DIFFERENT OPTIONS FOR DISPUTE RESOLUTION

ALTERNATIVE DISPUTE RESOLUTION (ADR)

ADR is a voluntary and confidential (i.e. without prejudice) means of settling disputes with
the assistance of an independent third party – litigation is not voluntary and the court
imposes its own solution
- Should be used unless obviously inappropriate (e.g. injunction required), other
party unlikely to cooperate, or other party cannot be trusted to comply with an award
- Litigation should be a last resort – requires parties to consider use of ADR
(arbitration, mediation and negotiation) and should not be unreasonably refused

Factors to consider whether refusal to ADR is justified:

- Nature of case
- Merits of case
- Extent to which other settlement methods have been attempted
- If cost of the ADR would be disproportionately high
- If a delay in arranging and attending ADR would be prejudicial
- If ADR would have a reasonable prospect of success

The burden is on the other party to show that the refusal is unreasonable with the court
rejecting any presumption in favour of mediation.

An offer to engage should not be unreasonably refused (incl. being silent where there is an
invitation)
- Parties must consider settling litigation by ADR at all stages – any party not
engaging to a proposal by another must serve a witness statement giving reasons
within 21 days of that proposals – this must not be shown to the judge until
questions of cost arise
- Failure to respond to a reasonable proposal impacts costs – may result in an adverse
costs order which could include:
o For a successful party, depriving them of being awarded their costs
o Order to pay some or all of the costs of the other party
o Order a higher rate of interest rate to be paid on damages
o Depriving a party of interest on damages

Mediation Arbitration Litigation

Legal NA Arbitration Act 1996 NA
authority
Triggered by Proposal by email or Pursuant to arbitration Where all other
letter to the opponent clause in contract alternatives
exhausted
Parties agree on
arbitration once
dispute arisen
Process Parties agree on an Dispute is referred to 1. Pre-
independent TP or an independent commencement
body who acts as a arbitrator (may be (preliminary
‘go- between’ – the specified in contract considerations)
mediator or parties may 2. Issue and serve
choose) claim form and
Mediator is sent particulars of
written statements Less formal than court claim
from both parties, and procedure 3. Defendant files
will discuss the case defence
with them on a ‘without Solutions are often 4. Court allocates
 DIFFERENT OPTIONS FOR DISPUTE RESOLUTION

prejudice’ basis more practical than claim to a track

those a court has the 5. Court issues
Mediator determines power to order, but directions
real areas of some remedies (e.g. 6. Trial
disagreement and injunctions) are not 7. Post-trial (appeal,
important points with available enforcement)
the aim to move the
parties towards
constructive solutions
to the problems

Mediator and parties

meet in the same
building face-to-face

Also online,
correspondence, or
telephone
conversations
Confidentialit Without prejudice Without prejudice Public
y discussion in private discussion in private

Any future judge will Can ensure that

not be made aware of customers or
the discussions competitors are
unaware of the
dispute or outcome

Cost Modest, particularly in Ordinarily cheaper Normally the most

comparison with than litigation but not expensive process
litigation and always the case of dispute
arbitration, but will resolution, but this
vary depending on the
is not always the
mediator's fees,
number of parties,
case.
complexity and length
of the mediation
Speed Overall quicker and Quicker than going to Takes longer – will
more efficient if the court need to prepare court
parties come to an documents, go to
agreement quickly court, etc.
Flexibility and Most flexible – parties Less flexibility – the Control falls under the
control have most control – parties can have the court
they have choice of choice of arbitrator but
procedure everything else If ADR methods not
used, the court will
No legal requirements, Parties may be impose cost sanctions
no need to comply contractually bound to
with statutes, rules of use arbitration or elect
court, case law to use it after
Enforceability Decision is not Decision binding on The court’s decision is
automatically binding the parties per the binding on the parties
on the parties but if Arbitration Act 1996 and will be enforced
parties do agree to the by the successful
 DIFFERENT OPTIONS FOR DISPUTE RESOLUTION

terms suggested they party

will be contractually
bound
Relationship Ideal for cases where Good for if parties NA
of the parties parties will need to wish to preserve a
continue to interact business relationship
due to non-
confrontational nature
and the solution is
theirs and not imposed
Ability to May withdraw at any May withdraw any May not withdraw
withdraw time time unless opponent’s
costs paid
But no one can be
forced to engage in
mediation against their
wishes
Disclosure Limited, no formal Limited, some CPR1998 – specific
procedures and information may be disclosure rules
evidence produces a withheld
risk that parties may
resolve the dispute
without knowing all the
facts

May lead to an unjust

decision
OVERVIEW OF CIVIL LITIGATION
 PRE-COMMENCEMENT STAGE
PRELIMINARY CONSIDERATIONS

PARTIES

Vital to check correct spelling and title of parties concerned.

THE CLAIMANT

The one who makes the claim – objectives should be established

THE DEFENDANT

Check they are:

- Traceable: confirm whereabouts
- Identity: individual, sole trader, partnership, LLP, body corporate
o All defendants should be identified at an early stage to avoid incurring costs
- Solvent: has assets available for judgment, costs and enforcement
o Enquiries should be made if client has concerns about ability to pay, e.g.:
 Companies - search of Companies House
 Individual – bankruptcy search

For children under 18 and protected parties (a person who is incapable of managing their
own affairs because of a mental disorder as defined by the Mental Capacity Act 2005), they
must have a litigation friend to act on their behalf (usually a parent or guardian with no
adverse interest)

THE CLAIM

Specified claims: where the claim is for a fixed amount of money, usually for a claim for a
debt owed

Unspecified claims: where the court will have to conduct an investigation to determine the
amount of money payable

CAUSE OF ACTION (the legal basis of a claim)

Must assess the likelihood of success by reviewing all available evidence

Identify the issues in dispute and proved on the balance of probabilities

What? Possible claims Purpose of damages

Contract An agreement is
entered and one or
more of the terms are
breached, which
causes the other party
to suffer the loss
Tort A duty of care is owed
(Negligence) by one party to
another, the duty is
breached, which
causes the other party
suffer loss (financial
and/or otherwise)
Breach of express To put the claimant in
terms or failure to the position they would
deliver a consignment have been in had the
on time contract been properly
performed
Breach of statutory
implied terms
Negligence To put the claimant in
the position they would
Negligent have been in had the
misstatement (e.g. negligent act not
inadequate investment occurred
advice given by a
financial advisor)
 PRE-COMMENCEMENT STAGE
PRELIMINARY CONSIDERATIONS

LIMITATIONS

The claimant must comply with the strict time limit when issuing proceedings against a
defendant.

Relevant legal authority is the Limitation Act 1980

If a party misses the limitation period (i.e. the claim is statute barred)
- The claimant may still commence the claim, but the defendant will have a technical
defence to the claim and the claimant will not succeed
- The court will not allow actions commenced outside the limitation period to proceed

Extensions only occur in exceptional circumstances at the discretion of the court.

LIMITATION PERIODS

Contract [s2 LA1980] 6 years from the date of the Cause of action accrues as
cause of action to soon as the breach of
commence proceedings contract occurs – a question
of fact

A shorter limitation period

Tort [s5 LA1980]
Personal injury
Negligence (latent
damage at date of cause
of action accrued) [s14
LA1980]
6 years from the date of the
cause of action to
commence proceedings
3 years from the date at the
cause of action or the date
of knowledge of the person
injured
Either:
6 years from the date of
cause of action; OR
may be specified in the
contract
Cause of action accrues
when the tort is committed
In negligence -> when
damage occurs as a result
of the breach
Exception: children, where
the time limit does not start
to run until their 18th
birthday)
/

3 years from the date of

knowledge of damage,
whichever is later.

