of fact on
which the accused takes issue with the prosecution. It sets out why the accused takes
issue with these facts and indicates any points of law they intend to rely on.
The defence statement may disclose an alibi. If this is the case, the particulars of the
alibi must be disclosed. This was always the case under s.11 of the Criminal Justice
Act 1967, but that provision has been replaced by s.74 of the Criminal Procedure and
Investigations Act 1996.
This requirement at first glance does appear onerous. Why should the defence have to
disclose any evidence to the prosecution? After all, the prosecution bears the burden
of proving the accused’s guilt. The aim is to prevent ‘ambush defences’ where the
accused announces, at trial, highly credible defences which, if they had known about,
would have led the prosecution to reconsider the evidence they presented at court
and their decision to go to trial. The reality is also that the ‘defence statement’ is far
less onerous than the ‘prosecution disclosure’ where they have to present all unused
material. No such obligation lies with the defence.
Recent reforms to this defence statement have been made by s.34 of the Criminal
Justice Act 2003. This introduces an expanded duty for the defence to notify the court
and the prosecutor of any witnesses – this means all witnesses, not just alibi witnesses.
This duty is separate from the compilation of the defence statement.
11.3.3 Continuous review

Under s.7A of the Criminal Procedure and Investigations Act 1996, the prosecutor is
placed under a continuing duty to review questions of disclosure. If at any time before
acquittal or conviction the prosecutor forms the opinion that there is material which
might undermine the prosecution case, or might reasonably be expected to assist the
accused’s defence, then it must be disclosed as soon as is reasonably practicable.
Activity 11.9
Read Sprack 9.41–9.53 and identify the main sanctions relating to defence
disclosure. Which do you believe are the most critical?
11.3.4 Third party disclosure

Relevant information will not always be in the hands of the prosecution. If documents
from the local authority or social services are delivered to the police, how does the
defence gain access to this information? As they have been given to the police they
come into the disclosure regime of the Criminal Procedure and Investigations Act
1996. If the information remains with the third party, then the defence has to request
access to it. If there is a disagreement as to disclosure, this should be resolved by the
court.
1. What has been the traditional approach to the disclosure of evidence in English
law?
2. What is the investigator’s duty under the Criminal Procedure and Investigations
Act 1996?
3. What is the procedure for prosecution disclosure?
4. What is meant by ‘defence statement’?
5. What is continuous review?
6. What are the rules regarding third party disclosure?
11.4 Funding of criminal litigation
Essential reading
¢¢ Sprack, Chapter 29: ‘Ancillary financial matters’.
Criminal litigation, like civil litigation, is never cheap. Of course, where the accused
is subject to a criminal prosecution, he or she is able to receive public funding. The
Access to Justice Act 1999 and its supplementary regulations replaced the Legal Aid
Act 1988 and covers all public funding in criminal matters. The 1999 Act created the
Criminal Defence Service (CDS) and this body now provides funding for the accused in
criminal proceedings. This system was formerly known as legal aid. It functions under
the auspices of the Legal Services Commission.
The main purpose of the CDS is, according to s.12(1) of the Access to Justice Act 1999, to:
secure that individuals involved in criminal investigations or criminal proceedings have

access to such advice, assistance and representation as the interests of justice require.
The CDS relies heavily upon a system of contracting where solicitors in private practice
are required to obtain the general criminal contract if they wish to carry out publicly
funded criminal defence work.
This single ‘interests of justice’ test proved costly. It also led to an increased demand
on the criminal legal aid fund. As a consequence, the Criminal Defence Service Act
2006 was passed. This reintroduces means testing and provides an appeals procedure
where the means assessment and interests of justice tests are not satisfied. The
decision to grant this aid will no longer be judicial – it will be an administrative
decision. It is hoped that this will lead to a more consistent process nationally.
11.4.1 Prior to charge

There is a system which operates to advise and assist those who are under
investigation. This advice comes from a solicitor and access to it is controlled by
means testing. Those with low incomes are likely to qualify for free advice. Once
the accused has been charged, the Post-Charge Advice and Assistance scheme
begins to operate. This is not means tested but is subject to the interests of justice
test. If a solicitor believes that their client meets this test, they may undertake
preparatory work. They then have to apply for a representation order as soon as is
reasonably practicable. After an initial interview, cover will be required by virtue of a
representation order.
11.4.2 Representation
The granting of representation is dealt with by the CDS in accordance with existing
regulations. The procedure for applying for representation and the criteria upon which
an order is granted are laid out in those existing regulations.
Activity 11.10
Read Sprack 29.07–29.09 and critically evaluate the application process and the
criteria for representation. Do you think it should be means tested? Is the interests
of justice test too vague?
If the accused is refused an application order, they may appeal. Section 17 of the Access
to Justice Act 1999 makes it clear that where the defence has been paid for by the CDS
there is no means test and no payment required. A court order can, however, be made
which requires an individual to repay some or all of the costs involved. This is known as
a Recovery of Defence Costs Order.
11.4.3 Costs
Funding of criminal litigation does not just involve paying for services provided. It can
also, depending on the result of the proceedings, mean that the accused, if convicted,
is forced to pay costs. Costs can be paid either by the convicted defendant or out of
central funds. Even the prosecution would prefer funds to be ordered from central
funds, as then they know they will get them! The law concerning costs is governed by
ss.16–21 of the Prosecution of Offences Act 1985.
Defendant’s costs order

Under s.16(1) of the Prosecution of Offences Act 1985, this order may be made by the
magistrates in favour of the accused if they are found not guilty or where they have
been discharged due to the collapse of the prosecution’s committal proceedings. If
the accused is acquitted following trial on indictment, the Crown Court can make a
defendant’s costs order. Circumstances may dictate that it is not in the interests of
justice that all costs are recovered. If this is the case, the court will make a calculation
based on what is just and reasonable in the circumstances.
Prosecution costs
The court may order that the prosecution receive their costs out of central funds,
especially if they are incurred in relation to an indictable offence. This applies even
if the accused is acquitted. The proviso, under s.17(1) of the Prosecution of Offences
Act 1985, is that if the prosecutor is publicly funded then they cannot seek recovery of
costs. This makes sense. Why take from central funds to pay an organisation, such as
the CPS, which is already centrally funded?
A convicted accused
Under s.18(1) of the Prosecution of Offences Act 1985, if the accused finds themselves
convicted, they may be ordered to pay the prosecution such costs as are just and
reasonable in the circumstances. This applies to both summary trials and trials on
indictment.
‘An unnecessary or improper act or omission’

Regardless of the outcome of a trial, the court has discretion under s.19(1) of
the Prosecution of Offences Act 1985 to make an order for costs arising out of an
unnecessary or improper act or omission. So, for example, even if an accused is
ultimately convicted, if the prosecution were flagrantly inefficient, bordering on
negligent, then a costs order may be made.
A personal burden
Under s.19(A) of the Prosecution of Offences Act 1985, the court can order a barrister
or solicitor to meet the whole or part of the costs wasted as a result of their own
negligent representation. They then have to pay these costs personally.
Third party costs order

Under s.19(B) of the Prosecution of Offences Act 1985, the court has the discretion
to order payment of costs incurred by a party to proceedings by a person who is not
party to the proceedings. The order can only be made where there has been serious
misconduct on the part of the third party.
11.4.4 Discretionary awards

The making of an order is always discretionary. As a general rule, though, costs can be
recovered by the accused if they are acquitted, unless they brought suspicion upon
themselves. If an accused is convicted, the court has a discretion as to what order will
be made. This discretion is usually exercised in light of the relative importance of the
charges in question and the conduct of the parties.
1. How is criminal litigation funded under English law?
2. How does an accused obtain advice prior to charging?
3. What is the procedure for securing representation?
4. What are the general rules concerning costs?
Summary
The rules concerning the disclosure of evidence give us some insight into the
obligations that are placed upon both the prosecution and the defence in the course
of the investigation and the trial. Funding criminal litigation is now supervised by the
Criminal Defence Service. The court maintains a discretionary power when it comes to
the awarding of costs on both sides.

¢¢ Bottomley, A. K. ‘The granting of bail: principles and practice’ (1968) 31 MLR 40.
¢¢ Houlder, B. ‘The importance of preserving the jury system and the right of
election for trial’ [1997] Crim L Rev 875.
¢¢ Hucklesby, A. ‘Bail or jail? The practical operation of the Bail Act 1976’ (1996) 23
Journal of Law and Society 213.
¢¢ Redmayne, M. ‘Disclosure and its discontents’ [2004] Crim L Rev 441.

Question 1 Cowbridge Magistrates’ Court has to deal with the following four cases.
1. Andy has been arrested following his failure to attend court the previous day.
He had been on remand in respect of a theft and the court had been due to deal
with the theft by way of mode of trial hearing that day. He alleges that he had
got the day of his hearing confused.
2. Bernadette has been arrested following a fight at a house in which she and 14
others were squatting (i.e. it is not her house – she had moved into it while the
owners were away and without their consent). The police were called following
a loud party at the flat and Bernadette and others fought the police off. A search
of her room revealed a small amount of cocaine under her bed. Bernadette
denies that it is hers. She shares the room with two other people. She originates
from Belgium and has no permanent address in this country. The police allege
that they fear she may abscond.
3. Caroline was arrested with Bernadette (above). She left her family’s home a
couple of years ago but her father, Dennis, is in court and ready to provide
what help he can to ensure that she does not spend time in prison. Dennis is a
respected and wealthy businessman.
4. Eddie has been charged with rape. He has previously been convicted of
manslaughter: he killed his girlfriend in a fit of rage when he found out that she
had been sleeping with another man. The prosecution now allege that he had
sexual intercourse with Fiona when she was too drunk to consent. Eddie denies
this charge and wants to argue that Fiona is his girlfriend but that they recently
argued and she has only made up the allegation of rape because she wants to
get him out of their house.
How should the court deal with these cases?
Question 2 How effective is the scheme regulating the disclosure of evidence in

criminal cases in ensuring a fair trial for a defendant? What other purposes does the
regime appear to serve?

Question 1 These questions deal with a variety of issues concerning bail.
Although the first part makes reference to mode of trial, that is not really part of
the question. In Andy’s situation, you should identify that Andy appears to have
committed the offence of absconding contrary to s.6(1) of the Bail Act 1976. He will
have been arrested under a warrant pursuant to s.7 of that Act. When presented at
court, the court will consider whether to grant him bail on this occasion. While there
is generally a presumption that a person will be granted bail (s.4 of the 1976 Act), Andy
does not benefit from that presumption because he has failed to surrender to custody
in this case (see Schedule 1, para.6). The magistrates may still, however, grant bail if
they are satisfied as to his reasons.
Bernadette has not yet failed to surrender to custody (so far as we know). She will
benefit from the presumption in favour of bail, but as it is only a presumption,
the court will still look carefully at her situation to determine whether there are
‘substantial grounds for believing’ that she will ‘fail to surrender to custody’ (Schedule
1, para.2(a)). The court will probably be concerned at her lack of ties or roots in the
country or the area (she is from abroad and living in a squat). On the other hand, they
may consider whether she is likely to be convicted – after all, the more likely it is that
she will be convicted, the more likely it is that she might not surrender to custody.
Here she has a defence to the crime charged, although it is not necessarily a very
strong one.
Caroline would appear to be in a similar situation but she does appear to have local
ties and also a supportive parent who may be willing to stand surety. Dennis would be
subject to the loss of money due to a recognisance he enters. Even if Dennis could not
afford to stand surety, the fact that there is a home for Caroline to go to would help
the court in overcoming any concerns it might have. It would be possible to impose
bail conditions under s.3 of the Act, for example that she is subject to a curfew or that
there is a condition of residence at Dennis’ house.
Eddie faces the problem that he has been charged with a second serious offence under
s.25 of the Criminal Justice and Public Order Act 1994. That means that he cannot be
granted bail unless there are exceptional circumstances justifying such a grant. It
seems likely that, although he might have a defence at trial and that it may even turn
out to be a good one, that would not make his circumstances ‘exceptional’. It seems
unlikely that he would be granted bail on this occasion.
Question 2 You are being asked to engage with the controversy of the disclosure
scheme. A good answer will draw upon broader reading to identify the origins and
thinking behind the current regime. It will also recognise the fair trial right under
Article 6 of the European Convention as being of particular importance here. It would
also be useful to show, at the start, an awareness that the scheme only applies to
prosecution material that will not be used at trial. The evidence to be used at trial is
revealed at the point of transfer to the Crown Court. Additionally, a good answer will
show an awareness that the scheme being discussed only applies fully to the Crown
Court.
The scheme developed under the Criminal Procedure and Investigations Act 1996
was intended to put the ‘equality of arms’ principle on a statutory footing while also
placing something of a burden on the defence to identify the nature of their challenge
to the prosecution case. The first stage (prosecution disclosure under s.3 of the 1996
Act) reveals to the defendant what evidence (and therefore potential defences or
challenges to prosecution evidence) exists that the prosecution do not wish to use.
This furthers the fair trial aspiration by assisting the defendant in putting forward a
defence or challenging prosecution evidence.
A good answer would, at this point, recognise that this would ensure compliance
with Article 6(3) of the European Convention on Human Rights (the right to challenge
witnesses for the prosecution).
The next stage of the disclosure regime does not further the aim of a fair trial for the
defendant. In fact it places the defendant under an obligation to identify a case that,
until 1996, was thought to be inconsistent with his or her presumption of innocence.
The idea of a defence statement is therefore to further the objective of ensuring that
there are accurate trial verdicts by removing the danger of ambush defences at trial.
Section 5 of the 1996 Act is therefore more consistent with crime control than due
process models of criminal justice. Arguably, however, it does also ensure that the
continuous review stage under s.7A is more effective – it is only through the defence
statement that the prosecution will be able to consider what evidence may become
necessary at later points.
It may be fair to conclude that the disclosure regime provides a pragmatic

protection of fair trial rights – the defendant does not obtain an absolute right to
the prosecution’s unused material (which, of course would place a huge burden on
the prosecution). Rather the defendant’s right is proportionate to the defendant’s
willingness to identify his or her defence.
Reflect and review



first again
I can critically explore the decision to remand in   
custody or to remand on bail.
I can display a sound knowledge of the way in which   

the mode of trial decision is taken.
I can describe how the disclosure of evidence is   

undertaken.
I can comprehend the ways in which criminal litigation   

is funded.
revise?
Must Revision
revise done
11.1 Remand on bail or in custody  
11.2 Mode of trial decisions  
11.3 Disclosure of evidence  
11.4 Funding of criminal litigation  

12 Summary trial and the magistrates’ court
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
12.1 Jurisdiction of a magistrates’ court . . . . . . . . . . . . . . . . . . . 191
12.2 The information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
12.3 Appearance of the accused . . . . . . . . . . . . . . . . . . . . . . . 193
12.4 Pre-trial hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
12.5 Course of a summary trial . . . . . . . . . . . . . . . . . . . . . . . . 195
12.6 Committal for sentencing . . . . . . . . . . . . . . . . . . . . . . . . 196
12.7 Transfer of cases to the Crown Court . . . . . . . . . . . . . . . . . . 198
12.8 Committal proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 198

Introduction
Summary offences are all, with very few exceptions, tried in a magistrates’ court.
Cases which are indictable but triable either way are also tried in a magistrates’ court.
Cases which are to be tried at the Crown Court must still be subject to preliminary
proceedings at the magistrates’ court. This means that all suspected offenders will
start, if not finish, their trial experience in the magistrates’ court. The conduct of the
summary trial, which deals with the information through to committal proceedings, is
therefore a crucial feature of the criminal process.
Learning outcomes
uu describe the jurisdiction and composition of the magistrates’ court

uu explain the dual role of the information
uu understand the process by which the accused appears and can be represented
in the court
uu critically explore the pre-trial hearing process
uu display a sound knowledge of the course of trial
uu describe how committal for sentencing takes place
uu comprehend the process by which cases are transferred to the Crown Court
uu understand how committal proceedings operate.
Civil and criminal procedure 12 Summary trial and the magistrates’ court page 191
12.1 Jurisdiction of a magistrates’ court
Essential reading
¢¢ Sprack, Chapter 10: ‘Course of a summary trial’.
As we have already seen, the magistrates’ court, under s.2(3) and (4) of the Magistrates’
Courts Act 1980, can try offences which are deemed triable either way and this will
take place following a mode of trial decision (see Chapter 11). They can also try any
summary offence. The jurisdiction of the court is exercised when the accused appears
or is brought before the magistrates’ court. The accused will attend the court. This
may be to answer a summons. It could be to answer bail. They may also be in police
custody. They could be in the custody of the prison authorities.
12.1.1 Composition of a magistrates’ court

Under s.121 of the Magistrates’ Court Act 1980 the court is not allowed to try an
information (case) summarily unless there are at least two justices. The maximum
number that may sit is three and this is the usual composition of the bench. The
presence of thee magistrates prevents an equal and irreconcilable split as to verdict. A
district judge may sit with lay justices but will be the chair of that bench. Alternatively
a district judge can sit alone.
While the trial is taking place, the bench has a discretion to hear representations
‘in chambers’, which means in private. This is discretionary but the exercise of this
discretion must be even more careful than the equivalent process in the Crown Court.
Any proceedings in chambers must be accompanied by a contemporaneous note from
the magistrates’ clerk.
A magistrate is not allowed to adjudicate on a case where he or she has a direct

financial interest, however small, in the outcome or they have a non-financial interest
that would lead to a suggestion of bias. As a basic principle of natural justice, ‘no man
shall be a judge in his own cause’. These rules apply to all echelons of the judiciary but
are more likely to arise with the lay magistracy given that justice is often delivered
locally. The strict operation of the rules relating to financial interest in a case is
discussed in Dimes v Grand Junction Canal (1852) 3 HL Cas 759. The operation of the non-
financial interest exclusion is less strict (see Porter v Magill [2002] 2 AC 357).
Activity 12.1
Read the cases of Altrincham Justices, ex parte Pennington [1975] 1 QB 549 and
Camborne Justices, ex parte Pearce [1955] 1 QB 41.
What different circumstances led to different views of whether the magistrates in

these cases should have withdrawn from the case?
Very often a magistrate will not know that he or she has any potential conflict
of interest until after the case has started. At this point, the test for whether the
magistrate should remain is whether a fair minded and informed observer would
conclude that there is a real danger of bias. A magistrate may also know that the
accused has a previous conviction. If this is so, the magistrate ought to withdraw but
there is no rule of law to that effect. If a magistrate fails to withdraw due to a financial
or non-financial conflict within the case, the decision taken by that court is rendered
liable to being quashed. A further issue arises as to whether magistrates’ personal
details (name etc.) should be withheld for fear of threats or harassment. The better
view is that they should not, otherwise an accused will not necessarily know about the
potential conflict of interest that has arisen.
1. What is the composition of the bench?
2. When will a magistrate be expected to withdraw from a case?

Summary
All cases start, and the majority of cases finish, their lives at the magistrates’ court.
The court will usually be composed of a bench of three justices. A district judge can sit
alone. If there is a potential conflict of interest, whether it be financial or non-financial,
a magistrate ought to withdraw from a case. Failure to do so will leave any conviction
fragile and open to a successful appeal.
12.2 The information
Essential reading
We have already considered the information in the context of the summons (see
Chapter 10). This is one of the roles that the information plays in the criminal process.
It is also the charge to which the accused pleads guilty or not guilty at the beginning
of a summary trial. An information is similar to a count in an indictment (see Chapter
13). The form of the information is governed by rule 7.3 CrimPR, which states that a
magistrates’ court cannot try an information which charges more than one offence,
although two or more informations can be set out in the same document. Also, two
or more separate criminal acts may be alleged in one information if it is viewed that
the accused’s conduct comprises a continuing act. An information, like an indictment
in the Crown Court, can contain several informations but each must allege only one
offence. If an information is alleging two or more offences, it will be dubbed ‘bad for
duplicity’ and the defence should bring a motion to quash. The High Court is asked
surprisingly frequently to quash summary convictions on the ground that information
was bad for duplicity.
An information that has been labelled bad for duplicity can be rescued under rule
7.3 CrimPR when the prosecutor will be asked to elect which offence they desire
the court to proceed upon. This means that the other offences get struck from the
information. The information gives reasonable particulars of the nature of the charge.
This should be in non-technical language and the form is governed by rules 7.2 and
7.3 CrimPR. Under s.127 of the Magistrates’ Courts Act 1980 the court may not try an
information for a summary offence unless it is laid within six months of the offence
being committed. Under s.123 of the Act the magistrates have a discretion to allow, at
any stage during the hearing, an amendment to the information. Equally, if there are
any defects in the form or substance of the information, this will not be grounds for
objecting to the information. If there is a wide variation between the information and
the evidence presented, the prosecutor should apply for an amendment. Amendment
of the information can ultimately remedy almost any defect.
12.2.1 Discretion not to try an information

Section 9(2) of the Magistrates’ Courts Act 1980 provides for a general statutory duty
to hear the available evidence first and then decide whether to convict or acquit. That
said, it would appear that magistrates can dismiss an information without hearing it if
the lapse in time is significant. The statutory rule, under s.127 of the Magistrates’ Courts
Act 1980, is that an information must be laid within six months of its commission. This
is to avoid lengthy delays.
Activity 12.2
Read the cases of R v Brentford Justices, ex parte Wong [1981] QB 445 and R v Oxford
City Justices, ex parte Smith (1982) 75 Cr App R 200 and consider under what
circumstances the High Court will permit magistrates to use their discretion not to
hear the information.
1. Why is an information said to be like a count on indictment?
2. When will the magistrates not try an information?
12.3 Appearance of the accused
Essential reading
At a trial on indictment it is usual for the accused to be present and to plead to the
indictment. Summary trials, however, often take place in the accused’s absence. Under
s.12 of the Magistrates’ Courts Act 1980 the accused may plead by post. When the
accused does appear in court, they should not appear in handcuffs unless there are
reasonable grounds for apprehending violence or an expected attempt to escape.
12.3.1 If the accused does not appear

Under s.11 of the Magistrates’ Courts Act 1980 the magistrates have a discretion to
proceed in the accused’s absence if he or she does not appear at the time and place
fixed for the summary trial. If they follow this course, a plea of not guilty is entered on
behalf of the accused and the prosecution proceeds with the case. If the evidence is in
any way insufficient, the magistrates will be obliged to find the accused not guilty.
Ideally, the accused will be present at trial. If the accused does not know of the trial
date, it is unfair to proceed. The magistrates will not be able to continue with the case
if it can be shown that the accused never received the summons. If such evidence is
forthcoming, a declaration can be made by the accused to this effect. If the accused
was arrested rather than issued a summons, the magistrates should be very reluctant
to hear the case without the accused as this is likely to be a more serious offence.
12.3.2 Pleas of guilt by post

It is not ideal to proceed with a case in the accused’s absence. The prosecution
witnesses are inconvenienced, the accused cannot inform the magistrates as to any
mitigation that may be applicable and no one is present to challenge. These problems
are overcome by the procedure set out in s.12 of the Magistrates’ Courts Act, which
allows pleading by post.
Activity 12.3
Read Sprack 10.40–10.43 and identify the procedure for dealing with pleas of guilty
by post.
12.3.3 Sentencing the absent offender

Under s.11(3) of the Magistrates’ Courts Act 1980, the magistrates may not pass a
custodial sentence on an absent offender. They are not allowed to disqualify the
offender from driving unless he is present or the case was previously adjourned
for him to attend. Following conviction, the magistrates may issue a warrant for
the accused’s arrest, provided it is an imprisonable offence or they are considering
disqualification.
12.3.4 An absent prosecution

If the prosecution fail to appear for summary trial, the magistrates have the discretion
under s.15 of the Magistrates’ Courts Act 1980 to either dismiss or adjourn the case.
The prosecution can proceed if part of the case has already been part heard prior to
adjournment.
12.3.5 Legal representation

Both the barrister and the solicitor have rights of audience in a magistrates’ court. The
prosecution do not have to be legally represented and the accused can defend himself
if he wishes. This will be advisable if the case is trivial and they have no legal aid. Indeed,
the bench often appear at best sympathetic and at worst patient with the accused’s
plight. It is not usual practice for anyone but counsel to make representation and family
members would certainly not generally be granted rights of audience. Section 122(2)
Magistrates’ Courts Act 1980 states that even if an accused is not present but are being
represented at the hearing then they will be, for most purposes, deemed to be present.
1. A defendant does not have to be present at the magistrates’ court for the
summary trial. Are the magistrates allowed to consider the defendant’s absence
as ‘a sign of lack of remorse’ when commencing with sentence?
2. Can the accused plea by post?
3. Can the accused be sentenced to prison in his absence?
4. How do the magistrates respond to the absence of the accused where a

sentence needs to be passed?
5. What rules exist for the appearance of lawyers in the summary trial?
Summary
The information used at the magistrates’ court is like a count with a list of charges.
Careful procedures must be followed when considering this information. The accused
does not need to be present for the summary trial to take place. If the offence could
be punishable with imprisonment, the magistrates are not allowed to sentence in the
accused’s absence.
12.4 Pre-trial hearing
Essential reading
Section 45 and Schedule 3 to the Courts Act 2003 provide for binding rulings to be
made at a pre-trial hearing in a case which is due to be heard in the magistrates’ court.
As long as the accused has pleaded not guilty, rulings can be made. At the pre-trial
review the court goes through the standard directions and decides whether to vary
them. They include:
a. application for special measures in relation to witnesses
b. disclosure
c. notices relating to hearsay and bad character evidence
d. expert evidence
e. points of law
f. certificates of trial readiness
g. appointment of case progression officers for the court, the prosecution and the
defence.
A plea must be entered before the prosecution present their case. At the end of
this presentation the defence may make a submission of no case to answer. If the
magistrates do not agree, the defence will present its case. Once this is over, the
magistrates will probably leave to deliberate on the guilt of the accused. If they find
the accused guilty, there may be committal for sentencing. If they find the accused
innocent, he can walk free.
12.5 Course of a summary trial
Essential reading
The course of a summary trial is, to a large extent, identical to the course of trial on
indictment. As this is not a law of evidence course, we shall be exploring aspects of the
course of trial, both summarily and on indictment, so as to highlight some of the key
issues for discussion. The key distinction is that in a summary trial the magistrates are
triers of both fact and law. By contrast, a trial on indictment will be heard by a jury who
decide on questions of fact and before a judge who will advise the jury on issues of law.
12.5.1 The plea

As the summary trial begins, the clerk of the court will put the information to the
accused. The accused must then plead either guilty or not guilty. If the accused stays
silent, a not guilty plea will be entered. If the accused pleads guilty, the magistrates
move to the process of sentencing, which we shall deal with later.
12.5.2 Prosecution case

If the accused pleads not guilty, the prosecution has to prove that the accused did
commit the offence with which he or she is charged. The prosecution can give an
opening statement, but given the magistrates’ experience in trying cases this is
unlikely to be long. The prosecution will then examine their witnesses in chief, who
will then be cross-examined by the defence. If any matters are raised during cross-
examination, the prosecution has the right to re-examine their witnesses. There may
also intermittently be questions from the bench. Written statements can be used
under s.9 of the Criminal Justice Act 1967.
Activity 12.4
Read Sprack 10.54–10.59 and write a 250 word summary describing how the
magistrates should rule on the admissibility of evidence. Do you think the ‘rules’
are sufficient?
If the prosecution or defence wish to call a witness but they do not believe that this
witness will attend court voluntarily, then, under s.97 of the Magistrates’ Courts Act
1980, a summons may be issued. If this is not obeyed, an arrest warrant can be issued.
During this waiting time the bench can decide to adjourn the case until the witness is
brought.
12.5.3 Submission of no case

Once the prosecution has outlined its case, the defence may decide to make a
submission of no case to answer. This should be upheld if there is no evidence to
prove an essential element of the offence charged, or if the evidence presented by the
prosecution has been so discredited by the defence that it is manifestly unreliable and
no reasonable tribunal would convict on it. If a submission of no case is upheld the
accused goes free. If not, the trial continues.
12.5.4 Defence case

Under rule 37.1 CrimPR, if there is a case to answer the defence may wish to call
evidence, but does not have to. The defendant is a competent witness, and therefore
can give evidence, but is never compellable, so cannot be forced to give evidence.
Once the defence evidence has been presented the defence can deliver a closing
speech. The prosecution do not have the right to deliver a closing speech, but the
relative informality does permit them to ask questions when and if they become
relevant.
12.5.5 Verdict
If the summary trial is being presided over by a district judge, the judge will usually
announce his or her decision immediately. Lay magistrates tend to retire to consider
their verdict. Unlike the jury in a trial on indictment, the judge at summary trial must
deliver a verdict based on the offence charged. Under s.142 of the Magistrates’ Courts
Act 1980, if the magistrates then have second thoughts they can direct that the case be
re-heard by different justices.
Activity 12.5
Read Sprack Appendix 3A and transfer the details there into a flow chart to show
the trial process at the magistrates’ court.
1. What can the pre-trial review contain?
2. What is a plea and how is it entered?
3. How does the prosecution present its case?
4. What is meant by a submission of no case?
5. How does the defence present its case?
6. How is the verdict considered and delivered?
Summary
A pre-trial review involves the magistrates ordering the steps that need to be taken for
trial. This can include special measures directions for vulnerable witnesses and rules
relating to disclosure. Once this review is over, the summary trial can begin.
12.6 Committal for sentencing
Essential reading
¢¢ Sprack, Chapter 12: ‘Committal for sentence’.
Once a defendant has pleaded guilty or has been found guilty by the magistrates’
court, the magistrates will then proceed to sentence. They will follow a procedure
(described in Chapter 14). In doing this they are limited by the restrictions on their
powers of punishment.
Under s.154 of the Criminal Justice Act 2003, the maximum prison sentence that the
magistrates can impose in respect of any one offence is twelve months. The maximum
aggregate term for two or more offences is 65 weeks. All of this is done in line with the
new ‘custody plus’ arrangements.
12.6.1 How things used to be

Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000 contained the most
important of the powers to commit for sentence possessed by magistrates. This
provision covered any person over the age of 18 who had been convicted of a triable
either way offence. Here the magistrates were of the opinion that the offence, or
combination of offences, committed were so serious that greater punishment should be
inflicted for the offence than the court had the power to impose. For example in the case
of a violent or sexual offence a custodial sentence for a term longer than the court had
power to impose was necessary to protect the public from serious harm. This allowed,
under s.5(1) of the Powers of Criminal Courts (Sentencing) Act 2000 for the court to
commit the offender into custody or on bail to the Crown Court for sentence. The Crown
Court clearly has harsher punishments at its disposal. These provisions operated to allow
the court to deal with the offender as if he or she had been convicted on indictment.
This committal for sentence is in effect a change of mind on the part of the magistrates
as to the adequacy of their powers of punishment. This can be seen to be legitimate
where the defendant has revealed that they have a record of previous convictions
and they have asked for further offences to be taken into consideration. It is more
problematic where there are aggravating features about the offence charged of which
the magistrates were not aware when they accepted jurisdiction.
Activity 12.6
Read Sprack 12.06–12.20 and compare and contrast R v Manchester Magistrates’
Court, ex parte Kaymanesh [1994] Crim LR 401 with R v Sheffield Crown Court, ex parte
DPP (1994) 15 Cr App R (S) 768 and R v Dover Justices, ex parte Pamment (1994) 15 Cr
App R (S) 778.
12.6.2 The situation now

This discretion of the magistrates in the context of committal is still subject to a
general principle of ‘legitimate expectation’. If the offender elected to be tried by
magistrates, then he or she should be sentenced by magistrates. The Criminal Justice
Act 2003 recognises this anomaly and magistrates no longer have the power to
commit the defendant to the Crown Court. Once they decide that the case is suitable
for summary trial and the defendant agrees, the s.3 power is no longer available.
However, committal for sentence remains for those cases where a guilty plea has been
indicated at plea before venue or where the defendant is likely to be the subject of an
extended sentence or a sentence for public protection.
12.6.3 Committal for sentence after the plea before venue procedure
The process, which does still exist, for committal for sentence to the Crown Court is
outlined in the case of R v Warley Magistrates’ Court, ex parte DPP [1998] 2 Cr App R 307.
Activity 12.7
Read Sprack 12.16 and critically consider the guidance for magistrates when
deciding whether to commit for sentence on this basis.
12.6.4 Dangerous offenders

The other category of offenders who may find themselves subject to committal
proceedings for sentence at the Crown Court are those who are viewed as ‘dangerous’.
Sections 224–236 of the Criminal Justice Act 2003 provide a new framework for
sentencing dangerous offenders. In this context the magistrates may believe,
regardless of the offence committed, that they do not have sufficient sentencing
powers and so there may be committal for sentence proceedings at the Crown Court,
which has far greater options for sentencing.
1. What is committal for sentencing and how does it operate?
2. Why was the law concerning committal something of an anomaly?
3. Which categories of offender may still be subject to committal for sentence?

