Overriding objective -1

ADR- 2
Amendments to statement of case 48
Appeals & procedure 101
Arbitration 109

Courts case management powers 28

Commencing and serving proceedings 13
Case management 50
Cost management 65
Costs 89
Costs procedure 93

Default judgment 26
Disclosure 54
Docs, procedure & hearing of appeal 105

Evidence of fact 67
Expert evidence 73
Enforcement 96

Fast track 53

Interim app 33
Interim payment 37
Interim injunction 40

Judgements and orders 85

Limitation 60
Multi 53
Non-party 63

Pre-action conduct 10
Part 8 claims 20
Parties ( Child & PP) 21
Privilege 59
Part (36) 76

Responding to a claim 18
Respondent notice 106

Specific disclosure/ specific inspection/ pre action disclosure 60

Summary judgement 35
Security of costs 38
Small tracks claim 52
Overriding objective:
CPR1.1 states that the overriding objective is ‘to enable the court to deal with cases
justly and at proportionate cost’
 CPR 1.1(2) provides the factors for ‘dealing with a case justly and at
proportionate cost include:
(a) ensuring that the parties are on equal footing
(b) saving expenses
(c) dealing with the case in ways which are proportionate:
i. to the amount of money involved
ii. to the importance of the case
iii. to the complexity of the issue
iv. to the financial position of each party
(d) ensuring that it is dealt with expeditiously and fairly
(e) allotting appropriate share of court’s resources
(f) enforcing compliance with rules, practice directions and orders

 CPR 1.2 requires court must endeavour to give effect to the overriding
objective
 CPR 1.3 encourages parties to help the court further the overriding objective

 CPR 1.4 requires in furthering the overriding objective, the court must
actively manage cases
 CPR 1.4(2) provides what active case management includes:
(a) encouraging the parties to co-operate with each other
(b) identifying issues at an early stage in order to keep costs to a
minimum
(c) considering whether likely benefits of taking a particular step justify the
cost of taking it
(d) making prompt decisions as to issues needing full investigation and
issues disposable summarily, giving directions to ensure trial of a
case proceeds quickly and efficiently
(e) encourage the parties to consider ADR procedures if court considers it
appropriate and facilitating the use of such procedure
(f) helping the parties to settle the whole or part of the case
(g) deciding the order in which issues are to be resolved
(h) set down appropriate timetable / otherwise control progress of case to
trial
(i) using technology, avoiding court attendance where possible
Alternative Dispute Resolution – ADR:
Process Working Definition
Litigation Adjudicative process where the parties’ dispute is determined by
a judge sitting in court.

Arbitration Adjudicative process wherein an impartial arbitrator or tribunal

considers both sides of a dispute and makes a decision on the
issues raised by the parties. Governed, in England and Wales, by
the Arbitration Act 1996.

Expert (or Adjudicative process wherein an expert (or a neutral third party)
Neutral) is appointed to make a determination on the issues in dispute
Determination referred to them by the appointing process.

Early Neutral Non-adjudicative, non-binding assessment and evaluation of the

Evaluation facts, evidence and/or the legal merits of one or more of the
issues in the case or of the case as a whole. The parties will
usually appoint a neutral third party to evaluate these and provide
an opinion on the merits.

Mediation Non-adjudicative, flexible process in which a neutral third party

(the mediator) facilitates discussions between the parties in
dispute. The parties, however, remain in control of the issues
they would like to discuss and the outcome, including the terms
of any settlement.

Negotiation Non-adjudicative, very flexible process involving written and/or

oral communication between parties and/or their lawyers with a
view to reaching a settlement.

ADR method Third-party intervention Binding or non-binding

Negotiation No No
Mediation Yes No
ENE Yes No
Arbitration Yes Yes
Expert determination Yes Yes
Criteria for the selection of an ADR option:
 How important is it to minimise costs?
 In a low value case, negotiation is often cheaper than mediation
 In a high value case, negotiation, mediation, ENE or expert determination
 How important is fast resolution?
 For quick resolution, a non-adjudicative method e.g. negotiation or
mediation is more effective
 How much control does the party want?
 Parties retain all the control in non-adjudicative methods
 In an adjudicative method, parties may agree process and forum, but will
not have control over outcome
 What are the main objectives of the party?
 Is a future relationship important?
 Non-adjudicative maintains future relations
 Is the view of the expert important to keep? ENE or expert determination
 Would neutral assistance be valuable? Mediation
Factors to consider in deciding when to use ADR:
 The overriding objective: supports use of ADR as early as is reasonable
 The position as regards to costs
 The timeframe for reaching resolution
 The issues in the case
 The availability of information
 The importance of interim applications
 The strength of a case
 Animosity between parties
When ADR may not be appropriate?
 The need for a precedent
 The importance of a court order
 The relevance of interim orders
 The court’s involvement is needed to ensure compliance with evidential rules
 The strength of a case
 The complexity of the case
 High levels of animosity – may still be appropriate where trust has broken
down for instance, using a mediator in a mediation
 Power imbalance
 Quasi-criminal allegations
 Having a day in court
 Enforcement may be an issue
How does the court encourage parties to engage in ADR?
The court can
(a) Provide information about ADR and
(b) Encourage parties to consider ADR and engage in it
One way the court encourages parties is when making a costs order as per the
conduct of the parties. Accordingly, the court can encourage the parties to engage in
ADR by rewarding positive ADR behaviour and punishing poor behaviour in costs.
In Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920 the Court of
Appeal indicated that the burden of proof will be on the unsuccessful party to show
the court why it should depart from the general rule on costs to deprive the
successful party of some or all of its costs on the grounds that it refused to agree to
ADR. In deciding whether the successful party acted unreasonably the court should
bear in mind the advantages of ADR over the court process and have regard to all
the circumstances of the particular case.
The relevant factors are as follows, and we have included some explanation as to
how those factors might be applied:
(a) The nature of dispute – factors to suggest a dispute is more or less suitable
for ADR
(b) The merits of case – whether a party’s claim is strong and has reasonable
grounds
(c) The extent to which other settlement methods have been attempted
(d) Whether the costs of ADR would be disproportionately high
(e) Whether any delay in setting up and attending the ADR would be prejudicial
and
(f) Whether ADR had a reasonable prospect of success
Halsey v Milton Keynes General NHS Trust: Dyson LJ stated that compulsion of
ADR would be regarded as an unacceptable constraint on the right of access to the
court and, therefore, a violation of Article 6 of the European Convention on Human
Rights.
 The court will not refuse to award costs to a successful party simply because
it did not positively suggest ADR.
 The court can still penalise parties if they unreasonably refuse to attempt
ADR, particularly if they are ordered by the court to do so.
 The court can also direct parties to consider ADR at case-management
conference or pre-trial review
On the other hand, silence in face of an offer to engage in ADR is likely to be
considered unreasonable and to be sanctioned in costs (unless the parties are
already engaged in a form of ADR). Therefore, upon receipt of an offer to engage
in ADR, a party should:
(a) Consider with its legal advisor the merits of that offer
(b) Respond promptly, in writing, setting out reasons for its decisions, and
noting the principles in Halsey above
(c) If it does not wish to engage in ADR, explain in what different
circumstances it would agree to ADR. It would very rarely be appropriate to
indicate that ADR will at no stage be appropriate
(d) Make that letter with ‘open’ or ‘without prejudice save as to costs’
 (e) Consider making a separate note of any reason for refusal that it is
unwilling to express to the opponent at that time, in a form which can be
later shown to the court if necessary
Granting a stay for ADR:
Before the case is finally allocated to a track, the court will require the parties to file
and serve a DQ in Form N181 (fast track and multi-track) or N180 (small claims track
cases). The DQ requires each party to inform the court whether they would like
a stay for 1 month to try to settle the claim, or why it is not possible to reach a
settlement at this stage. If a stay is granted for ADR, the parties must keep the
court informed about the outcome.
 If it results in settlement, the parties will need to formally dispose of the court
proceedings, by way of a Consent Order or a Tomlin Order. It is treated as
an application for stay to be lifted.
 If no settlement is reached during the ADR process, then the parties will
need to apply to the court to get the stay lifted (if it has not expired) and for
any further relevant directions so that the litigation can proceed.
 Limitation
If proceedings are not commenced within relevant limitation period, C will be barred
from recovering damages and on this basis, D will have a full defence
Fatal Accidents – s 12 LA 1980:
(a) The claim cannot be brought if the person injured could no longer bring a
claim AND
(b) The claim cannot be brought after 3 years of (whichever is later)
i. Date of death, OR
ii. The date of knowledge of personal representatives

Personal Injury – s 11 LA 1980:

The question to ask is “do the damages claimed by the claimant for the negligence,
nuisance or breach of duty…consist of or include damages in respect of personal
injuries to the claimant or any other person.” Then, C must bring the claim within 3
years of (whichever is later):
(a) The date when the cause of action accrued OR
(b) The date of knowledge of person injured
Date of knowledge – s 14 LA 1980:
The date of knowledge is described in s 14 LA 1980 and it means knowing:
(a) That the injury was significant
(b) That it was attributable (at least in part) to the alleged wrongdoing
(c) The identify of D
(d) If it is alleged that the wrongdoing was by someone other than D, the identity
of that person and the additional facts supporting bringing the claim against D
Therefore, date of knowledge includes knowledge which claimant might
reasonably have been expected to acquire from an expert/facts observable/
ascertainable by him.
Extension of time – s 33 LA 1980: (only for s11 and s12)
The court can extend time in relation to s11 or s12 if that would be equitable,
balancing the prejudice to the claimant caused by the limitation period with any
prejudice to the defendant which allowing the claim would cause. The court will look
at the conduct of the parties, the reasons for the delay, the effect of such a late
claim on the evidence and all the circumstances of the case and in particular:

(a) length and reasons for delay on part of the plaintiff;

(b) extent to which, having regard to the delay, the evidence adduced or likely to be
adduced by the plaintiff or the defendant is or is likely to be less cogent than if the
action had been brought within the time allowed by s 11 or by s 12;

(c) conduct of defendant after the cause of action arose, including the extent (if
any) to which he responded to requests reasonably made by the plaintiff for
information or inspection for the purpose of ascertaining facts which were or might
be relevant to the plaintiff’s cause of action against the defendant;

(d)the duration of any disability of the plaintiff arising after the date of the accrual
of the cause of action;

(e)the extent to which the plaintiff acted promptly and reasonably once he knew
whether or not the act or omission of the defendant, to which the injury was
attributable, might be capable at that time of giving rise to an action for damages;

(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert
advice and the nature of any such advice he may have received.

Contribution claim – s 10 LA 1980:

Section 10 applies where a person has become entitled to a right to recover
contribution in respect of any damage from any other person.
The limitation date is 2 years from the date on which the right to recover the
contribution arose. This is calculated as:
(a) The date when the judgment was given imposing liability on the first party
(b) In cases where the first party agreed to make the payment (rather than having
a judgment imposed on him), the earliest date on which amount to be paid
was agreed

Latent damages for negligence claims – s 14A and 14B LA 1980:

Sections 14A and 14B of the Limitation Act 1980 deal with claims for latent damage
(i.e. where facts relevant to cause of action are not known at date of accrual).
Latent damage: damage which is hidden
Section 14A provides that in negligence claims (other than claims for personal
injury), the limitation period is extended to (whichever is later):
(a) 6 years from when the cause of action accrued, OR
(b) 3 years from when he had the requisite
i. Knowledge and
ii. Right to bring a claim
iii. But under s.14B this is subject to a long-stop limitation date of 15
years from the date of the latest negligent act / omission which caused
all or part of the damage
- If within 3-year period, ensure that 14B is not made out

Date of knowledge is defined with s.13 essentially the same as in the personal injury
cases.
Judgment claim – s 24 LA 1980:
An action to enforce a judgment cannot be brought after 6 years from when the
judgment became enforceable, nor can interest be recovered after that period.
Tort and Contractual claim – s 2 and 5 LA 1980:
The general rule is that, for an action in tort, the limitation period expires 6 years
after the date on which the cause of the action accrued (s 2). Likewise, for an
action in contract.
Extension due to disability – s 28 LA 1980:
If the claimant is under a disability at the time that the cause of action accrued, the
limitation period starts to run from when the disability ends, and is:
(a) 2 years in relation to contribution claims
(b) 3 years in relation to claims under s 11 and 12
(c) 6 years in most other cases
A person is under a disability whilst he is a minor (under the age of 18) or lacks
mental capacity to conduct the proceedings (within the meaning of the Mental
Capacity Act 2005) (s 38).
Fraud/concealment/mistake – s 32 LA 1980:
Where a claim is based on
(a) Fraud
(b) Any fact relevant to the cause of action has been deliberately concealed by
the defendant
(c) Relief from the consequence of a mistake, then