Overriding limit is 15 years

after date of negligent act or
omission

PRE-ACTION PROTOCOLS

Prior to the issuing of proceedings, parties must comply with pre-action protocols, a number
of protocols exist for specific causes of actions, but if none exist, the Practice Direction on
Pre-Action Conduct and Protocols (PDPAC), which contains general guidance, should be
followed.
 PRE-COMMENCEMENT STAGE
PRELIMINARY CONSIDERATIONS

Purpose of the PDPAC and protocols is to initiate and increase pre-action contact between
the parties
- Parties are expected to have complied with the Practice Direction if a dispute
proceeds to litigation

PDPAC
- Letter before claim to D: C should write to the defendant with concise details of the
claim, summary of the facts, what C wants from D
o Key documents relevant to issues of dispute should be disclosed by parties
- Letter of response to C: D should respond within a reasonable time if claim is
accepted and/or there is a counterclaim
- Parties should
- C replies and parties to consider
o ADR – litigation should be a last resort
o Negotiation
o Appointment of experts
- Stocktake: before issuing proceedings, parties to review positions, consider whether
proceedings can be avoided and if not, take reasonable and proportionate steps to
identify, narrow and resolve the issues in dispute
- Non-compliance: failure to do so may lead to sanctions or penalties if it has led to
proceedings that might otherwise not have been commenced / unnecessary costs -
such as:
o party at fault pays some or all of their opponent’s costs (perhaps on the
indemnity basis);
o C is deprived of some or all of the interest on damages recovered; or
o D required to pay interest on damages awarded at a rate of up to 10% per
annum above the base rate

Specific Pre-Action Protocols

Applies to? Requirements of note

Debt Claims Any business that brings a claim
(PPDC) against a debtor who is either an
individual or sole trader, but not to
business-to-business debts
Professional C wishes to make a claim against
Negligence most types of professionals as a
result of alleged negligence
Debtors have 30 days to respond as
they are individuals – no court
proceedings can be issued before
this deadline
‘Preliminary Notice’: encourages C to
notify the professional in writing of
any intended claim (C’s info, outline
of grievance, indication of financial
value), professional to inform insurers
and acknowledge notice within 21
days

Letter of Claim: full details of issues

and attaching key documents,
professional to acknowledge in
writing within 21 days of receipt, 3
months to investigate and to respond

Letter of Response (and Letter of

Settlement): allegations admitted or
denied with accompanying
documents or proposals for
settlement
 PRE-COMMENCEMENT STAGE
PRELIMINARY CONSIDERATIONS

Pre-action disclosure – no general obligation to show opponent contents of documents or

disclose documents adverse to own position
- May compel such disclosure by issuing an application for pre-action disclosure +
witness statement – usually used where party is unsure of strength of own case to
make an informed decision as to whether to issue proceedings

JURISDICTION

CHOICE OF LAW

All contracts should have a clause stating what law governs the contract.

Where no governing law has been chosen, various default provisions come into play and
parties no longer have a choice

COMMENCEMENT OF PROCEEDINGS

The 2005 Hague Convention should be considered, which gives effect to an exclusive
choice of court in a contracting state (incl. EU, UK, Mexico, SG, Montenegro) to hear the
case and for any proceedings in another contracting State to be dismissed

The common law rules apply everywhere else, and jurisdiction may be established based on
service within/outside the jurisdiction
- Service within England and Wales
o Jurisdiction established if the claim form was served on the D while they were
present in these countries
- Service outside England and Wales
o Permission of the court must be obtained to serve D outside – may be
granted when:
 Contract was made or breached in England and Wales, is governed
by English law, or contains an agreement conferring jurisdiction
 Tort was committed/loss sustained in England and Wales
 COMMENCEMENT STAGE
STARTING A CLAIM

COURT ALLOCATION

COUNTY COURT HIGH COURT

What Claims worth £100,000 or less
claims? Personal injury claims worth £50,000
or less
Usually specified claims or
unspecified claims for damages
Can be commenced in High Court if
conditions satisfied.
Claims worth more than £100,000
and personal injury claims worth more
than £50,000
+
Where case has complex facts or the
outcome of the case has a public
interest element.
Judge may transfer back to County
Court at a later date

What Two County Court Business King’s Bench Division, Chancery

court / Centres – issues most civil claims Division, Family Division
division? and retains those who are undefended
(Part 7 Claims) Business and Property Courts –
specialist business/civil disputes
Money-only claims should be made
on paper and sent to the County
Court Money Claims Centre
(CCMCC)

ISSUING A CLAIM

The C or their solicitor must file with the court:

- Claim form (Form N1) + court fee
- Particulars of claim (may be drafted as part of claim or sent separately)
- Supporting evidence

Sufficient copies should be sent to D and any other parties + cover letter indicating
whether the court or the C is to serve proceedings and court issue fee

The court:
Seals the claim form, allocates a claim number and the claim is formally issued

Once issued, proceedings are formally started – limitation time period stops running

ADDING, REMOVING OR SUBSTITUTING PARTIES [CPR 19]

Who can make an application?

- An existing party/a person who wants to become a party
- No one may be added as a C unless consent in writing filed at court
Permission required?
- Claim form has been served: Yes
- Claim form has not been served: No
Grounds?
- Application made within the limitation period: if it is desirable to
o Add a new party to resolve matters in dispute
o Remove a party
o Substitute a party where the existing party’s interest or liability has passed to
them
- Application made outside the limitation period:
 COMMENCEMENT STAGE
STARTING A CLAIM

o A party may only be added or substituted if the limitation period was current
when proceedings were started; and
o The original party was named by mistake; or
o The original party has died or is subject to a bankruptcy order and their
interest or liability has passed to the new party ; or
o The claim cannot properly be carried on without the new party

SERVING THE CLAIM FORM

Key time limits:

- Once a claim form has been issued by the court, it must be served on the other
parties within 4 months
- Particulars of claim can be served with the claim form or if served separately, 14
days after service of the claim form
- Certificate of service to be filed with the court within 21 days of service

Methods Step required/where to serve if no solicitor authorised to accept

Personal Individual -> simply handing it to them/leaving with or near them at the
service usual/last known address

Partnership -> left with partner or person who has control or

management of the partnership at principal place of business

Company -> leaving the documents with a person who holds a senior
position such as a director, treasurer, secretary or chief executive
Leaving at a Individual -> usual or last known address
specified place
1st class post / Individual sued in the name of a business (sole trader) / partnership ->
DX usual or last known residence of individual/principal or last known place
of business

LLP / company -> principal office of LLP or company / any place of

business of the partnership within jurisdiction with a real connection to
the claim
Fax / other Provided that they have expressly confirmed they are willing to accept
form of service by fax (inclusion of fax number on solicitor letterhead ok) / email
electronic (specific confirmation):
communication - Completing the transmission of the fax
- Sending the email
Any other method authorised by the court (e.g. text message, voicemail)

DEEMED SERVICE

Claim Form is deemed to have been served on the 2nd business day after the step required

Other documents (e.g. particulars of claim, defence, Part 36 offer)

Method of service
By personal service
Leaving at permitted address
Fax / Email
First class post or DX
Deemed date of service
If served before 4:30pm on a business day, that day
If not, on the next business day
The second day after it was posted provided that day
is a business day

If not, the next business day

 COMMENCEMENT STAGE
STARTING A CLAIM

SERVICE OUTSIDE JURISDICTION

Within UK Permission not required for proceedings in Scotland and Northern Ireland
where the English Court has jurisdiction, conditional on:
- There must be no parallel proceedings in the UK, and
- D is domiciled in UK / English court has exclusive jurisdiction / D is
party to an English jurisdiction agreement
Outside UK Permission not required where
- the court has power to determine the claim under rhe Hague
Convention and D is party to an exclusive jurisdiction clause to
which the HC applies; and
- there is a jurisdiction clause that the English Courts have jurisdiction
to determine the claim

Once permission obtained, must be served on other parties within 6

months of being issued
- Must be accompanied by a notice setting out the grounds on which
the C is entitled to serve it outside the jurisdiction + evidence that
England and Wales is the proper forum
 COMMENCEMENT STAGE
RESPONDING TO A CLAIM

D’S RESPONSES

D has 3 ways to respond included in the Response Pack (Form N9):

1. File an admission (Part 14)
2. File an acknowledgement of service (Part 10); or
3. File a defence (Part 15)
(Or could do nothing – but C will be able to apply for judgment in default)

Time limit: D must respond within 14 days of deemed service of the PoC (if just Claim
Form served, no action required by D)

ADMISSION

Specified Admission of entire claim Admission of part claim

claims D must provide details of their income
and expenditure and make an offer of
payment, either in full or by way of
instalments
C’s response
- If they accept D’s payment
terms, may then file a request
for judgment
- If they reject, the judge will
decide the appropriate rate of
payment
Unspecified Admission of part claim (offer
claims (i.e. made)
damages) D admits liability, offers a sum of
money
C has 14 days to consider any offers
made and:
- Accept part admission inf full
satisfaction -> request
judgment to be entered by the
court
- Accept part admission but not
D’s proposals for payment ->
court decides suitability
- Reject offer entirely, proceed
with claim
Admission of entire claim (no offer
made/C rejects offer)
D admits liability but no offer is
made/C rejects offer

The court serves a notice on C to C enters judgment for damages to be

decide whether they accept the figure assessed at a disposal hearing

If offer accepted, C may enter

judgment for amount offered

ACKNOWLEDGEMENT OF SERVICE

Period to file a defence is extended, 14 days -> 28 days after service of the PoC