12.7 Transfer of cases to the Crown Court
Essential reading
¢¢ Sprack, Chapter 13: ‘Sending cases to the Crown Court’.
Trials on indictment take place in the Crown Court. Before that trial, all offenders will
have started off with preliminary proceedings in the magistrates’ court. Historically
this was a filter process where the magistrates would consider the evidence and
decide whether there was sufficient evidence to send it up to the Crown Court. This
filtering process has been gradually whittled away. In the 1980s it became a paper-
chasing exercise and s.51 of the Crime and Disorder Act 1998 abolished committal
proceedings in respect of indictable-only offences. The latest step has come in
Schedule 3 to the Criminal Justice Act 2003 which, when in force, will remove triable
either way offences from the ambit of committal proceedings. This means that rather
than talking about committal we are talking about a process of transfer.
12.7.1 Indictable-only offences

Section 51 of the Crime and Disorder Act 1998 requires that offences which can be tried
on indictment only must be sent immediately to the Crown Court from a preliminary
hearing in the magistrates’ court.
At the hearing the magistrates note the offence for which the accused is being sent for
trial and the location of the Crown Court where the accused will be tried. (A summary
offence can also now be tried by the Crown Court if it is related to an indictable-only
offence.) After this hearing has taken place, the Crown Court may decide to have a
preliminary hearing so that case management can begin.
12.7.2 Notices of transfer

Serious fraud cases and those cases involving child witnesses both use the notice
of transfer system. Once this is served, the powers of the magistrates’ courts cease,
except in respect of bail, legal representation and witness orders. The aim was to
remove the time-consuming committal proceedings in cases which were notorious
for being subject to excessive delay.
12.7.3 Triable either way offences

When Schedule 3 to the Criminal Justice Act 2003 is fully in force, triable either way
cases will be treated in the same way as indictable-only cases. Until that time these
offences are still subject to the committal proceedings documented below.
1. How has the committal process been ‘whittled away’ in recent years?
2. How are indictable only offences dealt with?
3. What is a notice of transfer?
4. How are triable either way offences dealt with?
12.8 Committal proceedings
Essential reading
¢¢ Sprack, Chapter 13: ‘Sending cases to the Crown Court’.
There remain two types of committal procedures and they can be found in the
Magistrates’ Courts Act 1980 and Part 10 CrimPR 2005. These are for triable either way
offences until such time as Schedule 3, paragraph 18 of the Criminal Justice Act 2003 is
brought into force.
The first form of committal is where the evidence (consisting entirely of documents)
is considered by the bench and submissions are made by the parties as to whether
the accused should be sent to the Crown Court for trial. The second form is where
the accused is committed without consideration of the evidence. There are some
common themes to these committal proceedings which should be considered.
uu Evidence which is tendered at committal proceedings must be given in the

presence of the accused; the public also have the right to attend.
uu Committal proceedings may concern two or more accused persons.
uu The magistrates have the discretion to discharge the accused without hearing from
the prosecution if there has been such a significant delay that it amounts to an
abuse of process.
This doctrine of abuse of process is now well established.
Activity 12.8
Read Sprack 13.53–13.58 and critically consider the scope and purpose of the abuse
of process doctrine.
12.8.1 Committals with consideration of the evidence

Under s.6(1) of the Magistrates’ Courts Act 1980, a committal will be held where the
accused has no legal representative acting for them in the case, or where the legal
representative of the accused has requested that the court consider a submission of
no case to answer. The hallmark of this procedure is that the bench must consider
the evidence before deciding whether to send the accused to the Crown Court for
trial. Rule 10.3 CrimPR governs the procedure for this committal. The bench will be
concerned with evidential sufficiency rather than credibility, which will be left to the
Crown Court. Finally, the question is not simply whether there is a case to answer: it is
whether any indictable offence has been disclosed. Upon consideration the justices
will announce whether they will be committing the accused to the Crown Court.
If they decide that there is no case to answer, this does not mean an acquittal. The
prosecution can still present fresh charges at a later date.
12.8.2 Committals without consideration of the evidence

Under s.6(2) of the Magistrates’ Courts Act 1980, the accused may be committed
for trial without the examining justices considering the evidence against him if the
accused has a solicitor acting for him and there is no submission from counsel for the
accused that there is no case to answer. These proceedings are extremely quick and
are likely to take less than five minutes to accomplish. Their purpose is to ensure that
an accused is only so committed in cases where, were the magistrates to consider the
evidence, they would conclude that there was a case to answer.
12.8.3 Voluntary bills of indictment

We have identified all the ways that an accused can be sent, transferred or committed
for trial by magistrates. There is one final way: where there is a direction by a High
Court judge for the preferment of a voluntary bill of indictment. Put simply, this means
that a High Court judge has ordered that the accused should be tried on indictment.
These voluntary bills are only granted where to do so is in the interests of justice.
1. What remains of committal proceedings?
2. What is the doctrine of abuse of process?
3. What is a committal with consideration of the evidence?
4. What is a committal without consideration of the evidence?
5. What is a voluntary bill of indictment?

Summary
The process of committal for sentence has been gradually whittled away so that it
will only now take place where there is a dangerous offender and where this decision
is being taken after the plea but before the venue procedure. This whittling away of
committal is echoed in general proceedings where the speedier exercising of transfer
is taking place. There do remain two committal proceedings which are either with or
without consideration of the evidence. These only apply to triable either way offences
and they will be replaced by the system of transfer, as presently used for indictable
offences, once Schedule 3, paragraph 18 of the Criminal Justice Act 2003 is brought into
force. Finally, an alternative method of transfer or committal is the voluntary bill of
indictment.
Useful Further reading

¢¢ Darbyshire, P. ‘For the new Lord Chancellor – some causes for concern about
magistrates’ [1997] Crim L Rev 861.
¢¢ Seago, P., C. Walker and D. Wall ‘The development of the professional magistracy
in England and Wales’ [2000] Crim L Rev 631.

Question 1 George was convicted of criminal damage and sentenced to seven
months’ imprisonment by Waterford Magistrates’ Court. He was alleged to have
damaged the Town Hall when he painted slogans on it protesting against the
closure of a local animal sanctuary. He was tried by a bench of two lay magistrates.
He defended himself in person. He arrived ten minutes late for the hearing but
found that the court had not only started without him but had entered a plea of
not guilty on his behalf. He had been expecting a panel of three magistrates but one
had to leave just as the trial started due to a personal emergency. One of the two
remaining magistrates, Victor, is a local town councillor. During the course of the
prosecution case, the prosecutor informed the court that one of the witnesses for
the prosecution, a former friend of George’s called Stumpy, who was due to identify
George as the person who painted on the wall, was not willing to attend court.
The magistrates’ court clerk, Helga, agreed that the prosecutor could read out the
statement as it would take too long to find Stumpy. When the prosecution case
closed, George was permitted to give evidence himself but was not allowed to call
any other witnesses or to make any closing speech. The court clerk told George that
the case was not complicated enough to ‘waste such time’.
Advise George as to the correctness of the actions taken by the court.
Question 2 ‘Summary trial represents a sensible and pragmatic approach to minor

offending. The process of committal ensures that no major offenders will escape
serious punishment through the magistrates’ court.’
Discuss.

Question 1 This question requires students to identify a number of errors and rule out,
as errors, some decisions that can probably be justified. This is not a question asking
you to consider how appeals work (that comes later on in this course) but clearly
George would be thinking about appealing in respect of any wrongful decisions. There
is nothing wrong, technically, with a seven-month sentence being imposed although it
might seem rather harsh for a bit of graffiti (again, sentencing will be covered later on
the course). The point for the minute is that it is technically possible. The magistrates’
court has a power to impose a sentence of up to twelve months’ imprisonment (s.154
Criminal Justice Act 2003). Although the court would normally consist of three lay
justices, it is possible (s.121 Magistrates’ Courts Act 1980) to hear a case with only two.
Equally, the court does have a discretion to proceed in the absence of the defendant
(s.11 of the 1980 Act), although normally one would expect the court to ensure that
the defendant was properly informed of the date of the trial and to adjourn for a brief
period if the defendant was not present when the trial was due to start. There does
seem to be a potential problem with the bias of the magistrate, Victor. Note, however,
that Victor does not have a direct financial interest in the case (the victim of the crime
is the town council of which he is a member rather than Victor himself). The test for
bias would therefore be that laid down in Porter v Magill [2002] 2 AC 357. This would
require consideration of whether there was a real possibility of bias on Victor’s part. It
is possible that he might have been able to act without being influenced by his political
role. However, given that the crime was one of criticism of his council, it seems that
there would be strong argument that there was a real possibility of bias and that Victor
should therefore have recused himself. If he should have done so, the verdict of guilty
(and, of course, the sentence) would be invalidated, particularly as there would then
be only one valid member of the bench. Where a witness is not present, the court
should consider adjournment and should seek to ensure the attendance of the witness,
by means of a warrant if necessary. A written statement can only be used under s.9 of
the Criminal Justice Act 1967 if there is no controversy between the defence and the
prosecution as to its content. To proceed simply to reading out a contested witness
statement would therefore be a step too far. George should have been permitted to
call other witnesses and also to make a closing speech.
Question 2 This question is particularly focused on committal proceedings but does

invite a broader consideration of the nature of summary trial in the first sentence of
the quotation. An answer would not be complete without some consideration of what
is ‘summary’ about summary trial. A good answer will identify features that show it to
be a relatively simple and flexible system that ensures quick and effective resolution
of minor offences. However, the main drive of the question will also address the ways
in which serious cases can be dealt with by the Crown Court despite starting, or even
it being decided that the case will remain, in the magistrates’ court system. A good
answer will therefore identify whether each aspect of the rules on committal ensures
that major offences are adequately dealt with. Clearly this has something to do with
the sentences imposed. One would start by stating the limitations on sentencing
set by the Criminal Justice Act 2003 (twelve months for one offence, 65 weeks for
two or more offences). Committal to the Crown Court for sentence could occur if it
becomes apparent that the appropriate sentence for an offence should be higher
than that. However, this power is limited under the Criminal Justice Act 2003 and this
will restrict the power of the courts to pass serious cases to the Crown Court for a
more appropriate sentence. However, the answer should note that certain categories
of offender (e.g. dangerous offenders as specified under ss.224–236 of the Act) may
be committed to the Crown Court so that a lengthier sentence can be imposed. A
particularly good answer would draw on some of the rules dealt with in relation
to mode of trial proceedings. Clearly the fact that there is a decision for either way
offences to be dealt with in one court or another means that some serious either way
offences appear to run the risk of being limited to the lenient sentencing powers of
the magistrates’ court. However, it is the committal for sentence proceedings that
prevent this from happening. The relationship between mode of trial and committal
for sentence should be clearly identified here.
Reflect and review



first again
I can describe the jurisdiction and composition of the   
magistrates’ court.
I can explain the dual role of the information.   
I can understand the process by which the accused   

appears and can be represented in the court.
I can critically explore the pre-trial hearing process.   
I can display a sound knowledge of the course of trial.   
I can describe how committal for sentencing takes   

place.
I can comprehend the process by which cases are   

transferred to the Crown Court.
I understand how committal proceedings operate.   
revise?
Must Revision
revise done
12.1 Jurisdiction of a magistrates’ court  
12.2 The information  
12.3 Appearance of the accused  
12.4 Pre-trial hearing  
12.5 Course of a summary trial  
12.6 Committal for sentencing  
12.7 Transfer of cases to the Crown Court  
12.8 Committal proceedings  

13 Trial on indictment and the Crown Court
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
13.1 The indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
13.2 Pre-trial proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 208
13.3 Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
13.4 Triers of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
13.5 The course of the trial . . . . . . . . . . . . . . . . . . . . . . . . . 219
13.6 Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

Introduction
Indictable offences are all tried in the Crown Court. This can often be a time-
consuming and complex process which involves a significant amount of preparatory
work by the prosecution and the defence. The plea entered by the defence can often
be a particularly political decision where the risks of conviction are weighed against
the positive outcome of an acquittal. If a plea of not guilty is entered, the proceedings
will be presided over by a judge and the jury will, normally, decide on the offender’s
guilt or otherwise. The process of the trial is heavily prescribed. This is to promote a
fair trial for the defendant. The process continues until the trier of fact has made the
decision. This decision is the climax of the trial. It is the verdict.
Learning outcomes
uu critically explore the nature of indictments and what is meant by the rule
against duplicity
uu display a sound knowledge of how pre-trial proceedings operate
uu describe how the plea is considered
uu comprehend the role and function of triers of fact
uu demonstrate an awareness of the course of the trial
uu consider how the verdict is delivered.
Civil and criminal procedure 13 Trial on indictment and the Crown Court page 205
13.1 The indictment
Essential reading
¢¢ Sprack, Chapter 15: ‘The indictment’.
The indictment is the formal document containing a list of the charges that are being
brought against the accused. It is to this indictment that the defendant pleads either
guilty or not guilty. The jury can only try one indictment at a time. Once the indictment
has been prepared, it must be signed by an officer of the Crown Court in accordance
with s.2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933. If there
is no signature, any conviction flowing from the indictment will be nullified.
When the indictment is being prepared, the first question for the person drafting the
indictment is: what counts should be included? A count is a charge. Subject to committal
proceedings having already taken place, the drafter of the indictment can include counts
for any indictable offence that he considers to be disclosed by the evidence. There exists
the power to include a count for an offence to which the magistrates’ court expressly
refused to commit. But this power should be used very sparingly.
A count will consist of a statement of offence which gives the short name of the
offence and the statute that was contravened, if it was statutory. So, for example, if A
is charged with theft, this will be contrary to s.1 of the Theft Act 1968. If the offence is
a common law offence (such as murder), B will be charged with murder, contrary to
common law. It will also contain very brief particulars of an offence. So it may say that
A, on 5 May 2008, stole a handbag from a shop. Specimen wordings for indictments
can be found in Blackstone’s criminal practice.
13.1.1 The rule against duplicity

Any indictment can contain several counts, but each count must only allege one
offence. If it appears to be alleging two or more offences, it is said to ‘bad for duplicity’.
At this stage the defence should argue that the count be quashed. Failure to quash at
this stage will be a good ground for appeal at a later date. For example: if it is alleged in
one count that ‘on 22 May 2008 Mrs X stole and damaged Mr Y’s car’, there is clearly a
case here for theft and for criminal damage but this count would be ‘bad for duplicity’.
This rule would be problematic if strictly applied in the common case where a person
is suspected of having stolen cash or property from another individual on a number
of occasions, but it is not practical to provide precise dates and precise amounts that
have been stolen. This would be described as a ‘theft of a general deficiency’. In such
circumstances it is possible to allege that the accused stole the aggregate amount on
a day or days unknown during the whole period over which the stealing was thought
to have taken place.
If there is an alleged systematic course of criminal conduct, the prosecution may

choose to proceed by way of ‘specimen’ or ‘sample’ counts. So, if you have a case of
alleged sexual assault on a child, the indictment should be kept to a manageable
length, with only a limited sample or specimen of counts included. The prosecution
will still be required to provide full details of all alleged offences, but only those in the
sample are referred to in the indictment. To see how this works see DPP v Merriman
[1973] AC584; R v Wilson (1979) 69 Cr App R 83 and R v Mansfield [1977] 1 WLR 1102.
Activity 13.1
Read Sprack 15.16 and write a 100 word summary of what Rule 14 is and how it is
utilised for the purposes of the indictment.
The offence of handling stolen goods illustrates one of the difficulties with the rules
concerning indictments. Under s.22 of the Theft Act 1968, ‘handling’ can be committed
in 18 different ways. This means that whilst a handling count is technically correct
when it states that stolen goods have been ‘handled’, it does not indicate how the
prosecution intends to proceed with the case. Therefore the prosecution is required
to state which form of handling it is alleging in the count.
13.1.2 Joinder of counts in an indictment

Several counts against one accused may be put in one indictment, as set out in rule
14.2(3) CrimPR. Here, charges for any offences may be joined in the same indictment if
those charges are founded on the same facts or form, or are part of, a series of offences
of the same or a similar character.
Activity 13.2
Read Sprack 15.19–15.26 and explain how the joinder rules would work in the
following scenarios.
a. Betty murders Horace in front of her neighbour, Mavis. When Betty learns that
Mavis is to testify against her, she threatens to tell Mavis’s husband of Mavis’s
affair with Horace, which Betty suggests is the reason she killed Horace in the
first place.
b. Maurice is found by Harry on 22 May in the back room of a public house

rummaging through the staff property looking for cash. When asked what he is
doing, Maurice simply says he was looking for a light for his cigarette, and leaves
quickly. On 1 June Maurice is discovered again at the same public house where
he has punched two customers and escaped with two wallets and a piece of
jewellery which does not belong to him.
Although these joinder rules appear attractive in terms of ensuring that a series of
criminal acts are dealt with swiftly, there is a discretion for the trial judge to order
separate trials if it appears that the trial may be prejudiced by a long list of counts
against the defendant.
If the evidence available to the prosecution shows the defendant to have committed
a criminal offence but what they have done is less easy to demonstrate, then the
indictment can include counts for all the offences that might be proved. This
sometimes occurs in cases of offences against the person, where the level of injury
caused is not always clear. Here the judge will, in summing up, tell the jury that they
are not expected to find the defendant guilty of everything but may find them guilty
of one of the counts. So, if it is grievous bodily harm with intent then this would be an
offence contrary to s.18 of the Offences Against the Person Act 1861. If it was an assault
occasioning actual bodily harm, an offence contrary to s.47 of the Offences Against the
Person Act 1861 will have been committed. The jurors will decide.
13.1.3 Joinder of defendants in an indictment

If two people are thought to have committed a murder in a joint enterprise, the count
in the indictment can charge both with committing the single offence. In addition, if
there are two or more counts in an indictment, these may charge different defendants
with separate offences even though there is no one count against them all collectively.
All parties to a single offence will be charged together in a single count. This is a joint
count. The judge retains the discretion to order separate trials of defendants who are
jointly accused, but this is unlikely to happen: it is often very convenient to try jointly,
as victims do not want to have to re-live the ordeal of their experiences more than
once.
An indictment can include separate counts, each naming a different defendant. There
may be no joining of counts but there must still be a factor linking all the separate
counts to the defendants being tried at the same time. The case of R v Assim [1966] 2
QB 249 shows how this might work.
It would appear that the rules governing joinder of counts and joinder of defendants
are not very strict. However, the Court of Appeal has often warned of the danger
of overloading indictments. So, in R v Thorne (1978) 66 Cr App R 6 there were 14
defendants tried together on an indictment which contained three counts for robbery
and other closely related offences. Trials such as these last so long (111 working days
and a 12 day summing-up from the judge in this case) that the Court of Appeal has
suggested that in such instances separate trials would be preferable.
Activity 13.3
Read the case of R v Kellard [1995] 2 Cr App R 134 and answer the following questions.
a. How long did the trial take?
b. How many working days did it sit over?
c. Why did the Court of Appeal dismiss the appeal?
13.1.4 Applications concerning the indictment

There are a number of applications which may be necessary once the indictment has
been presented.
uu Application to sever the indictment. If the defence take the view that two or more
counts in the indictment should be tried separately, they will apply to sever. This
takes place during the pre-trial hearing. (R v Christou [1997] AC 117)
uu Applications to amend the indictment. If the judge takes the view that the
indictment is defective, he or she must order it to be amended unless such an
amendment would cause injustice. This can involve the insertion of new counts.
(R v Osieh [1996] 1 WLR 1260)
uu Motion to quash the indictment. The defence may apply to the judge to quash the
indictment. One of the following must be proven for the motion to be successful
(R v Thompson (1975) 1 WLR 1425).
uu The wording of the indictment or count reveals a fundamental defect.
uu The count is for an offence in respect of which the magistrates did not commit
for trial and no case to answer for that offence is revealed.
uu The bill of indictment was preferred without authority.
uu Staying the indictment. Here the court can postpone proceedings in relation to a
particular indictment.
13.1.5 Appeals based on defective indictments

If there is an error in an indictment that is not corrected during trial, this can provide
the accused with a good ground of appeal. However, it seems that the defect must be
grave if an appeal is to be successful, for example where there has been a significant
defect in the drafting of a count, a fundamental procedural error, or counts have been
unlawfully joined in one indictment.
13.1.6 Conspiracy
Given the complexity of the law relating to conspiracy, it is not surprising that
conspiracy cases have provided the most complex drafting problems of all. The
problems appear to be threefold. Firstly, given that an evaluation of contribution
to the offence is required, the particulars need to be more detailed than is usual.
Secondly, the relationship between statutory conspiracy and common law conspiracy
can prove difficult for the construction of the count (see s.12 of the Criminal Justice
Act 1987). Finally, the prosecution will sometimes include both a count for conspiracy
and a count for committing the actual offence. This has been criticised as a general
practice and the joinder will have to be justified (see R v Jones (1974) 59 Cr App R 120).
1. What is an indictment?
2. What is a count?
3. What is meant by the ‘rule against duplicity’?
4. How does the joinder of counts in an indictment operate?
5. How does the joinder of defendants in an indictment operate?

6. What applications are possible once the indictment has been presented?
7. Can the defendant appeal against a defective indictment?
8. Why are conspiracy trials particularly tricky?
Summary
Presentation of the indictment is a crucial part of the trial at Crown Court. It is the
formal document containing the list of charges against the offender. The indictment
will contain a list of count(s) which identifies the statement of offence and the
particulars of that offence. If a count is badly drafted and contains more than one
offence, it will be deemed ‘bad for duplicity’. Counts can be joined so that two or more
individuals are subject to the same count. The trial of more than one defendant can
be joined if there is some nexus between offences. Once the indictment has been
presented, a series of applications may be brought into play to sever, amend, quash
or stay the indictment. A defendant can appeal against a defective indictment, but it
must be a fundamental defect. Conspiracy trials are particularly tricky, although both
case law and statute have attempted to limit the problems.
13.2 Pre-trial proceedings
Essential reading
¢¢ Sprack, Chapter 16: ‘Pre-trial proceedings’.
In recent years there has been a growing trend of ‘front-loading’ cases so that they
can be handled more effectively and more efficiently. This usually means that the trial
judge, preferably, will begin managing the trial before it begins. This will involve the
supply of information from both the prosecution and defence and it is then hoped
that the judge will be able to deal with the most crucial issues in a way that does not
unduly delay the trial.
The most important aspect of this pre-trial proceeding is likely to be the accused’s
plea, as the nature of the plea will determine the course of the trial. If the accused
pleads guilty after a court, judge and witnesses have been prepared, clearly this
is a waste of finite resources. Therefore, the key aim of pre-trial management is to
ensure the plea is taken at an early stage and this takes place at the plea and case
management hearing. Other points of information will need to be settled in advance
of the trial, especially as to the admissibility of evidence, so that extensive arguing is
unnecessary once the jury have been empanelled.
Given the variety of issues that can be raised at trial, we shall divide them into plea and
case management hearings, pre-trial rulings and preparatory hearings.
13.2.1 Plea and case management hearings

Prior to the trial on indictment taking place, both sides need to prepare and the court
needs to ensure that this preparation is taking place. This process is called the plea
and case management hearing. It should be held within about seven weeks after
committal to trial and within 14 weeks after sending for trial if the defendant is in
custody. If the defendant is on bail, this can be within 17 weeks. The process can be
presided over by a judge other than the one who will preside at trial.
The process begins with the magistrates committing the defendant to appear in the
Crown Court on a specific date so that the plea and case management hearing can take
place. The court will then ensure that it is provided with sufficient information to fix
the trial date. The defendant must be present unless they have been given leave to be
absent. If a guilty plea is intended, all parties must be notified as soon as possible.
At the plea and case management hearing, a list of potential witnesses should be
provided, along with a summary of the issues in respect of which the court’s direction
is required. The longer, more serious and more complex the case the more detail is
required. At the plea and case management hearing arraignment will normally take
place. This is where the clerk of the court reads the indictment to the accused and
asks him whether he pleads guilty or not guilty to the counts contained within the
indictment. If the plea is guilty, the court should proceed to sentence as a matter of
urgency. If the plea is not guilty, the case management process continues and counsel
will fill in a detailed questionnaire and hand it to the judge, who then decides on a trial
date. (See R v Ward (2003) 2 Cr App R 20.)
13.2.2 Pre-trial rulings

The plea and case management hearing process is now compulsory in all indictable
cases save those involving complex fraud. The aim is to clarify all important issues
before trial begins. Previously, there was always the problem that whatever was
decided at these hearings was then overturned at trial. Given this uncertainty,
advocates often proved to be reluctant to give up their valuable time to attend the
plea and case management hearing as they knew that nothing was binding. They
would often send a junior to ‘hold the brief’ until they were able to attend trial.
These problems began to undermine the effectiveness of the plea and case
management hearing and ss.39–43 of the Criminal Procedure and Investigations Act
1996 was introduced to remedy these problems. These provisions apply to all pre-
trial rulings. Pre-trial rulings can be made on any question as to the admissibility of
evidence and once such a ruling is made it has binding effect until the judge decides
otherwise.
This alteration has meant that pre-trial rulings are not irreversible but equally they are
not subject to automatic reversal, thus making the process more effective in ensuring
that pre-trial activity is worthwhile for all concerned. Reporting on these rulings is
heavily restricted. Such reporting is likely to be restricted until the trial is complete.
13.2.3 Preparatory hearings

If a case is thought to be long, complex or serious, it is possible for preparatory
hearings to take place. A Crown Court judge will decide, before a jury is sworn,
whether such a hearing is necessary. The hearing is a stage of the trial itself and it is
used to settle various issues prior to the jury being in attendance. This differs from
the plea and case management hearing and pre-trial rulings because the judge who
presides over the preparatory hearing must preside over the trial once the jury are in
place.
At the preparatory hearing the judge can order the prosecution to give a case
statement. This can be followed by an order that the defence supply a statement
which sets out the defence in general terms. It is a form of disclosure, but it is more
extensive than that usually expected under the general rules governing disclosure. The
judge can also make rulings as to any question of law relating to the case, including
the admissibility of evidence. This power has been circumscribed by authority,
however, and s.29(2) of the Criminal Procedure and Investigations Act 1996 sets out
that the purpose of these hearings is to:
uu identify key issues for the jury
uu assist the jury in understanding the issues
uu expedite the proceedings
uu help the judge to manage the trial
uu consider questions as to severance or joinder of charges.
An order or ruling is binding throughout the trial, although the judge can vary it. These
rulings can be subject to appeal to the Court of Appeal (Criminal Division) and the
House of Lords, subject to the usual leave requirements.
13.2.4 Special measures for certain witnesses

Sections 23–30 of the Youth Justice and Criminal Evidence Act 1999 contain provision
for special measures to be directed by the court in respect of certain witnesses. These
measures, if appropriate, are likely to be decided upon at the pre-trial stage.
Activity 13.4
Read ss.23–30 of the Youth Justice and Criminal Evidence Act 1999 and decide which
special measure would be required for the following witnesses.
a. A 15-year-old deaf girl, who is unable to communicate to the court.
b. A 6-year-old boy who has demonstrated such a fear of official judicial dress that
he refuses to speak.
c. A 28-year-old rape victim who is terrified of seeing the accused.
The key here is that these special measures should be used if they are likely to improve
the quality of the witnesses’ evidence. Two types of witness are specifically referred
to in the legislation. These include the witness who is young or suffering from some
incapacity (s.16) and the witness who is likely to suffer fear or distress whilst giving
evidence (s.17).
The accused is specifically excluded from being eligible for special measures.
Activity 13.5
Read the case of R (S) v Waltham Forest Youth Court [2004] 2 Cr App R 335 and
consider why the exclusion of the accused from these special measures does
not contravene Article 6 of the European Convention on Human Rights. In what
way might the case of H (Special Measures) (2003) The Times, 15 April mitigate the
harshness of this rule?
13.2.5 Video recording and live link

Once it is in force, s.137 of the Criminal Justice Act 2003 will enable the court to allow
a video recording of an interview with a witness, other than the defendant, to be
admitted as evidence in chief. Section 51 allows the court to authorise the giving of
evidence through a live link (usually through closed circuit television). This is not an
option for the defendant. Both options are subject to specific conditions and can apply
to any witnesses rather than those specific to special measures directions.
1. What is a plea and case management hearing?
2. What is a pre-trial ruling?
3. What is a preparatory hearing?
4. How do special measures for certain witnesses work?
5. What role does evidence by video recording or live link play?
Summary
In recent years far more pre-trial activity has taken place on indictable trials to ensure
a free flow of information and the resolution of various issues prior to the trial. The
aim of these measures is to ensure a more effective and efficient use of court time.
Vulnerable witnesses, except for the defendant, can be subject to special measures
directions to enable them to give evidence in a more comfortable and supportive
environment. Recent reforms have also, where permitted, allowed evidence to be
video recorded or introduced via live link.
13.3 Pleas
Essential reading
¢¢ Sprack, Chapter 17: ‘Pleas’.
At the beginning of the trial on indictment there is an arraignment. The clerk of the
court reads the indictment to the accused and asks them to plead guilty or not guilty
to the counts contained within the indictment. If there is more than one count, a
plea to each count must be entered. This process should take place not less than two
and not more than eight weeks from the date of committal for trial. This timetable
is, however, the ideal rather than the actual practice and often counsel will ask trial
judges to extend the time limits so that arraignments often take place after the eight
weeks documented.
The date of the arraignment, which is the beginning of the trial, can be affected by
regulations, under s.22 Prosecution of Offences Act 1986, which lay down that the
preliminary stages of criminal proceedings should be completed within certain time
limits. The Act envisages two types of time limit implemented by these regulations.
1. Overall time limits within which a particular stage must be completed. This could
be, for example, from committal to arraignment.
2. Custody time limits which lay down the maximum period during which the
accused may be kept in custody pending completion of a particular stage of
proceedings.
Upon arraignment the defendant is brought into the dock. The jury will be seated if a
not guilty plea is anticipated. If a guilty plea is anticipated, no jury will be necessary. If
a defendant is pleading guilty to one count but not another, the jury should be absent.
The arraignment then takes place and the plea is entered.
13.3.1 ‘Not guilty’

If the accused enters a plea of not guilty, the prosecution case will be in issue. They
will then be required to prove beyond reasonable doubt each element of the offence
in question. Both the actus reus and the mens rea of the offence will have to be proven
to the requisite standard. If the prosecution is unable to adduce sufficient evidence
upon which a reasonable jury would be able to find the accused guilty, the judge must
direct an acquittal. If this happens, the defence never has to present its case. If the
prosecution has established a case to answer, the prosecution has to convince the jury
on all the evidence that the accused is guilty.
If a not guilty plea has been entered, the prosecution will also have to negative any
defences raised by the accused. They can only do this once the accused has raised
the defence, which is usually through cross-examination. Once the not guilty plea has
been entered, a jury will have to be empanelled. This plea of not guilty must be made
by the defendant personally and not by their counsel.
13.3.2 ‘Guilty’
As with the plea of not guilty, a plea of guilty must be entered by the accused
personally. If there is a plea of guilty, no jury is required. If two accused are charged
within the one indictment and one pleads guilty whereas the other pleads not guilty,
the usual practice will be to adjourn the case of the one who had pleaded guilty. The
accused who pleads guilty is then remanded on bail or in custody pending sentence.
The accused who pleads not guilty is then tried before the jury. Often the judge will
delay sentencing of the accused who pleads guilty until the trial of the ‘not guilty’
party has concluded.
Sometimes a plea will be ambiguous if the accused responds to the indictment by

saying they were guilty to part of the offence but not to the other part. For example, in
a trial for handling, an accused may say that he or she received the goods but did not
know they were stolen. In this instance the judge should try to elucidate the plea by
explaining the elements of the offence to the accused. If the plea remains ambiguous, a
not guilty plea must be entered. If sentencing takes place upon an ambiguous plea, this
will provide grounds for appeal.
The accused’s plea must be voluntary. If it has been extracted by pressure on the part
of counsel or the judge, the plea will be a nullity.
13.3.3 ‘Guilty’ to a lesser offence