Limitation does not start to run until the claimant discovered the fraud,
concealment or mistake (or could with reasonable diligence have discovered it)
 Pre-action conduct:
Main aim - Information in exchanged so that parties can:
- Understand each other’s position
- Make decisions about how to proceed
- Try to settle their differences without litigation
- Consider ADR
- Help efficient management of proceedings if proceedings go ahead
- Reduce costs of resolving dispute

Consequences of non-compliance:
 Relief from obligation to comply/further comply with practice direction
 Costs and interests – defaulting party to pay some/all of other parties’
costs/interest
 Stay of proceedings until relevant steps are taken
Is non-compliance ever justified?
 Where a limitation period is about to expire, it may be necessary to issue
proceedings
 Where there is another reason for urgent proceedings e.g. injunction
 Once proceedings started, parties should apply for stay while they comply
 Stay will be for 1 month if all parties agree; request in writing at same time
as filing directions questionnaire
 If court directs a stay on its own, it can be 1 month OR for such period as
it considers appropriate
Pre-action protocol for personal injury claims:
(a) Applies to personal injury claims
(b) Which do not fall within another pre-action protocol
(c) And which are likely to be allocated to the fast-track (a value of up to £25,000-
even if higher, follow spirit of the protocol)
It requires…
(a) C Letter of Notification to D giving brief details, to enable D to notify its
insurer
(b) Parties consider any rehabilitation needs and how to address them
(a) C write to D to give full details of the claim (Letter before Claim) including
basis of claim, summary of facts, remedy sought
(c) D to acknowledge Letter of Claim within 21 days
(d) D to send full Letter of Response within 3 months of letter acknowledging
claim and must either accept liability (but no quantum) or denies liability (in
whole or in part)
(b) Then parties should disclose key documents, engage in appropriate
negotiations and make proposals for settlement, at least try to narrow
legal, factual and expert issues before proceedings are issued
(e) C send schedule of losses giving details of losses
 (f) Joint selection of quantum expert, OR C discloses report and D send
written questions
Practice Direction – Pre-Action Conduct and Protocols:
(a) Applies to all other cases
It requires…
(c) C write to D to give details of the claim (Letter before Claim) including basis
of claim, summary of facts, remedy sought
(d) D acknowledges within a reasonable period/within 14 days (depends on
complexity of claim) and then replies with a response letter within 3 months
(e) Response letter must either accept / reject the claim (in whole or in part)
giving reasons including any intention to counterclaim with details
(f) Then parties should disclose key documents, engage in appropriate
negotiations and make proposals for settlement; at least try to narrow
legal, factual and expert issues before proceedings are issued
Note: Parties should take reasonable and proportionate steps before and after
proceedings. Any disproportionate costs incurred in complying with any pre-action
protocol or PD, will not be recoverable as part of costs of proceedings
Litigants in person should so far as reasonably practicable, comply with the Pre-
Action protocols and PD
 Commencing and service proceedings:
Where to start proceedings? 7APD.2
Assessing the value of an action:
Value of an action is –
- Amount of money
 C reasonably expects to recover
 Disregarding: any sum not in dispute; interest; costs; possible contributory
negligence; possible counterclaim
 Reduced by: any debt which C admits he owes to D in respect to claim
Depending on value of action, which court?
 Non-personal injury claims up to £100,000 must be in CC and over
£100,000 can be in either
 Personal injury claims less than £50,000 must be in CC and £50,000 or
over can be in either
 Where a claim is over £100,00 and £50,000 it must be in HC where:
(a) Financial value of the claim and the amount in dispute
(b) Complexity of the facts, legal issues and remedies or procedures
involved
(c) Importance of the outcome to public in general

CPR 30 provides for transfer of cases b/w the HC and CC. The court may consider
whether a C’s claim should stay in the court where C has commenced proceedings.
The consequences for C getting this wrong are:
 Cost sanctions
 If the matter continues in the High Court, section 51 SCA provides a separate
sanction for wrongly beginning a matter in the High Court when it should
 have been issued in the County Court. The penalty is that any costs
awarded in the claim can be deducted by up to 25%, but this is at court’s
discretion
How to commence proceedings: (PART 7)
1. Issue proceedings – issuing claim form (N1)
 Title of proceedings:
- Number of proceedings
- Court or division
- Full name of each party
- Each party’s status
 C completes claim form & delivers it to court & court issues it (where
CF issued was received at court on earlier date, claim is brought that earlier
date)
 Copies of the N1 Claim form to be issued and sealed:
 One copy of the completed form to be kept on court’s case management
file
 One copy for every D
 One copy for C to keep on its own file
 Court issue fee
Contents of Claim Form:
- Concise statement of nature of claim
- Statement of value (in accordance with assessment of value in allocation)
- Statement of interest (only for specified sum)
- Anything a PD requires
- Any representative capacity (litigation friend)
- Remedy sought (where no specified sum)
- Statement that POC will follow (if not served/must be served within 14 days)
- Statement of truth
Contents of POC:
- Statement of facts
- Copies of relevant documents (e.g. written contract, evidence of oral
contract, conditions of sale)
- Interest and its basis
- Statement of truth

For PI claim, in addition:

- C’s date of birth
- Brief details of personal injuries
- Schedule of past and future expenses and losses
- Any medical report (fixed cost medical report)

For provisional damages claim, in addition:

 - What C is claiming under 32A Senior Courts Act 1981 / 51 County Courts Act
1984
- Chance of development of any future serious disease
The date of issue of the claim form is important. It stops time running for limitation
purposes and starts the clock for the time in which the claim form must be served.
2. Service of the claim form
CF is served by court, UNLESS court orders or directs otherwise
Service can be done by C if C wishes or if a rule or PD says that C must serve it
If the claim form is served by the court If the claim form is served by the
claimant
 Service will usually be by first class  They must notify the court when
post issuing the claim form that they do
 Once the court has effected not wish the court to serve it.
service, it will send the claimant a  The court will give or send the
notice of issue stating the deemed claimant’s solicitor the issued claim
date of service form with sealed copies for service
 If the court is unable to serve the on the defendant(s).
claim form for any reason, the  The claimant’s solicitor effects
claimant will be sent a notice of service.
non-service  The claimant’s solicitor must then
 It is then up to the claimant to try to file a certificate of service at court
serve the claim form on the within 21 days of service, certifying
defendant. details of the date on which claim
was posted/delivered/transmitted
and the method and address used.
 It is not necessary to file a
certificate of service if all of the
defendants have filed an
acknowledgment of service within
that time.

Methods of Service of Claim Form:

CPR 6.3 lists the permitted methods of serving the claim form
CPR. 7.5 lists the relevant step required for each method of service
 Personal service: physically leaving it with D; person holding senior position in
company; partner or person who has control/management of partnership
 Delivering or leaving at a permitted address
 First class post: Posting, leaving, delivering to/collection by service provider
 Document exchange (DX)
 Address to be served includes a numbered box at a DX
 Party has not indicated in writing that they are unwilling to accept service by DX
(same relevant step as first class post)
 Electronic method: fax or email:
Party to be served has indicated in writing:
 That it is willing to accept service by fax or e-mail, and
  Fax number/email address
 Party intending to serve by email / requesting court to serve by email, must first ask
the party to be served whether any limitations/conditions in such acceptance
 Service by contractually agreed method
 Any other service under enactments
Where the claim form will be served is closely intertwined with which method of
service to use. There are several factors to consider. These include:
(a) Whether there are any issues with address for service known to C
(b) Whether the D has instructed a solicitor to accept service on its behalf and
(c) Whether the D is being uncooperative or trying to evade service
Claimant is required to include a full postal address for service in the claim form
(see CPR 6.6).

Rules on WHERE to serve where D has given an address: CPR 6.8

 Must serve it on D’s solicitor when:
 D has given address of solicitor in writing
 D’s solicitor has notified C in writing that he has instructions
 If NOT a solicitor’s address:
 At an address D provided, being where D resides / carries on business
Rules on WHERE to serve where D has NOT given an address: CPR 6.9
Starting point for the claimant is to find out where the defendant is i.e. their current
address. Where is it not safe to rely on the known address of D, C will need to take
reasonable steps to ascertain address
Individual: ‘usual or last known address’
Company: Principal/registered office or holder of senior position by personal service
or a place with real connection to claim place where company carries its business
activities
Partnership: principal/last known/any place of business

Where the C believes that D no longer resides / works at the address, C must:
 Try to ascertain D’s up to date address and serve it there OR
 Apply to court without notice for alternative place/method of service
(application with evidence of good reason/draft order)
If C cannot ascertain D’s up to date address OR use alternative place/method, C
can serve the claim form at the address ‘usual or last known address’ for an
individual D or ‘principal office’ for business, notwithstanding that C believes the
address to be out of date.
Also, claim forms do not remain ‘valid’ indefinitely after they are issued. The ‘relevant
step’ to serve the claim form by the chosen method of service must be completed
before 12.00 midnight on calendar day 4 months after the date of issue of claim
form within jurisdiction and 6 months outside jurisdiction
Extension of time limit
C may apply for extension. The application should be made within period of 4
months with evidence. Evidence must state:
 All the circumstances relied on
  Date of issue of claim
 Expiry date of claim
 Good reasons for non-service (generally a difficulty in effecting service)
If after 4 months, the court will only grant extension if:
 Court failed to serve the claim form or
 C has taken all reasonable steps to serve within 4 months (reasonable
steps within 4-month period, not after it)
 Either way, the application has been made promptly

3. Service of POC:
(a) Within the claim form
(b) Separate document with the claim form
(c) Separate document to follow later
If particulars of claim are not contained in or served with the claim form they must
be served within 14 days of deemed date of service of claim form, and also within
the period of validity of the claim form, i.e. within 4 months of issue, assuming
service within the jurisdiction.
C must also serve response with the POC. The response pack (Form N9) contains:
 Form for admission
 Form for defending and
 Form for acknowledging service
Deemed date of service: a claim form is DDS on 2 nd business day after completion of
relevant step.
First class post Second business day after posted
DX Second business day after left with rsp
Leaving at an address/ personal service Before 4.30pm on that day or next day
after the day on which it was transmitted
Electronic method Before 4.30pm on that day or next day
after the day on which it was transmitted
Once the POC served, the C must file a copy at court within 7 days of service,
unless they have already been filed.
Deemed Service of Documents other than Claim Form:
6.26 A document, other than a claim form, served within the United Kingdom in
accordance with these Rules or any relevant practice direction is deemed to be
served on the day shown in the following table –