DEFENCE

Full defence must be filed within 14 days (or 28 days if Acknowledgement filed) of service
of the Particulars of Claim
- A copy must be served on all other parties by the court (unless D’s solicitor indicated
otherwise)
- Counterclaim can be included if D wishes to pursue their own claim against the
claimant

Extending the time limit: with agreement from other parties, 14 day deadline can be
extended by a maximum of 28 days (i.e. total 56 days from date of service of particulars of
claim)
- Further extension would require court’s permission
 COMMENCEMENT STAGE
RESPONDING TO A CLAIM

DEFAULT JUDGMENT

i.e. C obtains a judgment without there being any consideration of the facts involved

Procedure C makes an application to the court that

a. the PoC has been served on the D and
b. the D has not filed an acknowledgement of service form / defence
within the relevant time period

C will not be able to obtain if there is a pending application by the D for

summary judgment / to have C’s statement of case struck out
Types Specified sum:
- C must indicate date payment due, calculate up to date total for
interest claimed and state a daily rate at which interest accrues
- Once the court enters final judgment, payment will be required within
14 days
Unspecified sum:
- Disposal hearing -> judgment on amount of damages payable

SETTING ASIDE DEFAULT JUDGMENTS

 COMMENCEMENT STAGE
RESPONDING TO A CLAIM

DISCONTINUANCE

Discontinuance halts the action

Can a C discontinue C can discontinue all or part of a claim at any time during the
all or part of a proceedings without permission unless there are certain
claim? circumstances (e.g. the court has granted an interim injunction)
If there is more than Every other party must also consent in writing or the court gives
one C permission
If there is more than C may discontinue the claim against all or any of the Ds
one D
Procedure C must file and serve a notice of discontinuance on the parties

If consent required, a copy of it must be attached to the notice

Effect Proceedings brough to an end against the D on the date the notice
of discontinuance is served upon them

C will be liable for the costs of the proceedings unless the court
orders otherwise

SETTLEMENTS

Pre-Action Prospective C will not be entitled to recover their legal costs unless
settlement terms have been agreed – consent order should be drafted to
end proceedings in return for a settlement sum

If order breached, fresh proceedings must be issued

After Issue Preferable for this to be recorded in a court order or judgment such that
Of enforcement proceedings may be commenced to recover any monies due
Proceedings under the settlement should the agreement not be honoured
Consent Orders – terms of the Tomlin Orders – court order where
settlement can be recorded in a the claim is stayed on terms that
formal court order parties wish to keep confidential / the
- Formalities: must be drawn court has no power to order agreed
up in the terms agreed, between the parties in a confidential
must be expressed as schedule or in a separate document
being ‘by consent’ ad attached to the order
signed by LR acting for - Any other agreed terms should
each of the parties to whom also be recorded
the order relates
- Terms are open to public
inspection

DISPUTING COURT’S JURISDICTION

D must state dispute of jurisdiction on the Acknowledgement of Service

D has 14 days after filing AoS form to make a challenge – if not, they are treated as having
submitted to the jurisdiction
- Application to the court must be supported by evidence as to why E&W is not the
proper forum for the case
o If court grants application: service of claim form set aside, proceedings end
o If court refuses application: original AoS ceases to have effect and D must file
further Acknowledgement within 14 days, proceedings continue
 COMMENCEMENT STAGE
STATEMENTS OF CASE

The formal documents in which each party concisely sets out their case, including:
- Claim Form
- Particulars of Claim
- Defence
- Reply to Defence

CLAIM FORM
Facts of case will usually be too complex to fit – separate PoC will be required

Parties’ Spelled correctly – firm names should be included where applicable

details If deceased before commencement of proceedings -> executors /
administrators/ ‘the PRs of [name] deceased’
Statement Estimated or actual value of claim must be inserted, impacts size of court fee
of value
Specified claims: precise figure including accrued interest

Unspecified claims:
High Court – ‘The Claimant expects to recover more than £100,000’’
(£50,0000 for damages claimed for personal injury)

County Court – C must state whether they expect to recover [not more than
£10,000] / [more than £10,000 but not more than £25,000] / [more than
£25,000]; or they cannot say how much they expect to recover

Disregard possible awards of interests or costs, contributory negligence and

counterclaims

Personal injury claims: C must also state whether amount expected to

recover as general damages for pain, suffering and loss of amenity is more
than £4,000
Financial Court fee payable on issue based on statement of value (max. £10,000)
summary
of the Legal representative’s costs: ‘to be assessed’ (except for specified claims
claim where it is fixed)
Statement The C, but if C is not an individual:
of truth - Partnership: any of the partners or a person having the control or
management of the business
- Company: a person holding a senior position (director, secretary, CE,
treasurer)

The C’s legal representative: must sign in their own name, state capacity in
which they sign, add name of firm where appropriate
- Will be assumed that the client authorised LR signing after having
warned of possible consequences of lack of honest belief in truth of
facts -> may be prosecuted for contempt of court

If signing on behalf of an individuals, should add ‘I am duly authorised by

[party] to sign this statement’

Failure to include -> the court may strike out the document and C is
precluded from relying on its contents
 COMMENCEMENT STAGE
STATEMENTS OF CASE

PARTICULARS OF CLAIM
Must state all relevant facts and elements of cause of action – the court will not allow a party
to pursue an issue or claim a remedy not stated unless addressed in subsequent
documentation

Structure and Particulars of Claim in Contract Particulars of Claim in Tort

content (Negligence)
Status of Sets out parties, confirms status (BG info, chronological events, pre-
parties contractual matters if relevant, substance of case – legal elements of the
case)
Facts Material facts only – chronological events of what happened, substance
of case (i.e. the legal elements of the case
Terms Establish existence of contract – Set out relevant duty of care and
date, type (written or oral), parties, why the D owed it to the C
subject matter, consideration

If written, include a copy

Breach alleged ‘Particulars of breach’: itemised Specify the breach of duty of care
details of which terms breached by the D
and how
Consequences Set out nature of losses (direct and Set out causation link to the D
indirect) caused by D’s breach
Damages Set out damages and losses Specified claim: set out nature and
alleged, itemised amount of losses
Unspecified claim: indicate range
of damages sought
Interest Specified claims: interest must be Interest will only be awarded if
precisely calculated as a lump sum specifically claimed
of accrued amount (from breach ->
date of proceedings) + daily rate Court has general discretion to
award interest on damages –
Interest will only be awarded if normally awarded from when loss
specifically claimed – 3 alternative was sustained
ways of claiming
1. Contract itself specifies rate
payable on outstanding sums
2. For commercial debts paid late:
statutory right to interest
(Late Payment of
Commercial Debts (Interest)
Act 1998) + small prescribed
amount of statutory
compensation – rate is 8%
p.a. above Bank of England’s
base rate on date debt became
due
3. Court has discretion to award
interest
Summary of Summarise remedies claimed
relief
Statement of Confirms facts stated are true signed by C or solicitor
truth
 COMMENCEMENT STAGE
STATEMENTS OF CASE

DEFENCE

Contents of a Defence

Contents Formalities to be included

Court Name of relevant court
Claim Allocated by the court on Claim Form
number
Parties Names spelled correctly
Title ‘DEFENCE’
Point by Each allegation should be addressed, D must state whether it is
point - Denied: state reasons for denial, their own version of events if different to
response C’s
- Not admitted: where D has no knowledge of the particular matter alleged
- Admitted: D does not need to prove
o If an allegation is missed and not addressed, deemed to be
accepted (rule of implied admissions)

Burden of proof on C when: D alleges relevant limitation period has expired,

details given in defence

Burden of proof on D when: contributory negligence or C failed to mitigate its

loss
Date and Signature should be the solicitor’s in the name of the firm
signature
Statement of truth
Details of who is to be served and where

PART 20 ADDITIONAL CLAIMS

1. Counterclaim – where D is alleging they have their own cause of action against D
o Should be treated as a stand-alone claim and filed with the defence as one
document
2. Additional Claim – claim by D for contribution, indemnity or other remedy from a TP
whether or not they are a party to the proceedings
o Indemnity -> contractual relationship between D and TP or statute
o Contribution -> joint wrong-doers, D argues TP is partly responsible
3. Other additional claims
o May be made without court’s permission if done before or same time as defence
filed

RESPONDING TO A DEFENCE/PART 20 CLAIMS

Reply to Defence

C has no obligation to file a reply but may do so if they want to respond to matters raised in
the defence not covered by PoC
- Lack of response from C does not equate to admission

Defence to Counterclaim

C must file within 14 days (unless extension of up to 28 days agreed with D)

- Failure to do so -> D may enter judgment in default on the counterclaim
 COMMENCEMENT STAGE
STATEMENTS OF CASE