This is half-way between a plea of guilty and not guilty. Under s.6(1)(b) of the Criminal
Law Act 1967 the accused may enter a lesser plea to a more serious offence. So, for a
murder charge the accused can enter a plea of not guilty but guilty of manslaughter.
The prosecution do not have to accept this lesser plea and can push for the trial
to commence. They must not accept a guilty plea just because it may be more
convenient than a trial.
Activity 13.6
Read the case of R v Hazeltine [1967] 2 QB 857. Why might a prosecutor think twice
before rejecting a lesser plea in light of this case?
13.3.4 Change of plea

An accused can change his or her plea from not guilty to guilty at any stage of the
proceedings. If this decision is taken, the clerk will once again put the indictment to
the accused and they will change their plea. A change of plea from guilty to not guilty
is also possible but will be subject to the judge granting consent. The judge enjoys
judicial discretion in this respect – he need not grant the accused their wish to change
plea.
13.3.5 Plea bargaining

This has been described by Lord Parker in the case of R v Turner [1970] 1 QB 321 as the
‘vexed question’ and as a phrase ‘plea bargaining’ can be quite vague and imprecise. It
can have four distinct meanings.
1. It can be an agreement between the judge and the accused that if the accused
pleads guilty to some or all of the offences charged against them they will receive a
reduced sentence.
2. It can mean an undertaking by the prosecution that if the accused will admit to
certain charges then other more serious charges will not be pursued or the judge
will be asked to award a lenient sentence. Such practice is not possible under the
English legal system because the indictment is drawn up independently of the
defence and at sentencing there is no opportunity for the prosecution to make
recommendations.
3. It can mean that the prosecution agrees with the defence that when the accused
decides to plead guilty to a lesser offence they will accept this plea.
4. It may be where the prosecution agree not to proceed on one or more counts of
the indictment if they will plead guilty to the remainder of the counts.
Plea bargaining in the third or fourth sense described above is good practice: it is not
in the public interest to spend time and money proving that the accused is guilty
when he or she is prepared to plead guilty to a certain range of offences.
Activity 13.7
Read Worrall, J. ‘Plea bargaining and guilty pleas’ in Criminal procedure: from first
contact to appeal (2007), available on the VLE. Consider the differences between
plea bargaining in the English criminal justice system and in the US criminal justice
system. Which system do you prefer and why?
No feedback is provided.
Sometimes the defendant is willing to plead guilty to a different set of facts. This is
usually to allow for a lesser plea. The defendant may also wish to receive a judicial
indication of sentence. The guidance on how this should operate is found in R v
Goodyear [2005] 3 All ER 117 and the Court of Appeal has made it clear that the judge
can give an indication of sentence if a defendant pleads guilty, but should not indicate
levels of sentence depending on plea. Such an indication should be administered in
open court at the plea and case management hearing.
13.3.6 Will not or cannot plead

Up until now we have assumed that the accused is able to say something rational in
answer to the charges. There are two situations where the court has to intervene:
when the accused is ‘mute of malice’ and when the accused is unfit to plead.
Under s.6(1)(c) of the Criminal Law Act 1967 an accused who remains silent may be said
to be ‘mute of malice’: a plea of not guilty will be entered and the case will proceed
as if they had pleaded not guilty. The jury will decide whether this is a case of ‘mute
of malice’. If they decide that it is, the trial will commence. If not, the accused might
be said to be ‘mute by visitation of god’. This may be due to the accused being deaf
or suffering from a speech handicap and the case can be adjourned to resolve this
problem. If this is not the case and the muteness continues, the Attorney-General may
eventually enter a nolle prosequi † which will halt the trial. If it appears that the cause of †
Latin: unwilling to pursue
the muteness is a mental problem, the accused may be considered unfit to plead.
If the accused cannot understand the course of the proceedings so as to be unable to

raise a proper defence to the indictment, he or she is deemed to be unfit to plead. One
test is whether the accused has understood the arraignment. If the accused is thought
to be unfit to plead, this must be brought to the attention of the judge by either the
prosecution or the defence. Under s.4A of the Criminal Procedure (Insanity) Act 1964
the judge can determine that the accused is unfit to plead and then the jury must
decide if the accused did the act or omission for which they are charged. If they are
not satisfied that the accused did it, they must acquit.
If an accused has been found unfit to plead by the judge and the jury do think that he
did the act or omission for which he is charged, s.5 of the Criminal Procedure (Insanity)
Act 1964 as amended in 1991 provides for a range of options to be at the court’s
disposal. It can order admission to hospital, a guardianship order under the Mental
Health Act 1983, a supervision and treatment order, or an order for absolute discharge.
13.3.7 Double jeopardy

The rule against double jeopardy is the constitutional ideal that no person should
be tried for the same crime twice. This is the case when the accused has already
been acquitted or convicted of the offence. If the accused contends that they have
already been acquitted or convicted of an offence which is alleged in a count in
the indictment, they can plead ‘autrefois acquit’ or ‘autrefois convict’. Historically
an accused could also rely on issue estoppel, which was developed to deal with
a particular fact on which the court had previously adjudicated. Despite the
constitutional importance of this rule against double jeopardy, two statutory
exceptions have recently been created. The first is where the acquittal has been
deemed ‘tainted’ and the second is where a retrial of serious offences is possible if new
evidence emerges.
If the accused successfully enters a plea of autrefois acquit or autrefois convict, this will
be a bar to further proceedings. There is no distinction made between autrefois acquit
†
A defendant can only
and autrefois convict† at summary trial or trial or indictment. What is clear is that it is
successfully plead ‘autrefois
not enough that a guilty plea was entered or guilt was found but that the court should
convict’ where they have been
have punished the accused. The rule is there to avoid double punishment after all.
sentenced rather than simply
Prior to the case of DPP v Humphreys [1977] AC 1 it was always thought that even if found guilty (for example,
autrefois acquit did not apply, the prosecution could be prevented from re-opening a where the defendant is found
particular issue of fact which had been decided in favour of the accused at an earlier guilty but absconds before
sentence is passed).
trial which ended in acquittal. The problem was that most trials involve more than one
issue, but in DPP v Humphreys [1977] AC 1 it was finally possible to explore the principle
of issue estoppel. At the end of the case it became clear that neither the prosecution
nor the defence could rely on issue estoppel. There is one exception and this is in an
application for habeas corpus (see R v Governor of Brixton Prison, ex parte Osman [1991]
1 WLR 281).
The first of the major inroads into this rule against double jeopardy came with ss.54–57
of the Criminal Procedure and Investigations Act 1996, which enable the prosecution
to prosecute a case a second time:
uu for a crime for which the accused has already been tried and acquitted, and
uu where the accused has later been convicted of an administration of justice offence
involving intimidation, where it is apparent that the accused would not have been
acquitted of the original offence if the intimidation had not taken place.
This provision has rarely been used.
The second, more important, inroad into this ideal is contained within ss.75–97 of the
Criminal Justice Act 2003, which allows the prosecutor to apply to the Court of Appeal
(Criminal Division) for an order to quash the person’s acquittal for a qualifying offence.
This application requires the personal written consent of the Director of Public
Prosecutions. To proceed and order a retrial the Court of Appeal (Criminal Division)
must be sure that there is new and compelling evidence and that it is in the interests
of justice for an order to be made.
Activity 13.8
Read Schedule 5 to the Criminal Justice Act 2003 and consider the range of
‘qualifying offences’. Are you surprised by the omission of any offences?
13.3.8 Other pleas

There are three further possible pleas which, although rarely used, are still of interest.
uu Plea of pardon. This is granted by the Crown, upon the advice of the Home
Secretary, in the exercise of the Crown’s prerogative of mercy. The effect is that
the recipient is freed from the consequences that would normally result from the
crime that they are alleged to have committed.
uu Plea to the jurisdiction. This is where, in writing, the accused suggests that the
court has no jurisdiction to try the offence.
uu Demurrer. An objection, in writing, to the wording of the indictment. It has the

same effect as the motion to quash, but has not recently been used.

¢¢ Cooper, D. ‘Pigot unfulfilled: video-recorded cross-examination under section 28
of the Youth Justice and the Criminal Evidence Act 1999’ [2005] Crim L Rev 456.
¢¢ Darbyshire, P. ‘The mischief of plea bargaining and sentencing rewards’ [2000]

Crim L Rev 895.
¢¢ Doak, J. ‘Child witnesses: do special measures directions prejudice the accused’s

right to a fair hearing?’ (2005) 9 E & P 291.
¢¢ Henham, R. ‘Further evidence on the significance of plea in the Crown Court’

(2002) 41 Howard JCJ 151.
¢¢ Hoyano, L. C. H. ‘Variations on a theme by Pigot: special measures directions for

child witnesses’ [2000] Crim L Rev 250.
¢¢ Jackson, D. J. ‘The case for jury waiver’ [1997] Crim L Rev 155.
1. What time limits apply to the commencement of trial?
2. What is a ‘not guilty’ plea and what are its consequences?
3. What is a ‘guilty’ plea and what are its consequences?
4. What is a plea of guilty to a lesser offence and how does it operate?
5. Is it possible for the accused to change his or her plea?
6. What is plea bargaining?
7. What happens to the accused who will not or cannot plead?
8. What is the rule against double jeopardy and what are its exceptions?
9. What other possible pleas remain?
Summary
The plea is a pivotal part of the criminal trial because from that decision the rest of the
trial and its outcome flow. A plea of not guilty will result in the case being heard before
a jury whereas a plea of guilty will see the accused go straight to the sentencing stage.
The plea must be clear and the accused can change their plea from not guilty to guilty,
but a change from guilty to not guilty needs the judge’s consent. Plea bargaining has a
number of definitions, some of which do apply to the English criminal justice process.
Practices in other jurisdictions differ. Sometimes the accused will not wish to or will
be unable to plead. The rule against double jeopardy exists to protect the accused
from frivolous prosecution. It would seem that the rule is under threat from statutory
developments. There are other possible pleas but these are rarely used.
13.4 Triers of fact
Essential reading
¢¢ Sprack, Chapter 18: ‘The jury’ and Chapter 19: ‘Judge-only trials’.
Once a plea of not guilty has been entered by the accused and unless the prosecution
wishes to offer no evidence, the trial must take place. Trial on indictment must, subject
to some notable exceptions, be by judge and jury – which means that the judge takes
responsibility for all questions of law and the jury, once sworn in (or empanelled),
must decide on questions of fact. You will have considered the role and function of the
jury in your study of Common law reasoning and institutions and in this course we
are particularly interested in how they fit into the criminal process as a whole. The law
governing this process is the Juries Act 1974.
13.4.1 Eligibility
Jurors are chosen from a broad cross-section of society. They are randomly chosen
from the electoral roll and under s.13 of the Juries Act 1974 everyone who has the
right to vote is eligible to sit on a jury as long as they are aged between 18 and 70. If it
becomes apparent that a person who is attending for jury service has a limited grasp
of the English language, the Crown Court officer can ask the judge to rule on their
fitness to be a juror. Whilst most adults are eligible for jury service there are some
notable exceptions.
Activity 13.9
Read Schedule 1 to the Juries Act 1974 as amended and s.321 of the Criminal Justice
Act 2003 and decide whether the following people would be eligible for jury
service.
a. Cliff is 74 years old and now lives on license having been released after serving
20 years of a life sentence for murder.
b. Mariella is a high court judge.
c. Brian is 38 years old and has a previous conviction for assault. He was released
from prison 18 years ago.
d. Violet suffers from schizophrenia and regularly attends an out-patient clinic at

the local mental hospital in an attempt to maintain her mental stability.
13.4.2 Summoning the jurors

Under s.2 of the Juries Act 1974 the Lord Chancellor is responsible for the summoning
of jurors to attend for jury service in the Crown Court. Officers of the Crown Court
perform this function. These officers will send a summons by post and it will specify
the dates that the juror is expected to attend court. The location is likely to be within
reasonable travelling distance of the juror’s home. The average period for attendance
is two weeks, but can be longer. Jurors can claim expenses for travel, subsistence
and loss of earnings† but these often do not provide full compensation. As the juror †
Information about
is selected from the electoral roll it is up to the juror to inform the court if they fall allowances is available on
into one of the categories of disqualification. This reliance on the electoral roll is not http://www.hmcourts-service.
without its problems as the roll is incomplete. gov.uk/infoabout/jury_
service/allowances.htm
Under s.5(2) of the Juries Act 1974, both the prosecution and defence are able to
inspect the panel of jurors who have been selected for their case. This should be done
in advance of the trial. The usual practice is to summon far more jurors than is actually
required. This avoids delay if one or more of the jurors is deemed to be unsuitable. If
an eligible individual is summoned to be a juror they must attend. It is not an optional
exercise! If they fail to attend, they can be fined up to £1,000. It is treated as a criminal
contempt to not attend and the trial judge will deal with the case at that stage. If the
service clashes with existing holiday plans or business commitments, then under
ss.8–9 of the Juries Act 1974 a deferral can be requested. There is no automatic granting
of this deferral.
13.4.3 Empanelling the jury

Once the panel of 20 jurors has been summoned, they wait to see if they are selected.
The clerk of the Crown Court calls the names of 12 of them and asks them to step into
the jury box. The clerk will then read the names of the jurors to the accused, who has
the right to challenge those jurors. Every juror is then required to take the juror’s oath.
This is a religious oath and jurors have to hold the apposite holy book when they read
the oath. Non-religious jurors may choose to affirm. Before the oath is sworn, a juror
may be asked to stand aside by the prosecution or they may be challenged for cause
(see below). If this objection succeeds, the juror leaves the box and is replaced by
another. The indictment is then read to the jury and they are reminded that it is their
job to resolve the questions of fact, i.e. whether the defendant is guilty.
13.4.4 Challenges to jurors

It used to be the case that the defence could prevent a certain number of jurors sitting
on the jury without giving any reason. This was called a peremptory challenge. This
practice was gradually whittled away and was finally abolished under s.118(1) of the
Criminal Justice Act 1988.
The prosecution, by contrast, never had the right to peremptory challenge. They did
and still do, however, have the right to ask a juror to stand by (that it, to stand aside)
for the Crown. There is no requirement that the prosecution explain or defend their
reasons for doing so. The defence has no right to stand jurors by.
The defence and prosecution both have the right to challenge as many individual
jurors as they choose for cause. ‘Cause’ is usually on the basis that the juror is ineligible
for, or disqualified from, jury service or on the basis that the juror is suspected of
being biased. The party who challenges for cause has the burden of proving that the
objection is well founded.
The judge also retains a residual power to stand a juror by. The most common
example of this is where upon swearing the oath the juror appears to struggle with
basic literacy. This is particularly important if the trial is going to involve extensive
documentary evidence. It has also been suggested that a judge can alter the balance
of the jury. This has been subject to some criticism (see R v Binns [1982] Crim LR 522 and
R v McCalla [1986] Crim LR 335).
It is a common misconception that the vetting of jurors is illegal. It is in fact

encouraged by s.5(2) of the Juries Act 1974. It would seem, though, that this vetting
is now limited to a police check for criminal records. There is nothing to prevent an
investigation into the backgrounds and views of jurors, but such resources are unlikely
to be available.
Jurors have been known to be ‘nobbled’, meaning that they are intimidated or bribed.
If the judge suspects nobbling, he may make a jury protection order which will involve
extensive 24-hour police protection. These orders, given the intensity of the resources
required, are rarely given.
13.4.5 The composition of the jury and the ground of appeal

Trial by jury is retained because people believe in it as a method of judgment by one’s
peers. This means that the jury verdict is treated as sacrosanct and the composition of
that jury is unlikely to be a ground for appeal. The Court of Appeal (Criminal Division)
has always been reluctant to consider what happened in the jury room. In addition,
if it transpires that the defendant knew one of the jurors this will not invalidate the
conviction unless the defendant can show that the juror had made up their mind as to
guilt before they entered the jury box.
Activity 13.10
Read R v Chapman and Lauday (1976) 63 Cr App R 75 and explain why the appellants
failed in their challenge to the composition of the jury. Does this failure surprise
you?
13.4.6 Discharge of jurors or a jury

Once a jury has been empanelled it is anticipated that they will hear the entire case
and then return a verdict. The judge retains discretion to separate jury members from
each other at any time prior to them retiring to consider their verdict. The judge may
also discharge an individual juror who dies, or who is incapable of continuing to act.
Incapacity may be established if it appears that the juror is guilty of misconduct (see R
v Sawyer (1980) 71 Cr App R 283 and R v Blackwell [1995] 2 Cr App R 625).
The judge also retains discretion to discharge the entire jury. If this happens, the
defendant is not acquitted but will be subject to a retrial in front of a new jury.
Activity 13.11
Read Sprack 18.59 and decide whether the judge would discharge the jury in the
following situations. You should give your reasons.
a. The jury are considering their verdict and after five days of deliberation they are
still on a 6/6 split.
b. The jury are listening to a rape trial and they are informed by a prosecution
witness that the accused has a previous conviction for sexual assault.
c. The jury have been warned by the judge not to discuss the case with their
family. It becomes apparent that a number of jurors have discussed it with their
families who have then sold the story of the jury’s deliberations to the local
newspaper.
13.4.7 Judge-only trials
Essential reading
¢¢ Sprack, Chapter 19: ‘Judge-only trials’
The majority of trials by indictment, where the accused has pleaded not guilty, will
be tried before a judge and jury. The use of the jury, while having particular symbolic
importance, is thought by some to be a rather inefficient and not always very accurate
way of dispensing justice. In response to these criticisms, recent statutory reforms
have taken place which will, when in force, lead to trial on indictment without a jury.
The relevant provisions are ss.43–50 of the Criminal Justice Act 2003 and deal with
two particular scenarios: where there is a trial involving serious or complex fraud, and
where there are allegations of jury tampering. Under s.17 of the Domestic Violence,
Crime and Victims Act 2004 there is also the possibility of locating sample counts and
having some of them tried by the judge alone.
Serious or complex fraud trials

Section 43 of the Criminal Justice Act 2003, when in force, will allow the prosecution
to apply for a trial at Crown Court to take place without a jury where the case is one of
serious or complex fraud. The preparatory hearing will decide whether the application
by the prosecution is successful. The judge will have to be satisfied that in the interests
of justice the trial will either be too complex or too serious for a trial to take place with
a jury present. The order for the trial not to involve a jury must be authorised by the
Lord Chief Justice.
Jury tampering
Section 44 of the Criminal Justice Act 2003, when in force, will allow the prosecution
to apply for the trial to be conducted without a jury where there is a perceived
danger of jury tampering. Jury tampering will include actual or threatened harm
to jury members or to their families, friends or property. For the application to be
granted there must be real evidence that jury tampering will take place and that in
the interests of justice it would be best to not have a jury. If the trial is underway, the
judge’s common law powers to discharge the jury will apply. There is, under s.47 of the
Criminal Justice Act 2003, a right of appeal.
Sample counts
Under s.17 of the Domestic Violence, Crime and Victims Act 2004, when fully in force,
there is one further measure which permits trial on indictment without a jury. This is
where there are a number of counts on the indictment and it would be impractical to
try them all by jury. This means the jury will try sample counts and the rest will be left
to the judge sitting alone. Once again, it must be in the interests of justice for this to
take place.
1. Who is and who is not eligible to sit on a jury?
2. How are jurors summonsed and empanelled?
3. How are jurors challenged and discharged?
4. In what instances will trials on indictment be able to take place with a judge
sitting without a jury?
Summary
The jury is often seen as the bulwark of liberty that protects the accused against the
power of the state. Trials on indictment will, for the most part, require a jury. Not
everyone is eligible to sit as a juror and there is a particular process for summonsing
and empanelling a juror. The prosecution is able to challenge the use of a juror
without cause whereas both defence and prosecution can challenge the use of juror
with cause. Juries can be discharged as a whole during the trial and individual jurors
can be discharged in certain circumstances. In recent years legislation has been passed
to limit trial on indictment to trial by judge alone. This limit must usually be in the
interests of justice.
13.5 The course of the trial
Essential reading
¢¢ Sprack, Chapter 20: ‘The course of the trial’.
The system of criminal justice in England is often termed ‘adversarial’, which means
that it involves a battle of adversaries. Nowhere is this image more vividly displayed
than in the Crown Court during a trial on indictment before judge and jury. Prosecuting
counsel bears the burden of proving that the accused is guilty. The defence responds
to the prosecution case and leads with evidence which exculpates the accused. The
proceedings are overseen by a judge who is impartial and acts almost like a referee,
although he does have some discretionary powers to adopt a more active role when
it comes to the questioning of witnesses (see Sprack 20.86). Finally, the majority of
proceedings, except where this involves questions of law, will be witnessed by the jury,
the panel of peers, who must then decide whether the prosecution has proven its case
and the accused is guilty.
The prosecution and the defence are not the only parties who will be interested in
the trial and the principle of open justice is the hallmark of a democratic society.
The public should be able to see justice being done and so will be able to witness, if
not participate in, that process. In some instances limits have to be placed upon this
principle, for example where it is deemed to be in the public interest (see Sprack
20.89–20.93 for details).
This overview of the system does not take account of the quite intricate process
involved and below we consider this process in more detail.
13.5.1 Counsel and the judge

The judge is there to oversee proceedings and in the trial on indictment he must be a
professional judge. This judge should, according to the Court of Appeal in R v Whybrow
(1994) The Times, 14 February, ‘intervene to curb prolixity and repetition and to exclude
irrelevance, discursiveness and oppression of witnesses’. Then there is counsel for
both the prosecution and the defence.
Counsel for the prosecution bear the burden of proving the accused’s guilt but are
not in court to win at any cost. In fact Avory J said in R v Banks [1916] 2 KB 621 that
the prosecution ‘ought not to struggle for the verdict against the prisoner, but they
ought to bear themselves rather in the character of ministers of justice assisting in the
administration of justice’. Counsel for the defence are not under the same burden, as
they are simply required to test the prosecution evidence by cross-examination and to
raise sufficient doubt as to the prosecution case to effect an acquittal of the accused.
Defence counsel is expected to be robust in their defence and to ‘present to the court,
fearlessly and without regard to his personal interests’ (per Melford Stevenson J in R v
McFadden and Cunningham (1976) 62 Cr App R 187). There will be some instances where
counsel will be permitted to see the judge in his or her private room with a view to
discussing matters which are relevant to the case in the absence of the jury and the
public. This will usually be where there are particularly sensitive issues that need to be
identified and explored.
Once the indictment has been signed and the case has begun, there is little the
defence can do to prevent the prosecution from continuing. They can move for the
indictment to be quashed or raise a special plea of autrefois convict, acquit or pardon,
or plead that the court does not have jurisdiction to try the case. These options are
rarely used. There is one further option available, however. The Crown Court has an
inherent power to protect its process from abuse. If the defence believe that the
prosecution have been grossly unfair, they can ask the judge to intervene to stay
the proceedings. This term ‘grossly unfair’ would usually apply to a case where the
prosecution had engaged in unnecessary delays in the bringing of proceedings.
Activity 13.12
Read Bell v DPP [1985] AC 397 and consider the guidelines laid down by the Privy
Council to determine what level of delay would deprive the accused of a fair trial.
It is not just delay that can amount to an abuse of process.
Activity 13.13
Read R v Dobson [2001] All ER (D) 109 and consider what could be considered in this
case to determine whether there had been an abuse of process.
This order of staying proceedings for abuse of process would then require leave of the
court or the Court of Appeal (Criminal Division) to allow the proceedings to continue.
13.5.2 Prosecution opening and presentation of the case

After the accused has been put in the charge of the jury, the prosecution begins.
Prosecution counsel provide an overview of the case and remind the jury of the
charges against the accused. They explain any relevant points of law which may not
be familiar to the jury, although they will always couch this in the form of a guide; the
jury take the law from the judge, after all. They will explain that the burden of proof
lies with them and if this is not discharged then they must acquit the accused. The
prosecution then explain briefly the evidence that they will be exploring but they
often underplay the case initially and are discouraged from using particularly emotive
language.
The prosecution will then call witnesses for the examination in chief. This is where the
witnesses give oral evidence. These witnesses have already made written statements
which were sent to the Crown Court under s.51 of the Crime and Disorder Act 1998.
They now attend the court to provide an oral summary of their evidence for the jury
and for that evidence to be potentially challenged under cross-examination.
Clearly the prosecution need to secure the attendance of these witnesses at court.
If the witness is not present when called, the judge has the discretion to adjourn
until their attendance can be secured, or to continue in spite of their absence. If the
prosecution, or the defence, need to secure the attendance of a witness who appears
not to be co-operating, they can apply to the Crown Court for a witness summons
under s.2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, which requires
the witness to attend court. If they fail to attend, a notice can be served to state when
they must attend. If they still fail to attend, a warrant for their arrest may be issued.
Failure to obey is a contempt of court and can lead to three months’ imprisonment.
Sometimes the prosecution only become aware of the existence of a material witness
after committal proceedings have taken place. At this stage additional evidence can be
adduced but will be subject to notice being issued to the defence as the prosecution
must not spring any surprise witnesses on them.
Once the witness is in the witness box, they must give their evidence orally (known as
the principle of orality). They can then be seen by the jury, who assess the evidence
provided and how trustworthy they believe the witness to be. There are four
exceptions to this principle of orality where a deposition or written statement can be
read to the jury as evidence.
Activity 13.14
Read Sprack 20.34. Outline what the four exceptions are.
Having examined the committal statements, the defence may decide that they are
going to object to the use of this evidence, for example because they believe that it
was improperly obtained. The decision as to admissibility of the evidence is one for
the judge and this must be dealt with in the absence of the jury. These questions are
dealt with in ‘voir dire’† or in a trial within the trial. The jury are asked to leave and the †
Voir dire is Old French
judge will rule. This procedure is there to benefit the defence and to prevent the use of for ‘to tell the truth’ and
potentially inadmissible evidence. means a ‘trial within a trial’.
Where arguments about the
Once the prosecution have led their examination in chief of a witness, the defence
admissibility of evidence arise
can cross-examine that witness on the evidence they have given. Defence counsel can within the trial itself; then a
ask a witness any question about their evidence as long as it does not involve the use mini trial, without the jury,
of non-expert opinion or the introduction of hearsay evidence. Questions concerning takes place to determine the
facts and the credibility of the witness are the norm. The defence has something of admissibility of that evidence.
a free rein here to ask what they want, but the Bar’s Code of Conduct does suggest
that counsel does not ask questions which ‘are merely scandalous, or intended or
calculated only to vilify, insult or annoy the witness’.
The reading of a witness’s deposition or written statement is a useful way of proving

facts. Another way of proving an undisputed fact is for the party against whom
evidence of the fact would otherwise be led, to admit formally that it is true. This is
called a formal admission and it is treated as conclusive evidence of the fact admitted
so that no further evidence need be presented. This procedure is governed by s.10 of
the Criminal Justice Act 1967.
13.5.3 Submission of no case to answer

Once the prosecution have advanced their case and all oral and, where appropriate,
written evidence has been adduced, they will state, ‘That is the case for the
prosecution’. At this stage defence counsel can, if they wish, submit that there is no
case to answer. The judge can raise this matter of his own volition if he feels it ought to
be raised. This submission can be made on one or all of the counts. If the submission is
successful, the judge will direct an acquittal by telling the jury to acquit on the count
or counts that were made in the submission. (To see some of the procedural concerns
associated with this process see the cases of R v Galbraith [1981] 1 WLR 1039; R v Brown
[1998] Crim LR 196; R v Shire [2001] EWCA Crim 2800; R v Shippey [1988] Crim LR 767; R v
Turnbull [1977] QB 224; and R v MacKenzie (1992) 96 Cr App R 98.)
13.5.4 Defence case

If the submission of no case to answer is unsuccessful, or is not made, then the
defence must present its case. They have no obligation to adduce any evidence and so
may go straight to closing speeches to suggest that the prosecution have not proven
their case. This strategy is risky, since the only evidence, however shaky, that the jury
have heard is that of the prosecution. Therefore it is not unusual for the defence to call
evidence.
The defence begin, as the prosecution did, with an opening speech. At this stage the
defence will outline their case and raise doubts about the prosecution case. If the
defence only wish to call the defendant or witnesses who will testify as to the good
character of the defendant, then under s.2 of the Criminal Evidence Act 1898 they do
not have the right to an opening speech.
The accused can give evidence (i.e. they are competent) but they must never be forced
to (i.e. they are not compellable). Other witnesses can give evidence for the accused,
and they can testify as to other factual issues which are in dispute. The defence are
able to take advantage of those statutory provisions that permit the use of witness
depositions. The accused, if they do testify, is treated in the same way as other
witnesses, although they are not allowed to incriminate themselves and evidence
of their bad character will only be permitted if the defence attack the credibility
of prosecution witnesses. This is known as the defence shield and they maintain
that shield unless they throw it away! There is one other way that the accused’s bad
character can be introduced, but this is under the similar fact rules which are beyond
the scope of this course.
The defence should have identified the general tenets of their case and any alibi
evidence under the disclosure rules. They should also have outlined any expert
evidence they intend to rely on. If there is more than one accused and they are
separately represented, the case will proceed on the basis of where their names
appear on the indictment. The trial will then continue in the same way as it did for the
prosecution case, with the defence calling witnesses for examination in chief and the
prosecution cross-examining them. There is an opportunity for re-examination to take
place once the cross-examination has occurred in an attempt to limit any damage
done. Evidence will not normally be heard out of this sequence, but there are some
exceptions to this (see Sprack 20.82–20.85).
An accused may choose not to be represented, although this is to be discouraged.