Method of service Deemed date of service

1. First class post (or other The second day after it was posted, left with, delivered to or
service which provides for collected by the relevant service provider provided that day
delivery on the next is a business day; or if not, the next business day after
business day) that day.
2. Document exchange The second day after it was left with, delivered to or
collected by the relevant service provider provided that day
is a business day; or if not, the next business day after
that day.
3. Delivering the document If it is delivered to or left at the permitted address on a
to or leaving it at a business day before 4.30p.m., on that day; or in any other
permitted address case, on the next business day after that day.
4. Fax If the transmission of the fax is completed on a business
day before 4.30p.m., on that day; or in any other case, on
the next business day after the day on which it was
transmitted.
5. Other electronic method If the e-mail or other electronic transmission is sent on a
business day before 4.30p.m., on that day; or in any other
case, on the next business day after the day on which it
was sent.
6. Personal service If the document is served personally before 4.30p.m. on a
business day, on that day; or in any other case, on the
next business day after that day.
 Responding to a claim
(a) Admit part, or all of the claim
(b) File a defence
(c) File an acknowledgment of service
If D fails to do within 14 days of deemed service of POC, C may apply for default
judgment to be entered against D
Acknowledging:
Within 14 days of DDS of POC using form N9 which is sent in the response pack. D
will indicate, by ticking the appropriate box on the form, whether they intend to
defend all or part of the claim, or whether they intend to contest the jurisdiction of the
court to deal with the matter.
Once D files an acknowledgement, court will notify C in writing that this has been
done.
Filing acknowledgment of service extends time for filing a defence to 28 days
after the DDS of POC.
Defending:
A longer period for filing a defence might apply where:
 the claim form has been served out of the jurisdiction
 D makes an application disputing the court’s jurisdiction – D need not file a
defence before hearing of that application
 C has filed for summary judgment – D need not file a defence before hearing
 Court specifies period where out of jurisdiction
Extending:
D and C can agree an extension of time for serving the defence of up to 28 days. If
an extension of time is agreed, the court must be notified in writing. D will need to
apply to court if C refuses to agree or D requires a longer extension.
Procedural point:
 There might be a stay of proceedings if neither party takes any steps to
move the claim on i.e. the defendant fails to respond and the claimant takes
no action to enter judgment, imposes an automatic stay after 6 months.
Any party can apply for stay to be lifted.
 If D fails to deal with any allegation made by C, D will be deemed to admit it,
unless it has set out its own case in respect of that allegation.
 Part 8 claims:
When is part 8 used?
 It seeks the court’s decision on a question which is unlikely to involve a
substantial dispute of fact and where the procedure is not prohibited by the
type of claim in question
 Where a rule or practice direction permits the use of part 8
Procedure:
1. C issues at court and serves on D claim form (N208), written evidence, draft
order
2. Not more than 14 days after the service of the claim form, D files at court and
serves on C an acknowledgment of service (N210) and written evidence –
if D fails, it may still attend hearing but may not take part unless court
gives permission
3. Within 14 days of service of D’s evidence, C files at court and serve on D
further written evidence in reply
4. Part 8 hearing
Evidence is usually in form of written evidence and if a party does not serve it, it will
not be able to rely on written evidence at the hearing, unless court gives permission.
Extending time for service:
(a) Parties can agree to extend time for D to file and serve evidence no more
than 14 days after D serves acknowledgment. The agreement must be filed
at court by D at the same time as filing acknowledgment
(b) Parties can agree to extend time for C to file and serve further evidence in
reply no more than 28 days after service of D’s evidence
(c) A party may apply to the court if parties cannot agree
D may object to Part 8 by showing:
 There is a substantial dispute of facts and
 The use of part 8 is not required or permitted by a rule or PD
The defendant must state the reasons for objecting in the acknowledgment of
service.
 Parties
Children
 Any person under 18 years of age: r.21.1(2)(a).
Name in proceedings
Miss Ann Hunt (a child, by Mrs Margaret Hunt her litigation friend)
Who may be a litigation friend
 A child must have a litigation friend to conduct proceedings on their behalf
 Unless the child applies, on notice to litigation friend if they already have
one, to conduct proceedings himself and a court orders that the child
need not have one
 Any steps taken before a child has a litigation fried has no effect unless
the court orders otherwise
CPR r.21.4(3): A person may act as a litigation friend if they: (without court
order)
a. can fairly and competently conduct proceedings on behalf of the child or
protected party;
b. has no interest adverse to that of the child or protected party; and
c. where the child or protected party is a claimant, undertakes to pay any costs
which the child or protected party may be ordered to pay in relation to the
proceedings, subject to any right they may have to be repaid from the assets of the
child or protected party.
Statement of truth in claim with litigation friend CPR, r.22.1(5), (6)
 Can be signed by the lawyer or the litigation friend. It states the litigation
friend believes the facts stated are true.
Certificate of suitability (as a litigation friend)
Must be filed and served by litigation friend (CPR, r. 21.5)
Service on children
General rule: r.6.25(2); (6)
 Documents must be served on litigation friend conducting the proceedings
on behalf of the child.
 Unless an order has been made under r. 21.2(3) allowing a child to conduct
proceedings without a litigation friend
Service of claim form on child: r.6.13
(Technically not on syllabus, but helpful to understand)
 Served on one of the child's parents or guardians
 If no parent or guardian, on an adult with whom the child resides or in whose
care the child is
Service of application to appoint a litigation friend: rr.6.25(1) & 21.8
 Must be served on one of the child's parents or guardians, etc., under r.6.13
Permission to serve on some other person: r.6.25(3), (4)
 Such an application can be made without notice
Timing: r.21.3
 The rules provide that very little can be done in a case before a litigation
friend has been appointed
 r.21.3(4) provides that any step taken before a child or protected party has a
litigation friend has no effect unless the court orders otherwise
Default judgment against children requires an application: r.12.10
 Normally by request in money claims
 But children need to be protected, so an application has to be made
 This is one of the exceptions and you will look at this again in SA12, default
judgments
Protected Party:
Mental Capacity Act 2005 at s 2(1)
 A person lacks capacity in relation to a matter if, at the material time, he is
unable to make a decision because of an impairment of, or a disturbance in
the functioning of, the mind or brain
 Court of Protection steps in. By s 16(2) of the 2005 Act, it may either:
(a) make decision (s) on behalf of that person, or
(b) appoint a person, known as a ‘deputy’ to make decisions on his/her behalf
(may be a family member)
 If nobody has been appointed as a deputy, a person may act as a litigation
friend if he can: fairly and competently conduct proceedings on protected
party’s behalf; no interest adverse; where protected party is a claimant,
undertakes to pay any costs which protected party may be ordered to pay
Name in proceeding
  Mr JOHN HUNT (by Mrs MARGARET HUNT his litigation friend)
Default judgment against protected persons CPR r.12.10
 Same as for children
 Court application is always required for default judgment against protected
persons
CPR r.21.10 provides for a formal process to gain the court’s approval of a
settlement or compromise on behalf of a child or protected party
CPR r.21.10
(1) Where a claim is made –
(a) by or on behalf of a child or protected party; or
(b) against a child or protected party,
no settlement, compromise or payment (including any voluntary interim payment) &
no acceptance of money paid into court shall be valid, so far as it relates to the claim
by, on behalf of or against the child/protected party, without approval of court

(2) Where –
(a) before proceedings in which a claim is made by or on behalf of, or against, a
child or protected party (whether alone or with any other person) are begun, an
agreement is reached for settlement of the claim; and
(b) the sole purpose of proceedings is to obtain approval of court to a settlement
or compromise of the claim,
the claim must –
(i) be made using the procedure set out in Part 8 (alternative procedure for claims);
and
(ii) include a request to court for approval of the settlement or compromise.

Control of money recovered by or on behalf of a child or protected party

21.11
(1) Where in any proceedings –
(a) money is recovered by or on behalf of or for the benefit of a child or protected
party; or
(b) money paid into court is accepted by or on behalf of a child or protected party,
the money will be dealt with in accordance with directions given by court under
this rule and not otherwise.
(2) Directions given under this rule may provide that the money shall be wholly or
partly paid into court and invested or otherwise dealt with
- Before giving directions in accordance with this rule, the court will first consider
whether the protected party is a protected beneficiary

Settlement or compromise by or on behalf of a child or protected party before

issue of proceedings
5.1 Where a claim by or on behalf of a child or protected party has been dealt with by
agreement before the issue of proceedings and only the approval of the court to the
agreement is sought, the claim must, in addition to containing the details of the claim
and satisfying the requirements of rule 21.10(2), include the following –
(1) subject to paragraph 5.3, the terms of the settlement or compromise or have
attached to it a draft consent order in Practice Form N292;
(2) details of whether and to what extent the defendant admits liability;
(3) the age and occupation (if any) of the child or protected party;
(4) the litigation friend’s approval of the proposed settlement or compromise,
(5) a copy of any financial advice relating to the proposed settlement; and

(6) in a personal injury case arising from an accident –

(a) details of the circumstances of the accident,
(b) medical and quantum reports and joint statements material to the opinion
required by paragraph 5.2,
(c) where appropriate, a schedule of any past and future expenses and losses
claimed and any other relevant information relating to the personal injury as set out
in Practice Direction 16 (statements of case), and

(d) where considerations of liability are raised –

(i) any evidence or reports in any criminal proceedings or in an inquest, and
(ii) details of any prosecution brought

5.2
(1) An opinion on the merits of the settlement or compromise given by counsel or
solicitor acting for the child or protected party must, except in very clear cases, be
obtained.
(2) A copy of the opinion and, unless the instructions on which it was given are
sufficiently set out in it, a copy of the instructions, must be supplied to the court.

5.3 Where in any personal injury case a claim for damages for future pecuniary loss
is settled, the provisions in paragraphs 5.4 and 5.5 must in addition be complied
with.
5.4 The court must be satisfied that the parties have considered whether the
damages should wholly or partly take the form of periodical payments.
5.5 Where the settlement includes provision for periodical payments, the claim
must –
(1) set out terms of the settlement or compromise; or
(2) have attached to it a draft consent order,
which must satisfy the requirements of rules 41.8 and 41.9 as appropriate.
5.6 Applications for the approval of a settlement or compromise will normally be
heard by –
(1) a Master or a district judge in proceedings involving a child; and
(2) a Master, designated civil judge or his nominee in proceedings involving a
protected party
Settlement or compromise by or on behalf of a child or protected party after
proceedings have been issued
6.1 Where in any personal injury case a claim for damages for future pecuniary
loss, by or on behalf of a child or protected party, is dealt with by agreement after
proceedings have been issued, an application must be made for the court’s
approval of the agreement.
6.2 The court must be satisfied that the parties have considered whether the
damages should wholly or partly take the form of periodical payments
6.3 Where the settlement includes provision for periodical payments, an application
under paragraph 6.1 must –
(1) set out the terms of the settlement or compromise; or
(2) have attached to it a draft consent order,
which must satisfy the requirements of rules 41.8 and 41.9 as appropriate.
6.4 The court must be supplied with –
(1) an opinion on the merits of the settlement or compromise given by counsel or
solicitor acting for the child or protected party, except in very clear cases; and
(2) a copy of any financial advice; and
(3) documentary evidence material to the opinion referred to at paragraph 6.4(1).
Request for further information: CPR r.18.1 and r.18.2
A party can obtain further information from the other party to clarify or give
additional information in relation to any matter which is in dispute in the
proceeding.
1. Party seeking information serves a written request stating a date for
response
2. Response must be sent to other party and court. If a party rejects, it must
do so within time specified and explain reasons to the party (not the court)
3. Party seeking information may make an application to the court as an
interim application if no reply within stated period or at all. If the other party
does not respond after 14 days of request and time stated in it has
expired, court can deal with the application without a hearing (no need for
application notice)
4. If a court makes an order for further information, the party against whom
the order made must file its response and serve its response on the other
parties within the time specified by court
The court can order a party to clarify any matter which is in dispute in the
proceedings or give additional information in relation to any such matter whether or
not the matter is contained or referred to in a statement of case.
 Default judgment:
Default judgment means applying for judgment to be granted in the claimant's favour
without a trial if the defendant has not responded to the claim by either serving an
acknowledgement of service or a defence within the prescribed time limits.
Test: C must satisfy the court
 Time has expired for D filing an acknowledgment of service/defence
 The claim has not been admitted or satisfied by D
 No application for summary judgment or strike out has been made by C
Procedure:
 Specified sum/value of undelivered goods: C must file a REQUEST for
judgment N225 and application will be dealt on paper. The court will make a
judgment for the amount sought, fixed costs and interest accrued to the
date of judgment
 Unspecified sum: C must file a REQUEST for judgment N227 and
application will be dealt on paper. The court will make a judgment for a sum
to be decided by the court and will set a timetable for the court to do so at a
hearing
 Non-money claims: cannot be decided on paper. C must make
APPLICATION for default judgment hearing to be listed as an interim
application. The court will give judgment it considers appropriate
 Against child/protected party, spouse/civil partner in tort, outside UK,
State, person with diplomatic immunity: must make APPLICATION
Setting aside default judgment:
Default judgment be set aside on application by D OR by court of its own motion.
1. Cases where the court must set aside judgment if the judgment was
wrongly entered in the following circumstances – CPR 13.2:
 The time limit for acknowledging service or serving a defence has not, in
fact, expired when judgment was entered or
 Acknowledgment of service or defence had, in fact, been filed on time or
 Summary judgment or strike out was applied for before judgment was
entered or
  The D had, in fact, satisfied whole claim before judgment was entered
OR admitted the claim OR required time to pay

2. Cases where the court may set aside judgment if the judgment was
correctly entered. The court may exercise its discretion where – CPR 13.3:
 The D has a real prospect of successfully defending the claim or
 It appears to the court that there is some other good reason why
judgment should be set aside or varied or the defendant should be allowed
to defend
 Burden of proof on D to satisfy the court that there is good reason for
setting aside a judgment

Case law shows application to set aside a judgment was refused where:
 Applicant should have been given a notice but wasn’t
 Judgment was entered without jurisdiction
 Alleged technical failures by claimant
 D did nothing until C requested/applied for DJ to be entered, and then
applied to set the DJ aside; D’s conduct amounted to abuse of process