AMENDMENTS TO STATEMENTS OF CASE

Required when mistakes made or fresh information comes to light after service

Before expiry of limitation period After expiry of limitation period

After filing, before service: any time
After filing and service:
- only if written consent of all parties
obtained; OR
- permission of the court – application
should include copy of court has
discretion in whether to grant
application taking into account injustice
to applicant and opposing party if
refused/permitted
ONLY to:
- Add or substitute a new claim if it arises
out of the same/substantially the same
facts as the claim
- Correct a genuine mistake as to name
of a party
- Alter capacity in which a party claims

Part 18 REQUEST FOR FURTHER INFORMATION

If successful, party will be ordered to clarify any matter in dispute or give additional
information

Procedure

Party requesting further information must:

- Serve a written request on the other party allowing reasonable time for response
- Request should be
o Concise, relevant and proportionate
o Headed with name of court, title, number of claim and be identified as a Part 18
request
Party receiving request must:
- Respond in writing, date and sign (by party or their solicitor)
- Accompany response with statement of truth
- Serve on all parties, file with court

If request is not responded to/cannot be complied with, may make application to court
- Will grant an order if it is satisfied that the request is confined to matters reasonably
necessary and proportionate to enable applicant to prepare their case/understand case
against them
 INTERIM MATTERS
INTERIM APPLICATIONS

INTERIM APPLICATIONS are applications made after litigation starts but before the trial
commences
- Usually in order to ensure compliance with procedural matters, request more time, assist
in trial preparation, or consider penalties

Procedure

Application notice Form N244 should be used

Where to make The court where the claim started or (if relevant) to where it
application has been transferred
Content State what order is being sought and why

Any matters set out as evidence in the form must be verified

with a Statement of Truth
Evidence Witness statement should be made by person best able to
address the relevant point from personal knowledge – inc.
factual information, evidence in support
Draft order Draft of order should be attached to assist the judge
Service Application notice must be served on opponent at least 3
clear days before hearing
Consent orders Parties can agree beforehand and apply to the court for the
order to be made by consent without attendance at a hearing

The court must be provided with any material it needs to be

satisfied that it is appropriate to make the order
Orders without notice General rule: application must be made on notice to the
other party

EXCEPT FOR exceptional urgency or overriding objective of

CPR is furthered or where notice would defeat purpose of
application (e.g. freezing injunctions, search orders)
- Must serve copies of court order, application notice and
any supporting evidence to respondent ASAP afterwards

Evidence must explain why notice not given and applicant

has duty of full and frank disclosure

Respondent may apply to set aside or vary order within 7

days of service
Telephone hearings and General rule: if <1 hour, permitted
video conferencing

PART 24 SUMMARY JUDGMENT is where a party seeks judgment quickly without the
expense or delay of a trial
- The court may do so on the whole claim or particular issue if weak claim/defence, all or
relevant part of the statement of case may be disposed of
- Available to both Claimant and Defendant
o Claimant: must prove that D has no real prospect of successfully defending
the claim and there is no other compelling reason why matter should
proceed to trial
o Defendant: must prove that C has no real prospect of success and there is no
other compelling reason why matter should proceed to trial
 INTERIM MATTERS
INTERIM APPLICATIONS

Procedure

Will only require court’s permission where C wishes to apply before D files an AoS or
defence

Applicant Applies with Form N244 and witness statement in supporting

Respondent Must be given at least 14 days’ notice of the hearing date

Must then file and serve any written evidence at least 7 days before the
hearing
Further If applicant wants to rely on further evidence, must be filed and served at
evidence least 3 days before the hearing
The Court – Judgment on the claim: C succeeds, judgment entered, proceeds to
possible enforcement, D pays costs
court orders - Specified claim: court may award fixed costs, C may request higher
and costs figure and ask for summary assessment
- Unspecified claim: general rule on costs applies, costs are summarily
assessed and disposal hearing is listed to assess damages payable

Striking out/dismissal of claim: D succeeds, claim is dismissed and

proceedings end, C pays costs, summarily assessed

Dismissal of application: proceedings continue, general rule on costs

applies

Conditional Order: usually where the courts conclude it is possible but not
probable that the claim/defence may succeed, a ‘draw’, litigation continues
if conditions met (either they pay a sum of money into court or take a
specified step)

PART 25 INTERIM INJUNCTIONS is an order that requires the party to do/refrain from
doing something specific until the full trial has taken place, aiming to maintain the status quo
- A discretionary remedy, only granted when damages are not adequate
- Breach of an injunction is punishable as contempt of court
- Guidelines the court will follow in deciding whether to grant:
o Is there a serious issue to be tried?
o Are damages an adequate remedy for either side?
o Does the balance of convenience lie in favour of granting or refusing the
injunction?
o Are there any other special factors?

Procedure

Applying Apply at the court where the claim was started, transferred or listed for trial
(usually to a High Court judge)

Either party may apply

Content State what order the applicant is seeking and why:
- Freezing injunction: restrains a party from removing their assets from
the jurisdiction
o The court must be satisfied that applicant has a good arguable
claim, real risk of D disposing assets to defeat enforcement of
eventual judgment
- Search order: compels respondent to allow premises to be searched
 INTERIM MATTERS
INTERIM APPLICATIONS

where applicant believes respondent has documents or property

belonging to them
o The court must be satisfied that applicant appears to have a
strong case, will suffer serious harm if order not made and
respondent possesses incriminating materials
Evidence Usually a witness statement of why the injunction is being requested and
evidence to support the facts relied on, in the form of an affidavit

Must be verified by a statement of truth

Service If made on notice, must be served on the respondent 3 clear days before
the hearing
Orders with D will have prior warning, will last until trial of C’s action unless set aside
notice earlier by the court
Orders Where notice would defeat purpose of application or due to exceptional
without urgency/overriding objective of CPR furthered
notice
Injunction without notice has two forms:
- The court fixes a date for further hearing with all parties present and
injunction lasts until date of the hearing
- Tells D that they may apply on notice for the order to be varied or set
aside, injunction remains in force until trial/further order
Cross If granted, applicant must undertake to the court to pay any damages the
undertaking respondent sustains if it emerges that it should not have been granted

INTERIM PAYMENTS: an advance payment on account of any damages, debt or other sum
(excl. costs) that a D may be held liable to pay
- C may only seek an interim payment when time for acknowledging service of claim form
expired, but may make more than one application during proceedings
- Trial judge will not be told about any IP order/voluntary payment until after all issues of
liability and quantum determined barring D’s consent

Procedure

Request for File Form N244 requesting interim payment and a witness statement in
interim support explaining
payment by - amount requested and what it will be used for,
applicant - amount of sum of money likely to be awarded at final judgment,
- reasons for believing grounds are satisfied
Grounds C must prove:
- D has admitted liability or
- C has obtained judgment against D for damages/sum of money to be
assessed or
- The court is satisfied that, if the case went to trial, the C would obtain
judgment for a substantial amount against D (on balance of prob.)
Respondent Must file and serve evidence to counter application at least 7 days before
the hearing
Further Applicant must file and serve further evidence at least 3 days before the
evidence hearing
Court orders Court has discretion on:
- Whether to make an order: if issues are complicated/difficult qs of law
arise, may decide not to
- What the amount should be: should not exceed a reasonable portion
of final judgment taking into account contributory negligence and any
counterclaim
 INTERIM MATTERS
INTERIM APPLICATIONS

May be payable in one sum or instalments

INTERIM COSTS: at the end of any interim application, the judge will decide the issue of
costs (‘pay as you go’ litigation)
- General rule: loser pays winner’s costs
- Type of costs order depends on nature of application and reflects conduct of parties,
common ones are:
o [Named party]’s costs: normally summarily (instantly) assessed and ordered to be
paid within 14 days – applies where there is a clear ‘winner’
o Costs in the case: no party is named and neither can recover costs at this stage,
ultimate loser is liable – applies if court makes a conditional order
o No order as to costs: each party is to bear their own costs – applies when
outcome of interim application is effectively a draw
 INTERIM MATTERS
CASE MANAGEMENT

OVERRIDING OBJECTIVE OF THE CPR is to enable the court to deal with cases justly
and at a proportionate cost within a reasonable time and by proportionate use of court
and parties resources
- The courts are under a duty to further the overriding objective by actively managing
cases using the powers they are given – in particular, they must:
o Ensure parties are on equal footing
 The court must order appropriate provisions to accommodate vulnerable
parties and witnesses
o Save expense
o Dealing with the case in ways that are proportionate to:
 Amount of money involved
 Importance of the case
 Complexity of the issues and
 Financial position of each party
o Ensure the case is dealt with expeditiously and fairly
o Allot to a case an appropriate share of the court's resources, whilst taking into
account the need to allot resources to other cases and
o Enforce compliance with rules, practice directions and orders.