There are limits under the Youth Justice and Criminal Evidence Act 1999 here and in
certain types of cases, such as rape, the accused cannot cross-examine the alleged
victim of the offence. If there is no representation then the judge has to guide the
accused through the process.
Activity 13.15
What arguments can you think of which would, or should, deny the accused the
right to cross-examine a witness against him?
The accused must be present at the start of the trial on indictment so that he or she
may plead. If they are not, an adjournment will take place. Having entered a plea, the
accused should then be present throughout the trial. There are two exceptions to this
rule. These are:
uu where an accused cannot behave and makes a nuisance of himself, the judge has
the discretion to remove him from the courtroom
uu where the accused voluntarily absents himself.
This second exception should be used very sparingly in light of our obligations under
Article 6 of the European Convention on Human Rights (see R v Hayward [2001] 3 WLR
125).
13.5.5 Closing speeches

Once the defence has finished presenting its case, the judge will invite the prosecution
to sum up its case to the jury. In this speech it will remind the jury of the case it has
presented and will also remind the jury, where appropriate, of where the defence case
falls short. The prosecution are still expected to act as ‘ministers of justice’ rather than
advocates convicting at any cost. The last word will be with the defence, who then
present their closing speech. This follows much the same pattern as the prosecution.
Both speeches would do well to follow Watkin J’s dictum in R v Bryant [1979] QB 108
where he said, ‘the majority of speeches by prosecuting and defence counsel should
bear the becoming hallmark of brevity’.
13.5.6 Jury’s power to stop the case

As well as the judge’s power to direct an acquittal, the jury have the power, once the
prosecution has presented its case, to say that they do not wish the proceedings to
continue, resulting in acquittal. The jury do not necessarily know that they have this
power and so the judge should remind them of it. Though they have the power to stop
a case they cannot halt proceedings to convict on the basis that they feel they have
heard enough! The full case must be heard for a conviction to follow.
13.5.7 Judge’s summing up

The final stage of the trial, and one of the most significant moments, is the judge’s
summing up. Here the judge has to summarise the trial for the jury, who are then
left with the task of deciding on the accused’s guilt. The summary should involve the
judge explaining to the jury their role and the nature of the prosecution’s burden
of proving the accused’s guilt. The judge then defines the offence charged and the
elements that need to be proven. Depending on what has taken place during the trial,
it may be necessary for the judge to explain some evidential issues to the jury. If there
is more than one accused, the judge must clearly direct the jury to consider the case
against each accused separately. The judge then considers the evidence heard and
summarises it in clear and straightforward terms.
The summing up involves a number of key procedural concerns (see R v Cowan [1996]
QB 373; R v Birchall [1999] Crim LR 745; R v Argent [1997] 2 Cr App R 27; R v Condron
[1997] 1 WLR 827; R v Knight [2003] EWCA Crim 1977 and R v Turner [2003] EWCA Crim
3108). At the end of the summing up, which should have been conducted fairly (see
R v Spencer [1995] Crim LR 235; R v Reid (1999) The Times, 17 August and R v Wheeler
(2000) 164 JP 565), the judge will ask the jury to appoint a foreman who then acts as
their spokesman. They are told to retire, consider their verdict and seek to reach a
unanimous decision.
Activity 13.16
Read the cases of R v O’Donnell (1917) 12 Cr App R 219 and R v Canny (1945) 30 Cr App
R 219 and explain why the judicial consideration of the defence presented in the
summing up is a delicate operation.
1. What are the respective roles of the judge and counsel?
2. What is meant by ‘abuse of process’?
3. Why does the prosecution start proceedings?
4. Who makes a submission of no case to answer?
5. What can the defence do in response to the prosecution evidence?
6. What should the closing speeches aim to be?
7. What power does the jury have to stop a case?
8. Why is the judge’s summing up important?
Summary
The course of the trial on indictment is pivotal to the criminal process and the roles
of judge and counsel are heavily prescribed to ensure consistency across trials. A
judge can order a stay of proceedings if there has been an ‘abuse of process’. The
prosecution will begin, after the arraignment of the accused, with an opening speech
followed by their case. They will examine their witnesses, the defence will cross-
examine them and the prosecution then have the opportunity to re-examine. Once
the case has been presented, the defence can make a submission of no case to answer
because the prosecution has not discharged the burden of proof. If this is unsuccessful
the defence will present their case. The examination in chief takes place, then the
prosecution cross-examine their witnesses and re-examination can take place. Both
prosecution and defence make a closing speech, with the last word being given to the
defence. The judge will then provide a summing up to guide the jury before they retire
to consider their verdict.
13.6 Verdict
Essential reading
¢¢ Sprack, Chapter 21: ‘The verdict’.
Once the judge has finished his summing up, the court usher, known as the jury bailiff,
takes an oath to keep the jury in a private and convenient place and to prevent them
from being spoken to by anyone. The jury are then led to their room and the usher sits
outside, preventing entry by anyone without the leave of the court. During this period
of reflection the jury begin discussions on the evidence presented and counsel’s
arguments. They must reach a unanimous verdict at the outset (although a majority
verdict of ten can be accepted if unanimity is not possible).
While they are considering the accused’s guilt the members of the jury must stay in the
custody of the jury bailiff and must not communicate with anyone without the leave of
the judge. The jury must not leave their room without the judge’s permission and they
must not separate – this may mean that they are required to stay overnight in a hotel.
This rule of separation has not been so strictly adhered to since s.43 of the Criminal
Justice and Public Order Act 1994 was introduced, which made it subject to judicial
discretion. If these rules are infringed, a conviction may be quashed (see R v Goodson
[1975] 1 WLR 549), although this is not the norm (see R v Alexander [1974] 1 WLR 42).
Once retired, the jury are still allowed to ask the judge for further assistance and this can
be done by writing a question or communication for the judge to read. The judge will
read this in front of counsel and the accused. The jury will then be brought back and the
question answered. They will be asked to retire once more to reach their verdict. The
deliberations that take place in the jury room are private and cannot be the subject of
speculation or of an appeal. The confidentiality of the deliberations is upheld in s.8 of
the Contempt of Court Act 1981, according to which it is an offence to obtain or disclose
the contents of the jury’s deliberations.
Activity 13.17
Read the conjoined cases of R v Mirza; R v Connor and Rollock [2004] UKHL 2 and
explain the content of each of the letters that were written to the trial court by one
of the jurors in each case. What arguments can you think of to suggest that these
convictions should have been quashed?
13.6.1 Return of verdict

Once the deliberations are concluded and the jury have reached a verdict upon which
they are all agreed, they come back into court and the clerk asks the foreman if they
have reached a verdict. The foreman will respond by saying ‘yes’. They must deliver a
verdict on each count.
13.6.2 Alternative verdicts

Usually the jury have a simple choice between convicting and acquitting. There is
however sometimes a third option, where they find the accused not guilty of the offence
charged but guilty of some other, lesser, (indictable) offence. So, if a jury think that the
accused is guilty of theft rather than burglary they can return that verdict. The same
would be true for offences against the person where they believe that a lesser s.20
offence under the Offences Against the Person Act 1861 has been committed rather than
the more serious offence under s.18. There are rules governing the delivery of these
alternative verdicts (see Sprack 21.22–21.33).
The jury are sometimes faced with the decision to find the accused guilty on one
count or the other but not on both (so an accused may be found guilty of theft but
not of handling, or vice versa). If the indictment contained alternative counts, the
jury can convict on one but are then discharged from giving the verdict on count two.
The Court of Appeal can then quash the conviction on count one and substitute a
conviction on count two if it appears to them that the jury must have been satisfied
of facts which did prove the accused guilty on that count. The Court of Appeal cannot
interfere, however, where the jury has convicted on count one but acquitted on count
two.
13.6.3 Majority verdicts

The Criminal Justice Act 1967 abolished the rule that the verdict of the jury had to be
unanimous. Presently, under s.17 of the Juries Act 1974, the verdict can be a majority
one of either 11:1 or 10:2. If the jury has been reduced, then a majority of 10:1 or 9:1 is
permitted but not a majority of 9:2. If the jury has been reduced to 9, the verdict must
be unanimous. Both conviction and acquittal are available under the majority rules.
There is one restriction here: the jury must have deliberated for at least two hours and
in some instances longer before the judge will accept a majority verdict. If the jury
return a majority verdict which convicts, then, under s.17(3) of the Juries Act 1974, the
majority must be made known (see R v Austin [2002] Crim LR 426 and R v Watson [1988]
1 All ER 897).
13.6.4 Discharge of jury from giving a verdict

If a jury cannot reach a unanimous or acceptable majority verdict, the judge can
discharge them from giving one. If they have been given a reasonable amount of time
after having been told that they can deliver a majority verdict, the judge will ask the
foreman if there is any real possibility of the jury arriving at a decision. If there is an
unresolvable split, the judge will discharge the jury. This is not the same as an acquittal
because the accused can be tried again by a fresh jury.
The judge must not unduly pressurise the jury to reach a decision. This can take the
form of blatant pressure, as in R v McKenna [1960] 1 QB 411, or more subtle pressure, as
in R v Boyes [1991] Crim LR 717.
Activity 13.18
Read the case of R v McKenna [1960] 1 QB 411 and explain why the Criminal Court of
Appeal, as it was then, quashed the conviction.
13.6.5 Accepting the verdict

The general rule is that the judge must accept the verdict of the jury, even if he or she
disagrees with it. The judge should not ask the jury why they reached their verdict and
they should be discharged. There are some exceptions to this rule.
uu If they have delivered a verdict which they have no power to return, the jury will be
asked to reconsider. This could happen where the jury try to convict of an offence
which was not charged in the indictment, for example where the jury return a
verdict of murder when the indictment says manslaughter.
uu If the verdict on a count is ambiguous the judge should ask questions to resolve
the ambiguity.
uu If a verdict appears inconsistent with another verdict returned by the jury in the
same case (in conjoined trials) the judge may ask them to reconsider the verdicts.
1. When do the jury return a verdict?
2. When may an alternative verdict of guilt for a lesser offence be returned?
3. What ‘majority’ is allowed for a majority verdict to be returned?
4. When will the jury be discharged from delivering a verdict?
5. What are the exceptions to the general rule that the judge must accept the
verdict of the jury?
Summary
Once the jury have retired, they are expected to return a verdict of guilty or not guilty.
There are rules governing the return of a guilty verdict for a lesser offence. If the jury
cannot deliver a majority verdict, they may, within certain numerical restrictions,
deliver a majority verdict. If they are unable to reach a majority verdict, they may be
discharged from delivering a verdict. The judge must not pressurise the jury, either
blatantly or surreptitiously, to reach a verdict. Once the verdict has been delivered, the
judge must accept this verdict subject to well established exceptions.

Question 1 Ivan, Janice and Karla appear before Longford Crown Court. The
indictment contains a number of counts. Count 1 charges all three with ‘theft of
a BMW motor car from Martin and of a Porsche motor car from Nina between 12
January and 14 January 2008’. The prosecution case is that Ivan and Janice took the
BMW and that Janice took the Porsche one weekend. The prosecution allege that
Karla’s involvement is as the person who encouraged the two of them to take the
cars, having offered £2,000 for each car they brought her. The same indictment
contains an allegation that Ivan committed burglary at Martin’s home, arising
from the same facts, and that Nina committed an offence of driving motor vehicles
without insurance, in that she took each of them and drove them to Karla’s house.
Karla is also charged with theft from Owen, her former boyfriend from whom she
took a collection of DVDs when she left their home that same weekend. When they
appear at trial, Ivan refuses to enter a plea under the advice of his lawyer on the
ground of defects in the indictment. Janice, who is unrepresented, replies, when
the charges are put to her, ‘Guilty of taking the BMW but not the Porsche. I only took
the BMW because Karla threatened to kill me if I didn’t. Guilty of driving the cars
without insurance’. Karla is drunk and does not enter a plea when asked to do so.
Question 2 Oliver has been convicted at Poorfield Crown Court of inflicting

racially aggravated GBH on Qumar. The prosecution case is that this was a racially
aggravated offence: Oliver attacked Qumar because he was a Muslim. When the jury
was empanelled, Oliver objected to the composition of the array on the grounds
that 16 of the 20 of them were not Caucasian. Oliver wished to ask for a number
of the jurors not to be allowed to hear his case because they were Muslims, and
particularly objected to juror 7, who happened to be his neighbour and with whom
he had argued about religion on many previous occasions. The judge let juror 7
take his place and hear the case. The prosecution challenged two other jurors
for cause on the ground that they had previously been convicted of public order
offences arising out of their membership of a white racist group called ‘The British
Purity Party’. During the trial one of the jurors was released by the judge when his
mother was taken seriously ill. Oliver was convicted by the remaining 11 jurors.
After the jury had been considering the case for 20 minutes they came back to the
judge and said that they could not agree. The judge told them that they must reach
a unanimous verdict and sent them back to consider matters further. They then
entered a verdict of guilty. However, while awaiting sentence he received a letter
from ‘a juror’ which alleged that only eight of the jurors wanted to convict him. Two
agreed to go along with the others because they wanted to get home, while the last
juror (the one who wrote the letter) was threatened by other jurors who wanted
Oliver convicted. They said that they would make it known in the mixed race area in
which she lived that the juror was a racist. Advise Oliver.

Question 1 This question concerns indictments and pleas. It would be most effective to
deal with the indictment issues first and then the plea issues. The best structure would
be to look at each count on the indictment in respect of each defendant, although
looking at each defendant and the counts against him/her in turn would not be wrong.
The count relating to the cars is bad for duplicity. It alleges two different thefts. This is not
a case where a number of items are alleged to have been stolen from the same victim
(i.e. the ‘theft of a general deficiency’) but one of two different thefts. They should be
included separately. The difficulty is that no defendant can answer the allegation in the
indictment without admitting something they are not prepared to admit. This is shown
by the plea entered by Janice – she only wants to admit the taking of one car (at all). Karla
can be included on the indictment as an accessory – she has counselled or procured the
commission of the thefts. So there should be a count alleging that Ivan, Janice and Karla
stole the BMW from Martin and a different count alleging that Ivan, Janice and Karla stole
the Porsche from Nina.
The burglary offence is not bad for duplicity (so long as it does not mention Nina’s
Porsche) but may be overloaded (see R v Thorne (1978) 66 Cr App R 6) in that the
burglary and the theft count appear to relate to the same incident and no useful
purpose is served by including both. If Ivan contests the entry into Martin’s building
but admitted (or was proved to have committed) the theft, then theft would be
available as a lesser alternative offence to burglary without it being explicitly included
on the indictment (see s.6 of the Criminal Law Act 1967). However, the overloading
case law is not strict, so this sort of approach might not be objected to by the court
where there is only one extra count as a result.
The allegation of driving without insurance is contrary to the rule against duplicity as
Nina cannot plead to each distinctly.
The count relating to the theft of the DVDs is not duplicitous but may be objected to
on the grounds that it is improperly joined contrary to Rule 9 of the Indictment Rules
1971. They are neither founded on the same facts nor do they form a series of offences.
They are simply two allegations of the same wrongful conduct against two unrelated
groups of victims.
At this point the answer should consider what solution there is to the defects
noted above. The DVD theft count should be severed from the indictment and tried
separately. The indictment should be amended in respect of the other defects. It does
not appear that any are so fundamental that the indictment need be quashed.
Turning to plea, it should be noted that the failure to perfect the indictment will
render the trial on those matters that are defective a nullity. However, it is still worth
considering the law relating to the refusal to plead. Certainly, Ivan could have pleaded
to the burglary charge. His refusal to do so would amount to being ‘mute of malice’
(s.6(1)(c) of the Criminal Law Act 1967) and a plea of not guilty could be entered on
his account. Janice’s plea is ambiguous. This should be treated as a not guilty plea.
Karla’s refusal to plead appears not to be mute of malice but rather (oddly) ‘mute
by visitation of god’. She is not unfit to plead in the legal sense because she is not
suffering from a mental disability. The court should have adjourned the hearing at the
point at which she did not enter a plea.
Question 2 This question concerns the selection and practices of the jury. The
judge does not hold the power to dismiss a jury panel if it is not representative.
The only power to dismiss a jury panel arises if there has been bias on the part of
the summoning officer (s.12 Juries Act 1974; R v Ford [1989] QB 868; R v Smith [2003] 1
WLR 2229). Oliver no longer has a power to challenge individual jurors peremptorily.
However, he could challenge individual jurors for cause on the ground of bias (s.12(1)
(b) Juries Act 1974). Oliver would have to prove to the judge that juror number 7 was
biased against him. It is unlikely that the court would accept bias on the part of that
or any other juror simply due to their racial origin, but the case against juror 7 might
be a little stronger than that (Porter v Magill [2002] 2 AC 357). The fact that juror 7
knows Oliver does not mean that he cannot serve on the jury (R v Box [1964] 1 QB 430)
although that might be so where the juror knows facts detrimental to the defendant
such as his views on religion. The prosecution also has the right to challenge for cause
and this appears to be the basis upon which they have challenged the two white
supremacists. The prosecution are entitled to investigate the criminal convictions of
jurors. It is unlikely that the convictions revealed will prevent the jurors from being
eligible to act as jurors but it does appear to have revealed a cause for which they may
be inappropriate to act as jurors on this particular case.
A jury that is reduced to 11 members is still valid (s.17 of the Juries Act 1974). The judge
was right not to offer the jury an option of a majority verdict after only 20 minutes,
since a period of at least two hours is required. The Court of Appeal will not generally
consider the deliberations of jurors as the verdict is sacrosanct and not subject to
review upon appeal (s.8 of the Contempt of Court Act 1981; R v Mirza [2004] 1 AC 1118).
In fact the juror who sent the letter may face prosecution under s.8 of the Contempt of
Court Act 1981 (A-G v Scotcher [2005] 1 WLR 1867).
Reflect and review



I can critically explore the nature of indictments and   

what is meant by the rule against duplicity.
I can display a sound knowledge of how pre-trial   

proceedings operate.
I can describe how the plea is considered.   
I can comprehend the role and function of triers of fact.   
I can demonstrate an awareness of the course of the   

trial.
I can consider how the verdict is delivered.   
revise?
Must Revision
revise done
13.1 The indictment  
13.2 Pre-trial proceedings  
13.3 Pleas  
13.4 Triers of fact  
13.5 The course of the trial  
13.6 Verdict  
14 Sentencing
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
14.1 Sentencing theory . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
14.2 Procedure before sentencing . . . . . . . . . . . . . . . . . . . . . . 232
14.3 Determining the sentence . . . . . . . . . . . . . . . . . . . . . . . 235
14.4 Mitigating and aggravating factors . . . . . . . . . . . . . . . . . . . 238
14.5 Custodial sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
14.6 Non-custodial sentences . . . . . . . . . . . . . . . . . . . . . . . . 244

Introduction
Once the defendant has been found guilty of a criminal offence, they will find
themselves subject to a criminal sanction. This sanction will usually take the form of a
sentence and, while there are a wide range of sentences at the disposal of the court, it
will be up to the trier of law (the magistrates or the judge) to decide which sentence
is most appropriate given the offence committed. There is one important exception
to this, where there will be no discretion: this is where a defendant has been found
guilty of murder. They must be awarded a mandatory life sentence under s.1(1) Murder
(Abolition of Death Penalty) Act 1965. The Crime Sentences Act 1997 developed further
mandatory sentences, but the effect of these has been whittled away by judicial
precedent and the Criminal Justice Act 2003.
Learning outcomes
uu critically explore theory underpinning the sentencing process

uu display a sound knowledge of the procedure that takes place before sentencing
uu describe how sentencing takes place in the magistrates’ court
uu understand how sentences are determined
uu evaluate the use of mitigation and aggravating factors
uu explain the way in which custodial sentences operate
uu understand the wide range of non-custodial sentences used by the courts.
Civil and criminal procedure 14 Sentencing page 231
14.1 Sentencing theory
Essential reading
¢¢ Ashworth, A. Sentencing and criminal justice (Cambridge: Cambridge University
Press, 2005) fourth edition [ISBN 978-0521674058]. Chapter 3: ‘Sentencing aims,
principles and policies’. This reading is available on the VLE.
Before you embark on studying the complex web of sentencing practice, you need
to have a good grasp of why we sentence and what purpose we believe it has within
the criminal justice system. The theory of sentencing is a very wide-ranging subject
area and there are academic courses which focus on this topic alone. Therefore, in
this course you are only expected to have a general grasp of why we sentence so that
you can see, as sentencing policy develops, what exactly the priority is of any given
sentencing legislation.
From your reading you should have identified that there are four classic rationales
for sentencing: rehabilitation, incapacitation, deterrence and desert. It is always
interesting, when commenting on the criminal justice policies of any government,
that you can often look at its sentencing legislation to ascertain which rationale is
most highly prized at any given point in time.
Activity 14.1
a. Provide a 250 word critical evaluation of each of the following rationales for
sentencing.
uu Rehabilitation.
uu Incapacitation.
uu Deterrence.
uu Desert.
b. Having done this, compile a 500 word response to the following statement.
‘Of all the rationales advanced for sentencing, desert must be the first and
foremost rationale because society demands vengeance on behalf of the state
when a criminal offence has been committed.’
One final comment to make about the rationales of sentencing and sentencing
practice is that in English law there exists a tension between the role of the legislator,
in ensuring that sentencing legislation reflects the expectations of society, and
the judiciary who, when awarding sentences, take a longer term view in deciding
whether justice is denied if a criminal receives a disproportionate sentence to the
offence committed. This tension has often led to calls for greater legislative attempts
at curtailing judicial power. Such attempts at prescribing sentences for offences
committed have largely been unsuccessful as the judiciary view their role, within the
constitution, as applying the law in accordance with their own judgment. The battle
here is as old as the sentencing process itself, although the legislator does appear to
have become more interested in sentencing practice in recent years.
1. What is meant by the terms ‘rehabilitation’, ‘incapacitation’, ‘deterrence’ and
‘desert’?
2. Which of these four rationales for sentencing should be the primary rationale?
3. Why is there a continuing battle between the legislator and the judiciary over
sentencing practice?
14.2 Procedure before sentencing
Essential reading
¢¢ Sprack, Chapter 22: ‘Procedure before sentencing’.
Once the court, whether magistrates’ or Crown, has delivered its verdict of guilty,
sentence can be passed either immediately or following the adjournment of the court
while a pre-sentence report is compiled or a co-accused’s trial is completed. While
this adjournment takes place, the offender can be placed in custody or on bail at the
court’s discretion. The procedure before sentence that follows is divided into:
uu presentation of the facts of the offence by the prosecution
uu evidence of antecedents
uu the reading of reports on the offender
uu the advancement of mitigation by the defence.
The process is the same for both the magistrates’ court and Crown Court.
14.2.1 The facts of the offence

The prosecution has to present to the court the brief facts of the offence. In the Crown
Court prosecuting counsel will undertake the task and in the magistrates’ court it will
be the job of the Crown Prosecutor. The procedure relating to this task is the same in
both types of court. The process begins by the advocate presenting an account of the
offence itself and will include any evidence of planning or where there was a breach
of trust, for example. The judge will then want to know how co-operative the offender
was and may want any written statement made by the offender to be read in court.
The key to the presentation of the facts is that it is not meant to be embellished in
any way by the prosecutor (see R v Hobstaff (1993) 14 Cr App R(S) 605). Once they have
proven guilt they are supposed to be impartial as to sentence and their presentation
of facts should reflect this. Evidence in mitigation or aggravating factors should be
presented in a neutral fashion and the prosecutor should also take the time to apply
for any compensation, confiscation or forfeiture due. In addition, the advocates, both
prosecuting and defence, have a responsibility to draw the court’s attention to any
existing limits to the powers of the sentencing personnel.
A final recent addition to the tasks at this stage is the presentation of a ‘victim personal
statement’ where factual information is received by the court as to the effect of the
offence on the victim.
Activity 14.2
Read Practice Direction (Criminal Consolidated) [2002] 3 All ER 904 paragraph 28 and
summarise in 100 words what approach the court should take when dealing with a
victim impact statement.
Even though the defendant may admit that they have committed the offence
and plead guilty, they may disagree with the account of events presented by the
prosecution. This may be important when it comes to sentencing as the events may be
seen in a very different light if the facts are presented in a different way. (For example,
a driver killing a pedestrian because they swerved to miss a dog is, despite the death of
the pedestrian, less culpable than if the defendant did not see the pedestrian because
they were too busy dialling on their mobile phone.)
If the defendant raises an objection to the account presented, the judge should either
ask the jury to resolve the issue, accept the defence account so far as possible, or give
both parties the opportunity to call evidence about the disputed matters. This latter
measure is what is termed a ‘Newton hearing’.
Activity 14.3
Read the judgment of Lord Lane CJ in R v Newton (1982) 77 Cr App R 13 and in 100
words explain why there was a difference of view over the facts in that case.
If a Newton hearing is being conducted, the rule of evidence must be strictly followed.
The defence cannot frustrate events by refusing to advance evidence in response
to judicial questioning. There may also be occasions where a defendant chooses to
change their plea halfway through the trial having heard the prosecution case against
them. If this happens, the judge should hear evidence from the defendant and then
decide which version of facts the defendant will be sentenced on.
A series of cases followed the Newton ruling and it was necessary to emphasise the
procedure of these hearings. This took place in 2005.
Activity 14.4
Read the case of R v Underwood [2005] 1 Cr App R (S) 90 and restate the 12 important
points that govern the procedure for a Newton hearing.
14.2.2 Antecedents
Antecedent evidence will normally be provided by prosecution counsel and will
remain uncontested if the defence agree that it is not in dispute.
Activity 14.5
Read Sprack 22.31–22.44. What evidence would be regarded as ‘antecedent’?
If there is any challenge to this evidence, the antecedents officer will be required to
appear in court and proper proof will have to be presented as to the antecedent. If
such proof is not forthcoming, the judge must ignore that particular antecedent and
must state that he or she is ignoring it.
Attached to this evidence will be any record of previous criminal activity by the
defendant. Under s.51(1) of the Powers of Criminal Courts (Sentencing) Act 2000 the
seriousness of any offence must be considered alongside the criminal record of the
defendant and any evidence that the defendant has failed to respond to previous
sentences. Here the prosecutors will make evidence of prior convictions available
to the court. This presentation is governed in accordance with the Practice Direction
(Criminal: Consolidated) [2002] 3 All ER 904 and see R v Egan (2004) The Times, 9 March.
Some sentences will be spent. This is where s.4(1) of the Rehabilitation of Offenders
Act 1974 operates to enable offenders to try to live down their murky past. The effect
of the legislation is that once a certain time has elapsed from the date of an offender’s
conviction (known as the rehabilitation period), the conviction is rendered ‘spent’ and
offenders are allowed to live their lives as though they never committed a criminal
offence. There are limits to this provision. The length of rehabilitation will depend on
the length of sentence for the offence. For example, a murder conviction can never
become spent.
14.2.3 Reports on the offender

Once evidence of character and antecedents has been presented to the court,
the judge will read out any reports that have been compiled about the offender.
Sometimes sentences can be passed without recourse to a pre-sentence report but
there are statutory provisions that do, in some instances, require them.
Activity 14.6
Read s.156(3) and (4) of the Criminal Justice Act 2003. What is a pre-sentence report?
The court must consult a pre-sentence report where the offender is 17 years old
or under. The court may consult a pre-sentence report if the offender is aged 18 or
above. It is good sentencing practice to obtain a report if the plan is to pass a custodial
sentence (see s.156 of the Criminal Justice Act 2003).
Medical and psychiatric reports may also be required. These will be essential if an
order under s.37 of the Mental Health Act 1983 is required. This will result in detention
in a mental hospital. If a report is not obtained, this will not make a conviction unsafe.
The appellate court will, though, have to secure a report.
Where the court is dealing with a juvenile, then reports from social workers may be
necessary so that a complete picture of the juvenile’s background is obtained. If the
juvenile has previously been in local authority care, the court will be interested to
see how effectively the juvenile responds to people in authority and their overall
behaviour.
It is often assumed that adjournment for a pre-sentence report will result in a

favourable account. Historically, probation services routinely recommended non-
custodial sentences. However, in the last 15 years this practice has become far less
common. As a result of this development and the grievance that could emerge if a
defendant receives a favourable pre-sentence report but is still sentenced to prison,
the judge will now usually tell the offender that adjournment for pre-sentence reports
in no way implies a non-custodial sentence.
14.2.4 Mitigation
Once the judge has read all the reports, the defence will have the opportunity
to present mitigating evidence on behalf of the offender. This is where character
witnesses can be called. It is not usual practice for the offender to testify personally
unless there is the prospect of a driving disqualification, at which point the potential
impact of that ban will be considered.
There is no set pattern for mitigation and each case will demand a different format
for the presentation of evidence. Usual features will include the facts of the offence,
the circumstances that led to it and the offender’s personal circumstances. So, for
example, if the offence is one of dishonesty, premeditation will look worse than
giving into temptation when the opportunity arose. Likewise, if a violent offence was
committed in response to extreme provocation, this too will be mitigation. There
must be no attempt to put forward a defence at this stage – that should be done at
trial. It then becomes possible to discuss the potential sentences and consider how
appropriate each would be for the offender. The guidance here will usually come
from the seriousness of the offence. Counsel should not argue extensively for a non-
custodial sentence in the face of a conviction for rape. Equally foolish is where counsel
concedes that a custodial sentence is necessary if the defendant is then awarded
a community sentence. As a final point, co-operation with the police is usually
considered favourably. This can include entering an early guilty plea.
14.2.5 Other offences to be considered

A suspect, when questioned by the police about an offence, can admit that they have
committed that offence. They may also be asked questions about offences that bear
some similarity to the offence which the suspect has confessed to. Concerned that the
indictment would be a long one, the suspect may, in some circumstances, be prepared
to admit to other offences without actually being convicted of them. This practice
is known as ‘taking other offences into consideration’ when passing sentence. It is
an odd practice that an offender admits but is not convicted of an offence, but it is
equally important that lines be drawn underneath a crime so that it can be classed as
solved.
Activity 14.7
Read Sprack 22.60–22.65 and compile a 50 word example of how the rules
concerning taking offences into consideration could work for someone charged
with a range of property offences.
14.2.6 Variation and deferring of sentence

If there has been an error in the passing of sentence or if a judge believes that they
have been too severe in that sentence, then under s.155 of the Powers of Criminal
Courts (Sentencing) Act 2000 the sentence can be varied or rescinded within 28 days
of the original sentence being passed. It is unusual but not unheard of that variation
involves an increase in the sentence. Once this 28 day period has elapsed, the court has
no power to vary or rescind the sentence and the issue then becomes one of appeal.
In some instances the court may choose to defer sentence on the basis that promises
made in mitigation may suggest that a period of reflection is required before sentence
is passed. Such occurrences are rare as they depend heavily on the rhetorical skills of
the defence advocate and the willingness of the judge to defer. Sections 1 to 1D of the
Powers of Criminal Courts (Sentencing) Act 2000 allows both the Crown Court and
magistrates’ courts to defer passing sentence for a period of up to six months. Here
the court will be able to have regard to the conduct of the offender after conviction
and any change in circumstances. The defendant must consent to any deferment.
Activity 14.8
Read the case of R v George [1984] 1 WLR 1082 and consider Lord Lane CJ’s summary
of when deferment should take place. What are the pros and cons of such a
measure being available to the court?
Summary
A number of key events can occur before sentence is passed. The facts of the offence
will be presented to the court. Antecedents will be presented and potentially
challenged in the court and spent convictions noted. Reports will be compiled and
considered. As well as pre-sentence reports these can include medical and psychiatric
reports, along with reports for juveniles. Mitigation may be presented along with other
offences to be taken into consideration. Finally, the court may vary or defer sentence
in accordance with established sentencing practice.
1. What is meant by the term ‘antecedent’ and what does it consist of in the
sentencing context?
2. How does the Rehabilitation of Offenders Act 1974 deal with ‘spent’ convictions?
3. What is a pre-sentence report? What might it contain?
4. Why might medical and juvenile reports be required by the court?
5. How would the defence present mitigation?
6. What is meant by ‘taking other offences into consideration’?
7. How does the practice of varying or deferring sentence work?
14.3 Determining the sentence

When passing sentence, the judge should keep reasons short and simple so that the
offender understands what is being said to him. When determining the sentence, the
range of custodial and non-custodial sentences will be considered (for more detail see
14.5 and 14.6 below). It is worth noting at this stage that the options that are available
to the court when determining sentence are:
uu absolute or conditional discharge
uu a fine
uu a community sentence
uu a suspended sentence
uu an immediate custodial sentence.