Case law shows application to set aside a judgment was granted where:
 Failure to serve a response pack to D
 C in breach of relevant contract

Application to set aside judgment by a non-party:

- Non-party who is ‘directly affected’ by the judgment
- Was granted where non-party was insurer of D and applied to set aside
judgment and join as a second D
- Question was whether D or second D had a defence of real prospect of
success

The court may set aside default judgment with conditions attached. It may also
consider how promptly D made its application to set the judgment aside.
An application to set aside a default judgment pursuant to CPR 13.3 is an
application ‘for relief from any sanction’ within the meaning of CPR 3.9 and so
Denton principles are also relevant.
 Court’s case management powers
The court’s general case management powers:
 Extend/shorten time for compliance with any rule, PD or court order.
 Adjourn hearings or bring them forward.
 Require a party or their legal representative to attend court.
 Stay the whole or part of the proceedings or judgment either generally or until
specified event.
 Order any party to file and serve a costs budget
 There is also a general provision in CPR 3.1(2)(m) allowing the court to take
any other step or make any other order for purpose of managing the case
and furthering the overriding objective.
Power to make orders of its own initiative:
The court’s power to make an order of its own initiative under CPR 3.3.
If there is to be a HEARING the court:
 May give any person likely to be affected by the order an opportunity to
make representations, specifying the time and manner for representations
 Must give each party likely to be affected by order at least 3 days’ notice
If the court makes an order of its own initiative WITHOUT HEARING and without
giving the parties the opportunity to make representations, the court must include a
statement in the order that the parties have a right to apply to set aside, stay or
vary the order within a given period. If the court does not specify a period, any
application should be made within 7 days of the date on which the order was
served on the party making the application.
The court’s power to strike out at outset – CPR 3.4:
The court’s power to strike out whole or part of a statement of case in under CPR
3.4. The court may exercise this power of its own initiative OR on application of a
party. It allows court to target cases that are inadequately drafted in the statements
of case or are otherwise an abuse of the court process.
Test: the court must be satisfied
(a) The statement of case discloses no reasonable grounds for
bringing/defending the claim
 No facts to show what claim/defence is about; incoherent, makes no sense;
defence does not make it clear what part of claim is admitted/denied
OR
(b) The statement of case is an abuse of the court’s process OR otherwise
likely to obstruct just disposal of proceedings
 Issued after limitation period; already adjudicated; C seeks to reopen old
litigation/renew an issue where previous action estops fresh proceedings;
settlement of previous proceedings include terms preventing further
claims

 Court will order written material to be deleted from statement of case so it

may not be relied upon and court may then make any consequential
order.

Procedure:
1. When a statement of case is filed, the court officer may refer it to a judge
and the court may choose to make an order of its own initiative and strike
out.
2. In any case, the statements of case filed by the parties will be considered by
the court at the allocation stage
3. A party may also make an application to the court to strike out the whole or
part of the other party’s case by way of an interim application – should be
made as soon as possible and before allocation if possible (against D, after
D has served AOS/Defence)
Orders court may make on striking out for no reasonable grounds/abuse of court:
 Enter such judgment as the successful party appears entitled to
 Make any consequential order it considers appropriate
 Include allocation and case management if the case will continue
After strike out:
 Where court strikes out a statement of case AND C is ordered to pay
costs to D AND before C pays those costs, C starts another claim with
same/ substantially same facts and same D:
- Court may on D’s application stay other claim UNTIL costs of first claim
have been paid

 If court strikes out a statement of case and it considers the claim to be

totally without merit, it must:
- Record that fact, and
- Consider whether it is appropriate to make a civil restraint order
Court’s power to strike out for failure to comply with a rule, PD or court order:
Enforcement of a direction in first instance is likely to be by way of sanction of
“unless order”, which may THEN lead to sanction of strike out.
 Applicant must warn the other side of his intention to apply for “unless
order” before applying for one under PART 23
 If NO compliance, applicant may apply for “unless order” under PART 23
 Court may:
 Impose a sanction immediately, OR
 Make an unless order - an order which provides for an automatic sanction
in the event of non-compliance with the order within a specified period

 Parties can agree an extension of time by prior written agreement for a

maximum of 28 days provided that this does not put at risk any hearing
date, unless the court orders otherwise

Where NO compliance with unless order:

 A can file REQUEST for judgment without trial after striking out, with
costs
 Request must state that the right to enter judgment has arisen
 Claim will be struck out automatically and judgment given for Applicant if:
a) Specified sum of money, OR
b) Amount of money to be decided by court, OR
c) Judgment requiring D to deliver goods or otherwise pay value for
goods, OR
d) Combination of these

 A can apply under PART 23 for judgment without trial after striking out
where:
 Above mentioned claims do not arise, OR
  Application is for striking out only party of a claim

 Where strike out in personal injury/fatal accidents claim due to C’s

conduct
 No qualified one-way costs shifting protection for C
 Costs against C will be enforceable to full extent
Sanctions for non-compliance:
If a party fails to comply with a rule, practice direction or court order imposing a
sanction, the sanction takes effect.

Relief from sanctions of costs:

 Appeal against the order/sanction for costs

Relief from other sanctions under CPR 3.9:

Note: applications for setting aside default judgment are also applications for relief
from sanctions of default judgment (failure to comply).
Court should consider CPR 3.9 for application for relief from other sanctions.
In addition to overriding objective, the court will consider:
 All the circumstances of the case so as to enable it to deal justly with the
application. It expressly requires the court to consider need:
(a) For litigation to be conducted efficiently and at proportionate cost
(b) To enforce compliance with rules, practice directions and orders
CPR 3.9 is incorporated in the 3-stage test in leading authority of Denton:
1. How serious or significant is the breach?
 E.g. Failure to pay court fees, disruption of hearing dates/litigation conduct

2. If breach is serious and significant, why the breach occurred?

 Good reasons
i. Beyond party’s control
ii. Breach was trivial
iii. Original compliance period was unreasonably short
 Lack of good reason does not render other considerations void

3. Consider all the circumstances of the case to ensure that the court deals
with the matter justly
 Apply the facts, considering the extent to which litigation has been carried
out efficiently and at proportionate cost
 Extent to which facts show need to enforce compliance with rules/PD/orders
 All circumstances should also include:
i. How promptly the application for relief was made
ii. Any history of past breaches

Discontinuance
C may discontinue a claim / part of a claim WHERE:
  Court granted interim injunction / any party has given undertaking in damages
 Court permission

 C has received interim payment

 D (who made interim payment) consents in writing, OR
 Court permission

 Several claimants
 Every C consents in writing, OR
 Court permission

 Several defendants
 May discontinue against all or any of defendants
Procedure:
C must:
 File a notice of discontinuance
 Serve copy on every party
 Attach to the notice copy of any consent needed from any other party
Right to apply to set aside notice of discontinuance:
 D may apply within 28 days of service of notice
Liability for costs:
 Unless court orders otherwise, C pays D’s costs incurred on or before notice
 Deemed to have been on standard basis
Subsequent proceedings:
 After discontinuance, C needs court permission to make another claim
against same D if:
 Discontinued after D filed defence, and
 Other claim arises out of same/substantially same facts and same D
 Interim application:
Interim applications are application for orders or directions made to the court, usually
in the “interim” period b/w commencement of proceedings and trial. CPR 23
covers interim applications in general. Types of interim applications:
 Security for costs
 Interim payments
 Interim injunctions
 Summary judgment
Court may grant an interim remedy before proceedings are commenced e.g. an
injunction where a) urgent and b) in the interests of justice to do so
Timing:
A party should make an interim application as soon as it is apparent that it is
necessary or desirable to make it.
 Parties should notify the court of any applications they intend to make in the
future in the direction’s questionnaire
 Some applications could be dealt with at same time as CMC or, if closer to
trial, at the pre-trial review
 Parties are under a specific obligation to ‘bunch’ their interim application
With notice application:
1. Issue:
 Application notice – N244
 Supporting evidence
 Draft order
 Court fee
2. Service: as soon as possible BUT not less than 3 clear days before the
hearing
  Application notice – N244
 Supporting evidence
 Draft order
3. Respondent files at court & serves on applicant evidence as soon as
possible
4. Further evidence:
 Applicant files at court and serves on the respondent evidence in reply
as soon as possible
 Both parties file exchange statements of costs not less than 24 hours
before hearing
5. Hearing: if either fails to attend, court can proceed in absence
Without notice application:
It is appropriate where:
(a) Matter is urgent
(b) Object of order would be defeated by providing notice
(c) Insufficient time to provide formal notice as a hearing date is already fixed
1. Issue:
 Application notice
 Supporting evidence
 Draft order
 Court fee
 Statement of costs
2. Without notice hearing:
 Where an order is granted without notice, the applicant may be required to
give an undertaking in damages to compensate the respondent if it is
subsequently determined that the applicant was not entitled to the relief
granted by the court
 The undertaking is given by applicant to court, not to the respondent,
and is usually contained in order
 The order must contain a statement of the right to make an application
to set aside or vary the order under within 7 days of order being served
 If the court does not consider it appropriate for the application to have
been made without notice, the application will be dismissed or
adjourned until proper notice is given
 Otherwise, hearing will take place
3. Service:
 unless the court orders otherwise, the applicant must serve the respondent
as soon as possible whether or not the court has granted the relief
sought
 application notice
 supporting evidence
 order
 a full note of without notice hearing
 a copy of guarantee of undertaking in damages
 statement of costs
 Informal notice must be given unless secret
 4. With notice hearing: (after without notice hearing)
 order should initially be granted for a limited period only. It must specify a
return date for a further ‘with notice’ hearing at which both parties are
heard and the court will consider whether to continue, discharge or
vary the order made at the without notice hearing
On the court’s own initiative:
The court can also make interim orders on its own initiative as part of its general
case management powers in CPR 3. The court may do this with or without a
hearing. Where order is made without a hearing, it must contain a notice stating
an application may be made by either party to have the order set aside.

Summary judgment:
When is summary judgment available?
According to CPR 24.3
 It is available in all types of proceedings against C
 It is available in all types of proceedings against D except
 Proceedings for possession of residential premises against a mortgagor;
or a tenant whose occupancy is protected and Proceedings for an
admiralty claim; and in a counterclaim with a set off (where D has a set off
equal or greater than the claim)
Who can apply for summary judgment and when?
C or D either before or at the same time as filing DQ to avoid incurring unnecessary
costs. If it is made with DQ, court will delay allocating matter to a track until after the
hearing.
 C can apply after D has filed an acknowledgment or defence
 C can apply before that if court allows or if a PD so provides; if C applies
before then D need not file defence before summary judgment hearing
 Except where claim is against Crown where C needs to wait for end of period
for filing defence before applying for summary judgment
 D can apply anytime after proceedings have commenced
 Court can fix hearing of its own initiative
Test: the court must be satisfied
(a) C/D has no real prospect of succeeding/successfully defending the claim
 court must consider whether the claimant has a "realistic" as opposed to a
"fanciful" prospect of success
  "realistic" claim is one that carries some degree of conviction – it is more
than merely arguable
 Court must not conduct a mini-trial
(b) There is no other compelling reason for case / issue to be disposed of at
trial
Application may be based on:
 A point of law (including a question of construction of a document)
 Evidence reasonably expected to be available at trial or lack of it
 Combination of these
Procedure:
1. Applicant issues at court application notice, draft order, evidence and court
fee
2. At least 14 days before the hearing, applicant serves on the respondent
application notice, draft order, evidence and hearing date
3. At least 7 days before the hearing, respondent files at court and serves on
applicant evidence in reply
4. At least 3 days before hearing, applicant files at court and serves on
respondent evidence in reply
5. 24 hours before hearing, both parties serve & file at court statement of
costs
6. Hearing:
a) Dismissal of application
 Case continues to trial and judge will make costs order
b) Conditional order
 Appears to court that respondent may succeed although improbable;
respondent can continue subject to conditions ordered by court (pay
a sum into court and/or take a specified step)
c) Judgment for C
 C obtains summary judgment; claim is over
 Court to assess costs
d) Whole claim is struck out/dismissed (Judgment for D)
 D obtains summary judgment and so compensation
Setting aside SJ:
 Order made at a summary judgment hearing may be set aside if the
respondent fails to attend
 Respondent may apply for order to be set aside OR varied OR court can
do this of its own initiative/volition
 SJ application may then be re-listed
 Court may make such order as it thinks just
 Interim payments:
CPR 25.1(1)(k) defines an interim payment as a payment on account of damages,
debt or other sum (except costs) which a defendant may be held liable to pay to a
claimant.
It is made by C to assist it financially in the interim period prior to settlement.
C seeking an interim payment would make a request for a voluntary payment from
the D first. If D does not agree. C would make an application to the court for an
interim payment under CPR 25.7.
C can apply to the court for an interim payment after the period for filing an
acknowledgment of service.
Test: Court will only make an order where any of following conditions are
satisfied:
(a) D has admitted liability to pay damages (or some other sum of money) to C
(b) C has obtained judgment against D for damages to be assessed (or for a
sum of money other than costs)
(c) C would obtain judgment for a substantial amount of money against D if
claim went to trial
Procedure:
1. Applicant applies under Part 23 and files at court application notice, draft
order, evidence and court fee
2. At least 14 days before hearing, applicant serves on respondent
application notice, draft order, evidence and hearing date
 3. Evidence to include: amount sought, purpose, likely amount on final
judgment, grounds of application, any other relevant matters/documents
4. At least 7 days before hearing, the respondent files at court and serves on
applicant evidence in reply
5. At least 3 days before hearing, applicant files at court and serves on
respondent evidence in reply
6. At least 24 hours before hearing, both parties file/serve statement of
costs
7. Hearing: Court must not make an order for more than a reasonable
proportion of the likely amount of the final judgment. Court must also take
into account any set-off, counterclaim or contributory negligence. Court may
order interim payment in one sum or instalments
Powers of the court:
 Order all or part of the interim payment to be repaid
 Vary or discharge the order
 Order a D to reimburse, either wholly or partly, another D who has made an
interim payment