1. ALLOCATION TO A TRACK

Court  Notice of Proposed  Parties return  Track

provisionally Allocation is served by completed Directions allocated
decides the court on the parties, Questionnaire and a
which track requiring them to file draft order for
after a and serve a Directions directions
defence is Questionnaire (Form
filed N181) by a specified
date

DIRECTIONS QUESTIONNAIRE
- Parties must consult and co-operate in completing
- Failure to file: the court will make such order as it considers appropriate (e.g. order for
directions, striking out SoC, list matter for CMC)
o If the claim is for money in the County Court, the court will serve a notice on the
defaulting party requiring compliance within 7 days, failure to do so resulting in
SoC automatically struck out
- Key parts of the questionnaire include:
o Settlement: parties are asked if they want a 1 month stay of proceedings – if not,
the party objecting must provide reasons why
 The court may of its own initiative order a stay of any length for this
purpose
o Experts: whether a single joint expert (SJE) is appropriate, and if not, details of
the expert evidence incl. cost should be provided
o Costs: if a party is legally represented and the case is likely to be allocated to the
multi-track, a cost budget must be filed
o Directions: parties should attempt to agree case management directions and a
draft order must accompany the questionnaire

WHICH TRACK?
 INTERIM MATTERS
CASE MANAGEMENT

The most important factor is the financial value of the case, but also remedy sought,
complexity of facts and law, number of parties involved, value of counterclaim, amount of
oral evidence and circumstances of parties
Small claims track (Claims for £10,000 or less, £5,000 or less for damages claimed in PI
for pain, suffering and loss of amenity)
- Type of cases: consumer disputes, disputes about ownership of goods, between a
landlord and tenant (but not for possession) and lower value PI cases
- Procedure: to enable litigants in person to represent themselves, simple directions are
issued, including:
o Each party delivering copies of all documents intended to be relied on
o Requirement to bring originals to the hearing
o No expert’s report allowed without court’s express
- Hearing: informal, a court can make a decision based on SoC and documents submitted
rather than by hearing oral evidence

Fast track (Claims valued between £10,000.01 and £25,000 inclusive) – standard route,
most cases proceed along this track
- Type of cases: where trial is expected to last no longer than one day (thus likely length
of trial also relevant factor in choice of allocation)
- Procedure: standard directions will usually be issued
o Typical timetable for preparation of case – running from date of allocation:
 Disclosure – 4 weeks
 Exchange of witness statements – 10 weeks
 Exchange of experts’ reports – 14 weeks
 Court sends pre-trial checklists – 20 weeks
 Parties file pre-trial checklists – 22 weeks
 Hearing (trial) – 30 weeks
 Date and time of trial will also be fixed by the court
o Timetable can be varied (agree in writing) but trial date and date for returning
pre-trial checklist cannot
o Parties may agree on different directions, but court’s approval required
o If there is dispute over directions, the court may reach a decision itself on paper
or arrange short hearing
- Expert evidence: will usually order a SJE unless good reason to appoint separate
o Will rely on written report rather than oral evidence
o Limited power to award costs – judge will generally assess summarily at the end
of the trial

Multi-track (Claims for more than £25,000): greater flexibility to reflect the variety and
complexity of these cases
- Types of cases: a large range
- Procedure: for simpler cases – standard directions; for complex cases – CMC to
determine directions and deal with costs management -> issue directions and specific
timetable
o A party must apply to the court if he wishes to vary any dates for:
 CMC
 Pre-trial review
 Return of a pre-trial checklist
 Trial
 Trial period
o But may vary the timetable by agreeing in writing

Case Management Conference (‘CMC’)

- A person familiar with the case must attend (LR)
 INTERIM MATTERS
CASE MANAGEMENT

o Where their inadequacy leads to the adjournment of the hearing, the court may
order that the other party’s incurred in preparing for and attending the hearing are
paid by either the solicitor or their firm (‘Wasted Costs Order’)
- The court may order further CMCs to review progress the parties have made
- If trial approaching – may be called a ‘Pre-trial Review’
- C to prepare a case summary for the CMC to assist the judge in determining how the
case should proceed to trial
o Should set out brief chronology of claim, factual issues agreed and not agreed,
and the evidence required to decide them
1. Directions:
- Parties should try to agree appropriate directions and submit proposals at least 7 days
before the CMC
- If court approves agreed directions or issues own directions, CMC is vacated
- If standard directions are not sufficient, the court ‘s general approach will be to list
directions covering the following issues (mirrors standard directions but more detailed):

FAILURE TO COMPLY WITH DIRECTIONS: not generally an issue if parties co-operate

and can meet key dates (CMC and trial)
- But if a step is missed, any other party may apply for an order enforcing
compliance and/or a sanction to be imposed
- Trial date is sacrosanct: the court does not allow failure to comply with directions
that lead to trial being postponed

2. Costs Management: aims to ensure future costs are reasonable and do not become
disproportionate
- Parties are required to provide
o Costs budget in prescribed form (Precedent H) – statement of incurred costs
and anticipated costs
o Budget discussion report (Precedent R) – itemises figures for phases
agreed and for those not agreed, a brief summary of grounds of dispute
 INTERIM MATTERS
CASE MANAGEMENT

 The judge reviews disputed costs and budget will be revised as

necessary (usually during CMC but for complex cases, costs
management conference will be separate)

Contents Incurred costs: detailed breakdown of the costs and disbursements

already incurred
+
Budgeted costs: estimate of future costs and assumptions on which
those are based

Must be dated and verified by a statement of truth signed by a senior

legal representative of the party
Time limits Costs budget:
Claims <£50,000: with the DQ
All other claims: no later than 21 days before the CMC

Budget discussion report: no later than 7 days before the CMC

Failure to file Automatic sanction: treated as having filed a budget consisting of court
at all/on time fees only

Party will not be able to recover any future legal costs aside from court
fees unless court gives relief
How are costs Costs management order (CMO) – imposed unless the judge is
decided? satisfied that litigation can be conducted justly and at proportionate cost;
records:
- Extent to which incurred and budgeted costs are agreed between
parties and
- Court’s approval of disputed costs after appropriate revisions
made
If budgeted Application to court to grant relief to ensure parties won’t take advantage
costs too of their financial position to discourage opponent from continuing with
high? litigation
Revising costs Only if the other party agrees or court is persuaded of significant
budget? developments -> parties must file a budget variation summary sheet
(Precedent T)
End of case Costs assessed on standard basis
- With CMO: will not depart from receiving party’s last approved or
agreed budget unless good reason
- Without CMO: if 20% or more difference between costs claimed
and estimate, receiving party must provide statement of reasons
for difference, court decides if additional amounts can be
recovered

Costs assessed on indemnity basis (and incurred costs)

- Even with CMO, will be assessed the usual way

COURT SANCTIONS

Striking out a May be exercised where no reasonable grounds for bringing/defending

SoC the claim or where there was a failure to comply with a rule, practice
direction or court order
Costs Require party in default to pay other’s additional costs on indemnity basis
Interest Increasing or reducing interest on damages– depends on which at fault
‘Unless’ If a party has not taken a step in accordance with a court order
 INTERIM MATTERS
CASE MANAGEMENT

order

Relief: court could reject but party must apply promptly with supporting evidence addressing
seriousness of failure, why it occurred and evaluating all circumstances of the case (e.g. if
trial date can still be met)
 INTERIM MATTERS
DISCLOSURE AND INSPECTION OF DOCUMENTS, EVIDENCE

EVIDENCE

‘Burden of proof’: party’s duty to produce sufficient evidence to establish their allegation
or argument
- Legal burden of proof lies with C and each fact must be proved unless admitted
by opponent EXCEPT when D in civil proceedings has been convicted of a
relevant criminal offence or where there is contributory negligence, etc.
‘Standard of proof’ is on the balance of probabilities

Any evidence included must be relevant to the proceedings – judged by reference to the
issues the court is called upon to decide
- ‘Relevant’ where it addresses relevant facts (i.e. the issues in dispute and which
have to be proved)
- If the evidence is relevant, it is admissible

Opinion Evidence is not admissible unless

- The evidence conveys relevant facts personally perceived by the witness
o The witness cannot draw any conclusion from their evidence, but can list the
facts they saw which led them to reach their conclusion
- Expert evidence within their qualified area of expertise

Hearsay Evidence
- ‘Hearsay’ is a statement made outside of court, which is repeated in court to prove
the truth of the matter stated
- Statement -> must be a relevant fact or admissible opinion, oral or written, with the
purpose of proving the truth of the words said
- May be first-hand or multiple (where information is relayed through more than one
person before recording)