The nature of the offence and the profile of the offender will usually impact upon
which sentence is selected, but there exists a legislative framework which imposes
criteria for whether a custodial sentence may be passed or not. These criteria can be
found in the Criminal Justice Act 2003 and this represents, once more, an attempt
by the legislator to guide the hand of the judicial sentencer. Within that framework
judicial decisions also guide the sentencer in awarding sentence. However, precedent,
unlike so much within the common law system, has a limited impact on sentencing.
Given that every offence and every offender is different, it is not difficult for a judge
to distinguish cases. In addition, the Court of Appeal has always aimed to guide, not
prescribe, how a court should deal with a particular type of offence and offender.
Finally, until the Criminal Justice Act 1988 the Court of Appeal was unable to declare
a sentence too light. This gave the sentencers relatively free rein with regard to the
awarding of sentences.
14.3.1 Threshold and purposes

Under the Criminal Justice Act 2003 the sentencer must consider various criteria
before either a community sentence or a custodial sentence is passed. These criteria
are better termed ‘thresholds’ because the sentencer will have to consider whether
the offender has crossed, for example, the threshold from community sentence to
custodial sentence.
Section 148 of the Criminal Justice Act 2003 states that a community sentence cannot
be awarded unless the offence was serious enough to warrant such a sentence.
Section 152 demands that a custodial sentence can only be passed if the offence, or
a combination of the offence and one or more offences associated with it, was so
serious that neither a fine nor a community sentence can be justified.
The effect here is a pyramid where discharges sit at the bottom and custody at the top
and an ascendancy exercise takes place according to seriousness and other relevant
factors.
For the first time s.142 of the Criminal Justice Act 2003 sets out the purposes of
sentencing.
Activity 14.9
Read s.142 of the Criminal Justice Act 2003. What are the purposes of sentencing? Do
you think the ordering of these purposes is symbolic at all?
14.3.2 Seriousness
Section 167 of the Criminal Justice Act 2003 created the Sentencing Guidelines Council.
This group, which includes both members of the judiciary and academic lawyers,
provides guidelines on current sentencing issues. Since the commencement of the
Act, the Sentencing Guidelines Council have stressed the importance of seriousness as
a factor to be considered when sentencing. When considering whether a community
sentence or a custodial sentence can be passed it is the seriousness of the offence
that becomes crucial. Here the question becomes twofold. First, what test applies to
determine whether or not an offence is serious? Secondly, what material should the
court consider when deciding whether or not an offence is serious? We shall explore
both of these questions in detail.
When is it serious?
Section 143(1) of the Criminal Justice Act 2003 helps us to answer the first question
when it states that the court has to consider a defendant’s culpability in committing
the offence and any harm that may have been caused. The Sentencing Guidelines
Council has issued guidance on harm and culpability. Their four levels of harm are
intention, recklessness, knowledge and negligence. Culpability will also be greater if
more harm is caused than is necessary and a vulnerable victim is targeted.
The guidelines also distinguish between different types of harm. The impact upon the
victim is often crucial here. Harm may be psychological, physical, financial or sexual. If
there are multiple victims this will add to culpability. Culpability will also be greater if
the offence was committed while the offender was on bail or had failed to respond to
previous sentences.
Some reference is made, in these guidelines, to mitigating factors. These include a

greater degree of provocation, mental illness or disability, youth or age, and whether
the role played by the defendant was minor.
What material ought to be considered?

The court will, in certain circumstances, be expected to obtain and consider a pre-
sentence report and must take matters that could amount to mitigation into account.
Previous convictions can be considered when determining seriousness and if the
offence is committed on bail this will be seen as an aggravating factor.
14.3.3 Combination of offences

Whilst determining sentence it may be necessary for the courts to deal with cases
where the offender has been sentenced for two or more offences. The court can lump
together minor offences and decide that as a package they do warrant custody. To do
this the offences must be associated.
Activity 14.10
Read s.161 of the Powers of Criminal Courts (Sentencing) Act 2000 and explain in
your own words how offences can be ‘associated’.
One danger of this ‘package’ deal is that the total sentence may be disproportionate
to the overall seriousness of the offence. To avoid this, the courts have developed what
is termed the ‘totality’ principle. This requires the court not to consider the overall
sentence in relation to the totality of the offending. It would, after all, be unjust if a
collection of petty thefts added up to more in sentencing terms than a rape case. This
principle is now enshrined in statute (see s.166(3)(b) of the Criminal Justice Act 2003).
Summary
Historically, judges had significant discretion in the granting of sentences. The
legislature has attempted to whittle away this discretion by virtue of the Criminal
Justice Act 2003, which now enshrines the thresholds and purposes of sentencing.
‘Seriousness’ is a particularly important concept here and the Sentencing Guidelines
Council has been instrumental in providing guidelines as to how sentencers should
deal with this concept. It is also possible for offences to be combined when being
determined but this practice has to be conducted in accordance with the totality
principle.
1. What options are open to the sentencer when determining sentence?
2. Which thresholds operate when deciding upon sentence?
3. What are the statutory purposes of sentencing?
4. What is the role of the Sentencing Guidelines Council?
5. How is ‘seriousness’ evaluated when sentence is being determined?
6. How can sentences be combined?
7. What is meant by the ‘totality’ principle?

14.4 Mitigating and aggravating factors

Reference has already been made to the notion of mitigation and aggravating factors
in certain circumstances in the procedure before, and at the point of, determining
sentence. Now it is important to explore these factors in more detail and assess what
impact they can have upon sentencing. Statute has recently stressed the importance
of mitigating factors when sentencing the offender. These are usually considered in
conjunction with any aggravating factors (see s.146(3) Criminal Justice Act 2003 and
R v Barrick (1985) 81 Cr App R 78 and R v Clark (1998) 2 Cr App R 137). When considering
a custodial sentence, s.156(1) of the Criminal Justice Act 2003 states that the court
must take into account any factors that are either mitigating or aggravating. For a
community sentence the court must, under s.166(1), take into account all relevant
evidence that could mitigate sentence. This is particularly pronounced when we
consider s.166(2) where a defendant crosses the custody threshold by virtue of the
offence committed, is, due to mitigation, pulled back so that they receive a non-
custodial sentence.
14.4.1 A guilty plea

The first factor in mitigation to be considered is the guilty plea. The judge must not
increase the sentence passed just because the accused pleaded not guilty. That said,
the judge should regard a plea of guilty as a mitigating factor. The criminal justice
system would be unable to cope if all suspects pleaded not guilty and required the
prosecution, regardless of guilt, to prove their case. Consequently the law takes a
pragmatic view, and while it will not punish an offender for pleading not guilty it will
give those who plead guilty a discount in their sentence. The justification for this
concession is that pleading guilty is evidence of contrition on the part of the offender.
In reality the court is grateful that the offender is not increasing the costs incurred
by requiring a full trial. Section 144 of the Criminal Justice Act 2003 confirms that a
discount should be given for a guilty plea. This discount can, according to guidelines
from the Sentencing Guidelines Council, result in a sentence which is different in type
(i.e. a fine rather than a community sentence). Usually, however, it will simply be a
reduction in the length of sentence awarded. This reduction takes an incremental
approach based on the stage at which a guilty plea is entered. Clearly, a guilty plea
entered after the prosecution has advanced its case at trial should not be treated as
positively as a guilty plea entered at the first reasonable opportunity (see R v Barber
(2002) Cr App R (S) 130 and R v Wood [1997] 1 Cr App R (S) 347).
Activity 14.11
Read Sprack 23.39–23.46 and outline the different discounts available for the
entering of a guilty plea.
14.4.2 Co-operation with the police

If the defendant does not resist arrest and co-operates fully with the police after
arrest, this can amount to good mitigation. It does little when married to a guilty
plea. It has a substantial effect when it results in evidence being given against the
defendant’s accomplices. In the case of large criminal groups, a substantial discount
may be available for information and evidence which leads to the dismantling of those
groups by criminal conviction.
Activity 14.12
Read the case of R v Lowe (1977) 66 Cr App R 122 and explain in 100 words how co-
operation with the police worked in that case.
14.4.3 Good and bad character

Previous good character has always been viewed as excellent mitigation. First-time
offenders are always likely to be treated with some leniency. This can also become
relevant where the defendant has no previous convictions for the offence he has just
been convicted of. In fact, a consistently incompetent burglar found his custodial
sentence reduced to a community sentence because time had lagged between
offences (see R v Canfield (1982) 4 Cr App R (S) 94).
Just as good character can help, so previous bad character in the form of previous
convictions can clearly hinder. Section 143(2) of the Criminal Justice Act 2003 ensures
that when looking at the seriousness of an offence the court will consider previous
convictions and will view these as an aggravating factor.
14.4.4 Youth
Youth is usually viewed as a mitigating factor. If a young offender is given a custodial
sentence, it will usually be shorter than if it was awarded to an adult offender. Youth
will not only reduce sentence, it can also alter the type of sentence. Authority suggests
that the Court of Appeal has often urged community sentences over custodial
sentences when dealing with certain forms of property offences committed by young
offenders (see R v Seymour (1983) 5 Cr App R (S) 85).
14.4.5 Racial or religious aggravation as extended

Racial motivation has, for many years, been seen by the Court of Appeal as an
aggravating factor. Section 145 of the Criminal Justice Act 2003 confirms this position
and if the offence is racially aggravated it will be treated as more serious when
sentence is being determined. Section 146 of the Criminal Justice Act 2003 extends the
range of aggravating factors to include disability and sexual orientation.
Sections 29–32 of the Crime and Disorder Act 1998 introduced the specific offences of
racially or religiously motivated offences. This in itself confirmed these factors to be
aggravating when sentence is being passed.
Mitigation and aggravation are key factors to be considered when determining

sentence. The individual nature of the crime committed and the offender who
committed it requires an individualised sentence, which requires these factors to be
taken into account.
1. Why is a guilty plea rewarded as evidence of mitigation?
2. What impact can co-operation with the police have on sentence?
3. What status does good or bad character have in the determining of sentence?
4. How important is the age of the offender when determining sentence?
5. When does race, religion, disability or sexual orientation as a factor in the

offence become an aggravating factor when determining sentence?
14.5 Custodial sentences
Essential reading
¢¢ Sprack, Chapter 24: ‘Custodial sentences’.
If an adult is faced with a custodial sentence, this means that he or she is facing a
period of imprisonment. For a sentence of imprisonment to be passed the offender
must be aged 21 or over. Offenders under 21 years of age are awarded a sentence of
detention rather than imprisonment. Both terms suggest that the offender’s liberty
will be limited and they will be allocated to a prison. There are two main types of
prison: closed and open prisons. Closed prisons have boundary walls or fences and
the parameter is secure. Open prisons, by contrast, enjoy a far more relaxed regime.
Prisons may also be local, which means that they house prisoners who are on remand
or long-term prisoners who are being allocated to a training prison. Training prisons
are either open or closed and usually provide useful working facilities. They have far
better conditions than local prisons.
When deciding that a custodial penalty is to be imposed, the court has to abide by
certain statutory requirements. These include the following.
uu All prisoners have to be legally represented or must have been offered such
representation.
uu The criteria laid out in s.152 of the Criminal Justice Act 2003 must be met before a
custodial sentence is passed.
uu A pre-sentence report should be obtained before a custodial sentence is passed

(s.156 of the Criminal Justice Act 2003).
uu All aggravating and mitigating factors must be considered by the court before a
custodial sentence is passed.
uu The court must state its reasons for passing a custodial sentence.
14.5.1 Sentencing for statutory offences

Whilst all common law offences (most notably manslaughter) are prima facie
punishable with life imprisonment, statute has defined the maximum penalty for a
number of key offences.
Activity 14.13
Read Sprack 24.13–24.16.
What are the maximum terms of imprisonment for the following offences?
a. Bigamy.
b. Forgery.
c. Sexual activity with a child.
d. Obstructing a police constable in the execution of his duty.
14.5.2 Concurrent and consecutive sentences

When the court is dealing with an offender who is guilty of two or more offences, it
may either order:
uu that the terms of imprisonment run at the same time as each other (concurrent),
or
uu that they run one after the other (consecutive).
The usual practice is for sentences to operate concurrently and, in fact, it is wrong in
principle if consecutive sentences arise out of a single action. For example, if a brute
punches another person three times and one punch leaves no mark, the second punch
leaves a bruise and the last punch creates a wound, three offences of common assault,
actual bodily harm and unlawful wounding have been committed, but it would be
viewed as one offence and concurrent sentences would operate.
14.5.3 Length of the custodial sentence

If the custody threshold is met (s.152 Criminal Justice Act 2003), this does not mean
that a custodial sentence will inevitably be awarded. Mitigation or the availability of a
suitable community sentence may prevent the custodial sentence from being passed.
If custody is inevitable, there is enshrined in s.153 of the Criminal Justice Act 2003 a
principle whereby if the sentence is not fixed by law, the sentence should be the shortest
compatible with the seriousness of the offence. There are two important reasons for this.
First, the principle of proportionality should guide the sentencer so that offenders are
not unduly punished for their offences. Secondly, the ‘clang of the prison gates’ means
that sentences should be kept as low as possible. This is due to the overcrowding that
currently exists in the English prison estate. (See R v Cunningham [1993] 1 WLR 183; R v
Howells [1999] 1 ALL ER 50 and R v Johnson [1994] Crim LR 949.)
14.5.4 Murder
As we have already seen, s.1(1) of the Murder (Abolition of the Death Penalty) Act 1965
states that all offenders over the age of 21 who are found guilty of murder must be
sentenced to life imprisonment. This is a mandatory sentence. ‘Life imprisonment’
does not mean that the offender stays in prison for life but they will find themselves to
be at least on licence. The question then arises as to when the minimum term expires.
Sections 269–277 lay down a detailed statutory scheme for setting minimum terms
in all murder cases. The minimum term must be served before release on licence can
take place.
Activity 14.14
Read Sprack 24.33.
What length of term is the starting point for a minimum term for murder and what
categories of offence will lay down a minimum term point of 30 years? When will a
whole life order be issued? Are such differences in duration defensible?
14.5.5 Dangerous offenders

Recent statutory provisions have provided a framework for dealing with dangerous
offenders who have committed specified criminal offences. Sections 225–227 of the
Criminal Justice Act 2003 deal with life sentences for public protection, the detention
of young offenders for life and extended sentences. The key to these provisions is that
they only apply to offenders who have committed their offences on or after 4 April
2005.
It is then up to the court to discover just how dangerous the offender is. They do this
by considering whether ‘the offender poses a significant risk to the public of serious
harm occasioned by the commission by him of further specified offences’.
14.5.6 Mandatory minimum and suspended sentences

In 2000, the Powers of Criminal Courts (Sentencing) Act set out mandatory minimum
sentences for the judiciary to follow. Ever controversial, they were evidence of a
legislator again attempting to fetter the discretion of the judiciary. Burglary and
serious offences involving firearms have fallen under these rules. Section 189 of
the Criminal Justice Act 2003 allows the court to suspend certain sentences of
imprisonment. If a suspended sentence is awarded, during the suspension period
the offender may be required to fulfil a requirement specified in s.190 of the Criminal
Justice Act 2003.
Activity 14.15
Read s.190 of the Criminal Justice Act 2003 and comment on some of the
requirements that can be imposed.
If the offender commits a further offence while serving a suspended sentence,

this amounts to breach. If breach proceedings are taken, the chances are that the
selected prison sentence will be reactivated. The Crown Court can deal with the
breach irrespective of whether the sentence was passed by the Crown Court or by a
14.5.7 Custody for those under 21

For all young offenders, a sentence of imprisonment cannot be passed. There are four
custodial sentences that can be imposed on those under the age of 21: detention in a
Young Offender Institution (YOI), detention under s.91 of the Powers of Criminal Courts
(Sentencing) Act 2000, custody for life and a detention and training order. The use
of the word ‘detention’ rather than ‘imprisonment’ will be abolished by s.61 of the
Criminal Justice and Court Services Act 2000 when it comes into force.
Detention in a Young Offender Institution

This is restricted to those aged 18, 19 and 20. This has been replaced, for juveniles, with
the detention and training order that is gradually being phased in.
Sentences of detention under s.91 of the Powers of Criminal Courts (Sentencing)

Act 2000
This provision deals with longer custodial sentences for more serious offences for
those aged between 10 and 17 (remembering that no sentence is valid below the age
of 10 as that is the age of criminal responsibility). To award a sentence under s.91 the
court must believe that no other method of dealing with the defendant is appropriate.
While serving the sentence the offender will be held in accordance with the Home
Secretary’s directions. This may be in a community home, mental hospital or a YOI.
These s.91 offenders can be released at any stage by the Home Secretary following a
recommendation from the Parole Board. To be a s.91 offender the young person must
have been convicted on indictment for an offence which is punishable by at least 14
years’ imprisonment, a prescribed offence under the Sexual Offences Act 2003, or
possession and distribution of certain ammunition and prohibited weapons.
If the young person aged between 10 and 17 has committed the offence of murder,
their sentence is governed by s.90 of the Powers of Criminal Courts (Sentencing)
Act 2000. Here the applicable age is the age of the young person at the time of the
offence, rather than at the point of sentencing.
Custody for life

Section 94 of the Powers of Criminal Courts (Sentencing) Act 2000 provides that young
people aged between 18 and 20 but not yet 21 can be convicted for life if the offence
carries a life imprisonment.
Detention and training order

This is now the standard form of punishment for any young person aged between
10 and under 18. It is a custodial sentence for the purposes of the custody threshold
under ss.152–156 of the Criminal Justice Act 2003. If the offender is under the age of
15, a detention and training order cannot be made unless the offender is labelled
persistent. If the offender is under the age of 12 they can only be made subject to a
detention and training order if the court feels that a custodial sentence is necessary
to protect the public from their further offending. This order will also require
authorisation from the Secretary of State.
The duration of the detention and training order will depend on the offence
committed. Half of whatever is imposed will be spent in custody and the remainder
will involve a period of supervision.
Activity 14.16
Conduct an internet search and write 50 words on the phrases ‘custody plus’ and
‘intermittent custody’ under the Criminal Justice Act 2003. What is their current
status?
14.5.8 Release on licence

It is well known that the length of sentence awarded is rarely the actual time served.
This means that part of the term of imprisonment is usually served on licence in the
community. The main rules governing this process are found in ss.244–264 of the
Criminal Justice Act 2003. Once the offender has been released on licence they will be
subject to conditions which are determined either by the Secretary of State or by the
court. If the offender breaches this licence, they are likely to be recalled to prison and
will serve out the rest of the sentence.
14.5.9 Time on remand

If an offender has served time on remand before trial, then, under s.240(3) of the
Criminal Justice Act 2003, this time will count as part of the prison sentence as long as
the time spent was as a result of the same or a related offence. It does not include time
spent in the police station.
Summary
Prisons are the usual forum for custodial sentences and are classified according to the
level of security imposed. All offenders under the age of 21 are detained, whereas all
offenders over 21 are imprisoned. Prior to a custodial sentence being awarded, pre-
sentence reports are presented and the reasons for custody disclosed in open court.
There are maximum terms of imprisonment and multiple offences can enjoy either
concurrent or consecutive sentences. Murder, due to its seriousness, has a mandatory
sentence and dangerous offenders are subject to statutory provisions. Mandatory
minimum sentences operate to ensure that offenders receive a minimum sentence for
a particular offence and sometimes a suspended sentence will be passed. If custody
is awarded for an offender under the age of 21, different legislative provisions apply.
‘Custody plus’ and ‘intermittent custody’ were introduced by the Criminal Justice Act
2003 but have not been, and are not likely to be implemented. Once part of a prison
sentence has been served, the offender can be released on licence and any time spent
on remand will count towards their prison sentence.
1. What are the differences between open and closed prisons?
2. What are the differences between local and training prisons?
3. What is the minimum age for imprisonment?
4. Why are pre-sentence reports and reasons given for custody in open court?
5. How do concurrent and consecutive sentences work?
6. What different rules apply for the offence of murder?
7. How are dangerous offenders treated?
8. What is the purpose of a mandatory minimum sentence?
9. What is a suspended sentence and how does it work?
10. How are offenders under the age of 21 dealt with?
11. What is meant by ‘custody plus’ and ‘intermittent custody’?
12. How does licence work?
13. What happens to the time spent on remand?

14.6 Non-custodial sentences
Essential reading
¢¢ Sprack, Chapter 25: ‘Sentences other than custody’.
14.6.1 Community sentences

The Criminal Justice Act 2003 overhauled the framework for community sentences and
simplified the regime by creating one single community sentence which includes one
or more ‘requirements’ as options for the sentencing court. These ‘requirements’ are
supposed to ensure that community sentences are tailor-made to suit the offender.
The new system is much more straightforward than the old one.
Those offences committed prior to 4 April 2005 were still subject to the old regime
and this regime included a collection of orders such as the community rehabilitation
order, community punishment order, community punishment and rehabilitation
order, and curfew order. These orders no longer exist for those aged 18 or over.
Justifying community sentences and their objectives

Section 148 of the Criminal Justice Act 2003 provides for a threshold requirement for
a community sentence and this operates in the same way as the threshold for the
custodial sentence. Seriousness is once again the guiding watchword in justifying a
community sentence. These sentences have two main objectives. First, their award
must be commensurate with the seriousness of the offence and, secondly, the
sentence must be the most suitable for the offender.
‘Pick and mix’

To encourage the tailor-made community sentence, sentencers are able to impose
requirements. These include:
uu unpaid work requirement (ss.199–200)
uu activity requirement (s.201)
uu programme requirements (s.202)
uu prohibited activity requirement (s.203)
uu curfew requirement (s.204)
uu exclusion requirement (s.205)
uu residence requirement (s.206)
uu mental health requirement (s.207)
uu drug rehabilitation requirement (s.209)
uu alcohol treatment requirement (s.212)
uu supervision requirement (s.213)
uu attendance centre requirement (s.215).
This collection of requirements generally represents those orders which existed prior
to the Criminal Justice Act 2003.
The process
In awarding a non-custodial sentence, a pre-sentence report will be required under
s.156 of the Criminal Justice Act 2003. This requirement can be discarded if it is not
deemed necessary. If the ‘requirement’ involves mental health, drug rehabilitation
or alcohol treatment, the consent of the offender will be required. This is likely to be
forthcoming, as otherwise a custodial sentence may have to be considered. Consent is
not required for any of the other requirements.
Young people and community sentences

The Criminal Justice Act 2003 (s.147(1)) states that a community sentence includes
a youth community order. This is an umbrella provision which states that a youth
community order can be a curfew order, an exclusion order, an attendance centre
order, a supervision order or an action plan order. So if s.147 is utilised then one of the
youth community orders can be used.
Activity 14.17
Read Sprack 25.25–25.50 and complete the following chart:
Name of order Statutory source Nature of the order
Curfew order
Exclusion order s.40(A) PCC(S)A 2000 Exclude young person from a

designated area
Attendance centre order
Supervision order
Action plan order
Breach, revocation and amendment of community sentence

Under s.179 of the Criminal Justice Act 2003, Schedule 8 governs the process for the
breach, revocation and amendment of community orders. The process for breach
requires the responsible officer to decide whether the offender has failed, without
reasonable excuse, to fulfil the requirements of the order. If this is the case, the
responsible officer will issue a warning to the offender which states that a further
failure will mean a return to court. If that failure happens, the breach will be dealt
with summarily. Here the court may decide to impose additional requirements. It may
revoke the order and sentence the offender for the original offence, or it may decide
to fine the offender or leave the original order intact. It should be noted that breach
is due to a failure by the offender, without reasonable excuse, to satisfy the terms of
the order. Revocation can be due to breach but can also be due to other more positive
factors such as the offender’s good progress. Amendment can take place at any time
and usually involves a change due to factors such as ill health or good progress.
14.6.2 Fines
If a community sentence is not appropriate and the threshold is not met, a fine may be
the appropriate non-custodial sentence. If the offence is an indictable one, there is no
maximum limit placed on the Crown Court with regard to the size of the fine. However,
fines are by far the most common penalty for summary offences and each offence will
be allocated to a level which caps the limit of the fine.
The levels of fine are:
uu Level 1 £200
uu Level 2 £500
uu Level 3 £1,000
uu Level 4 £2,500
uu Level 5 or either way offence £5,000.
To impose a fine the magistrates need to consider the seriousness of the offence under
s.164 of the Criminal Justice Act 2003. Having considered aggravating and mitigating
factors, the court will then decide, on means testing grounds, whether the fine should
be level A (assessed on 50% of weekly take home pay), level B (assessed on 100% of
weekly take home pay) or level C (assessed on 150% of weekly take home pay).
At the time of issuing the fine, the court must make clear the term of imprisonment
that will be imposed if the offender defaults and does not pay. The court imposing the
fine must give the offender time to pay. Fines can be combined with the community
sentence if it is appropriate.
14.6.3 Conditional and absolute discharge

Discharges are dealt with by ss.12–15 of the Powers of Criminal Courts (Sentencing) Act
2000. If an offender is granted an absolute discharge, this has no adverse effects on
the offender as he or she is let off. If the discharge is conditional, then, as long as the
offender does not commit another offence in the period of discharge, the offender will
never be sentenced for that offence.
14.6.4 Binding over

There exist two forms of binding over. The first is binding over to keep the peace. This
is governed by s.115 of the Magistrates’ Courts Act 1980 and s.1(7) of the Justices of
the Peace Act 1968. This form of binding over is self-explanatory and simply requires
the offender to enter into an undertaking that they will keep the peace for a certain
period of time upon pain of forfeiting a certain sum of money. The second form of
binding over is where the Crown Court (but not the magistrates) can bind an offender
to come up for judgment. Here the offender will appear in court at a later date to be
sentenced. With conditions attached it is hoped that by the time the offender turns up
for judgment there is no need to sentence at all. Parents can also be bound over under
s.150 of the Powers of Criminal Courts (Sentencing) Act 2000.
14.6.5 Other sentences
Endorsement and disqualification from driving

If a traffic offence is suitably serious, the offending driver may find themselves
disqualified from driving, under the Road Traffic Act 1988. This is a good example of
incapacitation at work as it demands that the offender be prevented from committing
the offence again by rendering them unable to do so. Most lesser traffic offences
involve the driver’s licence being endorsed with penalty points. When the penalty
points add up to 12, the licence is confiscated and the defendant is disqualified for at
least six months. If the offender is convicted of:
uu causing death by dangerous driving
uu careless driving whilst under the influence of alcohol or drugs
uu trying to drive whilst under the influence of alcohol or drugs, or
uu dangerous driving
they will be automatically disqualified. A minimum period of 12 months must pass

before they are allowed to hold a driving licence again.
Forfeiture and compensation orders

Under s.143 of the Powers of Criminal Courts (Sentencing) Act 2000, a forfeiture
order can be made if the court is satisfied that the offender used the property to be
confiscated to commit or facilitate the offence. Section 130 of the Powers of Criminal
Courts (Sentencing) Act 2000 provides for the order where an offender has to pay
compensation to the victim of his offence.
Restitution and confiscation orders

Under s.148 of the Powers of Criminal Courts (Sentencing) Act 2000, goods which
have been stolen can be recovered where the court orders anyone having possession
or control of the goods to restore them to the original owner. Under the Proceeds of
Crime Act 2002 it is now possible for the Crown Court to utilise its power to confiscate
the assets of those convicted of criminal offences.
Activity 14.18
What is the difference between forfeiture and a confiscation order?
Recommendation for deportation

If a convicted offender is not a British citizen, then under s.3 of the Immigration Act
1971 a recommendation can be made to the Home Secretary that he be returned to his
country of origin.
Hospital order
Sections 37–43 of the Mental Health Act 1983 cover the provision of hospital orders
where the court decides that an individual should be admitted and detained in
hospital where they can receive treatment for their mental disorder. The effect of the
order is to authorise the offender’s move to a hospital where they will be housed for
about six months before the review begins.
Anti-social behaviour order (ASBO)

An ASBO can be awarded under s.1 of the Crime and Disorder Act 1998. Here the court
protects the local community from the anti-social behaviour that others have engaged
in by preventing the ‘offenders’ from disrupting others’ lives.
Registration under the Sex Offenders Act 1997

As a result of this legislation, some offenders are required to notify the police of their
whereabouts so that supervision in the community can take place.
Disqualification from working with children

If an offender has been convicted of an offence involving a child, they can be
disqualified by the court from working with children in future.
Summary
The wide range of non-custodial sentences available allows for a tailor-made approach
to be taken to ascertain the most apposite punishment. Community sentence orders
and fines are the most commonly used, but some odd orders such as confiscation and
deportation orders may also be used.
1. How do we justify the use of the community sentence?
2. What additional requirements can be imposed upon the offender by the court?
3. What factors are taken into account when someone is being fined?
4. What other more specific orders are available to cement the range available?
Recommended reading
¢¢ Moore, R. ‘The use of financial penalties and the amounts imposed: the need for
a new approach’ [2003] Crim L Rev 13.
¢¢ Sanders, A., C. Hoyle, R. Morgan, and E. Cape ‘Victim impact statements; don’t
work, can’t work’ [2001] Crim L Rev 447.
¢¢ Von Hirsch, A. and J. Roberts ‘Legislating sentencing principles’ [2004] Crim L Rev
639.

Question 1 Marcia (who is 22) and Tamara (who is 23) have been convicted
at Guildchester Crown Court of robbery. The prosecution case is that Marcia
threatened Vincent, a 16-year-old boy, with a knife while Tamara kept a lookout
at the end of the alley where the offence was taking place. They took from him
his mobile phone and £100 in cash. Both have pleaded guilty. However, Marcia
maintains that she only took the mobile phone by grabbing it from him, that there
was no knife involved and that they did not take any money. Tamara maintains that
she does not know what happened and the prosecution are prepared to accept
that her only role in the offence was that she was looking out for people who might
disturb them.
Marcia has asked for three convictions for robbery to be taken into consideration
on this occasion but has no previous convictions. Tamara was made subject to a
12-month conditional discharge nine months before the offence was committed but
13 months before the sentence was passed.
At the hearing to pass sentence, the judge, His Honour Judge Sterne, declines to
receive any pre-sentence reports on the matter for either offence. He refuses to
accept the suggestions of the defence that the offence was committed without a
knife. After listening to the plea on behalf of both defendants he says the following:
‘This is clearly a bad case. There is too much of this sort of thing going on. Marcia
has obviously armed herself to strip an innocent young man of all his belongs. I find
little of merit in your guilty plea when you would have been convicted anyway.
Given that I am sentencing you for four offences today, young lady, a sentence
of seven years’ imprisonment is appropriate in the circumstance as a lesson to
others. Tamara, you are little more than the innocent victim of Marcia’s poisonous
influence. I am sure that the suffering you have incurred in the run-up to this trial
will have sent you an exemplary lesson that our system of justice is not to be trifled
with. I see no value in turning you to an honest life in sending you to prison. I order
that you serve a period of 50 hours’ unpaid work. I am sure you will benefit from the
stringency of such an order. You will each pay £50 to Vincent in compensation.’
Identify what errors or flaws there have been in the sentencing of Marcia and
Tamara.
[You are not expected to know which exact sentence a court would impose in a
situation such as this.]
Question 2 ‘The appropriate sentence to be imposed for a crime is the ordinary

business of the courts. Parliament should restrict its role to specifying the
maximum possible sentence for any particular crime. Other interventions represent
the usurpation of judicial expertise and are contrary to the separation of powers.’
Discuss.