 If D has made an interim payment and the amount of the payment is more
than the total liability under the final order, the court can award the D
interest on the overpaid amount from the date that the overpayment was
made
 Court may adjust an order that has been made but not yet paid
 If claimant wishes to discontinue the claim after having received interim
payment, leave to discontinue is required (consent of defendant or court)
Restrictions: Under CPR 25.9, unless the D agrees, an interim payment made by D
in the course of the proceedings will not be disclosed to trial judge until all
questions of liability and quantum have been decided.

Security for costs:

Security for costs is an application made by a D (the applicant) who is concerned
that the C (the respondent) does not have sufficient funds to meet the D’s costs
should the claim be successfully defended.
It relates to the costs of the claim and not damages.
Test:
 Having regard to all the circumstances of the case, it is JUST to make an
order AND
 One or more of the following conditions in 25.13(2) are satisfied:
(a) C is resident out of jurisdiction (not resident in Brussels, Lugano or
Regulation state)
(b) C is an impecunious company and there is reason to believe it will be
unable to pay D’s costs if ordered to do so
  D must show the company’s liability to pay costs and amount of likely
costs
 The question is to be answered at the time of the application although the
court can take into account what will be expected in the future
(c) C has changed address since claim was commenced with a view to evade
the consequences of litigation
(d) C failed to give address/incorrect address in claim form
(e) Claimant is acting as a nominal C and there is reason to believe it will be
unable to pay D’s costs if ordered to do so
(f) C has taken steps in relation to its assets that would make it difficult to
enforce an order for costs against it
 evidence of dishonest behaviour by the claimant, unreliability in the past or
evasiveness in the current proceedings may increase the likelihood
Main consideration:
 the ability of respondent to comply with any order for security for costs
 the amount which the respondent is likely to be able to raise
The court must carry out a balancing act:
 Balancing the injustice to C in being prevented from carrying on with the claim
if it cannot pay the security…
 …against balancing the injustice in being at risk on costs if no security is
provided.
The merits of the case should not be considered unless it can be clearly
demonstrated that there is a high degree of probability of success or failure of the
claim (as the claimant will not be required to pay security for costs where the claim
appears highly likely to succeed)
Whether the D is using the application oppressively e.g. to settle a genuine claim
If a claim is genuine, the court will be reluctant to make an order which
prevents the claimant pursuing its claim. The court can also fix security at a level
so as not to stifle the claim.
Delay in making the application: An application for security for costs should be
made promptly and as soon as facts justifying the order are known. Delay may
lead to security for costs being refused or reduced.
Whether the C’s want of means has been brought about by the D’s conduct. The
essential question is whether D has been responsible for C’s financial difficulties.
Amount, type and timing of security:
If the court makes an order for security for costs, it will determine the amount of
security as well as the manner in which and the time period within which the
security is given. The amount is entirely within court’s discretion and the court
will fix a sum it thinks JUST taking into account:
 The amount of D’s likely costs
  The security can be for the whole action or up to a point in time e.g. up to
disclosure
 The amount can cover costs incurred and future costs
 A deduction can be made for detailed assessment or the possibility of settling
 Other factors e.g. delay
Burden is on C to show that it would be impossible to comply with any order.
Also, the burden is on C to put proper evidence before the court.
The manner in which the security is given can be:
 A payment into court or D’s solicitor
 A bank guarantee
 An undertaking to pay costs
The most frequent order is for sum to be paid into court by a required date.
Procedure:
Procedure for making application for security for costs is same as any other interim
application:
1. Application notice should state which grounds or enactment applies and
supporting evidence covering: grounds, likely costs to trial, the amount of
security requested
2. An application for security for costs can be made at any time, but it should
be made promptly, as soon as the facts justifying the order are known.
Interim Injunctions
An injunction is an order of the court requiring a party to do or to refrain from doing a
given act. Breach of injunction is potentially punishable as contempt of court.
An interim injunction is a temporary measure taken at an early stage in the
proceedings (including pre-action) before trial and before any final decision on
merits of either party’s case to restrain respondent from causing irreparable or
immeasurable damage to the applicant by continuing conduct or ceasing conduct
that has led to the dispute. It is usually made in circumstances of urgency and lasts
until trial or further order.
Types of injunctions:
1. Prohibitory injunction requires the respondent to refrain from doing an act
2. Mandatory injunction requires the respondent to do a specific act
3. Quia timet injunctions allows both prohibitory and mandatory injunctions
where no wrong committed but has been threatened
Jurisdiction:
 High court’s inherent jurisdiction derives from s.37 of Senior Courts Act 1981
 County Court’s jurisdiction derives from s.38 of the County Courts Act 1984
Nature of interim injunctions:
An injunction is both an equitable and a discretionary remedy: The equitable
maxims apply including:
 He who comes to equity must come with clean hands (no relief for anyone
guilty of improper conduct)
 Delay defeats equity (lazy person will be refused any equitable relief)
 Equity will not act in vain (court will not make order if compliance is
impossible)
There is no automatic right to injunction; the court has complete discretion
whether to make an order for an injunction
American Cyanamid:
Lord Diplock laid down guidelines on how court should exercise its discretion to
grant an interim prohibitory injunction in the usual type of case.
1. Is there a serious question to be tried?
 Court only needs to be satisfied that there is a serious question of fact or
law to be decided; Low threshold hurdle
 All that is required is that the claim has substance and reality

2. Would damages be an adequate remedy for applicant?

If damages are an adequate remedy, the applicant will not be granted injunction.
Damages not sufficient remedy for applicant where:
 The respondent is unable to pay damages
 The wrong is irreparable
 The loss is non-pecuniary (for example, nuisance claims)
 The damages are speculative or difficult to assess

3. Is the respondent adequately protected by an undertaking in damages?

 Applicants required to give undertakings to pay damages to respondent
they are financially able to pay if it turns out order was wrongly granted
(protection)
 Lord Diplock: if damages recoverable under undertaking in damages would
be an adequate remedy (protection) for respondent, 'there would be no
reason upon this ground to refuse an injunction'
 Most cases are evenly balanced at this stage, which means the court will go
on to consider other hardship factors.

4. Where does the balance of convenience lie?

 This is the stage where other hardship factors are put into balance in
deciding whether grant or refusal of injunction would cause an
‘uncompensatable disadvantage’ to one side; irremediable prejudice
 The object of an interim injunction is to protect the applicant against injury by
violation of its rights for which it could not be adequately compensated in
damages recoverable in the action if the uncertainty were resolved in its
favour at trial, but the applicant’s need for protection must be weighed
against…
  …the corresponding need of the respondent to be protected against injury
resulting from it having been prevented from exercising its legal rights for
which it could not be adequately compensated under the applicant’s
undertaking in damages if uncertainty were resolved in the respondent’s
favour at trial.

 Factors brought into the balance here can include:

- Effects of respondent’s conduct: damage to applicant’s business reputation;
need to protect applicant’s intellectual property rights; need to prevent
respondent misleading public; making profits using applicant’s goodwill
- Utility of the respondent’s activities
- Effects on non-parties, such as employees, customers, neighbours
- Restrictions imposed by proposed order: whether unduly harsh
- Likelihood of C succeeding at trial
- Any special factors can be considered here

 If the balance of convenience is inconclusive or too finely balanced to

decide, the court will consider 5th and 6th steps.

5. Status quo - the status quo will be the position before respondent started
the conduct that the applicant is complaining about. It is difficult as the
relevant point in time may be difficult to determine

6. Merits of the case – as a last resort, if all other factors appear to be evenly
balanced, the court can look at the merits of the case. The court must not,
however, conduct a mini-trial and consideration of the merits of the case
should only be done where it is apparent on facts disclosed by evidence
as to which there is no credible dispute that the strength of one party’s case
is disproportionate to that of the other party.

Defences:

The respondent may raise the following equitable defences and bars to relief:
1. Delay
2. Acquiescence: the applicant’s conduct (usually inactivity) induces the
respondent to believe something which it then acts on to its detriment
3. Inequitable conduct by applicant: the applicant does not have ‘clean hands’
4. Equity does not act in vain
5. Hardship: this is usually taken into account when the court considers where
the balance of convenience lies
6. Unenforceable order

Exceptions and variations to American Cyanamid:

 Grant / refusal of injunction will finally/effectively dispose of
proceedings
- Where court accepts that if injunction refused/granted, there will be no
practical reason to take claim to trial
 - Where this applies, applicant has to establish far stronger case than merely a
‘serious question’
 Injunction applied for has different (usually higher) threshold test
 Injunction sought is interim mandatory (rather than prohibitory) injunction
- Not readily compensated by undertaking in damages
- Require a high degree of assurance that applicant will be able to establish
case at trial
- May apply American Cyanamid even if no high degree of assurance i.e.
based on balance of risk of injustice between parties
 Negative covenants
- Where respondent has made promise not to do something and now they
are doing it
- Injunction is only sought to enforce respondent’s promise
 Restraint of trade
- Clear-cut breaches of restraint of trade clauses
 Applicant obviously entitled
- Where respondent has no defence, applicant can apply for summary
judgment for a final injunction
- Even if applicant does not apply for SJ, but just applies for interim injunction,
court often does not apply American Cyanamid; simply applies normal
equitable considerations
Procedure:

The application for an interim injunction may be made with notice or without
notice. The application documents include: an application notice, a draft order for
an interim injunction, evidence in support, usually a witness statement (setting out
the cause of action, the injunction sought, why the injunction should be granted, if
the application is made without notice, why notice was not given and the ability to
satisfy a cross-undertaking in damages) and a statement of costs.

For an injunction that has been made at a without notice hearing, at the
subsequent with notice hearing, the court can make the following orders:
1. Maintain order
2. Discharge the injunction
3. Variation of the terms of the injunction that is to remain in place until trial
4. Enforcement of applicant’s undertaking in damages if it transpires that the
injunction should not have been granted
5. Acceptance of an undertaking by respondent not to do the acts in question
Contents:
1. Penal notice: if D does not comply, can be held for contempt of court
2. Undertaking must be included
3. Duration: likely to be stated ‘until trial or further order’
4. The operative part: the prohibition requested – specific
Interim mandatory injunctions:
  The applicable guidelines for interim mandatory injunctions are the same as
for interim prohibitory injunctions: the American Cyanamid guidelines
 Usually balance of convenience requires high degree of assurance as
courts are more reluctant to force parties to do something than they are to
stop them from doing something; a mandatory injunction is more likely to
cause irremediable prejudice.