Procedure
- If the party intends to call the witness whose statement contains hearsay to give oral
evidence:
o Must serve the other party with the statement that contains hearsay
o The opponent can ask the court to order the original maker to attend for
cross-examination or serve notice of intention to attack credibility of hearsay
evidence
- If the party intends to rely on the witness statement instead, the entire statement
becomes hearsay
o Party to serve hearsay notice (informs why the witness is not being called to
give oral evidence) along with witness statement
o Still admissible if notice requirements not complied with but will be taken into
account when assessing weight to be given to evidence/costs order

Weight to be attached
- It is ‘second-best’ evidence of fact – trial judge will assess reliability of statement by
certain criteria, e.g.:
o Importance of issue the evidence addresses, if there is other evidence
available
o Statutory safeguards, such as whether it was reasonable and practicable to
have called the original maker instead, if it was made contemporaneously
with the events in question, if it involves multiple hearsay, if it was edited or
made in collaboration, whether notice was given (if made late and caused
other party to not be able to respond)
 INTERIM MATTERS
DISCLOSURE AND INSPECTION OF DOCUMENTS, EVIDENCE

WITNESS EVIDENCE

Witness Statements are a written statement signed by a person that contains evidence
which that person would be allowed to give orally at the trial
- Inadmissible or irrelevant material should not be included
- Serves as witness’s evidence in chief when called to give oral evidence – cannot add
to it at the trial unless the court gives permission
- If statement not served, witness will only be allowed to speak at trial with the court’s
permission
- Must comply with formalities set out in relevant PD, failing which the court may refuse
to admit it as evidence

Heading Title and number of proceedings and date

Witness’s full name, address, occupation, capacity (professional or
business), business name and if they are party to the proceedings
Content Numbered paragraphs, the chronological sequence of events
written in the witness’s own words
Must indicate which of the statements are made from their own
knowledge or based on information and belief
Include date and details of translation (if applicable)
Attached documents Formally exhibited
Statement of Truth Cannot be signed by a legal representative

Witness Summaries are used where it would be difficult to obtain a witness statement,
containing witness’s name and address, evidence they can provide or the matters they
would be questioned at trial
- Parties can apply to court without notice for such an order

Affidavits are sworn statements of evidence – the maker has to swear or affirm before a
solicitor (not own) or other authorized person that the contents are true
- Witness statements have generally taken the place of affidavits except in limited
circumstances where affidavits must still be used – application for a search order, a
freezing order, an order requiring an occupier to permit another to enter their land

EXPERT EVIDENCE

‘Expert evidence’ is usually given in the form of a written report – ‘expert’s report’, verified
by a statement of truth
Permission Must be obtained before calling an expert – considered at directions
stage and CMC, in light of factors like value of claim, proportionality and
likely costs
Admissibility Will be admissible if the ‘expert’ is qualified to give expert evidence
Expert’s duty Assist the court to provide objective, unbiased opinions on matters within
their own expertise

Overrides any obligation to the person who instructed them but still
subject to usual implied term of ‘reasonable care and skill’ to the client

Single Joint Expert (SJE) Separate instruction of experts

What Fast track cases unless a good Multi-task cases
cases reason
Procedure Expert sends written report Simultaneous exchange of expert’s
simultaneously to both parties, costs reports
are shared
 INTERIM MATTERS
DISCLOSURE AND INSPECTION OF DOCUMENTS, EVIDENCE

At trial – only written report relied on Each party has 28 days to put written
questions to expert for clarification,
answers treated as part of report

Court may order a without prejudice

discussion (to narrow down issues
and identify extent of agreement and
disagreement, if action can be taken
to resolve)

Written joint statement prepared for

the court and signed by experts,
copies provided to parties

Judge decides whether expert may

give oral evidence at trial (common)

‘DISCLOSURE’: a party discloses a document by stating that it exists or has existed, done
by preparing and serving a list of documents on all the other parties

‘Documents’: anything in which information is recorded (incl. written documents,

audiotapes, videotapes, photographs, electronic documents, etc.)

Duty of disclosure applies to all parties and is a continuing duty throughout proceedings
- If parties become aware of additional documents, must serve a supplemental list – if
they wish to rely on it in trial must obtain court’s permission if opponent does not
agree
- Making a false disclosure statement without honest belief in its truth can be punished
by bringing proceedings for contempt of court
- Failing to disclose will result in the party not being able to rely on it at trial unless the
court permits
o If the document is harmful to their claim or defence, may result in case being
struck out

DISCLOSURE ON EACH TRACK

Small Claims Track Each party shall, at least 14 days before the date of the final
hearing, file and serve on every other party copies of all documents
(including any expert’s report) on which they intend to rely at that
hearing
Fast Track Standard disclosure
Multi-Track Standard disclosure usually ordered, but the court may tailor the
order to requirements of particular case (e.g. order dispensing with
disclosure, for specific disclosure, or on issue-by-issue basis)

Parties notify the court of their disclosure requirements by

compiling a disclosure report not less than 14 days before the
CMC
- The parties must discuss and seek to agree a proposal for
disclosure not less than 7 days before the first CMC, which
is then filed at court

Standard Disclosure
 INTERIM MATTERS
DISCLOSURE AND INSPECTION OF DOCUMENTS, EVIDENCE

What is it? Requires a party to disclose the documents on which the rely (incl. those that
adversely affect their case) and that helps or hinders the other party’s case

Limited to documents within the party’s control, i.e.:

- Were/are in their physical possession;
- They have a right to possess; or
- They have a right to inspect
Duty to All parties are subject to a duty to reasonably and proportionately search
search for all documents that adversely affect their own/another party’s case or
supports another party’s case

‘Reasonable’ depends on number of documents involved, nature and

complexity of proceedings, ease and expense of retrieval and significance of
document

Non-exhaustive, but any limit to extent of search must be justified to the court
that it would not affect a proper investigation into the merits of the case –
should propose and agree any limitations earlier in the proceedings

Especially for electronic documents – due to the sheer volume, parties

should discuss and agree in advance matters like categories of electronic
documents to be disclosed, how data will be exchanged, the format for
inspection and any limitations before directions are given

MAKING DISCLOSURE – FORM N265

Form N265 is a numbered list of all documents that have been gathered

Formalities Court, claim number, parties stated

Disclosure Signed to confirm extent of search made to locate any documents and
statement certify they understand and have carried out their duty of disclosure

CANNOT be signed by a LR on behalf of client, should be signed by who is

responsible for overseeing disclosure process
The list Three parts:
1. Documents within the party’s control, no objection to inspection
2. Documents within the party’s control, objection to inspection
3. Documents not within the party’s control, no objection to inspection

Right of inspection
- Applies to Part 1 only
o Part 2 – not applicable, covered by legal professional privilege
o Part 3 – not within party’s control
- Request to inspect must be made in writing and granted within 7 days, but a
longer period is often agreed between parties
o Copies of documents usually requested if agree to pay reasonable costs
o Large numbers of electronic documents often provided on external hard drive

WITHHOLDING INSPECTION

Legal Professional Privilege - such documents are disclosed but are described generically,
two types:
- Legal advice privilege: only applies where sole or dominant purpose of the
communication is to seek or give legal advice
 INTERIM MATTERS
DISCLOSURE AND INSPECTION OF DOCUMENTS, EVIDENCE

- Litigation privilege: the document must be a communication –

o Passing between a client/lawyer and a third party;
o Which came into existence when litigation was contemplated or ongoing; and
o Which was produced with a view to the litigation, either for the sole or
dominant purpose of giving or receiving legal advice or for obtaining evidence
to be used in the litigation
- Privilege can be waived by the client -> allows the other party to inspect the
document

Without prejudice correspondence records information as part of a party’s genuine attempt

to settle a case such that the trial judge is unaware of the contents
- Likely to satisfy definition of standard disclosure – often containing offer of settlement
and concessions they do not want the Court to see
- Therefore documents marked ‘without prejudice’ should be disclosed and no privilege
from inspection claimed

ORDERS FOR DISCLOSURE – FORM N244

Where a party is dissatisfied with their opponent’s efforts in disclosure

- First step is to write to the other side to attempt a quicker and cheaper resolution to
the issue
- If the above fails, application notice (Form N244) + witness statement should be filed
at court and served on the opponent