Question 1 The two defendants should be examined separately. While it will be
valuable in places to contrast the sentences imposed, they do differ quite dramatically.
Starting with Marcia, it is not unreasonable to expect a custodial sentence for robbery.
It would not be correct to say that the court could not impose such a sentence at all.
However, the sentencing process involves a number of defects.
Looking first at the sentencing procedure, it appears that, as there is a factual dispute
as to the way in which the offence was committed (the ‘factual basis of plea’). The
judge should either accept the defence account or conduct a Newton hearing (R v
Newton (1982) 77 Cr App R 13), which will involve the judge hearing evidence and
deciding what actually happened. A failure to do so could invalidate the sentence
imposed without further defects. The judge is sentencing, in effect, on the wrong basis
– that it was a robbery of a phone and £100 using a weapon, rather than a robbery of a
phone without weapons.
The judge should also have received and considered a pre-sentence report (Powers of
Criminal Courts (Sentencing) Act 2000, s.156).
The judge is not wrong to take into account the other three offences, but it is not likely
that they would increase the sentence dramatically – sentences do not simply add
together, so four offences will not lead to a sentence four times as long as a single offence.
In deciding the appropriate sentence, the judge should have regard to whether the
offence has passed the custody threshold (s.152 of the Criminal Justice Act 2003).
This will be so if the offence or a combination of offences is ‘so serious that only a
custodial sentence can be justified’. This will probably be the case with four robbery
convictions. A good answer will note that even if it did not, it may pass the community
sentence threshold (s.148 Criminal Justice Act 2003). You should identify what is meant
by ‘serious’. The definition is provided in s.143(1) of the Criminal Justice Act 2003 and
includes the culpability (i.e. degree of blame) and harm to the victim. (Although the
question does not refer to one, it would be sensible to note that a victim impact
statement should have been received in this case.) Note also that this is exactly the
issue that the Newton hearing should have resolved. The judge has made reference
to the prevalence of the crime. This is not desert-based sentencing but deterrent
sentencing. That there is a lot of a particular criminal behaviour may be relevant to the
seriousness of the offence, but a judge should not use the frequency of the criminal
behaviour in question instead of the seriousness of the offence. In other words, the
judge should have addressed explicitly the seriousness of the offence.
The judge should also have considered the guilty plea (s.144), and this is so even if the
evidence is strong. Also, Marcia’s lack of previous convictions should have been taken
into account in determining the sentence.
With Tamara, the judge has erred the other way (it is rather an extreme case).
One would expect similar offences to attract roughly similar sentences. There are
differences here. That Tamara only took part in the offence in a minor way would
amount to mitigation on her behalf. The prosecution have accepted that she had no
involvement in the use of the knife. The judge does have a power to order a period of
unpaid work as a community sentence (ss.199–200). However, he should do this only
if both the offence is seriousn enough to justify a community sentence (s.148) and the
offence is not so serious that only a custodial sentence can be justified (s.152). That
means that when an offence has a certain degree of seriousness the judge must grant
a custodial sentence whatever his views of the offence. That he wants to rehabilitate
her is not, officially, within his sentencing powers if the offence is so serious that a
custodial sentence is required.
The court does have the power to impose compensation orders on both defendants
for the money stolen (and possibly for the phone).
Question 2 The question asks you to engage with the controversy of minimum
sentences and the recent increase in parliamentary specification and provision for
sentences.
The minimum sentences (under ss.189–190 Criminal Justice Act 2003) and the
requirements for sentencing dangerous offenders in particular ways (ss.225–227)
should be identified. However, the question in fact raises a much broader issue. The
whole sentencing process under the 2003 Act and under statutes before and after,
particularly since the Criminal Justice Act 1991, have specified how sentencing should
take place. They have specified criteria for the imposition of custodial sentences.
The question should engage with whether this intervention is suitable. Clearly
the benefit of such specification is that the passing of sentences is much clearer.
Furthermore, the imposition of minimum sentences would, arguably, given that
they are the will of Parliament, reflect a popular will to impose harsh sentences for
particularly serious or dangerous conduct. Additionally, these provisions provide the
courts with powers not to impose the sentences in extreme (i.e. exceptional) cases.
On the other hand, the courts are less free to determine sentences in these cases than
in other cases and Parliament cannot identify the appropriate sentence in all cases.
There is therefore a danger of an inappropriate sentence where the circumstances
for a sentence under a specified minimum are compelling but not, for example,
‘exceptional’.
It seems easier to justify the existence of a sentencing structure in general. The

provisions of the 2003 Act only provide a framework within which the courts operate
and do not restrain the court’s determination of the issues the Act puts before them.
Ultimately, there is no clear line to be drawn between the specification of a maximum
sentence for a particular offence on the one hand and the provision of a framework for
the passing of sentences.
It is also worth noting in an answer that the main control of the sentences passed by
the courts is the Sentencing Guidelines Council, constituted under s.167 of the Criminal
Justice Act 2003. While created by statute, this is a body composed of judges and other
lawyers and provides guidelines on sentencing. In contrast to the rigidity of minimum
sentences, these guidelines are broad statements of principle that are to be applied
with flexibility, taking the particular circumstances of the offence and offender into
account. They represent a compromise between imposition of sentences upon the
judiciary by legislature or executive on the one hand and unaccountable sentencing
on the other.
Reflect and review



I can critically explore theory underpinning the   

sentencing process.
I can display a sound knowledge of the procedure that   

takes place before sentencing.
I can describe how sentencing takes place in the   

I understand how sentences are determined.   
I can evaluate the use of mitigation and aggravating   

factors.
I can explain the way in which custodial sentences   

operate.
I can understand the wide range of non-custodial   

sentences used by the courts.
revise?
Must Revision
revise done
14.1 Sentencing theory  
14.2 Procedure before sentencing  
14.3 Determining the sentence  
14.4 Mitigating and aggravating factors  
14.5 Custodial sentences  
14.6 Non-custodial sentences  

Notes
15 Appeals
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
15.1 Appeals from the magistrates’ courts . . . . . . . . . . . . . . . . . . 255
15.2 Appeals from the Crown Court . . . . . . . . . . . . . . . . . . . . . 259
15.3 Appeals against conviction . . . . . . . . . . . . . . . . . . . . . . . 261
15.4 Appeals against sentence . . . . . . . . . . . . . . . . . . . . . . . . 263
15.5 Appeal procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
15.6 Criminal Cases Review Commission . . . . . . . . . . . . . . . . . . . 264

Introduction
Once the verdict has been delivered and sentence has been passed, this is not always
the end of the procedure in the criminal process. For a number of reasons, the
convicted defendant may decide to appeal their case, feeling that the sentence was
too harsh or that there is evidence that has not been heard that could have influenced
the decision of the trier of fact. Lots of defendants will insist that the decision of the
court is incorrect and will continue to plead their innocence. As a consequence, the
right and process of appeal are highly prescribed to prevent vexatious appeals which
may involve an unnecessary use and/or abuse of court time and the spiralling of court
costs. The limits to the appeal process are explored in this chapter. They are a key area
for evaluation of the process as a whole. The unfettered and realistic availability of
appeal is the cornerstone of any criminal justice process.
Learning outcomes
uu comprehend the procedure for appeals from the magistrates’ courts

uu display a sound knowledge of the way in which appeals are made from the
Crown Court
uu describe how appeals against conviction take place
uu critically explore the process for appealing against sentence
uu describe the appeal procedure
uu display an understanding of the function and performance of the Criminal Cases
Review Commission.
Civil and criminal procedure 15 Appeals page 255
15.1 Appeals from the magistrates’ courts
Essential reading
¢¢ Sprack, Chapter 27: ‘Appeals from the magistrates’ courts’.
There are three ways in which a decision of a magistrates’ court can be challenged.
These are:
uu appeal to the Crown Court
uu appeal to the High Court by way of case stated
uu appeal to the High Court for judicial review.
An appeal to the Crown Court can only take place if a person has been convicted,
whereas an appeal to the High Court by way of case stated or for judicial review can be
made by anyone who is ‘aggrieved’ by the magistrates’ court decision.
Activity 15.1
Who do you think may be an ‘aggrieved’ person for these purposes?
15.1.1 Appeal to the Crown Court

This is the most important process of the three for this course. It is governed by
ss.108–110 of the Magistrates’ Courts Act 1980 and Part 63 of the Criminal Procedure
Rules 2005.
If a person is convicted by a magistrates’ court, they may only appeal in certain

prescribed circumstances. If that person pleaded not guilty, they can appeal against
their conviction or their sentence. But if they pleaded guilty, they can only appeal
against their sentence. This latter process is governed by s.108(1) of the Magistrates’
Courts Act 1980. Under s.108(3) an appeal against sentence can be brought in respect
of any order made. There is an express prohibition on appealing an order to pay costs.
As has already been indicated, a plea of guilty at trial in the magistrates’ court will
prohibit an appeal against conviction. There are three exceptions to this rule.
uu Pleas equivocal when made. This is where the defendant says ‘guilty’ but adds
things like ‘I did it to defend myself’. The law would normally demand that this
accused change their plea to ‘not guilty’ but if they do not, appeal is possible. This
will usually result in the case being remitted by the Crown Court for full hearing on
a not guilty plea.
uu Pleas subsequently shown to be equivocal. This is where a plea is made

unequivocally but is then rendered equivocal by additional information provided
by the defendant before the magistrates pass sentence. A good example would be
where the defendant pleads guilty to breaking into someone’s house but then, in
mitigation, tells the magistrates that he had broken in by mistake, believing it to be
his friend’s house, and that the friend would not have minded him breaking in. This
would make the guilty plea inconsistent with the mitigation.
uu Pleas entered under duress. Even if a plea of guilty was unequivocal when made
and this was still the case prior to the passing of sentence, this will not prevent
appeal if the plea was subsequently discovered to have been entered under duress.
A good example would be where two people are jointly charged with theft and
one party would have argued that they were forced to undertake the theft, fearing
serious harm to them or their loved ones, and they were likewise forced to enter
the plea of guilty because the other party had decided that a guilty plea would
result in a lesser sentence.
Finally, the Criminal Cases Review Commission can refer a conviction in the
magistrates’ court to the Crown Court even if it is based upon a guilty plea.
15.1.2 Appeal procedure

Under rule 63.2 of the Criminal Procedure Rules 2005, notice of appeal must be given
in writing to the clerk of the relevant magistrates’ court and to the prosecutor within
21 days of the date or sentence or, for example, committal for sentence. It is necessary
to state the grounds of appeal and, as long as the time limits are met, there will be no
need to seek leave.
Under s.113(1) of the Magistrates’ Courts Act 1980 the magistrates may bail a defendant
who has been granted an immediate custodial sentence. This bail would mean that
he had to appear at the Crown Court at the time fixed for the hearing of the appeal.
Under s.81(1)(b) of the Supreme Court Act 1981 an application can be made to the
Crown Court if the magistrates refuse to grant bail. The decision at this stage to bail is
important because custodial sentences are short and if bail is not granted then by the
time the hearing has been heard the defendant may have served the sentence.
Following this, an appeal will be listed for hearing by a circuit judge or recorder who
must sit with two lay magistrates. The clerk’s notes of evidence can be requested by
the defence before the hearing. The appeal becomes a rehearing and so the summary
trial begins once again. Here, though, any additional unseen material can be heard
alongside the evidence heard at the original trial. If the appeal is only against sentence
then the prosecution will outline the facts, report on the appellant and then defence
will offer any mitigation.
15.1.3 Powers of the Crown Court

The judge then announces the decision of the Crown Court and gives reasons. This
process allows for the identification of the issues in hand and how these have been
resolved. Section 48 of the Supreme Court Act 1981 outlines the powers of the Crown
Court to dispose of an appeal. There are extensive powers. The court may confirm,
reverse or vary any part of the decision appealed against. It can also remit the matter
back to the magistrates with its opinion or make any additional order.
The defendant may have appealed against sentence. Under s.48(4) of the Supreme
Court Act 1981 the Crown Court’s sentence must not exceed that which could have
been passed by the magistrates. This does not prevent an increase in the sentence
that was actually passed by the magistrates. This is done to deter vexatious appeals.
In addition, when a defendant loses an appeal the defendant (now appellant) can be
ordered to pay the prosecution costs. If the appellant wins, costs can be awarded.
One interesting point about this process is that if a defendant appeals against the
conviction for theft but was acquitted of assault by the magistrates, the Crown Court
can quash the conviction for theft but may substitute the conviction for the assault.
This power is provided for under s.48 of the Supreme Court Act 1981. In the interests of
justice this power should be used sparingly.
15.1.4 Appeal to the High Court by case stated

This process is one where an appeal takes place on a point or points of law. The clerk of
the magistrates’ court prepares the document for appeal with the co-operation of the
magistrates. This appeal is then filed with the High Court. These appeals are governed
by s.111 of the Magistrates’ Courts Act 1980, Part 64 of Criminal Procedure Rules 2005,
and Order 56, Rules of the Supreme Court 1965.
Activity 15.2
Read Sprack 27.17 and identify the chief points to note about this right.

15.1.5 Procedure on appeal

An application for appeal on this process must be made within 21 days. It must be
in writing and should identify the question of law or jurisdiction on which the High
Court’s opinion is sought. The application is then sent to the clerk of the relevant
magistrates’ court. If it is felt to be a frivolous appeal, then under s.111(5) of the
Magistrates’ Courts Act 1980 a certificate will be issued by the magistrates explaining
that the application has been refused. If this happens, the defendant can apply to the
High Court for an order which compels the magistrates’ court to state a case.
The magistrates will then draft a letter stating the case by identifying the key facts of
the case, but not the evidence that led to these facts being established. The charge
or charges heard are then outlined and the contentious issues relating to questions
of law or jurisdiction are raised along with any authorities raised or the magistrates’
decision. Once this has happened the letter is sent to the appellant, who then has
to lodge it within ten days. If it is not lodged within ten days it will be struck out. If a
custodial sentence has been passed, bail may be granted.
15.1.6 The hearing

This appeal is heard by the Divisional Court of the Queen’s Bench Division. There must
be at least two High Court judges sitting and sometimes there are three. There is no
evidence brought before the court. Instead legal argument for the appellant and
respondent is heard. In disposing of the appeal, the High Court can ‘reverse, affirm or
amend’ the decision of the magistrates’ court. The High Court can therefore substitute
an appellant’s conviction for an acquittal and where the prosecution has appealed
the case it can be remitted to the magistrates with a direction that they convict and
proceed to sentence. If the sentence is clear, the High Court may impose it. If it was an
appeal against sentence which was beyond their jurisdiction, the High Court can pass
the sentence they consider right. Costs can be awarded. A retrial can be directed, but
this is only where a fair trial can be ensured.
The procedure for appeal by way of case stated is used not just to question the
decisions of magistrates; it can also be used to question the Crown Court’s decisions
on matters not relating to trial on indictment. The process is the same as for the
magistrates’ court. The main difference is that the appellant from the Crown Court
must draw up the case whereas there is far more involvement from the magistrates
and their clerk in the earlier process.
15.1.7 Application for judicial review

One of the key roles of the High Court is to review the exercise of power of inferior
tribunals. This process is called judicial review and you should be familiar with its
jurisdiction from your Public law course.
Applicants for judicial review should have sufficient interest and the purpose of the
review is to prevent these inferior tribunals from exceeding their jurisdiction or to
compel them to exercise that jurisdiction. It can also be used to control the process
by which decisions are made. If errors of law have been made by magistrates’ courts
in the exercise of their proper jurisdiction, this should be questioned by appealing by
case stated not by applying for judicial review.
The orders available from the High Court are prerogative orders. They are:
uu the quashing order, which quashes the decision of the inferior tribunal
uu the mandatory order, which compels the inferior tribunal to carry out its duties
uu the prohibiting order, which prevents the inferior tribunal from acting unlawfully
or in excess of its jurisdiction.
Activity 15.3
Read Sprack 27.33–27.42 and consider which orders will be issued in each of the
following scenarios.
a. Buster has been disqualified from driving. He pleaded guilty by post and was
disqualified in his absence at the first hearing. The magistrates did not adjourn
before disqualifying him from driving.
b. Serena has been convicted of an assault but the magistrates announced that
she was guilty before they allowed her defence counsel to present his closing
speech.
c. Popplesdon Magistrates’ Court decided not to try an information against Dotty

because they felt it could not have just been Dotty who committed the offence
of littering, but also other people who were with her at the time.
d. Langrish Magistrates’ Court decide that because a charge of criminal damage

against Victor only amounts to £10 of damage they will hold committal
proceedings to decide where the case will be heard.
15.1.8 The procedure

Section 31 of the Supreme Court Act 1980 and Part 54 of the Civil Procedure Rules 1998
provide for the procedure in applying for judicial review. It is beyond the syllabus of
this course.
Judicial review of Crown Court decisions

It is also possible for a decision of the Crown Court to be challenged through an
application for judicial review, as long as it does not relate to a matter within the trial
on indictment. The same rules apply as for the appeal by case stated. What could
amount to being beyond the ‘trial on indictment’ can be found in Sprack 27.44.
Comparing judicial review and appeal by case stated

Students often become confused between judicial review and appeal by case stated.
If you are appealing against the case stated you are arguing that the magistrates
have made a mistake in the exercise of their jurisdiction. But if you are applying for a
mandatory prohibiting order under the judicial review process then you are arguing
that the magistrates have either failed to exercise jurisdiction that they possess or
they are exercising jurisdiction that they do not have.
There are similarities between the appeal by case stated and the quashing order under
judicial review, as the effect of both is to set aside the decision of the lower court.
Which should the defendant pursue, then? The following activity should assist with
this choice.
Activity 15.4
In the following scenarios should a quashing order or appeal by case stated be
used?
a. Littleton Magistrates’ Court have passed a three-year custodial sentence on a

first-time offender for criminal damage.
b. Mugglesdon Magistrates’ Court decided to hear the case against Lolly for
her common assault charge even though they notified her that it was on a
different date and the clerk informed them before they heard the case but they
continued saying that it was a waste of money to delay.
c. There is a dispute as to facts in a case heard by Numpty Magistrates’ Court and

the defendant cannot decide to opt for appeal by case stated or for judicial
review.
Appeal from the High Court to the House of Lords

Under s.1(1)(a) of the Administration of Justice Act 1960, the decision in a criminal case
or matter can be appealed to the House of Lords. The rules for appeal are the same as
those discussed below where there is an appeal from the Court of Appeal (Criminal
Division) to the House of Lords. The important distinction here is that if there is a point
of appeal from the High Court it must be to the House of Lords. There is no right of
appeal to the Court of Appeal (Criminal Division).
1. What are the three ways in which a decision by a magistrates’ court can be
challenged?
2. What is the procedure for appealing to the Crown Court?
3. What are the three exceptions to the rule that you cannot appeal against
conviction if you pleaded guilty at summary trial?
4. What is the procedure for appealing by way of case stated?
5. What is the difference between an appeal by way of case stated and judicial
review?
6. What are the three orders available for judicial review?
Summary
There are three forms of challenge to a decision taken by a magistrates’ court. The
most important of these is where there is an appeal to the Crown Court. This is due
to the powers at the Crown Court’s disposal upon verdict. The other two forms of
challenge are appeals to the High Court by case stated and applications for judicial
review. There are similarities and differences between these two forms of challenge
and the courts are not always clear as to which challenge is to be preferred. It is also
possible, with notable restrictions, to appeal from the High Court to the House of
Lords. Any appeal on a criminal matter must be straight to House of Lords. There is no
opportunity to appeal a criminal matter from the High Court to the Court of Appeal
(Criminal Division).
15.2 Appeals from the Crown Court
Essential reading
¢¢ Sprack, Chapter 26: ‘Appeals from the Crown Court’.
Historically, if a person was convicted on indictment there was no general right of

appeal. This was changed by the Criminal Appeal Act 1907, which created the Court
of Criminal Appeal. The Court of Criminal Appeal was then abolished by the Criminal
Appeal Act 1966, which transferred its jurisdiction to the Court of Appeal (Criminal
Division). The primary function of the Court of Appeal (Criminal Division) is to hear
appeals by the defence against the accused’s conviction or sentence. Other functions
include a procedure whereby the Attorney-General can increase an over-lenient
sentence by referring the case to this court. It is also possible for the court to give an
opinion on a point of law which arose during the trial that led to an acquittal.
An acquittal can never be overturned.
Thirty-two Lords Justices of Appeal may sit in the Court of Appeal (Criminal Division).
All are equally entitled to sit in the Court of Appeal (Civil Division). That said, both †
Judges are selected by the
courts tend to have judges sitting who have experience of the particular area Master of the Rolls (for the
in question.† The Lord Chief Justice is President of the Criminal Division. When Civil Division) or by the Lord
considering an appeal, there must be at least three judges sitting. There may be more, Chief Justice (for the Criminal
but this is rare. This panel can deliver majority decisions. Division).
15.2.1 Court of Appeal (Criminal Division): other functions

We shall consider the process for right of appeal against conviction and sentence in
more detail below, as this is the most important work of the Court of Appeal (Criminal
Division). That said, the court does have other functions.
The first of these is under s.36 of the Criminal Justice Act 1972, which provides that
where a person has been tried on indictment and acquitted the Attorney-General
can refer to the Court of Appeal (Criminal Division) for his opinion on any point of
law which arose in the case at first instance. Before giving his opinion on the point
referred, the court must hear argument from the Attorney-General. If the Court
of Appeal agrees with the Attorney-General, this will guide judges in future cases
but it does not jeopardise the original verdict. To see where this has been useful in
developing the law see Attorney-General’s Reference (No 1 of 1975) [1975] QB 733.
The second additional function is where there is a sentencing reference under ss.35–36
of the Criminal Justice Act 1988. Here, if an offender has been sentenced in the Crown
Court for either an offence triable only on indictment or an offence triable either way
and the Attorney-General considers that the offender was dealt with unduly leniently,
they can refer the sentence to the Court of Appeal for review. Here the court can
quash the sentence and replace it with what they believe to be the more appropriate
sentence. Concerns about this power have been expressed by the court itself. See
Attorney General’s Reference (No 1 of 1991) [1991] Crim LR 725.
The third additional function is where under ss.57–74 of the Criminal Justice Act 2003
the prosecution has the right to appeal against certain rulings made by the trial judge.
There are two types of appeal here: the ‘terminating’ ruling and the ‘evidentiary’
ruling.
uu The terminating ruling gives the prosecution the general right of appeal against
a ruling made at any time up to the start of the judge’s summing up to the jury.
As soon as the ruling is made, the prosecution must indicate its intention to
appeal. There is a slight risk here for the prosecution, since if they are unsuccessful
at appeal then an acquittal must inevitably follow. If successful, the court may
confirm, reverse or vary a ruling. If it confirms the ruling an acquittal will follow; if
it reverses or varies the ruling there will be a fresh trial or a resumption of Crown
Court proceedings.
uu The evidentiary ruling is where the prosecution must inform the court, before
the opening of the case for the defence, that it intends to appeal. It must give
details of the appeal but the risk of full acquittal in the terminating rulings does
not apply here. If successful, the same ranges of options apply as they did with the
terminating rulings. Under s.68(1) of the Criminal Justice Act 2003 the prosecution
and defence do have a right of appeal to the House of Lords from a decision by the
Court of Appeal under these provisions.
The fourth additional function is where there is, under ss.12–14 of the Criminal Appeal
Act 1968, an appeal against a verdict of not guilty by reason of insanity. The process
here is similar to that of an appeal against conviction, which is documented in section
15.3 below. If the appeal is allowed, the court can substitute a verdict of guilty which
will then lead to sentence. If the appeal is allowed on other grounds, the verdict will
be substituted with a full acquittal.
The final additional function is contained within s.33 of the Criminal Appeal Act 1968
and concerns an appeal to the House of Lords from a decision of the Court of Appeal
(Criminal Division). This can be brought by either the prosecution or defence. The
appeal is subject to:
uu the Court of Appeal certifying that the decision being appealed involves a point of
law of general public importance
uu either the Court of Appeal or the House of Lords giving leave to appeal because it
appears to them that the point of law is one which ought to be considered by the
House.
This application must be made orally or in writing and should be made within 14 days
of the Court of Appeal’s decision. There is neither an option to appeal nor a duty to
give reasons if the Court of Appeal refuses to certify that a point of law of general
public importance is involved. If the Court of Appeal agrees that a point of law of
general public importance is involved but still refuses leave, an appeal can be made to
the House of Lords (see Sprack 26.105–26.107 for additional details).
1. What is the composition of the Court of Appeal (Criminal Division)?
2. What are the two main functions of the Court of Appeal (Criminal Division)?
3. What is the purpose of a reference under s.36 of the Criminal Justice Act 1972?
4. How are sentencing references dealt with under s.35 and s.36 of the Criminal
Justice Act 1988?
5. What type of rulings of the trial judge can be appealed by the prosecution?
6. What can happen if there is a successful appeal against a verdict of not guilty by
reason of insanity?
Summary
The Court of Appeal (Criminal Division) has existed in its current form since 1966
although the right to appeal dates back to 1907. The main functions of this court are
to hear appeals concerning the accused’s conviction or sentence. The Court does
have other functions, which include the reference procedure on a point of law by
the Attorney-General and an appeal by the Attorney-General on a lenient sentence.
In addition, new appeals against trial rulings have been introduced by the Criminal
Justice Act 2003 and the accused still has the right to appeal against a verdict of not
guilty by reason of insanity. The Court of Appeal (Criminal Division) also serves a pivotal
role in deciding whether a case can be appealed to the House of Lords.
15.3 Appeals against conviction
Essential reading
All persons convicted on indictment, subject to obtaining leave, may appeal to the
Court of Appeal (Criminal Division) against their conviction. Leave is not required if the
trial judge has issued a certificate stating that the case is fit for appeal. A single judge
will decide whether to grant leave to appeal. This will see the judge review the case
papers. If the judge decides not to grant leave, the appellant may seek to have the case
heard by a court of the Criminal Division. If they too decide against granting leave, the
accused could run the risk that the time they have spent in custody does not count as
time served towards sentence. This is seen as a useful deterrent to prevent spurious
appeals where there is no evidence meriting an appeal. If someone is appealing
who pleaded guilty, they are as entitled to appeal as those who pleaded innocent. In
practice, however, such an appeal is unlikely to be granted leave.
Section 2(1) of the Criminal Appeal Act 1968 outlines how appeals against conviction
are determined. The test, simplified in 1995, is:
The Court of Appeal shall allow an appeal against conviction if they think the conviction is
unsafe; and… shall dismiss an appeal in any other case.
Activity 15.5
Read Sprack 26.23–26.29 and consider how this simplified test in fact ‘restates the
existing practice of the Court of Appeal’.

15.3.1 Errors in a trial

It is not unheard of for an appellant to appeal on the basis of events which took place
before the trial actually began (see R v Mullen [2000] QB 520; R v Chalkley [1998] 2 All ER
155; R v Francom [2001] 1 Cr App R 237 and R v Togher [2001] 1 Cr App R 33). If however a
trial is error-free then an appeal is unlikely. The more common grounds for appeal are
where a trial judge made errors in his or her summing up or allowed activities which
undermined the defendant’s right to a fair trial (see R v Maguire [1997] 1 Cr App R 61; R
v Whybrow (1994) 144 NLJ 124 and R v Thakrar [2001] EWCA Crim 1096). Despite so many
possibilities here as to error, the key question remains: is the conviction safe?
Historically, appellants have sometimes alleged that their own counsel was deficient
in some way. The Court of Appeal (Criminal Division) has been reluctant to accept
such arguments. A series of cases had suggested that ‘flagrant incompetence’ may
be required before a conviction would be quashed (see R v Clinton [1993] 1 WLR 1181).
However, in R v Nangle [2001] Crim LR 506 it became clear that, given our obligations
under Article 6 of the European Convention on Human Rights, such a test may be too
harsh and the court will now be looking for the impact of the lawyer’s errors rather
than their extent.
15.3.2 Effect of an appeal

Under s.2(2) of the Criminal Appeal Act 1968 the Court of Appeal (Criminal Division)
must allow the appeal and quash the appellant’s conviction if they find that the
conviction is unsafe. The court could order a retrial but normally will acquit and the
defendant is treated as though the jury found him not guilty.
If a retrial is ordered under s.7 of the Criminal Appeal Act 1968, as amended, this is
done if it is deemed to be in the interests of justice. The factors considered in making
this decision will include any lapse of time and whether the defendant has been in
custody for that period and what strengths there were in the case. They will also
consider the level of publicity in high profile cases. See R v Stone [2001] Crim LR 465.
When the retrial proceeds it will do so with a fresh indictment for the same offence.
This retrial should be dealt with expeditiously. If there is a conviction at retrial the
sentence passed must not, under Schedule 2 to the Criminal Appeal Act 1968, be more
severe than that imposed after the first trial.
15.3.3 Venire de novo

Most of the decisions of the Court of Appeal are governed by the Criminal Appeal Act
1968 as amended. Under its inherent jurisdiction the court also has an old power to
quash a conviction and issue a writ of venire de novo. The effect of this is the same as
ordering a retrial.
Activity 15.6
Read Sprack 26.39–26.40 and write a 250 word summary of the circumstances in
which the venire de novo writ may be issued.
15.3.4 Partially successful appeals

Not all offenders are convicted of just one offence. This means that the Court of Appeal
(Criminal Division) can deliver successful appeals on some but not all of the counts
before them. It is also possible for the court to substitute for the jury’s verdict a verdict
of guilty of another offence if the jury could have convicted them of that offence on
the evidence presented. See R v Worton (1990) 154 JP 201 to see how this can work.
15.3.5 Single right of appeal

There exists only one right of appeal. This means that if an appeal has been brought
and dealt with, the defendant will then be debarred from bringing a second appeal.
This is the case even if the second appeal would have relied upon fresh evidence and
a different point. This rule does not apply if the case has been referred to the Court of
Appeal (Criminal Division) by the Criminal Cases Review Commission.
15.4 Appeals against sentence
Essential reading
Under s.9 of the Criminal Appeal Act 1968, anyone can appeal against any sentence
passed on them by the Crown Court for that offence. Under s.10, a person sentenced
by the Crown Court for an offence following a summary conviction and committal
for sentence may appeal against his sentence. As with the appeal against conviction,
appeal against sentence will demand that leave is granted unless the trial judge has
granted a certificate to state that the case is fit for appeal. These certificates are rare
as a trial judge is unlikely to grant sentence and then decide that the sentence is too
harsh.
Section 11(3) of the Criminal Appeal Act 1968 outlines how appeals against sentence
are determined. The Court of Appeal (Criminal Division) can quash any sentence or
order which is the subject of the appeal and replace it with the sentence or order it
considers to be most appropriate, provided:
a. the sentence it passes or order it makes is one which the Crown Court could have
passed or made, and
b. taking the case as a whole, the appellant is not dealt with more severely on appeal
than he was by the Crown Court.
This court has no power to increase the sentence of an appellant. If, however, the
appellant was convicted of two counts, then the court may increase the sentence of
the other count, but this must not result in an overall increase which exceeds that
passed in the Crown Court. The court can also substitute the jury’s verdict for a verdict
of guilty for a lesser offence.
Despite this bar, it is possible for the Attorney-General to apply for the sentence to be
increased if it is felt that it is too lenient. In addition, the court may direct that the time
the appellant has spent in custody pending the appeal shall not count as part of his
sentence (see AG Ref (Nos 62 and 63 of 1997) [1998] 2 Cr App R (s) 300).
Activity 15.7
Read Sprack 26.44–26.45 and decide whether the following scenarios could lead to a
successful appeal, and how.
a. Boris is sentenced to 25 years for theft. The statutory maximum is seven years.
b. James is sentenced to seven years for theft of a chocolate bar from a railway
kiosk where there had been no-one attending but he was caught on CCTV.
c. Viola is sentenced to eight years for fraud offences as a result of the judge
accepting the prosecution’s version of the facts of the offence without hearing
any evidence.
d. Iqbal, aged 25 and Hussain, aged 35, are sentenced to 6 years and 14 years
respectively for armed robbery. They both participated in but Hussain got a
longer sentence because the judge felt that he should have known better as he
was the older of the two.
1. What is the statutory provision that deals with appeals against conviction?
2. How far will errors in a trial be taken into account when it comes to an appeal
against conviction?
3. What is the effect of a successful appeal?

4. What is the writ of venire de novo?
5. How are partially successful appeals dealt with?
6. How many rights of appeal are there?
7. What is the statutory provision that deals with appeals against sentence?
8. When is an appeal against sentence likely to succeed?
Summary
The two most common tasks of the Court of Appeal (Criminal Division) are to hear
appeals against conviction and appeals against sentence. There is only one right of
appeal and the defendant will be debarred from appealing again once this has been
heard. As well as statutory provisions covering appeals there is also the writ of venire
de novo, which covers appealing against conviction. Appeals against sentence will
usually be determined on the basis of established categories.
15.5 Appeal procedure
Essential reading
¢¢ Sprack, Chapter 26: ‘Appeals from the Crown Court’ (especially 26.46–26.75).
The standard procedure for appealing against a conviction or sentence will usually
take place within 28 days of conviction or sentence. The appellant will serve on the
Crown Court a notice of application for leave to appeal which must include a list of
the grounds for appeal. The court will then forward these to the Registrar of Criminal
Appeals. The papers are put before a single judge and the judge will decide whether
leave should be granted. The appellant is then notified of the judge’s decision. If it
is unfavourable, there are 14 days in which the appellant can notify the Registrar
that they wish to have the application heard by a court of the Criminal Division. If
leave is granted, a summary of the case is prepared and a date fixed. At the hearing
counsel presents argument. Usually only the transcript and counsel’s argument are
considered, although other witnesses can be called. The court will then deliver its
verdict.
15.6 Criminal Cases Review Commission
Essential reading
¢¢ Sprack, Chapter 26: ‘Appeals from the Crown Court’ (especially 26.100–26.104).
As a result of the recommendations of the Royal Commission on Criminal Justice in

1993, a new body was set up to investigate and process allegations of miscarriages of
justice. This body is the Criminal Cases Review Commission and was created by the
Criminal Appeal Act 1995. Its task was to take over the role of the Home Secretary to
refer cases to the Court of Appeal. It has a wider remit than the Home Secretary had as
it deals not just with convictions on indictment but also with convictions on summary
trial and referrals in light of sentences awarded.
The test for whether to refer cases to the Court of Appeal can be found in s.13 of
the Criminal Appeal Act 1995, which states that it should not refer a case unless it
considers that there is a real possibility that the conviction, verdict or sentence length
would not be upheld if a reference was made. Once this decision has been made by
the Commission, the case is then treated as an appeal and so now falls within the remit
of the Criminal Appeal Act 1968.
Activity 15.8
Read Nobles, R. and D. Schiff ‘The Criminal Cases Review Commission: reporting
success?’ (2001) 64 Modern Law Review 280 and provide a 500 word written
summary outlining why the authors believe there has been success in the workings
of the Criminal Cases Review Commission.
1. What is the procedure for appeal?
2. What is the Criminal Cases Review Commission?
3. Why do Nobles and Schiff suggest that the Criminal Cases Review Commission is
succeeding in its task?
Summary
The procedure for appeal is similar regardless of whether it is an appeal against
conviction or against sentence. The Criminal Cases Review Commission was
established in 1995 as a result of recommendations made by the Royal Commission
on Criminal Justice. Its role is to refer cases to the Court of Appeal (Criminal Division)
when it believes that there is a real possibility of success.