CPR Counterclaim
20.4 by D against C

CPR Counterclaim
20.5 by D against C
and other
person
CPR Additional
20.6 claim by D
against any
person already
a party
claiming
contribution or
indemnity, or
other remedy

CPR Additional
20.7 claim by D
against any
person not
already a party
claiming a
contribution,
indemnity or
another
remedy

CPR An additional
20.7 claim made by
a third party
against any
other person

 Contribution: a right of someone to recover from a third person all or part of

the amount which he himself is liable to pay
 Indemnity: a right of someone to recover from a third person the whole
amount which he himself is liable to pay
 Contribution in tort or contract – indemnity in contract – ultimately, seeking to
recover something which it itself is obliged to pay
CPR 20.4 Counterclaim by D against C
 normally made at same time as D’s defence in the same doc called DAC
 if made after defence has been filed, permission of court is needed
 it is pursued in same proceedings – court can order it to be struck out or
heard separately from substantive claim
 court fee is payable
  defence of set-off put in defence part before counterclaim which is at the end
of DAC
C must respond to D’s counterclaim by either admitting or defending.
 No requirement for C to acknowledge
 C’s defence to counterclaim must be filed & served within 14 days of
service
 A default judgment may be entered if C fails
 C may do so in the form of a reply – alleging facts in answer to defence
which were not included in the claim
 Reply must be filed and served with DQ
 Reply and Defence to Counterclaim normally forms one doc
 Should be the last statement of case in a claim and permission of
court is need to file a statement of case thereafter
CPR 20.5 Counterclaim by D against C and another person
 Court permission is required
 If other party is not already a party, would have to be joined as third party
 There must be some connection between C and third party in respect of
counterclaim
CPR 20.6 Additional claim by D against D2
 A defendant who has acknowledged service of a claim or who has served a
defence may make an additional claim for contribution or indemnity
against existing party (most likely a co-defendant) by filing a contribution
notice with the court and serving that notice on the other party.
 This means that:
(a) a duty must be owed to defendant by existing party claimed against;
and
(b) this duty must be shown to have been breached, causing loss
(ultimately to the claimant in these circumstances); and
(c) the loss against which the contribution or indemnity is sought will be
whatever amount D has to pay C in the main claim, should C be
successful against D.
CPR 20.7 Additional claim by D against third party
 a claim for a contribution or indemnity from non-existing party i.e. third
party
 there must be a legal basis on which the D could base this claim against
third party
 issues in this type of additional claim are purely between D and third party
Permission or no permission?
CPR No permission Permission Structure and form
20.4 if filed at the same if filed at any other Included with defence in
time as defence time DAC and filed and served
 at the same time
20.5 Yes Yes
20.6 If filed and served at If filed at any other If permission is not
the same time as time required, notice is filed
defence and served with defence
(if a party is to be If permission is required,
added, within 28 days court to give directions
after that party files its
defence)
20.7 If issues before or at If filed at any other issuing form N211
the same time as time
If permission is not
defence
required, should be
served on the person
within 14 days
if permission is required,
court to give directions
 For permission, application notice is accompanied with draft order, evidence,
details of additional claim, summary of the relevant facts, explanation of any
delay and name and address of any proposed party.
 A party upon whom an additional claim is served becomes a party to the
proceedings if not already a party. Therefore, the additional claim to be served
must be accompanied by a response pack and a copy of every statement of
case and any other documents as the court directs. A copy of this to be
served on every existing party. Acknowledgement must be filed and if the
third party fails, generally be deemed to admit the claim and will be bound
by judgment/decision given at trial of the main claim
Case management:
Unless there is a substantial connection b/w the original proceedings and the
proposed additional claim, court will usually direct them to be dealt with
separately.
Where permission hearing is held, the court may, dismiss the additional claim or give
directions on the way any claim or issue should be dealt with, including how the
additional defendant will be dealt with at trial.

Amendments:
Amendments to statements of case are governed by CPR Parts 17 and 19.
 The rules are particularly strict after the limitation period has expired
  General rule: Party making amendment to bear the costs of and arising
from the amendment
 CPR 19 does not include any specific provisions about costs
Amendments without permission or consent:
 A party may amend a statement of case at any time before it is served
Amendment by consent:
 Any statement of case can be amended at any time with the written
consent of all other parties
 Any amendments to POC that alters the parties involved may require
consent or permission if claim form has been served, as such changes
may require consequential amendment to the – already served - claim form
 Court retains the power to disallow such amendments
Amending with the court’s permission – procedure:
When a statement of case has been served and the written consent of all the
parties is not given, a party will need to apply to court for permission to make an
amendment. The procedure is as follows:
1. Party seeking amendment to file application notice and a proposed copy of
the amended statement of case
2. Application can be dealt with hearing or, where all parties consent, without
hearing on written submissions
3. If permission to amend is given, the court will usually give directions as to
any consequential amendments and the service of any amended statements
of case
4. In any event, the amended statement of case should usually be filed by the
applicant within 14 days of the date of order granting amendment unless the
court orders otherwise
5. A copy of amended statement of case and the order should also be served
on every party to the proceedings
6. If the substance of the statement of case is changed by reason of the
amendment, the statement of case should be re-verified by a statement of
truth
When will the court give permission to amend?
CPR gives no specific guidance on the principles upon which the court is to exercise
its discretion to allow amendments to statements of case
 Overriding objective – seeking a balance between injustice to applicant if
amendment is refused and injustice to opposing party if it is allowed
 Some prospect of success
 Late amendment sought close to the trial date can potentially cause
unfairness in that it might put the parties on an unequal footing or add an
excessive burden on respondent for preparing for trial. It might even put the
trial date at risk and cause a postponement. Burden on party seeking a
 late amendment to justify it and to give evidence why the application is made
at such a late stage
Amendment adding, removing or substituting a party:
CPR 19.1 states that ‘any number of claimants or defendants may be joined to a
claim’
Test: amendment to be ‘desirable’
Permission and/or consent needed: No one can be added as a claimant without his
or her consent, with the consent filed at court. If someone refuses to be added as a
claimant, they can instead be added as a defendant. Finally, the court’s permission
is always required to add, remove or substitute a party, if claim form has been
served. Application is likely to succeed if the new/amended claim arises out of same
facts as claim b/w parties
Adding causes of action post limitation:
A new cause of action (one adding a new duty on D which is legally challenged not
adding facts to clarify) can be added to an existing statement of case after the end
of the limitation period only
a) Under s 22 Limitation Act – in relation to personal injury claims
b) New cause of action is a set-off or counterclaim
c) The new cause of action arises out of the same/substantially same facts as
already in issue in original claim
Adding parties post limitation:
Test: Parties may be added after end of limitation period only if:
a) Limitation period was ongoing when proceedings commenced and
b) Addition or substitution is ‘necessary’. It is considered necessary only if:
 The new party is to be substituted for one that was already named in the
claim form in mistake for the new party
 The claim cannot properly be carried on unless the new party is
added/substituted
 The original party has died or had a bankruptcy order and liability to
pay has passed to new party
CPR 17.4(3) genuine mistake that causes no court has power to allow
reasonable doubt as to identity amendment
of the party in question
CPR 19.5(3)(a) genuine mistake in naming a court has power to allow
party in the claim form instead of amendment
the new party
named in the claim form in court has no power to
mistake for the new party where allow amendment
the party is not adequately
 described

Format of the amended statement of case:

 No need for the amended statement of case to show original text, unless
the court orders otherwise
 Amendments are to be shown by either: (i) using coloured amendments;
OR (ii) by using a numerical code
 the order of colour for successive amendments is (1) red (2) green (3)
violet and (4) yellow
 The amended statement of case should contain the appropriate
endorsement
 be verified by a statement of truth
 Case management
The court directs when these various stages should take place – the court gives
'directions'. The directions aim to achieve a just result at a proportionate cost, in
accordance with the overriding objective.
Giving of directions and management of a case is called 'case management'.
Allocation to track
'Allocation' is about deciding which 'track' a claim should be allocated to.
(a) Defence is filed

(b) Court officer serves on all parties notice of proposed allocation

 Contents:
 Deadline for filing and serving completed DQ
 Reminder that parties should try to agree directions
 Any other matter parties must comply with by given date

(c) Parties file Directions Questionnaire and serve copies on all parties
 N181 form for fast & multi-track (at least 28 days after deemed service of
notice)
 N180 small claims track (at least 14 days after deemed service of notice)
 The DQ must contain:
 Pre-action protocol: complied or not – if not, then reasons
 Settlement:
i. If all parties agree to stay, a stay for 1 month is granted – if no
settlement by the end or no application for extension, case will be
referred to judge for allocation and direction
ii. Referrals to mediation (small claims track): all parties indicate in
DQ agreement to mediation, proceedings will automatically be
stayed with permission to apply for: judgment for unpaid
balance settlement agreement OR claim to be restored for hearing
of full amount claimed
 Disclosure: provide lists of documents which exist for inspection
 Witnesses
 Expert evidence
 Trial: estimate of length of trial
 Costs – costs budget and an agreed discussion report if multi-track
 Any interim remedies to be pursued
 Deadline for filing any proposed directions (fast track and multi-
track)
Failure to file DQ:
 For money claims: court serves a notice giving 7 days; non-compliance
to result in automatic strike out
 Other types of claims: court makes such order as it thinks appropriate;
further directions, strike out, or CMC
(d) Formal allocation of track by Notice of Allocation
- When determining correct track:
a) Identify the normal track
b) Decide whether there is a good reason to allocate the claim to a track
other than normal track, taking into account relevant matters below:
 Relevant matters:
 Financial value of claim
 Nature of remedy sought
 Likely complexity of facts, law or evidence
 Number of parties or likely parties
 Value of any counterclaim or other Part 20 claim – largest claim
(where separates claims)
 Amount of oral evidence which may be required
 Importance of claim to non-parties
 Views expressed by parties
 Circumstances of parties

Small claims track

- Up to £10,000 (personal injury – up to £1,000)

- District judge in chambers; informal, no strict rules of evidence, no oath
necessity, no interim remedies/part 36 offers
- Typical directions:
Standard directions
 Parties to file and serve on every other party copies of documents they
intend to rely upon no later than 14 days before hearing
 Original documents to be brought to hearing
 Notice of hearing date to be given at least 21 days prior to the hearing
 Try to settle; court must be informed of any agreed settlement
 Costs are limited to fixed costs (court fees and witness expenses)
 Expert evidence with court permission (1 joint expert and only if
necessary)

Fast track
- >10,000 - <£25,000
- Held in CC and should not last longer than a day (5 hours)
- Typical directions:
Agreed directions in DQ either approved or amended:
 Disclosure of documents within 4 weeks of notice of allocation
 Exchange of witness statements within 10 weeks of notice of allocation
 Exchange of expert reports within 14 weeks of notice of allocation
- Giving permission for use of one single joint expert unless good reason not
to do so
- Limiting oral expert evidence to 1 expert each (2 total experts)
  Court to send pre-trial checklists within 20 weeks of notice of allocation
 Filing of pre-trial checklists by parties within 22 weeks of notice of
allocation
 Trial date/period fixed for trial within 30 weeks of notice of allocation
 Other directions such as request for further information & questions to expert

Multi-track:
 > £25,000 - < 10M
 Master (Royal Courts of Justice)
 District Judge (District Registry of High Court)
 District Judge/Circuit Judge (County Court)
Once case is allocated to multi-track, the next steps are likely to be:
 Court giving approved directions OR its own directions at hearing (may
vacate CMC in this case)
 Where parties are unable to agree directions then CMC will be held for court
to give directions and hear submissions
 Case Management Conference – court to give at least 3 days’ notice
 Parties must attempt to agree & submit directions at least 7 days before
CMC
 Disclosure report by parties not less than 14 days before first CMC
 Draft directions by parties not less than 7 days before any CMC
- Timetable for taking steps for preparation of case
- Proposed date for trial
- Disclosure of documents: limiting it to standard disclosure / less than that;
may also state whether disclosure will take place with / without disclosure
statement
- Factual and expert evidence; specify if none is required