Specific The party can be requested to:

disclosur - Carry out a more extensive search; and
e - Disclose any further documents located as a result of that search; or
- Disclose specific documents that the party would have expected to
see
Disputing May require the party claiming privilege to produce the document, invite any
privilege person (regardless of a party or not) to make representations, and then will
determine whether correctly categorised – if not, will order the document be
revealed to opponent
Pre-action Party may make application for pre-action disclosure + witness statement
disclosur
e For the court to make an order, must be satisfied that:
- Both applicant and respondent are likely to be parties to subsequent
proceedings;
- Documents sought would come within standard disclosure
- Disclosure is desirable to dispose fairly of the anticipated
proceedings/assist dispute being resolved without proceedings/save
costs
Non-party After commencement of proceedings, a party can apply for disclosure
disclosur against a non-party supported by evidence if it would help to resolve an
e issue in the case - will only be ordered if:
- Documents in question are likely to support the applicant’s case or
adversely affect the case of another party; and
- Disclosure is necessary to dispose fairly of the case or to save costs
- The order must specify documents to be disclosed and require non-
party to identify which documents are no longer in their control and
which are privileged
 TRIAL
PREPARATIONS FOR TRIAL

SUMMONING WITNESSES
Details of witness’s availability should have been given on the DQ and pre-trial checklists to
avoid delay

WITNESS SUMMONS: a document issued by the court requiring a witness to attend court to
give evidence and/or produce documents to the court
- Used where there is a doubt as to whether a witness will attend voluntarily
- Time limit: served on the witness at least 7 days before date on which the witness is
required to attend court (otherwise, court’s permission required)
- Served by: the court
- Compensation: must be offered or paid a sum reasonably sufficient to cover travel
expenses to and fro and compensation for loss of time
- Failure to comply: fine or imprisoned (High Court) for contempt

PREPARATIONS FOR TRIAL

PRE-TRIAL CHECKLIST (LISTING QUESTIONNAIRES) AND REVIEWS

[Fast and Multi Track] After disclosure and exchange of written evidence stages completed,
the court will send to the parties a pre-trial checklist (aka listing questionnaire)
- Purpose is to ensure parties have complied with all directions and trial is ready to
proceed
- Must be filed at court no later than 8 weeks before trial date
- The judge reviews the PTC to decide whether further directions are needed and
whether a listing hearing (Fast Track) or pre-trial review (Multi-Track) is necessary
before the trial
- The court may proceed to set a timetable, fix the place of trial and confirm the actual
date

TRIAL BUNDLE

Trial bundle is a file of all the documents the judge may need to decide the case, indexed
and paginated for ease of reference
- C (or their lawyer) usually prepares the bundle but the contents should be agreed
where possible
o Identical copies of the bundle should be supplied to all other parties
- Must be filed 3-7 days before the start of the trial
- Should include key documents of the case:
o Claim form, all statements of case,
o Case summary and chronology where appropriate [Multi-Track]
o Directions orders
o Requests for further information and responses
o Witness statements, notices of intention to rely on hearsay evidence
o Experts’/medical reports and responses

Case summary should be prepared for multi-track cases for use at trial
- Designed to assist the court and parties by indicating points in issue and nature of
argument about disputed matters
o Reviews party’s submissions of fact in relation to the issues referencing
evidence
o Sets out any propositions of law to be relied on
o Identify any key documents that the trial judge should read before the trial
 TRIAL
TRIAL PROCEDURE

TRIAL PROCEDURE
Court room Stand when speaking in open court
etiquette Witnesses to be addressed by title and surname (but children by first
name)
Modes of County Court (Circuit/DJ): Your Honour / Judge
address High Court (Judge/DJ): My Lord or Lady / Judge
CoA (LJ), SC (SCJ): My Lord or Lady
Leading vs Leading: ‘closed’, yes/no questions that suggest the answer to keep
non-leading control of the witness
questions Non-leading: ‘open’, questions that facilitate a witness telling their story,
often starting with ‘who, what, when, where, how’
Venue County Court – hearing centres throughout E&W
High Court – based at the Royal Courts of Justice, but there are District
Registries in many cities that act as trial centres
Hostile/ ‘Hostile’: unwilling to support the calling party – may ask the judge to
unfavourable declare them hostile, can choose to cross-examine and attack credibility
witnesses ‘Unfavourable’: a witness does so for entirely proper reasons (e.g. forgot)
Preliminary issues usually points of procedure
Opening speech by C
C gives evidence
Examination-in-chief of C (non-leading questions only)
Expert evidence given (C’s expert goes first)
Cross-examination by D (leading questions allowed)
Re-examination by C (non-leading questions only) – only relates to matters raised by
cross examination
Opening speech by D
D gives evidence
Examination-in-chief of D (non-leading questions only)
Cross-examination by C (leading questions allowed)
Re-examination by D (non-leading questions only) – only relates to matters raised by
cross examination
D closing speech
C closing speech
Aims to summarise the law and facts in the most favourable light to convince the judge of
validity of case
Judgment given (main proceedings end), order made

Nature and Effect of a Judgment

Nature
Liability Whether C established cause of action before going to review evidence and
provide reasons for decision
Quantu Specified claim: total calculated
m Unspecified claim: judge considers each category of damage claimed
Interest Whether it will be paid, at what rate, for what period
Costs At conclusion of the trial:
[Fast Track] Judge summarily assesses amount payable
[Multi-Track] Judge only determines who pays, amount TBD at later hearing
(‘detailed assessment’) unless agreement reached
Effect
Brings main proceedings to a conclusion
If C wins Matter proceeds to enforcement, D pays judgment, interest and costs
If D wins C pays any costs awarded and proceedings conclude
 POST-TRIAL
APPEALS

APPEALS

There is no automatic right to appeal

- Request usually made at end of trial, judge decides whether to grant permission
- If request unsuccessful/no request made, the party can apply for permission from the
appeal court itself
Timing constraints: 21 days to appeal against CC/HC; 28 days to apply for leave to appeal
from CoA to SC

First appeals: permission only granted where considered that appeal has a real prospect of
success or some other compelling reason why appeal should be heard
- Appeal court may strike out the whole/part of appeal notice, set aside permission to
appeal in whole/part, or impose/vary conditions on which an appeal may be brought
Second appeals: much rarer and permission is required from CoA
- Will only be allowed in exceptional cases, where appeal raises important point in
principle/practice (not yet established) or some other compelling reason
Leapfrog appeals: rare, arises where the case involves a point of law of general public
importance

DESTINATION OF APPEALS: route depends on the lower court and who made the decision

Decision of: Appeal made to:

District Judge (CC) Circuit judge (CC)
Master/District Judge (HC)  HC judge
Circuit Judge HC judge
HC judge CoA
 POST-TRIAL
COSTS

General rule: the unsuccessful party is ordered to pay the costs of the successful party
- ‘Costs’: solicitor’s charges, disbursements (court fees, expert’s fees, counsel fees)

Procedure for Determining Costs

Small claims track Legal costs not recoverable, costs payable will only relate to
disbursements
Fast track Summarily assessed
Multi-track Detailed assessment carried out
Fixed costs Recoverable costs are fixed
Advantage in knowing how much will have to be paid in the event of losing
the case, but disadvantage in less likely to recover all costs, often having
to pay shortfall to own solicitor
Summary Court determines amount payable immediately at end of hearing
assessmen Parties must file and serve a statement of costs (detailed breakdown) no
t less than 2 days before trial and at least 24 hours before an interim
hearing
Detailed Within 3 months of date of judgment/order, receiving party must serve on
assessmen paying party: Notice of Commencement of detailed assessment
t proceedings + bill of costs + supporting evidence
If paying party wants to challenge the bill –
- PP: 21 days to serve points of dispute
- RP: 21 days to file reply & file request for assessment hearing
within 3 months
If costs claimed <£75k, court undertakes provisional assessment, decides
what costs are allowable in absence of parties

If either party unhappy with provisional assessment, may request a hearing

with a Costs Judge (failure to obtain adjustment in favour by at least 20%,
ordered to pay hearing costs)

COSTS MANAGEMENT AND BUDGETING

STANDARD BASIS (applies in most cases)

- The judge goes through each item of costs and determines
o If item is reasonably incurred and is reasonable in amount
o If item is proportionately incurred and proportionate in amount
- If found to be disproportionate, may be disallowed or reduced even if reasonable
- Any doubt resolved in favour of PP

INDEMNITY BASIS (awarded as a penalty, to reflect court’s displeasure at bad conduct)

- The judge decides if costs are
o Reasonably incurred and reasonable in amount
- If found to be unreasonable, may be disallowed or reduced
- Any doubt resolved in favour of RP

INTER-PARTES COSTS (INTERIM AND FINAL)

‘Inter-partes’: between the parties

Interim Costs orders in connection to interim matters – will usually summarily assess
at the end of interim hearings (e.g. applications for summary judgment, to set
aside a default judgment or to strike out a party’s statement of case)
Final Costs orders at the end of the trial made either on standard basis or
indemnity basis
 POST-TRIAL
COSTS

Relevant factors to consider:

- Conduct of parties (before and during proceedings) and their efforts to
try to resolve the dispute
- Value of any money or property involved
- Importance of matter to the parties
- Complexity of matter
- Skill, effort, specialised knowledge and responsibility involved
- Time spent on case
- Place ad circumstances in which the work was done
- RP’s last approved or agreed budget

NON-PARTY COSTS

The court has a discretionary order that a non-party meets the costs, usually in exceptional
circumstances:
- The non-party may be liable where they have been substantially controlling
proceedings and stands to benefit from the successful outcome
- The non-party must be added as a party to the proceedings before an order can be
made

PART 36 OFFERS

An offer to settle a claim which complies with the requirements in Part 36 CPR with
consequences – puts pressure on opponent to settle as it will be taken into account by the
court when assessing costs at the end of trial
- Made ‘without prejudice save as to costs’
- Can be made by either C or D
- Offer must be:
1. In writing
2. Clear it is made pursuant to Part 36
3. Specify a ‘relevant period’ (no less than 21 days from when offer served and
within which the offer an be accepted without penalty consequences)
4. State whether it relates to whole/part of the claim and whether it takes into
account any counterclaim
- Offer is made when served (rules of deemed service apply) and is inclusive of
interest until expiry of relevant period
- May be accepted at any time by serving notice of acceptance on other party

Where offer is accepted

D/C (offeror) serves Part 36 Offer on C/D (offeree)

Offeree accepts offer, proceedings are stayed

Agreed sum (and costs) paid within 14 days, failing which judgment can be entered
Acceptance within relevant period Late acceptance

Offeree pays offeror’s costs up to date of D as offeror: D pays C’s costs up to expiry
acceptance on standard basis date of relevant period; C pays D’s costs
thereafter until day of acceptance on
standard basis

C as offeror: D pays C’s costs up to day of

acceptance on standard basis
 POST-TRIAL
COSTS

Where offer is not accepted

Penalties are imposed from the day after the relevant period expires (Day 22) and applies
unless the court rules that it would be unjust to do so

C serves Part 36 Offer on D

C wins at trial, C is awarded:
equals or Damages + Additional amount (aka extra damages):
beats their - Damages up to £500,000: additional 10% of sum awarded
own offer - Damages >£500,000 and up to £1m: 10% of first £500,000, 5%
up to a maximum of £75k
- Where non-monetary remedy awarded, ‘sum awarded’ refers to
the costs

Up to Day 21
Interest on damages + Costs on standard basis
From Day 22 to judgment
Enhanced interest on damages (max. 10% above base rate)
Costs on indemnity basis + Interest (max. 10% above base rate)
C wins at trial, Part 36 has no effect, no extra penalty
does not beat
their own offer
C loses at trial Part 36 has no effect

C will not be awarded damages, ordered to pay D’s costs on standard

basis

D serves Part 36 Offer on C

C wins at trial, Part 36 has no effect
beats D’s offer
C is awarded:
Damages
Interest from date of loss as claimed on PoC
Costs on standard basis
C wins at trial, ‘Split costs order’
does not beat
D’s offer C is awarded:
Damages
Interest from date of loss as claimed on PoC

Up to Day 21
Costs on standard basis

D is awarded, from Day 22 to judgment

Costs on standard basis + Interest on costs (1-2% above base rate)
C loses at trial Part 36 has no effect

C will not be awarded damages

D is awarded, from Day 22 to judgment

Costs on standard basis + Interest on costs (1-2% above base rate)
 POST-TRIAL
COSTS

SECURITY FOR COSTS

The court has the discretionary power to make an order for security for costs, offers
protection to a party, usually D, where there is a risk that C will not be able to pay if ordered
to do so

Grounds – the court must be satisfied that:

With regard to all
circumstances, it is just;
C is resident outside E&W but
not in a state bound by the
Hague Convention
C is an impecunious company Must establish there is reason to believe C will be unable
C has taken steps to make
enforcement difficult
Factors considered include strength of D’s and C’s claim
and defence, C’s ability to provide security (if reasonable
prospect of success, may stifle the claim if order made),
causes of C’s impecuniosity, property within the
jurisdiction, and timing – ASAP)
and one of the below
Individuals: where they normally and habitually live
Companies: where their central control and management
are located
to pay – e.g. evidence of financial assets, likely total
costs of litigation
Must demonstrate C has taken steps in relation to assets
that will make the order difficult to enforce – effect of
action considered and not motivation

Procedure
- D should write to C to ask for security to be provided voluntarily
- If not, submit Form N244 notice with supporting witness statement
- If order granted, will specify amount of security, date by which to provide, form it will
take
 POST-TRIAL
ENFORCEMENT

ORAL EXAMINATION
A court order requiring debtor to attend before an officer of the court to be questioned
on oath about their/company’s finances
- Failure to attend: the judge may make a committal order, which is usually
suspended after compliance with order
Procedure
C applies to the court for an order to obtain information, setting out debtor’s details,
judgment seeking to enforce and amount owed
Order is personally served on debtor, who can request payment of reasonable travelling
expenses to and from court within 7 days
Officer will make a written record of debtor’s responses, who reads and signs at the end

METHODS OF ENFORCEMENT

Taking Control of Goods

Who? High Court: High Court Enforcement Officer (HCEO)
County Court: enforcement officers (bailiffs)
Powers? Reasonable force can be used to enter business premises if they believe
goods are inside, but not a private residence
What? The usual contents of a home or business premises, boats, securities (e.g.
share certificate)

‘Necessary items exemption’ (only applies to individuals): cannot seize

- Household domestic items for basic needs of debtor and their family
- Computer, vehicles, equipment necessary for work or study (up to
max. agg. value of £1,350)
- Goods that solely belong to another or are subject to hire/hire-
purchase agreements
Court? Judgment in HC Judgment in CC
Party may issue writ of control in HC <£600: issue warrant of control in CC
regardless of amount £600 - £5,000: issue warrant/writ of
control in CC/HC
>£5,000: issue writ of control in HC
Procedure Judgment in HC Judgment in CC
1. C delivers request (praecipe), x2 1. C files form of request for warrant
writ of control and judgment to at CC centre
court office 2. Warrant executed by EO of D’s
2. Court seals writ, returns C’s copy district
3. C forwards to HCEO of D’s
county for execution of writ

Usually immediate removal/control taken of goods, but may enter into a controlled goods
agreement with D if they need time to pay (goods remain on premises for one more day)
Charging Order
What? Charge on D’s beneficial interest in land (can be jointly owned with another)
and/or securities

If on land: must be registered at Land Charges Department (unregistered) or

 POST-TRIAL
ENFORCEMENT

HMLR (registered)

If on securities: charge extends to any interest or dividend payable

Effect D is like a mortgagee – charging order sits on assets until value sufficient for
C to apply for order for sale
Procedure Stage 1: interim charging order (ICO)
C applies and files application notice and draft ICO for court officer to review
Serve notice and draft ICO on D within 21 days
D has 14 days to request review of decision by judge

Stage 2: final charging order (FCO)

Must file and serve written evidence objecting within 28 days of serving ICO
Hearing: court can make a FCO, discharge ICO or direct a trial

Stage 3: order for sale

C has a charge on D’s land, which can be enforced by an order for sale of the
property by commencing fresh proceedings

Third Party Debt Orders

What? Court can require TP to pay C sufficient of the monies (owed by TP to D) to
satisfy the judgment debt and costs

Debt must belong to D solely and beneficially and must be within E&W
Procedure Must be issued in the court that made the order being enforced
1. C applies to court without notice to D, detailing name and address of
branch money is held and account number
2. Judge makes interim order which freezes bank account or funds held by
TP – a hearing is listed no later than 28 days later
3. Hearing: objections consider, order made final unless good reason

Attachment of Earnings Order

What? Compels D’s employer to make regular deductions from D’s earnings and
pay into court
Procedure Applications must be made to County Court
1. C applies to CCMCC
2. Court informs D of application – either they pay or file statement of
means giving details of income and outgoings
3. Attachment of earnings order made, repayment rate fixed
4. Order sent to parties and D’s employer with instructions to deduct –
employer is entitled to deduct a small additional sum in respect of admin
5. Objection – can apply for reconsideration at hearing

ENFORCEMENT IN ANOTHER JURISDICTION

Scotland and C to obtain a certificate confirming date of judgment, sum awarded,
Northern and details of interests and costs
Ireland Make application to the court in S/NI + evidence, to register judgment
within 6 months – registered -> local enforcement methods apply
The Apply under Administration of Justice Act 1920 – HC (12 month limit)
Commonwealt Apply under Foreign Judgments (Reciprocal Enforcement) Act 1933 –
h CC (6 month limit)
Other If Hague Convention applies, judgment enforced and recognised there
countries Must issue fresh proceedings in local jurisdiction to pursue claim