¢¢ Dennis, I. ‘Rethinking double jeopardy: justice and finality in criminal process’
[2000] Crim L Rev 933.
¢¢ Dennis, I. ‘Prosecution, appeals and retrial for serious offences’ [2004] Crim L Rev
619.
¢¢ James, A., N. Taylor and C. Walker ‘The Criminal Cases Review Commission:
economy, effectiveness and justice’ [2000] Crim L Rev 140.
¢¢ Pattenden, R. ‘Prosecution appeals against judges’ rulings’ [2000] Crim L Rev 971.
¢¢ Malleson, K. and S. Roberts ‘Streamlining and clarifying the appellate process’

[2002] Crim L Rev 272.
¢¢ Nobles, R. and D. Schiff ‘The Criminal Cases Review Commission: reporting

success?’ (2001) 64 MLR 280.
¢¢ Roberts, P. ‘Double jeopardy law reform: a criminal justice commentary’ (2002)

65 MLR 393.

Question 1 Roberta is charged with theft from her employer, Supermarts Ltd. She
is alleged to have taken three bottles of wine from their warehouse. She appears
before Thistletown Magistrates’ Court. During the course of her trial, while her
defence is being presented, she notes that one of the three lay magistrates is
asleep and the other two spend a lot of time talking between themselves. The clerk
appears to be doing a crossword puzzle. When she is halfway through her evidence,
the chair of the bench says, ‘Yes, yes, we really have heard enough. Let’s get on with
things. We have decided that you are guilty.’ They ask the clerk what sentence would
be appropriate and the clerk suggests a sentence of 18 months’ imprisonment given
that the victim was the employer. They then pass that sentence.
Advise Roberta as to her options for appeal and what procedure will be followed in
each case.
Question 2 ‘The principle on appeal is not that the court will ensure that the right
decision has been reached but that the decision reached is not palpably wrong.’
Critically discuss this in respect of the powers of the Court of Appeal in relation to
both defence and prosecution appeals from the Crown Court.

Question 1 There are three potential appeal routes. Consider each in turn. As you have
been asked to advise Roberta on the appeal options, you should offer some view as to
which might be most appropriate.
She could appeal to the Crown Court under s.108 of the Magistrates’ Courts Act
1980. This would involve a rehearing with a Crown Court judge sitting with two lay
magistrates who will conduct a rehearing of the case (s.79(3) Supreme Court Act 1981).
It seems that the magistrates’ court did not hear her case properly so it may be that
a second chance to present her defence would be enough to give her the chance of
the acquittal she seeks. While the Crown Court does have a power to impose a higher
sentence than that imposed in the court below (s.48(5) Supreme Court Act 1981), the
magistrates’ court in this case has in fact imposed a sentence that is wrong in law. For
a single offence they could only have imposed a 12 month period of imprisonment –
s.154 Criminal Justice Act 2003. Therefore she cannot suffer any greater sentence than
she received previously. The Crown Court does not have to pass sentence on her if they
hear her case. They have the power to remit the matter back to the lower court if they
would prefer to do so.
Alternatively, Roberta may prefer to appeal by way of case stated under s.111 of the
Magistrates’ Court Act. This involves taking the appeal to the High Court and, unlike the
Crown Court, does not involve a rehearing of the appeal (Rules of the Supreme Court
1965, rule 56). Rather, the magistrates’ court is required to write up a note of what
happened (this is the ‘case stated’) and that must be agreed with the defence before
the matter is heard in the High Court. Given that it appears that the magistrates’ court
was not paying enough attention, this route might be problematic. In any event, the
Divisional Court of the Queen’s Bench Division of the High Court hears the case. This
usually involves two High Court judges or a High Court judge and a Lord Justice of
Appeal. The court has a number of powers, but even if they decide that there was a
defective trial, they are more likely to pass the matter back to the magistrates’ court
to rehear it than simply to acquit Roberta. The High Court would have a power to
quash the legally invalid sentence imposed and could pass a substituted sentence
instead. Clearly, they would only do this if they were satisfied with the conviction.
Appeal by way of case stated does not appear to be the best option for Roberta. This
is particularly so because this option is still available if she appeals to the Crown Court
and wants to appeal the verdict there; the ‘case stated’ method also applies to verdicts
of the Crown Court other than those from trial on indictment (i.e. it applies where
the case in question was tried in the magistrates’ court but appealed to the Crown
Court, as is the case here). Conversely, appealing by way of case stated first loses the
defendant the right to appeal to the Crown Court (s.111(4) Magistrates’ Courts Act
1980).
The third (and least common) route of appeal is to seek judicial review. This would
involve bringing a challenge to the decision of the magistrates’ court in the High
Court. This is generally a less favoured option than case stated because it is harder to
establish grounds for an order to be made and also the remedy is more discretionary.
Generally, where there is a clear defect of process (i.e. the magistrates have clearly
done something wrong) then case stated is better. Where they have acted seemingly
appropriately but have given a verdict that is questionable, appeal to the Crown Court
is generally more effective. However, judicial review is an option and Roberta could
challenge the actions of the magistrates as a breach of natural justice in that they did
not pay full attention to her case and prevented her from presenting it fully. They do
not, after all, appear to have given her a fair hearing. Furthermore they have acted
ultra vires in imposing a sentence they had no power to impose. In both situations
it is likely that the High Court will not make decisions itself on these matters but,
having quashed the orders granted (i.e. conviction and sentence), they will order the
magistrates’ court to conduct the hearing again. This, in the end, is why appeal to the
Crown Court seems to be the most effective way for Roberta to seek the correct order.
Question 2 This question seeks to establish what students understand about the
process of appeal. The appeal process is said to be one of review rather than rehearing.
Dealing first with defendants appealing against conviction, the grounds of appeal
set out in the Criminal Appeals Act 1965 (as amended) provide that a conviction will
be quashed if it is ‘unsafe’. Note that this is not the same as ‘technically flawed’ or
‘incorrect’. The test was that stated in R v Cooper [1969] 1 QB 267 where it was held
that, although the court would be reluctant to intervene simply because they take a
different view to the jury at trial, a conviction would be unsafe if there was a ‘lurking
doubt’ about letting the conviction stand. The ‘lurking doubt’ test was questioned in
R v F [1998] Crim LR 307 but not overruled. The fact that the judge gets the law wrong at
trial or follows the wrong procedure will not necessarily mean that an appeal succeeds
if the jury would have convicted anyway if the law or procedure was followed properly.
The Court of Appeal therefore applies a ‘hands off’ approach to appeals.
A good answer will also consider how the new prosecution appeals regime works
in this respect and will identify that terminating rulings and evidentiary rulings
are subject to restrictions. A terminating ruling, for example the acquittal of the
defendant, must be inevitable rather than just more likely. Evidentiary rulings, like
all appeals relating to evidence, will involve the Court of Appeal refusing to consider
itself better to determine the best way to deal with the facts of the case than the
Crown Court judge. There is extensive case law on these areas and a good answer
would extract some of the leading cases. A very good answer, showing research and
understanding beyond the minimum reading set, would also identify that the 1965 Act
as amended in 1995 had the effect of removing ‘unsatisfactory’ as a ground of appeal.
In R v Smith [1999] 2 Cr App R 238, the Court of Appeal considered that the change to
the statutory language had not removed the old test and that therefore a conviction
that resulted from an abuse of the prosecution process would be ‘unsafe’ even if there
was no flaw within the trial process itself (in that case the defendant had been illegally
abducted from Zimbabwe to face trial).
Reflect and review



I can comprehend the procedure for appeals from the   

magistrates’ courts.
I can display a sound knowledge of the way in which   

appeals are made from the Crown Court.
I can describe how appeals against conviction take   

place.
I can critically explore the process for appealing against   

sentence.
I can describe the appeal procedure.   
I can display an understanding of the function and   

performance of the Criminal Cases Review Commission.
revise?
Must Revision
revise done
15.1 Appeals from the magistrates’ court  
15.2 Appeals from the Crown Court  
15.3 Appeals against conviction  
15.4 Appeals against sentence  
15.5 Appeal procedure  
15.6 Criminal Cases Review Commission  

Feedback to activities
Contents
Chapter 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
Chapter 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
Chapter 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
Using feedback
Feedback is designed to help you judge how well you have answered the activities in
the text. It will show you whether you have understood the question, and chosen the
correct solutions.
Do not look at the feedback until you have answered the questions. To do so
beforehand would be pointless, and even counter-productive. Completing the
activities helps you to learn. Checking the feedback helps you learn more. Remember
that ‘doing’ activities teaches you more than reading does.
You should reflect on what the feedback tells you, and note down your thoughts in
your Portfolio.
Civil and criminal procedure Feedback to activities page 271
Chapter 2
Activity 2.1
A solicitor advocate is a qualified solicitor who has gained higher rights of audience to
represent his or her clients in the highest courts of the land. Historically solicitors had
to ‘instruct a barrister’ as advocacy was not part of their training. Since 1990 there has
been a rather complex route of training for solicitor advocates. This complexity was
resolved in 2000 and it is now a much more straightforward process. It is an innovative
development as it means the legal profession is rather more fused than it once was.
The Bar has been critical of such a development – recognising that it could see, and
indeed has seen, a squeezing of barristers’ work opportunities within the process.
That said, becoming a solicitor advocate continues to be a popular choice for newly
qualified solicitors.
Activity 2.2
Sime describes how they would be in a ‘rather more complex position’ (Sime, 1.19).
Whilst they are still with the firm of solicitors they should not act against the former
client of the firm but if they leave then they are not usually precluded. The key to this
web of exclusion is knowledge. Would the member of the firm have had knowledge of
the confidential information which could have been used by the solicitor? If not then
there is no problem, but if so then it would appear they are prevented from acting
against that client.
Activity 2.3
A ‘Chinese wall’ for these purposes is an information barrier which is usually erected
within a firm to separate and isolate people who are making decisions which means
they are privy to certain undisclosed information. They are erected in an attempt to
avoid a conflict of interest. In cases of the sort discussed in Bolkian it would appear
that, unless the firm in question has a structured mechanism within their organisation
to use a ‘Chinese wall’, they will bear a heavy burden in a court of law to prove that
they have acted in accordance with established professional practice.
Activity 2.4
Your flowchart should contain the following stages:
uu issuing of a claim form
uu service of process
uu statements of a case
uu track allocation
uu disclosure
uu exchange of evidence
uu listing for trial
uu trial
uu assessment of costs.
As these issues will be explored in more detail later in this guide you are simply
required at this stage to understand how one event leads to another.
Activity 2.5
Activity 2.6
Activity 2.7
The main point to draw from this statement is that the power is only to be used to
avoid injustice. It is not to be used to circumvent existing statutory provisions. This
means that if an application for an order is made which is not envisaged by either
the SCA 1981 or the CPR then the court can still grant relief by virtue of its inherent
jurisdiction. Lord Diplock appears to suggest that it is important that this right is
retained by the court so as not to ‘stultify the constitutional role of the High Court’.
Clearly this jurisdiction should be used sparingly. The county courts, following Langley
v North West Water Authority [1991] 1 WLR 697, appear to have a similar inherent
jurisdiction which should only be exercised where there is potential for injustice.
Activity 2.8
Activity 2.9
a. Admiralty Court
b. Companies Court
c. Commercial Court
d. Technology and Construction Court
e. Patents Court
Activity 2.10
While your sentences will take their own individual form there are certain features
that you should have shown.
uu Fair hearing: a public hearing in most cases (even if in some cases, which can be
justified, this is not so).
uu Equality of arms: equal access to the courts but the quality or cost of
representation does not have to be equal.
uu Minimum delay: the importance and complexity of a case will be considered

when deciding if a hearing has been held within a reasonable amount of time.
uu Duty to give reasons: reasons must be sufficiently detailed for an appellate court
to understand the basis of a decision.
Activity 2.11
From your reading and summary you will realise that following Re S (Minors) (Care
Order: Implementation of Care Plan) [2002] 2 AC 291 a declaration of incompatibility
can only be made where the actual statutory provisions are incompatible with
an individual’s human rights. Here a parent would claim that the effect of (a) was
disproportionate in its treatment of that parent’s Article 8 right to privacy and family
life. Scenario (b) would be less likely to result in a declaration of incompatibility
because the provision is silent as to the effect and so there is no statutory provision
which is actually incompatible, even if the net effect were the same.
Activity 2.12
Chapter 3
Activity 3.1
For something to ‘savour of’ champerty and maintenance requires ‘a suggestion of’
this. The claim here is that agreements which wait until the very end of the litigation
for payment, or require a ‘bonus’ if the litigation is successful, savour of champerty and
maintenance. Maintenance here means supporting or championing litigation without
just cause and champerty is an aggravated form of maintenance where someone seeks
to obtain a share in the proceeds of the suit. It would appear that the view taken in
this country is that if a case is meritorious and just then a source of funding would be
available and to undertake a case on the basis of a bonus at the end reduces the legal
profession to market traders who are ‘conjuring up’ work. This is thought to be rather
unseemly and these are still illegal contracts and therefore unenforceable.
Activity 3.2
Activity 3.3
You should begin your summary of the professional negligence pre-action protocol
by explaining that the protocol applies to claims against professionals in tort and for
breach of a contractual duty to act with reasonable skill and care. It is also used for
claims of a breach of a fiduciary duty. Remember to identify what professions are not
covered. The summary should explain the process from initial notification through to
first letter through to the professional’s response to the letter. There is an expectation
that 14 days’ notice will be given to the professional before the claimant commences
proceedings.
Your personal injury protocol summary should follow the same form. Identify what
limits there are on this pre-action protocol. An informal letter from the claimant
should be sent to the defendant or their insurer. This informal letter will start the
informal negotiations. It will not start the protocol timetable. This protocol procedure
is quite formal in that to begin two copies of a letter of claim need to be sent to
the defendant. This should include details of the claim. The defendant should then
respond in 21 days. If there is a dispute as to liability then the defendant will disclose
relevant documents. Then the claimant will send a schedule of special damages as
soon as possible. Medical evidence will be obtained and then alternative dispute
resolution will be encouraged. Part 36 offers will be capable of being made and
proceedings will follow if no settlement is reached.
Activity 3.4
In support of ADR the simplicity, flexibility and speed of those processes make for
an attractive alternative. When arguing against ADR it is important to recognise that
sometimes ADR is not appropriate for the dispute in question and sometimes ADR (for
example commercial arbitration) can be more expensive than litigation. These points
should appear in your final five. Whilst your list may include the fact that ADR can be
less stressful than court proceedings, yet an arbitrator could compromise the ADR
process meaning court was inevitable, these are not really high on the priority list for
this activity.
Activity 3.5
a. The best form of ADR here would be community mediation. Under the Anti Social
Behaviour Act 2003 having high hedges is considered to be a form of anti social
behaviour and community mediation will involve a mediator who facilitates rather
than determines a decision. The mediator is often a senior professional and will try
to negotiate a settlement with the parties.
b. As this is a construction dispute you can expect to utilise adjudication in

construction disputes. This will enable constructors to get paid.
c. As you are at the stage of consideration it maybe wise for you to seek neutral
evaluation. Here an expert would look at the evidence and reach a considered
view. It is not binding but it would at least give you an opportunity to consider
whether you should be making a claim against the damp proofer or not. Proving
damp as a sole cause may be a complex task so it may require an expert to offer a
view.
d. Here it may be wise to write a letter to your Member of Parliament or to visit your
politician’s surgery as they can then raise this policy with your local authority. The
public authority is responsible for the problem so it may be required to respond to
your MP’s enquiry.
e. As this is a commercial case you may find commercial arbitration is the way
forward. Here determination by a professional arbitrator takes place. Your contract
has an arbitration clause so this may be the best choice.
Activity 3.6
Although much of this is a comprehension exercise it is worth remembering when you
are creating your own summary of each type you should identify not just the process
but also the issues raised which are particular to that form of ADR. Why is it particular
to the problem it deals with and why might it be a more effective method of dispute
resolution than the courtroom? You may find in the examination that you are asked
either to advise your client on what form of ADR may be more appropriate or you may
be asked to evaluate the ADR project as a whole. This will require a discussion of how
each of these processes works and any shortcoming of ADR when compared to the
courtroom as a forum for dispute resolution.
Activity 3.7
a. You would need to make a claim for compensation under the Fatal Accidents Act
1976. The limitation period here would be three years from the date of the accident
(s.12(2) LA 1980).
b. You would need to make a claim for compensation as a victim of the violation of
your Article 8 rights under the European Convention on Human Rights. This claim
would need to be made within one year of the alleged violation in accordance with
s.7(5) Human Rights Act 1998.
c. You would want to bring a case in defamation against the local newspaper. You
would need to bring the claim within one year (s.4A LA 1980).
d. You would need to make a claim for recovery of arrears of rent and would need to
bring the action within six years of the point at which recovery became an option
(s.19 LA 1980).
e. This would be a personal injury claim and would need to be brought within three
years (s.11(4) LA 1980).
Activity 3.8
Activity 3.9
This is a comprehension exercise but you should ensure that your 100 words explain that
the factors to be considered when extending the limitation period in personal injury
cases will include the delay between the accident and the defendant being informed
of the claim. Does the claimant have an alternative cause of action? Lord Diplock does
regard the merits of the claim to be of particular importance when deciding to extend
the limitation period. However LJ Parker has cast doubt on this, suggesting in Hartley v
Birmingham City District Council [1992] 1 WLR 968 that the merits of the claim should not
be considered because the stronger the merits the more likely this will be prejudicial to
the defendant. The key here is to look at the statutory provision. Each case will need to
be considered against s.33(3) along with the wider concerns of the courts to do justice
by ensuring that all the circumstances of the case are considered.
Chapter 4
Activity 4.1
The purpose of this activity is for you to see what a completed claim form may look
like. In answering these questions you will see that (a) the value of the claim is for
£63,372.50 plus £7,681.66 in interest, which totals £71,234.16; (b) the claimant designs
and supplies computer equipment and software to the defendant; (c) this appears
under the Statement of Truth heading.
Activity 4.2
a. Usual or last known residence, or place of business or last known place of business.
b. Principal office of the company. Can also be served at its registered office.
c. Usual or last known residence.
Activity 4.3
a. The second day after it was left at the document exchange.
b. If it is transmitted before 4pm, then on that day. In any other case on the business
day after the day it was sent.
c. Day of delivery.
If a claimant is effecting service then they must file a certificate of service within seven
days of service under rule 6.14 CPR.
Activity 4.4
You should note that the guiding principles are generally rather vague. What is clear
is that the discretion to extend must be exercised in accordance with the overriding
objective, so it must be done to further the dealing with a case justly. This is not
simply justice for the claimant but justice for the defendant as well. The reason for
failure to serve will prove material when the court decides whether to extend. Good
reasons secure renewal. Weak reasons do not. Therefore in Hashtroodi incompetent
legal advisers were not a good reason to renew whereas if there are real problems in
locating the defendant then this may give rise to a reason to extend.
Activity 4.5
Your summary should first outline the general rules concerning contracts and how
Article 5 of the Jurisdiction Regulation works. Then include a discussion of how the
scheme works for contracts of employment, consumer contracts and insurance
contracts. Remember that each tries to protect the weaker party. This concern for
the weaker or financially dependent party extends to cases involving a maintenance
claim and your summary should include reference to Article 5(2). For torts this is
either where the defendant is domiciled or where the alleged harm took place. Then
in Article 5(5) the particularly restrictive rules concerning branches, agencies and
establishments are considered. Notice that when it comes to trust claims under the
Jurisdiction Regulation it is likely this will be considered in England because that is
largely the home for the trust in the overall jurisdiction. Finally, salvage and freight
claims will be considered under Article 5(7). The key to your summary is to understand
how Article 5 works and what restrictions are in place.
Activity 4.6
Activity 4.7
Your summary should include reference to the process for entering default judgment
in cases involving money claims and claims for delivery of goods, non-money claims
and money and goods claims where permission is required. The process is quite
specific and it is worth remembering that the rules when trying to recover money
differ to the rules when trying to obtain an injunction.
Activity 4.8
While this is largely a comprehension exercise on some rudimentary detail it is
useful to see the ways Sime has considered how each heading can be met and how
the sequence of statements are used to compile the relevant documentation for
proceedings. Remember much of the civil trial is governed by written submissions
which means that the written form is far more important in this process than in
criminal procedure.
Chapter 5
Activity 5.1
Activity 5.2
You need to consider the flowchart in Sime (Figure 27.1). Your summary should
include reference to case management conferences, fixing the date for trial, pre-trial
checklists, listing hearings, pre-trial review, directions given at other hearings and
the variation of the case management timetable. Much of this will not be new to you
in your understanding of how the track system works but note the more complex
arrangements in these cases. Much of this complexity will be considered again as you
work through the remaining chapters of this guide.
Activity 5.3
It is useful to remember the general rule is that you need to look at the monetary
value of the claim and this will determine which track the case is to be allocated to. All
claims not exceeding £5,000 are usually allocated to the small claims track. All claims
between £5,000 and £25,000 are usually allocated to the fast track and then all claims
over £25,000 and specialist court cases will be allocated to the multi-track. Remember,
though, to look also at the nature of the claim as this may alter the track it is allocated
to.
a. As this claim falls below £25,000 but is above £5,000 and psychiatric injury is a
form of personal injury then it could be suitable for the fast track. However, due to
the complexity of the expert evidence (it would need to be a very complex case for
this army of experts to be allowed to testify) then it is likely it will require longer
than a day in court and so under rule 26.6(6) CPR it is likely to be allocated to the
multi-track.
b. As the claim is for £3,000 and is a case of unlawful eviction then it is likely to be
dealt with in the small claims track under rule 27.7(4) CPR.
c. As this claim is for £4,000 and is a personal injury claim and the value is under
£5,000 but above £1,000 then it will usually be allocated to the fast track under
rule 28 CPR.
d. As this claim is for no monetary value then under rule 26.7(2) CPR it will be
allocated to the track which the procedural judge considers to be the most
suitable.
e. This claim is small and so would normally be allocated to the small claims track.
However under rule 26.8 CPR it may be argued that this case involves an issue of
public importance and so it may be allocated to the multi-track.
Activity 5.4
Your summary should include reference to assignment or transmission of interest,
correcting a genuine mistake, where the claim cannot be properly carried on without
the new party and where there has been an alteration of capacity. Special reference
to personal injury cases should be made. You could mention the rules concerning
amendment of causes of action after the expiry of the limitation period, considering
Hancock Shipping Co Ltd v Kawasaki Heavy Industries Ltd [1992] 1 WLR 1025 CA. Finally the
summary should include the rules governing amendments after the limitation period
which affect accrued rights. You will see that the courts are reluctant to amend and if
the case does not fall into an established exception it is unlikely that amendment will
be granted.
Activity 5.5
a. It is useful to consider Lord Woolf’s view in McPhilemy v Times Newspapers Ltd [1999]
3 All ER 775 here and the fact that excessive detail in statements of case can obscure
the issues rather than providing clarification. Is this the case here? You have a case
with one doctor and you have a request to see all minutes of all meetings and
every email sent regarding the levels of hygiene in a hospital for 10 years! Why
10 years? Should the request only be to what the doctor was supposed to have
received? This does appear excessive and it is not clear whether this will clarify
much in relation to this specific case.
b. Here the request is not precisely formulated. To request all information about
induction, training and use by all staff is simply too much. This could be seen as a
‘fishing request’, it may be viewed as oppressive because it goes beyond the level
of detail that can be reasonably expected. This is unlikely to be granted.
Activity 5.6
Activity 5.7
Your list will depend on your internet search but the advantages of class actions may
be the consistency of judgments made, the more efficient processes undertaken and
the fact there is ‘strength in numbers’ which means the case may be more likely to
succeed. Disadvantages may be that the actual members of the class can sometimes
receive very little in awards as the award is swallowed up by lawyer fees. The process
of grouping class members and compiling the case can be time consuming and may
be unduly ‘predatory’ in that class members may not have initially wanted to take
action until they were persuaded to by lawyers. Finally the sheer number of claimants
may damage a defendant’s reputation with the view that there ‘is no smoke without
fire’.
Activity 5.8
Although your summary will depend on your understanding of the way rule 20.2
CPR works, you should ensure that you are able to grasp the difference between
counterclaims against a claimant and another person and how contribution works.
The facts of the Royal Brompton case will help you here as it demonstrates how
contribution can arise. When considering indemnity it may be useful to look at how
s.76(1)(1) Law of Property Act 1925 operates. Finally it is worth remembering that
even if an additional claim under rule 20.2 CPR can be brought the court still retains
a discretion whether to allow the additional claim to continue or not. How this
discretion may be used can be seen in Chatsworth Investments Ltd v Amoco (UK) Ltd
[1968] Ch 665.
Activity 5.9
Sime provides a useful example of how the winding up petition may look. Your
summary should include reference to how the petition is served, advertised, what
a certificate of compliance is and how disputes by the company are dealt with. The
petition may involve supporting or opposing creditors and these should not be
forgotten in the process.
Activity 5.10
You will note from your reading that most applications must be made on notice.
This will involve an application form, evidence in support, bundles of accompanying
documents, skeleton arguments and draft orders. Service will usually be by first class
post and sometimes a disposal will take place without a hearing. Hearings can also
be by telephone. These orders may also be made upon the court’s own initiative.
Sometimes, though, these will be made without notice and this is where your contrast
will come in. You will see that this must be the exception rather than the rule as an
applicant is asking the court to rule on something about which the other side has
not yet been notified. There are sensible reasons for this, for example the emergency
protection of a child or preventing a money launderer from disposing of his or her
assets.
The process is much the same with or without notice, in terms of the application
form and supporting evidence, but the difference is that the person against whom
the order has been made is not present and has had no warning that the order is
being made. Once granted the order without notice must be served on that person,
together with the application notice and any evidence in support of the claim. If
the person against whom the order is made wishes to appeal they can do so within
seven days of service of the order. These applications to set aside the order or to vary
it are usually made back to the judge who granted the order in the first place. When
comparing and contrasting remember that orders without notice could fall foul of
the right to a fair trial under Article 6 ECHR. There are legitimate exceptions here but
this will mean that orders without notice are only granted exceptionally. The hearings
for all interim orders are usually in a judge’s room although they are still designated
as being in public. Any summary assessment of costs will usually be undertaken
where the application lasts up to one day. The CPR overriding objective will govern all
proceedings.
Chapter 6
Activity 6.1
While this will depend on your own evaluation of what is critical to your
understanding of the rules, you should ensure that your words encapsulate what is
crucial to the area. For example, with cross-claims you should ensure you mention
that cross-claims are unconnected with the claim (word could be ‘unconnected’),
counter-claims linked to the claim (word could be ‘linked’) and set-offs (word could be
‘set-offs’).
Activity 6.2
In the case the applicant was one of 1,500 women who were claiming that they were
employed on less favourable terms than their male counterparts. Fourteen cases were
selected for determination and the eventual finding was in favour of the employer.
The applicant then tried to proceed with her claim and was unsuccessful because,
although the previous determinations were not binding, it was felt the case could
never succeed.
Activity 6.3
Your summary should include an explanation of the general conditions to be satisfied
under rule 25.7 CPR for an interim payment to be granted. There are particular rules for
multiple defendants and the standard of proof is that on the balance of probabilities
the claimant would obtain judgment. Mention should be made of how applications for
interim payments can be combined with summary judgment and what the effect is of
counter-claims and defences. Finally reference to the court’s overarching discretion
should be made to show that even if a ground is made out for the court to make such a
payment, the court can still refuse.
Activity 6.4
It is worth remembering that a condition must be met before an order can be granted
and once a condition is met then the court has the discretion not to make the order,
in accordance with a number of factors outlined by Sime. These include the prospects
of success, stifling a genuine claim, the delay in applying, resident outside the
jurisdiction and impecunious limited company.
c. Nina can argue that she wants to apply for the order because Mariah is threatening
to emigrate, knowing she cannot win the case. Mariah has now emigrated to
Australia, even though she has kept a house and business in the UK, and so she is
now resident out of the jurisdiction and not resident in one of the countries listed
as a Brussels Contracting State, a Lugano Contracting State or a Regulation State.
Having met the condition the court will now have to decide whether or not to
grant the order. As the case has no prospect of success then the order should be
granted. It can be enforced against her remaining property and business interests
in the UK.
d. Robin can argue that he wants to apply for the order because BRS Associates Ltd
will be an impecunious limited company. Such a ground is not available against an
individual but it is against a company. Robin will have to prove why the company
will be impecunious. This can be done by showing that unusually large dividends
have been paid (see Frost Capital Europe Ltd v Gathering of Developers Inc Ltd (2002)
LTL 20/6/02). The condition has been met and the discretion is not likely to be
exercised to not grant the order. See Longstaff International Ltd v Baker and McKenzie
[2004] 1 WLR 2917).
Activity 6.5
You will note that the court will consider all the circumstances for relief from sanctions
and the nine factors which need to be considered before relief is granted. Nine of your
keywords ought to reflect these factors. It is worth remembering when formulating
your keywords that the view from the courts is that judges will work through each
of the nine factors systematically and then weigh up whether to grant relief from
sanctions. Reference to previous defaults, concern for denying access to the courts
and prompt application for relief should feature in your list of key words, however you
decide to formulate them.
Chapter 7
Activity 7.1
When compiling your response to this statement it is worth remembering where
there is a right to withhold disclosure and where there is a duty to withhold
disclosure. You then need to consider the common law rule which provides a privilege
against self-incrimination. Then you need to consider the statutory limits to the rule.
Consideration of legal professional privilege should follow, along with a discussion of
‘without prejudice’ communications. Then you should consider waiver of privilege
and discuss public interest immunity. The key to your response is to remember that
any use of privilege should be carefully considered so that justice is best served
where documents are disclosed and that privilege is only successful in very particular
circumstances.
Activity 7.2
Your summary should include reference to rule 25.1 CPR and the orders available to
the court to permit inspection of property. You should have identified what ‘relevant’
property means and the limitations to this rule. You then need to consider s.34(3) SCA
1981 and s.53(3) CCA 1984 and how the process works for the inspection of property
in the possession of non-parties. Then finally you should consider s.33(1) SCA 1981 and
s.52(1) CCA 1984 and how inspection of property before issue of proceedings works.
Reference could also be made to Huddleston v Control Risks Information Services Ltd
[1987] 1 WLR 701. The key here is to ensure that you understand the difference between
orders under s.33(1) SCA and orders granted under s.34(3) SCA.
Activity 7.3
The summary should include reference to how pre-action disclosure of reports
operates and how directions are made to deal with expert evidence. The court can
limit the use of expert evidence and it is important that there is an exchange of reports
and sequential disclosure. Letters of instruction must be made and on occasions the
court will direct for a single expert. Mention could then be made as to the form of the
expert’s report and any supporting documents but a mention should also be made
of the failure to disclose a report. Finally your summary could make reference to
how written questions to experts are used and what is meant by a without prejudice
discussion.
Activity 7.4
Your summary should include a discussion of the different types of written evidence
that can be used. You should be able to identify the following from your summary.
a. Daisy can be asked to affirm her evidence under PD 32, paragraph 16 rather than
swear an oath when executing her statement.
b. Ewan can apply to the court under rule 32.9(1) CPR to serve witness summaries
rather than witness statements. If he obtains permission he will be allowed to
provide a summary of the evidence that would have been included in a witness
statement.
c. Fosia has no need to worry as she should request for the court to strike out Gary’s
written statement under rule 32.1 CPR. The information about her sexual past is
scandalous and irrelevant to the case. The court may choose to strike it out of its
own volition but there is little doubt that it would be struck out.
Activity 7.5
Your summary should include reference to s.2 CEA 1995 and also rule 33.2 CPR. You
should also indicate when there is no need to serve a hearsay notice in accordance
with rule 33.3 CPR. Mention should be made of the form of hearsay notice under rule
33.2(3) CPR and what happens if there is a failure to serve a hearsay notice under
s.2(4) CEA 1995. Reference should be made to the power to call witnesses for cross
examination on hearsay evidence. Finally your summary could include credibility
notices and the use of business document certificates.
Activity 7.6
You summary will include reference to how the court adduces the originals of
documents. You should also identify what happens when the original is in the
possession of a non-party and then proceed to explain how documents are
authenticated. Finally you need to mention the rules concerning admissibility of
documents which are in agreed bundles.
Activity 7.7
Your summary should include a discussion of the term ‘just and convenient’. You
should be aware that interim injunctions are only remedies and so can only be granted
if the applicant has a substantive cause of action. Much of your summary should
include reference to the American Cyanamid guidelines and then consider the rules for
defamation cases, industrial disputes and claims against public authorities. You should
consider negative covenants and covenants in restraint of trade and, finally, briefly
consider the role of interim mandatory injunctions. Your summary needs to be quite
detailed on the American Cyanamid guidelines and you should be able to see what
principles guide the courts in the granting of these types of injunctions.
Activity 7.8
The purpose of this summary is enable you to see on what basis the courts will grant
a freezing injunction. Your summary should include reference to s.37(1) SCA 1981 and
how the courts have interpreted this notion of ‘just and convenient’. The claim must
be justiciable and arguable and the claimant has to prove the assets are actually
within the jurisdiction. Worldwide freezing injunctions are available exceptionally.
You then need to consider how the applicant can establish that there is a real risk that
the defendant will disperse the assets if they are not restrained from doing so. Even
if these requirements are met the court still has the discretion to refuse a freezing
injunction. As with all equitable relief these injunctions are granted in personam and so
they are not issued as of right.
Activity 7.9
This summary will enable you to consider the guidelines for the court in granting
search orders and also help you to understand the way the orders have been executed.
This area of injunctive relief is popular with Examiners and, having completed this
summary (and the summaries in Activities 7.7 and 7.8), you should have a good grasp of
how interim injunctions, freezing injunctions and search orders work.
Your summary will consider the guidance offered in Anton Pillar KG v Manufacturing
Processes Ltd [1976] Ch 55 and how the courts have construed this ‘real risk of
destruction’. You should then move on to consider the service of the order, how the
relevant people should gain access for the search and how the search and removal
should take place. You could look at Alliance and Leicester Building Society v Ghahremani
(1992) 142 NLJ 313 and consider what happens where there is non-compliance by the
defendant. Finally it is worth mentioning that if the documents are thought to be
privileged then they should be excluded from the search.
Chapter 8
Activity 8.1
The content of your flow chart will depend on your understanding of each stage of
the trial but should include a statement as to the opening speech, the claimant’s case,
submissions of no case to answer, the defence case, closing speeches and the role of
the judge. The key is to ensure that your sentence for each stage will enable you to
recall how the trial proceeds so that you can identify any possible problems in any
given exam question.
Activity 8.2
Your summaries will depend on your own interpretation but the procedure to be
used in England should mention the judge making the reference and the contents of
Practice Directive 68 paragraph 1.3. An example is provided by Sime. Your summary
for the procedure in the European Court should make reference to Union de Pequenos
Agricultuores v Council of the European Union (Case C-50/00P) [2003] QB 893. It should
also explain who the registrar of the ECJ must notify and the status of the ruling from
the ECJ. Reference should also be made to costs in either summary. The domestic court
will always bear the burden of cost!
Activity 8.3
a. Here a provisional damages order would be appropriate under s.32A SCA 1981.
The damages can be immediate in respect of the existing injuries but they will be
calculated on the basis that Bert’s disease will not develop any further or there
will be no future deterioration. That said, there will be an entitlement to return to
court to apply for further damages if the disease does develop or deterioration is
suffered.
b. Here a Tomlin order could be used as the terms agreed go beyond the boundaries
of the claim (trip to the Bahamas) and publicity is to be avoided for the agreement.
c. This would be a consent order but as these are matrimonial proceedings the effect
derives from the order, not the agreement of the parties. There is no jurisdiction to
vary a matrimonial order of this type so Valia does not have to worry about David’s
conduct (see Thwaite v Thwaite [1982] Fam 1).
Activity 8.4
Your summary could include about 50 words on each of the headings although your
section on acceptance may be slightly longer. The key is to be able to distinguish
between personal injury claims and provisional damages claims and then to explain
how the Part 36 offer is made and how it is accepted. Remember sometimes the court
will have to give permission for the acceptance of a Part 36 offer.
Activity 8.5
a. Here the interim costs order would be termed costs reserved. As this decision was
deferred until a later date but no later order was made, the costs will be costs in
the case.
b. Here the interim costs order would be termed costs of and caused by. Here the
court makes the order on an application by Gill to amend her statement of case.
c. Here the interim costs order would be termed costs thrown away. Steps have been
taken by Jamie to enforce a judgment but this has been subsequently set aside.
Activity 8.6
Your summary will depend on your understanding of the subject matter but you
should ensure that it does identify the situations where costs do not follow the
event and how the rule applies to multiple parties. What is a Bullock order? What
is a Sanderson order? How is the rule applied where there are multiple issues
for consideration by the court and how are counterclaims dealt with? What is a
Beddoe order? The key to your summary is that you should ensure that each term is
summarised in a memorable way as you may be asked to discuss these terms when
answering an examination question.
Activity 8.7
a. As Jane cannot pay the damages or the costs order made against her she may apply
to the county court under s.112 CCA 1984 to make an administration order. This will
restrict the creditors named in the costs order from joining in bankruptcy petitions
against the debtor. This means the debtor will usually make periodic payments to
meet the debt.
b. James’ goods may be seized to enforce the debt. The bailiffs must gain lawful entry
(a ‘foot in the door’ is not lawful) and once inside goods will be seized to satisfy
the debt. Under s.89(1) CCA 1984 there are certain goods which cannot be taken
and these usually relate to the debtor’s ability to carry out his employment. The
question for bailiffs will be whether the goods are ‘necessary’. For example, clothes
are necessary for satisfying the basic needs of the debtor. However a television or
an ipod would not be necessaries for this purpose.
c. Kiki should be advised that an attachment of earnings order could be made by the
county court under s.6(1) Attachment of Earnings Act 1971. If Sara has no assets then
this is the most effective way of enforcing the debt.
d. Here a charging order under s.1(1) Charging Orders Act 1979 could be issued.
This means that an order could be placed on Horace’s house which means that
payment will be secured of any money due. The charging order secures the debt
but it does not produce any money as such. It just means that Horace makes
periodic payments to satisfy the debt and Irene can be sure that the house is used
as long-term security while the debt is being paid.
Activity 8.8
Your flowchart should indicate where appeals from county court district judges go,
where appeals from High Court masters and district judges go, where appeals from
county court circuit judges go, where appeals from High Court judges go and where
appeals from the Court of Appeal go to. You should also indicate how appeals from the
county court circuit judges can leapfrog the High Court and go to the Court of Appeal.
Make a note of the exceptions to these rules when considering ‘final decisions’.
Activity 8.9
Your summary will involve mention of the appellant’s notice, their appeal bundle
and their skeleton argument. It should also include reference to the record of the
judgment of the lower court and the documents in small claims appeals. A brief
discussion of how service on the respondent takes place will lead to reference to
how the process works after the permission stage. The questionnaire of the Court
of Appeal and the Court of Appeal listing should be mentioned along with relevant
authorities. Finally reference to the dismissal list and final deadline should conclude
your summary.
Activity 8.10
Chapter 9
Activity 9.1
Activity 9.2
Activity 9.3
Activity 9.4
Activity 9.5
The desire for active case management is identified in the case of R v Jisl [2004] All ER
(D) 31 where Judge LJ suggests that whilst justice must be done this does not, due to
finite resources, allow a leisurely approach to case construction and management.
He argues for ‘active, hands on, case management, both pre-trial and throughout the
trial itself’. Further, in R v B [2006] Crim LR 54 there was some consideration of how the
judge may use his or her discretion to ensure active case management. Time limits
were particularly sticky in this case and an effective balance has to be struck between
the defendant’s right to a fair trial and the level of judicial control over the use of court
time.
Article 9.6
Article 9.7
Your completed chart should look like this:
Offence Summary Triable either way Indictment
Prostitution for gain X
Robbery X
Murder X
Dropping litter X
Dangerous driving X
Chapter 10
Activity 10.1
Activity 10.2
Activity 10.3
Activity 10.4
Activity 10.5
The case of R v Delaney appears to suggest that, although an automatic breach of
PACE and the Codes will not render the evidence obtained as inadmissible, in this
case the ‘flagrant breach’ did so. There was no contemporaneous record of the
90 minute interview in this case. In R v Canale the court also took the view that no
contemporaneous recording did make the evidence inadmissible. Their Lordships in
this case said that ‘the importance of the rules relating to contemporaneous noting of
interviews could not be over-emphasised’. Both of these cases suggest a due process
approach rather than a crime control one. By emphasising the quality of conviction
this tends not to be so interested in principles associated with crime control.
Activity 10.6
Activity 10.7
Your notes could look like this:
uu s.60 Criminal Justice and Public Order Act 1994 (vehicles pedestrians weapons
dangerous instruments)
uu s.44(1) Terrorism Act 2000 (stop vehicles prevention terrorism)
uu s.44(2) Terrorism Act 2000 (stop pedestrians prevention terrorism)
uu s.23 Misuse of Drugs Act 1971 (search controlled drugs)
uu s.47 Firearms Act 1968 (search firearms)
Activity 10.8
Activity 10.9
Activity 10.10
Chapter 11
Activity 11.1
Activity 11.2
Section 22 of the Prosecution of Offences Act 1985 specifies the custody time limits
that are available. These time limits are the maximum period during which the
accused may be kept in custody before trial. They are:
a. 70 days between the first appearance at the magistrates’ court and committal
proceedings
b. 70 days between first appearance and summary trial for a triable either way
offence. This is reduced to 56 days if a decision is made to go to summary trial
within 56 days
c. 56 days between the first appearance and trial for a summary offence
d. 112 days between committal for trial and the arraignment
e. 182 days between the date set for trial (indictable) and the start of the trial.
Activity 11.3
uu R v Mansfield Justices, ex parte Sharkey [1985] QB 613 – condition of bail was that they
should not in future picket other than peacefully at their own pits.
uu McDonald v Procurator Fiscal, Elgin (2003) The Times, 17 April – condition of bail was that
the accused remain in his dwelling at all times except between 10.00am and noon.
uu R v Bournemouth Magistrates’ Court, ex parte Cross [1989] Crim LR 207 – condition