 CMC – possible to have one at later stage to assess how case is progressing
CMC:
- Identifying real issues b/w parties
- Documents / evidence / experts
- Any amendments
- Costs budget
- Directions
- Date for pre-trial review if possible
Parties must apply to court if they seek to vary the date fixed by court for:
- CMC
- Pre-trial review
- Return of pre-trial checklist
- Trial/trial period
 Disclosure:
Disclosure is the stage in the proceedings when (in most cases) the parties
exchange documents relevant to the dispute. The first exchange of evidence
(documentary evidence) and subsequent exchanges relate to evidence of witnesses
of fact, and then in some cases expert evidence.
Generally, a party will be required to disclose not only documents that it wants to rely
on, but also documents which are adverse to its position or which support another
party’s position.
Purpose of disclosure and inspection:
1. To help clarify the issues which are in dispute
2. To enable parties to evaluate the strength of the claim against them
3. To encourage settlement
4. To ensure the court has all the facts and evidence before it in order to deal
justly and appropriately with the case
The distinction between disclosure and inspection:
Disclosure is stating [to another party] that a document exists or has existed.
Whereas inspection is [the party to whom a document has been disclosed] looking at
a document.
There is no automatic obligation to give disclosure of anything. The obligation
comes from a court order. The order for disclosure is usually given on allocation
or at CMC.
How the court arrives at an order for disclosure depends on the track to which the
claim has been allocated.
 If a claim has been allocated to the small claims track, the usual order is that
at least 14 days before the date fixed for the final hearing, each party must
file and serve on every other party copies of all documents on which he
intends to rely at the hearing
 If a claim has been allocated to the fast track, the court will usually give
directions on allocation and the standard directions on the fast track
provide for each party to give ‘standard disclosure’
 On the multi-track, cases can involve a large amount of disclosure,
particularly electronic disclosure. If the parties and the court do not give
careful consideration to the best form of disclosure order for that particular
case, or do not have the necessary information to consider what the best form
is, then the court might make a disclosure order which is hugely costly and
time-consuming to comply with.
Thus, parties will need to complete a disclosure report to be filed and served
not less than 14 days before first CMC.
 Unless personal injury claim. The disclosure report to:
 (a) Briefly describe what documents are relevant to the matters in issue
in the case
(b) Describe where, and with whom, those documents are
(c) Describe how electronic documents are stored
(d) Estimate the broad range of costs that could be involved in giving
standard disclosure in the case, including the costs of searching for
and disclosing any electronically stored documents; and
(e) States which of the directions are sought
 It is aimed at keeping costs proportionate to the matters in dispute
 Disclosure report on form N263 – or for electronic documents, N264
 Parties may also provide a case summary of no more than 500 words,
usually agreed or by C containing: chronology, factual issues agreed and
in dispute and the nature of evidence needed to decide them
Therefore…
small claims fast track multi track
disclosure order included disclosure order included disclosure report filed
in directions given on in directions given on and served 14 days
allocation allocation before first CMC
usual order: 14 days usual order: standard conversation between
before hearing, file and disclosure parties not less than 7
serve documents relying days before CMC
on
court makes appropriate
disclosure order: no
usual order

Copies:
A copy of a document means anything onto which information recorded in the
document has been copied, by whatever means and whether directly or indirectly.
In summary, copies of documents need only be disclosed if:
(a) They contain a modification, obliteration or other marking or feature which
itself satisfies the test for standard disclosure (party intends to rely and it
adversely/supports case). Such a copy document also needs to be
separately considered for privilege; or
(b) Party has never had the original or no longer has the original in its control.
Documents referred to in statements of case, witness statements, witness
summaries, affidavits and experts’ reports:
Inspecting any documents disclosed pursuant to a court order that a party can
inspect a document referred to in a statement of case, a witness statement, a
witness summary, an affidavit and expert reports. May take place even before
disclosure.
Continuing obligation – CPR 31.11:
CPR 31.11 states that any duty of disclosure continues until proceedings are
concluded.
Subsequent use of disclosed documents:
A party to whom a document has been disclosed may only use that document for the
purposes of the proceedings in which it is disclosed and not for any collateral or
ulterior purpose.
Exceptions:
 Document has been read or referred to by the court at public hearing
 Court gives permission
 Party who disclosed the doc agrees
The court can be asked to make an order restraining or prohibiting the use of a
document read or referred to at public hearing.
Standard disclosure:
1. Is it a document (CPR 31.4)?
 Anything which records information
 Electronic, written, photographs etc

2. Is/was it in the party’s control (CPR 31.8)?

 The document is (or was) in the physical possession of the party; or
 The party has (or has had) a right to possession of the document; or
 The party has (or has had) a right to inspect / take copies of the
document

3. Does it fall within CPR 31.6? CPR 31.6 Standard disclosure requires a party
to disclose only:
(a) The documents on which he relies and
(b) The documents which
i. Adversely affect his own case
ii. Adversely affect another party’s case or
iii. Support another party’s case and
(c) The documents which he is required to disclose by a relevant practice
direction
If an order for standard disclosure is made, a party must make a reasonable
search for documents. What is reasonable depends on the following:
 The number of documents involved
 The nature and complexity of the proceedings
 How difficult/expensive it is to retrieve any document
  Significance of document
Procedure:
1. Begins with Disclosure statement: sets out
(a) Extent of search made
(b) Certifies that party understands the duty to disclose
(c) Certifies that to the best of party’s knowledge, it has carried its duty
(d) Stating where relevant, that inspection of one/more documents is not
permitted (would be disproportionate); stating why
(e) Must be made and signed by the disclosing party
(f) Parties may agree in writing to dispense with disclosure statement

2. Disclosure list: each party making a list of the required documents and
serving it on the other party simultaneously:
(a) The list must generally be in the prescribed form (N265)
(b) The documents must be identified in a convenient order and as
concisely as possible:
i. documents that exist and that party does not object to inspection; does not
claim the documents as privileged (S1)
ii. documents that exist and the party objects to inspection; does claim the
documents as privileged (right or duty to withhold inspection) (S 2)
iii. documents which were (but are no longer) in party’s control and what has
happened to them

3. Supplemental lists: these may need to be prepared and served if additional

documents falling within a party’s disclosure come to light, or are created,
after disclosure list is served.

4. After disclosure, parties turn to inspection

Inspection:
A party has a right to inspect a disclosed document, except where:
(a) The document is no longer in the disclosing party’s control
(b) Allowing inspection would be disproportionate
 If a party disclosing documents thinks that it is disproportionate to permit
inspection of a certain category/class of documents then it is not required
to permit inspection, but it must state in disclosure statement that
inspection is not permitted and that allowing inspection would be
disproportionate.
 This is going to be rare.
(c) The disclosing party has a right or duty to withhold inspection i.e.
privileged
 Legal advice, litigation and without prejudice privilege
 Principles for all types of privilege:
 Privileged documents must still be disclosed
 Privilege is not same as confidentiality
  Privilege can be waived
 Once privileged, always privileged
 Burden is on party claiming privilege
 If a document falls within the scope of the order for disclosure made by the
court and it is privileged, its existence must still be disclosed: it can only be
withheld from inspection
Redaction:
Confidentiality and privilege are not the same thing. A document may be
confidential but it can only be withheld from inspection only if it is privileged.
Clients will often want to redact parts of documents because they are commercially
sensitive.
If a document that is not privileged but contains some irrelevant information it is
possible to redact those parts that are irrelevant.
If part of a document is privileged, and part is not, then a party will need to redact
the privileged part and allow inspection of remainder
Otherwise, unless the confidential information is irrelevant or privileged, it
cannot be redacted:
 Confidential? – does not justify redaction, inspection must be permitted
 Confidential and irrelevant? – does justify redaction.
 Privileged? - does justify redaction.
Waiver:
It is possible for a party to deliberately allow inspection of a privileged document
if it considers that the document helps its case. This is called waiver of privilege.
However, a party does not have an unrestricted right to determine precisely what it
wishes to waive privilege over.
 Firstly, waiver of privilege in part of a document will lead to waiver of
privilege over the remainder of the document
 Secondly, waiver of privilege of in one document can lead to privilege
being lost in other documents, if it would be unfair
Once privileged, always privileged:
If something is privileged in relation to one set of proceedings, it will remain
privileged in relation to all proceedings unless something takes place to cause the
privilege to be lost, such as waiver (see above).
Burden of proof:
Where there is a dispute over whether a document is subject to privilege, the burden
of proof is on party claiming privilege to establish it.
Case law suggests that this right to inspect is in fact subject to the usual rules on
privilege, so that privilege in a document is not lost simply by reference to a
document in a statement of case or witness statement, and the court in any event
also has a general discretion to refuse inspection.
However, reference to a document in a statement of case / witness statement could
amount to waiver of privilege depending on the circumstances, and so parties should
tread very carefully in this regard.
Procedure for inspection:
 A party wishing to inspect documents must send a written notice of its wish
to do so to other side and the other side must allow inspection within 7
days of receipt of the notice.
 The court direction may vary these time limits.
 It is possible to ask for copies instead or as well, with an undertaking to pay
reasonable photocopying charges. Copies must be provided within 7 days of
receipt of the request.

Privilege:
Legal advice privilege:
A document which is a confidential communication b/w a lawyer and client and
was prepared for the purpose of giving or receiving legal advice.
 Confidential: If the document is not confidential, privilege will not apply
 Communication between a lawyer and a client
 Prepared for the purpose of giving or receiving legal advice
 Legal advice privilege does not apply to advice of a legal or quasi-legal nature
given by non-lawyers
Litigation privilege:
A document which is a confidential communication which passed b/w the lawyer
and his client OR between one of them and a third party, where the dominant
purpose in creating the document is to obtain legal advice, evidence or information
for use in conduct of litigation which was at the time reasonably in prospect.
 Confidential
 Communication between lawyer and client
 Communication between lawyer and third party
 The dominant purpose is to obtain evidence/advice for litigation in reasonable
contemplation.
 At the time reasonably in prospect:
 A general apprehension of future litigation is insufficient
 Litigation privilege will not cover documents created in connection with a
non-adversarial matter
 This privilege extends to documents which are brought into existence for
the purpose of prosecuting or defending the claim
Without prejudice communications:
A document whose purpose is a genuine attempt to settle a dispute.
 Substance not form
 Without prejudice documents will not generally seen by court unless the
privilege is expressly waived. Some documents are, however, marked as
being 'without prejudice save as to costs'. This means that the court will
not see the document's contents unless it is considering costs of the
action or a particular issue. If it is considering costs, the judge is generally
entitled to see the document and can take its contents into account when
deciding (for example) the parties' conduct and which party is liable for
costs/the amount of costs payable.
 Notwithstanding the above, the court may require without prejudice
correspondence to be admitted as evidence in limited circumstances

Specific disclosure, specific inspection and pre-action disclosure:

Used after proceedings Used before proceedings
have started have started
Used to obtain CPR 31.12 – application CPR 31.16 – application
information from the for specific disclosure for pre-action disclosure
opponent / intended and/or specific inspection
opponent
Used to obtain CPR 31.17 – application Norwich Pharmacal
information from a non- for disclosure from Orders (and CPR 31.18)
party someone not a party to
proceedings

What is specific disclosure?

CPR 31.12(2) defines specific disclosure. An order for specific disclosure is an order
that a party must do one or more of the following things:
(a) Disclose documents/ classes of documents specified in the order
(b) Carry out a search to the extent stated in the order
(c) Disclose any documents located as a result of that search
Timing of an application under CPR 31.12:
The court has the jurisdiction to make an order for specific disclosure and / or
inspection at any time after proceedings have been issued. It is generally made
after standard disclosure.
When will an application for specific disclosure be successful?
It depends on the facts of the particular case. 31A PD 5.4 states that when it decides
whether or not to make an order for specific disclosure:
 (a) The court will take into account all circumstances of the case
(b) The court will in particular take account of the overriding objective and
(c) If the court decides that the party against whom specific disclosure is sought
has 'failed adequately to comply with obligations imposed by an order for
disclosure', the court 'will usually make such order as is necessary to
ensure that those obligations are properly complied with'
Procedure:
The application notice must specify the order that the applicant intends to ask the
court to make and must be supported by evidence. The grounds on which the
order is sought may be set out in the application notice itself or in the evidence filed
in support of the application.
It is usual practice for the evidence in support of the application to be in the form of a
witness statement, made by the party itself or by the party's solicitor.
The documents sought should be listed in a schedule to draft order. It is
important to refer to the documents as precisely as possible. Otherwise, the
application may fail; the court will not permit a 'fishing expedition'
What is specific inspection:
It is an order that a party permit inspection of a document which has been
disclosed, but the disclosing party alleges it would be disproportionate to allow
inspection.
What is pre-action disclosure?
The court's power to order pre-action disclosure. It enables a party to obtain
disclosure of documents before proceedings have commenced.
When will the court grant an application for pre-action disclosure?
(a) The respondent is likely to be a party to subsequent proceedings and
(b) The applicant is also likely to be a party to those proceedings and
 The question is whether, if proceedings are commenced, the respondent is
likely to be a party – how likely it is that proceedings are commenced is not
relevant at this stage.
(c) If proceedings had started, the respondent's duty in standard disclosure
would extend to documents or classes of documents which applicant
seeks and
 scope of a pre-action disclosure order cannot be wider than that of an
ordinary standard disclosure order
(d) Pre-action disclosure is desirable to (i) dispose fairly of the anticipated
proceedings; (ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
Therefore, the applicant must succeed in a two-stage approach: an applicant needs
to establish that the conditions are met, and then must go on to say why court
should exercise its discretion in favour of granting the application (there must be
a prospect of success)
Procedure:
As with an application for specific disclosure, the application will require an
application notice, evidence and a draft order. An order must specify the
documents / classes of documents which the respondent is to disclose; and must
require the respondent to specify those documents which are no longer under his
control or which he has a right to withhold from inspection.