of bail was that the accused did not attend another hunt meeting before his next
court appearance.
Activity 11.4
Activity 11.5
Activity 11.6
In R v Canterbury & St Augustine Justices, ex parte Klisiak [1982] QB 398 no evidence was
presented for the original assault occasioning actual bodily harm case once it was
known that the accused had elected trial on indictment. Another offence of assaulting a
police officer in the execution of his duty was preferred, which was a summary offence.
In R v Brooks [1985] Crim LR 385 the Court of Appeal criticised the prosecution’s
decision to add a grievous bodily harm charge which is only triable upon indictment
and yet was only added once the magistrates had decided to try the case summarily.
Activity 11.7
Activity 11.8
Activity 11.9
Activity 11.10
Chapter 12
Activity 12.1
In Altrincham Justices, ex parte Pennington (1975) a conviction for delivering less than
the contracted weight of carrots to two state schools was quashed because the
chairman of the bench was a co-opted member of the county council’s education
committee. However, in Camborne Justices, ex parte Pearce (1955) a magistrates’ clerk
did not have to withdraw from a case because even though he was a local councillor
he did not sit on the health committee that had advised the prosecution in this case.
Activity 12.2
In R v Brentford Justices, ex parte Wong [1981] there was evidence of the prosecution
abusing correct court procedure by deliberate delay, and in R v Oxford City Justices, ex
parte Smith (1982) there was evidence of inefficiency which led to extreme delay which
prejudiced the accused if the trial were to proceed.
Activity 12.3
Activity 12.4
Activity 12.5
Activity 12.6
Activity 12.7
Activity 12.8
Chapter 13
Activity 13.1
Activity 13.2
a. Here the joinder rules would work so that charges were found on the same facts
because Betty would be indicted for the murder of Horace and for attempting to
bribe Mavis, which would amount to an attempt to pervert the course of justice.
See the case of R v Barrell and Wilson (1979) 69 Cr App R 250 for a real life example of
how the rules work.
b. Here the joinder rules would work so that charges were of the same or a similar
character because Maurice is charged on the first count with attempted theft
and on the second count with robbery. This is similar to the case of Ludlow v
Metropolitan Police Commissioner [1971] AC 29.
Activity 13.3
a. The trial was spread over 17 months.
b. The court sat for 252 working days.
c. The Court of Appeal dismissed the appeal because although it had been alleged
that the length of the trial had been prejudicial, the correct question was whether
the length of proceedings did not make a fair trial possible because, for example,
the jury were not able to discharge their function. In this case the court felt that
there was no danger of the jury being confused.
Activity 13.4
a. Special measures would be required under s.30 of the Youth Justice and Criminal
Evidence Act 1999 where there can be the provision of aids to communication for
an ‘incapacitated’ witness.
b. Special measures would be required under s.25 of the Youth Justice and Criminal
Evidence Act 1999 where the removal of wigs and gowns while the witness gives
evidence can be ordered.
c. A number of special measures could be required in this scenario. First, under s.23
of the Youth Justice and Criminal Evidence Act 1999 the witness could be screened
from the accused. They could also give evidence, under s.24 of the Youth Justice
and Criminal Evidence Act 1999, by live television link, or under s.26 of the Youth
Justice and Criminal Evidence Act 1999 they could give evidence in private (this is a
sexual case after all).
Activity 13.5
The rules concerning special measures were introduced to protect victims and
witnesses rather than the accused. This raises the question of whether these measures
can be used for an accused who is viewed as vulnerable in some way. Sections 16 and
17 of the Youth Justice and Criminal Evidence Act 1999 make it quite clear the accused
is specifically excluded from eligibility for special measures. Article 6 demands a fair
trial but as Parliament had intended the accused to be excluded from these measures
it followed that it was a necessary exclusion that had been fully considered as the
legislation was being debated through Parliament.
The harshness of this rule may be mitigated by H (Special Measures) (2003) which
suggests that the trial judge may allow an accused who has learning difficulties to
have a full defence statement read to the jury, or the accused may refer to a previous
statement if it assists them in recalling events. Finally, if the accused is illiterate then
the judge may permit leading questions to allow for a coherent defence statement in
court.
Activity 13.6
In this case Hazeltine pleaded not guilty to wounding with intent to cause grievous
bodily harm under s.18 of the Offences Against the Person Act 1861 but guilty of
unlawful wounding under s.20 of the Offences Against the Person Act 1861. The plea
was not accepted and the jury acquitted Hazeltine of the s.18 offence. They did not find
Hazeltine guilty of the s.20 offence, though, which they could have done. The judge
disregarded this and proceeded to sentence for the s.20 offence but the sentence was
quashed at appeal. It was an anomalous, but defensible, consequence of the refusal
to accept the plea. The lesson appears to be that the prosecution should think hard
before refusing the lesser plea.
Activity 13.7
Activity 13.8
The schedule of offences contains the most serious of offences such as murder,
manslaughter and sexual offences, including those involving children. Drugs offences
are included and those criminal damage offences that endanger life are included. Is
it odd that the serious non-fatal offences under s.18 and s.20 of the Offences Against
the Person Act 1861 are not included? An attempted murder case could be made out
when the defendant shoots at the victim and says ‘I am going to kill you’ but misses,
causing only shock. Alternatively, a person could be stabbed or beaten to the extent
that they are left seriously injured but do not die from those injuries. This could be an
assault under s.18 and s.20 of the Offences Against the Person Act 1861, and yet it is not
included. Is this an anomaly?
Activity 13.9
a. Cliff would not be eligible because he is over 70 and has been sentenced to
imprisonment for life.
b. Until 2003 Mariella would not have been eligible because she is a member of the
judiciary. Under s.321 of the Criminal Justice Act 2003 she would now be eligible for
jury service.
c. Brian would be eligible because, whilst he has a previous conviction which led to
imprisonment, this was more than ten years ago and he has been out of prison for
more than ten years.
d. Violet would not be eligible for jury service because she suffers from a mental
illness and regularly receives treatment at a hospital.
Activity 13.10
In R v Chapman and Lauday (1976) 63 Cr App R 75 the appellants failed despite the fact
that one of the jurors was deaf and was only able to hear half the evidence and none of
the judge’s summing up. This may surprise you, as clearly only an incomplete picture
was available to this juror; then again, it was only one juror out of a panel of 12!
Activity 13.11
a. The judge will ask the foreman of the jury if there is any hope of the return of
a verdict and, given the length of deliberation, the foreman is likely to say no;
therefore the judge will discharge the jury. They are too far off even a majority
verdict.
b. This could result in the discharge of a jury. Unless this evidence has been allowed
under the rules of evidence concerning bad character, it should be excluded.
If it is then introduced, albeit by accident, then it will be highly prejudicial to
the accused’s right to a fair trial, especially as it is a rape trial and the previous
conviction is for a sexual assault. It does remain a matter of judicial discretion and
the judge will consider how explicit the reference was to the previous conviction
and if the defence had any part to play in its being revealed. Compare R v Weaver
[1968] 1 QB 353 and R v McCann [1991] Crim LR 136.
c. This could result in the discharge of a jury. Again it will depend upon the exercise
of judicial discretion. This is similar to the case of R v Spencer [1987] AC 128 where
one of the jurors was guilty of misconduct, but discharge of that juror alone would
be insufficient as one juror has mentioned it to their family whereas others have
spoken to the local newspaper about the case.
Activity 13.12
The guidelines include:
uu the length of delay
uu the prosecution’s reasons that justify the delay
uu the accused’s efforts to assert his rights
uu the prejudice caused to the accused.
Activity 13.13
In this case it was necessary to consider:
uu what was the duty of the police
uu whether they had failed in the performance of their duty because they did not
retain the CCTV footage
uu whether this amounted to serious prejudice which rendered the trial unfair
uu whether the police failure was a consequence of bad faith or serious fault which
could be ascertained as distinct from the question of prejudice.
Activity 13.14
The exceptions are as follows.
1. Schedule 2 to the Criminal Procedure and Investigations Act 1996 provides for
statements which have been tendered at acquittal by the prosecution to be read in
evidence at the subsequent trial at the Crown Court.
2. Section 42 of the Children and Young Persons Act 1933 deals with depositions which
are taken outside of the court from a child or young person who has been the
victim of one of a list of sexual or violent offences. This will be admissible if it can
be shown that the appearance of the child or young person would be damaging to
their health.
3. Section 9 of the Criminal Justice Act 1967 allows written statements to be

admissible for all criminal proceedings which are not committal proceedings.
There are conditions within the legislation for these statements to be admissible.
4. Sections 114–120 of the Criminal Justice Act 2003 are now the provisions dealing
with hearsay evidence. Again the detail can be found in the statute.
Activity 13.15
It has long been an established fundamental principle that the accused should be able
to represent himself regardless of whether or not he chooses to have counsel. In the
last decade this right has been called into question, usually on the back of some well
publicised cases where it became apparent that a rapist seemed to enjoy torturing
his alleged victim again when she appeared in the witness box and had to answer his
questions. It could be argued that if that had become the norm it would have been
a further deterrent for rape victims to come forward and report cases against them.
The figures for successful rape prosecutions are already minimal and if this practice of
cross-examination, especially where the accused has the option of using counsel, can
be prevented in order not to further discourage the prosecution of this offence, then
such action could be justified.
Activity 13.16
Both of these cases involve the judge providing some form of guiding evaluation to
the jury on an accused’s defence to the charge presented. The immediate concern
is how far the judge is allowed to provide any form of guiding evaluation before he
oversteps the boundary and is simply telling the jury what to think. In R v O’Donnell
(1917) the conviction was upheld even though the judge said that the prisoner’s story
was a ‘remarkable one’. However, the conviction was quashed in R v Canny (1945) when
the judge told the jury that the defence was ‘absurd’. It would appear an observation is
fine but a conclusion is not!
Activity 13.17
In these conjoined cases the jurors wrote letters to the trial court. In the first case
(Mirza) the letter alleged that other jurors had been racially prejudiced against the
defendant. In the second case (Connor and Rollock) the juror said that the other jury
members had been in a hurry to reach a verdict and had not considered the cases
separately because it was too long a job to do so. The House of Lords dismissed both
appeals. It could be argued, as Lord Steyn has done, that in the first case there was
evidence that the jury had reached their verdict on the grounds of racial prejudice
rather than on consideration of the evidence. In the second case it could be argued
that the rule is that both defendants should be considered separately and this rule was
not followed. The answer against the first case is the more compelling and the veracity
of this decision has been called into question as a result.
Activity 13.18
Chapter 14
Activity 14.1
This is a very important activity to complete as you need to ensure that you have
a sufficient understanding of the rationales for sentencing. Having a solid body of
evidence will enable you to respond to the statement that follows. Your response here
should ask why it is necessary to prioritise any of the rationales of sentencing. What
are the other rationales for sentencing and why are those not prioritised? Does society
prioritise desert as its primary sentencing rationale? What evidence do you have to
support this? If you agree, what are the advantages and disadvantages of demanding
state vengeance in this way? Does it mean much in the long term for the prisoner and
for the state? Good responses will critically consider each rationale and challenge
the assumptions of the statement: that desert is the primary rationale and the reason
advanced for this suggestion.
Activity 14.2
Victim impact statements are controversial because it is always questionable as to
what involvement the victim should have in the sentencing process. After all, the
judge is expected to determine sentence upon consideration of established principles.
They were historically expected to consider what the impact has been upon the
specific victim of that offence. This changed in 2001 and by reading the Practice
Direction you will see that there is now a role for the victim’s voice to be heard in
the courtroom at the sentencing stage. Paragraph 28 suggests that the statement
should be heard by the court and the judge must pass sentence having regard to the
circumstances of the offence and the consequences to the victim. This statement
should be in proper form (i.e. a witness statement) and then it will be up to the judge
to decide whether to refer to it when passing sentence.
Activity 14.3
Activity 14.4
Activity 14.5
Antecedents would include details of the offender’s age, education, past and present
employment, his income and his present domestic circumstances. It would also
include his date of arrest, details of bail or remand and the date of his last release
from prison or other custodial institution. There may be evidence of his previous
convictions and any findings of guilt (this would include those made when the
offender was under the age of 14).
Activity 14.6
The Criminal Justice Act 2003, s.156 (3) and (4) requires a pre-sentence report in all
cases where the court is considering a custodial or community order, unless the court
decides that this is unnecessary. The Sentencing Guidelines Council guideline makes it
clear that there will be times when a pre-sentence report is unnecessary, even when
sentencing to a community order. The guideline states that this could be considered
when the offence is in the low range of seriousness and where the sentencer is minded
to impose a single requirement (for example, a curfew requirement) and where the
sentence will not require the involvement of the National Probation Service. Where
the sentencer is minded to impose a fine only, a pre-sentence report would be
unnecessary.
A pre-sentence report contains details of the offence and the defendant’s attitude
towards it, which may include whether the defendant now admits their guilt
and whether they feel any genuine remorse for their crimes. It will also provide
information about the defendant’s personal history and family situation and any
medical problems that the defendant may have. There will also be a section where
the probation service offers an assessment of the risk of harm to the public if the
offender re-offends and a conclusion which provides a summary suggesting the most
appropriate sentence and the impact that this would have on the defendant.
Activity 14.7
Activity 14.8
Lord Lane CJ suggests that if it is to defer the sentence of the offender, the court must
make it clear to the offender why the sentence is being deferred and what conduct is
expected of the offender during this deferment. There will be an expectation that the
offender does not commit any further offences, but they may also have to make a real
effort to find work and they should take advice offered by the Probation Service. They
may also be required to save money so that they can make reparation for the offence
or seek assistance for their alcohol habit. The discretion to defer is a useful tool to the
court as it allows them to see how the offender acts after conviction with the threat
of custody hanging over them. It will also enable the court to consider any change
that may occur, for example with the offender’s health. The down side is that maybe
the court is merely delaying the inevitable and it may, if the situation is not explained
clearly to the offender, give the offender false hope. They may still be subject to a
custodial sentence and feel aggrieved this is the case if they have been ‘behaving’
during the deferment period.
Activity 14.9
Activity 14.10
Activity 14.11
Activity 14.12
Activity 14.13
a. Bigamy – 7 years.
b. Forgery – 2 years.
c. Sexual activity with a child – 14 years.
d. Obstructing a police constable in the execution of his duty – 1 month.
Activity 14.14
Activity 14.15
Activity 14.16
Activity 14.17
Activity 14.18
Chapter 15
Activity 15.1
An ’aggrieved’ person for these purposes would include a convicted accused and an
unsuccessful prosecutor.
Activity 15.2
Activity 15.3
The following orders would be relevant:
a. A quashing order because the court has acted in excess of its jurisdiction. In R v
Llandrindod Wells Justices, ex parte Gibson [1968] 1 WLR 598 Gibson pleaded by post
and was disqualified in his absence without the magistrates first adjourning and
notifying him of the reason for the adjournment.
b. A quashing order because the court has acted in breach of the rules of natural
justice. In R v Bracknell Justices, ex parte Hughes [1990] Crim LR 266 the court
announced a verdict of guilty before hearing a closing speech by counsel on behalf
of the accused.
c. A mandatory order because the court has to be compelled to carry out its duties.
In R v Brown (1857) 7 E & B 757 the magistrates refused to try an information on the
grounds that in their view other people should have been charged with the offence
as well as the accused. Here they were required to carry out their duties.
d. A prohibiting order because the court must be prevented from acting or

continuing to act in excess of its jurisdiction. In R v Hatfield Justices, ex parte Castle
[1981] 1 WLR 217 the magistrates announced their intention of holding committal
proceedings in respect of a charge of criminal damage to a value of £23 because
they felt that a special procedure did not apply where all small damage cases had
to be tried summarily. In fact they did.
Activity 15.4
a. A quashing order because the court has acted in excess of its jurisdiction. In
R v Llandrindod Wells Justices, ex parte Gibson [1968] 1 WLR 598 Gibson pleaded
guilty by post and was disqualified in his absence without the magistrates first
adjourning and notifying him of the reason for the adjournment. Under s.11 (4)
of the Magistrates’ Courts Aco 1980 the court had no power to disqualify in these
circumstances.
b. Here a quashing order is appropriate because the rules of natural justice have been
broken. Mugglesdon Magistrates’ Court should have allowed Lolly the opportunity
to present her case properly. These facts would not emerge from an appeal by way
of case stated.
c. In this instance an appeal by case stated is preferred because it enables the facts
as found to be placed clearly before the High Court rather than relying on other
documents which supplement the court record.
Activity 15.5
Activity 15.6
Activity 15.7
a. Here the Crown Court judge has passed a sentence which he is not entitled to pass.
The Court of Appeal (Criminal Division) will replace it with a lawful sentence.
b. Here the sentence is manifestly excessive as it is out of the commonly accepted

range of penalties for this type of case. It is a first offence of a limited value item
where no other person was involved. To award the statutory maximum is clearly
severe.
c. Here the wrong procedure was followed prior to sentence. Viola’s case mirrors that
of the defendant in R v Newton (1982) 77 Cr App R 13 where the judge accepted the
prosecution’s version of the facts of the offence without hearing any evidence from
the defence.
d. Here there is clear evidence of disparity. The differences in sentence cannot be

defended. See R v Dickinson [1977] Crim LR 303 and R v Stroud (1977) 65 Cr App R 150
to see how the courts deal with disparity.
Activity 15.8
Notes

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Civil and criminal

Published by the University of London Press

2 Introduction to civil procedure . . . . . . . . . . . . . . . . . . . . . . 9

4 Commencement of proceedings and responding to a claim . . . . . . . 39

5 Case management, additional claims and interim applications . . . . . . 59

6 Summary judgment and related matters . . . . . . . . . . . . . . . . . 77

6.3 Interim payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

7 Issues before trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

8 At trial and beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

9 Introduction to criminal procedure . . . . . . . . . . . . . . . . . . . 145

10 Police and prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . 157

11 Bail, mode of trial decisions, disclosure of evidence and funding of

12 Summary trial and the magistrates’ court . . . . . . . . . . . . . . . 189

13 Trial on indictment and the Crown Court . . . . . . . . . . . . . . . . 203

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

1.1 Reading and resources . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.2 Allocating your time . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1.3 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.4 Abbreviations used in this subject guide . . . . . . . . . . . . . . . . . 7

1.1 Reading and resources

¢¢ Ashworth, A. and M. Redmayne The criminal process (Oxford: Oxford University

¢¢ Gerlis, S.M. and P. Loughlin Civil Procedure (Abingdon: Routledge Cavendish,

¢¢ Hungerford-Welch, P. Criminal procedure and sentencing (Abingdon: Routledge

¢¢ Jolowicz, J.A. On civil procedure (Cambridge: Cambridge University Press, 2000)

¢¢ McConville, M. and G. Wilson The handbook of the criminal justice process

¢¢ Ormerod, D. and Lord Justice Hooper Blackstone’s criminal practice 2009

¢¢ Trechsel, S. and S. Summers Human rights in criminal proceedings (Oxford: Oxford

¢¢ Zuckerman, A. Civil justice in crisis (Oxford: Oxford University Press/Clarendon,

¢¢ Zuckerman, A. Zuckerman on civil procedure: principles of practice (London: Sweet

The current Regulations for the LLB state:

Other books and resources

1.2 Allocating your time

1.2.1 How to use the subject guide

1.2.2 Topics not included in the guide

1.2.3 The Human Rights Act 1998

1.3 The examination

1.3.1 Format of the examination

1.3.2 Examination technique

In the case of problem questions, you need to be able to:

uu identify the relevant area of law under discussion

uu identify the relevant facts in the question

uu apply both statute and case law to those facts.

Good luck with your studies!

1.4 Abbreviations used in this subject guide

CCA 1984 County Courts Act 1984

CCR County Court Rules 1981

CEA 1968 Civil Evidence Act 1968

CEA 1972 Civil Evidence Act 1972

CEA 1995 Civil Evidence Act 1995

CJJA 1982 Civil Jurisdiction and Judgments Act 1982

CJJA 1991 Civil Jurisdiction and Judgments Act 1991

CLSA 1990 Courts and Legal Services Act 1990

CPA Civil Procedure Act 1997

CPR Civil Procedure Rules 1998

HRA Human Rights Act 1998

IA 1986 Insolvency Act 1986

LA 1980 Limitation Act 1980

PD Civil Procedure Rules Practice Directions

SCA Supreme Court Act 1981

SoGA 1979 Sale of Goods Act 1979

CLQ Civil Law Quarterly

CLJ Cambridge Law Journal

CLR Criminal Law Review

CLP Current Legal Problems