Costs:
In relation to costs, the general rule for pre-action disclosure applications states that
the party against whom an order for pre-action disclosure is sought will generally be
awarded the costs of the application and of complying with it. Accordingly, the
applicant for pre-action disclosure will generally have to pay respondent’s
costs.
This is not an absolute rule. In certain situations, court may make a different order
for costs.
 Non-party disclosure and Norwich Pharmacal order:
What is a non-party disclosure?
The court has the power to order a person who is not a party to the proceedings to
give disclosure of documents. An order for disclosure by a person who is not a party
to existing proceedings can be made where:
(a) The documents are likely to support the applicant's case or adversely
affect the case of one of the other parties to the proceedings and
(b) Disclosure is necessary in order to dispose fairly of the claim or to save
costs
It is used after proceedings have started (Part 23).
As such, the applicant must succeed in a two-stage approach: an applicant seeking
non-party disclosure needs to establish that the conditions are met, and then must
go on to say why court should exercise its discretion in favour of granting the
application.
The court will be cautious about making an order for disclosure against a non-party
because it is an intrusion on a party who is not involved in litigation and who is
therefore not generally subject to the court's powers to order disclosure of private or
confidential documents.
Procedure:
 the application will require an application notice, evidence and a draft
order
 The application notice must be served on the respondent i.e. the non-party
from whom disclosure is sought and any other party to the proceedings
 an order for non-party disclosure must specify the documents / classes of
documents which the respondent must disclose and require the respondent to
specify those documents which are no longer under its control or which it
has a right to withhold from inspection
Costs:
The court will order the applicant to pay costs of the respondent in dealing with the
application itself and complying with any order that is made as a consequence. This
presumption may be rebutted and a different costs order.
Norwich Pharmacal Order:
This type of order evolved to provide a solution where court proceedings cannot be
commenced because the identity of defendant is unknown – it orders the
respondent, who is not the defendant, to disclose information allowing claimant to
sue the right defendant.
Key case: Norwich Pharmacal Co v Commissioners of Customs & Excise [1974] AC
133
 The court held that, if a person has facilitated wrongdoing, however
innocently, that person should, as a matter of equity, be ordered to disclose
information allowing the claimant to sue the right defendant
 A Norwich Pharmacal order is generally a remedy of last resort. A Norwich
Pharmacal order must be necessary and proportionate in all the
circumstances of the case.
Test: 3 conditions must be satisfied:
(a) wrong must have been carried out (or arguably carried out) by an ultimate
wrongdoer
(b) there must be the need for an order to enable action to be brought against
the ultimate wrongdoer and
(c) the person against whom the order is sought must (i) be mixed up in
wrongdoing so as to have facilitated it; AND (ii) be able / likely be able to)
provide information necessary to enable the ultimate wrongdoer to be
sued
 Real question is whether respondent is more than a mere ‘witness’ or
bystander
Costs
Usually, a successful applicant for a Norwich Pharmacal order will pay the costs
incurred by the respondent, including the costs of giving the disclosure. The
applicant may then be able to recover those costs from wrongdoer in either
same or subsequent proceedings.
 Costs management:
Overriding objective is to deal with cases justly and at proportionate cost. Costs are
proportionate if they bear a reasonable relationship to:
(a) The sum in issue in proceedings
(b) The value of any non-monetary relief in issue in proceedings
(c) The complexity of the litigation
(d) Any additional work generated by the conduct of the paying party and
(e) Any wider factors in the proceedings, such as reputation or public importance
How can the aim of dealing with cases at proportionate cost be achieved? One way
is to limit the costs that one party can recover from the other. When deciding how
much of those costs should be paid, the usual rule is that the court will only order a
party to pay costs which were reasonably and proportionately incurred / in
amount.
This is cost assessment.
Cost management applies to all cases except cases:
(a) Small claims or fast track
(b) Where the amount of money is £10 million or more
(c) for a monetary claim which is not quantified / fully quantified or is for a
non-monetary claim and the claim form contains a statement that the claim
is valued at £10 million or more
(d) made by or on behalf of a person under 18
(e) subject to fixed costs or scale costs
Procedure:
1. Parties prepare budgets: budget is an estimate of the reasonable and
proportionate costs which a party intends to incur.
2. Parties budgets filed and exchanged
  Usually with DQ where the value is less than £50,000 or in any other
case 21 days before first CMC
 Prescribed form is Precedent H
 Must be signed confirming costs incurred are reasonable and
proportionate
 Court may not approve costs incurred before date of any budget
 Where the monetary value of the claim is less than £50,000 or if the party's
budgeted costs do not exceed £25,000, the parties must only use first
page of Precedent H
3. Subsequently discussed by parties
4. Budget discussion reports record extent to which the parties have agreed
budgets
 By the budget discussion reports, the parties indicate:
(a) The figures which are agreed & not agreed for each stage of litigation
(b) A brief summary of the grounds of dispute
 Filed and exchanged usually 7 days before first CMC
5. Budgets and budget discussion reports are considered by the court at CMC
6. Directions are determined in light of estimated costs
7. Court might make a cost management order; a provisional indication of what
should be considered reasonable and proportionate in any later assessment
proceedings unless it is satisfied that the litigation can be conducted justly
and at a proportionate cost in accordance with overriding objective without
a CMO. The CMO will:
 Record extent to which the costs budgets are agreed between the
parties. Agreed figures cannot be changed by court.
 Where the figures are not agreed, “record the court's approval of costs
budget, after making appropriate revisions”.
 When deciding whether or not to approve the costs budgets the court
will only consider total figures for each phase of the proceedings
 The court will not undertake a detailed assessment, but rather will
consider whether budgeted costs fall within the range of reasonable
and proportionate costs
 When the court approves costs budget, this is an indication that the
budgeted costs are reasonable and proportionate
Note that, in any assessment process, a fundamental principle is that party cannot
recover a greater sum for costs from an opponent than it has in fact incurred: this is
true even if the budget provides for a greater sum than has been incurred. The
budget effectively becomes a 'cap' on what can be recovered.
Failure to file a budget (CPR 3.14):
Any party that fails to file a costs budget, when required to do so, will be
automatically treated as having filed a costs budget comprising only applicable
court fees unless the court otherwise orders
The recoverability of costs incurred in preparing costs budgets:
There are limits on the costs which can be recovered for preparing costs budgets
and for carrying out the budgeting and costs management process where a CMO is
made. The costs of initially completing costs budget (Precedent H) shall not
exceed the higher of £1,000 or 1% of the approved costs budget except in
exceptional circumstances
All other recoverable costs of budgeting and costs management process shall
not exceed 2% of the costs budget
Costs and case management conference:
Generally, costs management takes place at first CMC, when directions are also
being considered. Such a hearing is therefore often known as a costs and case
management conference, or 'CCMC'.
1. Budget – not later than 21 days before first CMC
2. Disclosure report – not less than 14 days before first CMC
3. Draft directions and budget discussion report – no later than/ at least 7
days before first CMC
4. CCMC - Direction for case management and costs management order
Evidence of fact:
Facts in issue must be proved by admissible evidence. There are three types:
1. Documents
2. Witness evidence
3. Real evidence
The power of the court to control evidence:
CPR 32.1 gives court the power to control the evidence by giving directions as to:
 The issues on which it requires evidence
 The nature of the evidence it wants
 The way the evidence is to be placed before the court
The court can also:
 Exclude evidence that would otherwise be admissible
 Limit cross-examination
Witness evidence:
Exchange of witness statements is generally the step in the action that follows
disclosure and inspection. All the disclosure documents must be reviewed prior to
finalising witness statements as the witnesses may need to refer to the documents in
their evidence. There are two types of witnesses:
1. Witnesses of fact
2. Expert witness
What is a witness statement?
Witness statements are the means by which the facts of the dispute are put before
the court. Court will usually give directions as to the exchange of witness
statements at the allocation and case management stage. The direction can also
relate to:
 Limiting the issues
 Identifying the witnesses whose evidence may be used
 Limiting the number, length or format of witness statements
 Specifying the order in which witness statements are to be served
If a party has served a witness statement of a witness and wishes to rely on it,
the party must call the witness to give oral evidence at trial unless the court orders
otherwise OR put in statement as hearsay evidence in accordance with the Part 33
procedure.

It a witness statement is not served within time, the witness may not be called to
give oral evidence unless the court orders otherwise.
The parties can agree in writing extensions of up to 28 days for the filing and
serving of witness statements without the need for court approval provided any such
extension does not put a hearing at risk. Otherwise, permission from court is
required.
Use of witness statements at trial:
General rule: any fact which needs to be proved by the evidence of witnesses at
trial will be by oral evidence.
A witness statement is therefore prior notice of evidence a witness will give at
trial. This exchange of evidence saves time and costs at trial and helps to facilitate
settlement because the parties are able to evaluate the merits of their respective
cases.
 It stands as a witness’s evidence in chief at trial (amplifications are not
allowed)
 The other party’s counsel can cross-examine witness (court may limit it)
 The witness will then be re-examined by own party
Content of witness statements:
A witness statement should contain everything that a witness is likely to say at
court; this means every fact that needs to be proved by the witness’ evidence. One
way of deciding on relevant content is to ask:
1. What is the argument?
2. What is the legal basis for the argument?
3. What is the fact (s) that support the legal argument?
Witness statements and opinion evidence:
General rule: the opinions of witnesses are not admissible. Witnesses are
normally confined to stating the facts. The court must draw its own inferences from
the facts stated.
There are, however, two situations when opinion evidence is admissible under s
3 Civil Evidence Act 1972.
(1) Admissibility of expert evidence – “where a person is called as a witness in
any civil proceedings, his opinion on any relevant matter on which he is
qualified to give expert evidence shall be admissible in evidence
(2) Admissibility of perceived facts – “where a person is called as a witness in
any civil proceedings, a statement of opinion by him on any relevant matter on
which he is not qualified to give expert evidence, if made as a way of
conveying relevant facts personally perceived by him, is admissible as
evidence of what he perceived.”
(3) In this section, relevant matter includes an issue in the proceedings in
question
False statements in witness statements:
A witness who makes a false statement in the witness statement, which is verified
by a statement of truth, without an honest belief in the truth of that statement, may
face proceedings for contempt of court.

Use of witness statements for purposes other than trial:

An application for interim remedy must be supported by written evidence
setting out the facts that justify the relief sought unless the court orders otherwise.
Unless the written evidence is contained within a statement of case or an application
notice verified by a statement of truth, it will often be in a witness statement and will
support the issues in the interim application only.
Also, a witness statement may only be used for the proceedings in which it is
served unless the witness or the court has given permission for some other use
OR it has been put in evidence at a hearing held in public.
Affidavits:
Evidence must be given by affidavit if required by the court or rule, and a party
may choose to give evidence by affidavit at a hearing other than trial if they wish to
do so. An affidavit is a written, sworn (rather than verified by a statement of truth)
statement of evidence. Therefore, content is same as witness statement, but the
form is different.
Witness summaries:
Witness summaries are simply summaries of the evidence that would have been
included in a witness statement. A witness summary is an option if a party
cannot obtain a witness statement from a witness.
If a crucial witness will not give a statement or the witness cannot be found, but
a party had intended to call the witness at trial, the party can apply to court without
notice for permission to serve a witness summary. A witness summary contains:
 The witness’s name and address; and
 The evidence which would otherwise be included in a witness statement
It does not include a statement of truth.
Notice to admit facts:
A party may serve a notice on another party requiring it to admit the facts, or the
part of the case of the serving party, specified in the notice. If the other party does
not admit these facts and the court decides that it ought to have admitted them,
then the party could be penalised in costs.
To ensure the notice to admit facts is effective, it must be served no later than 21
days before trial. Where the other party makes any admission in response to the
notice, the admission may be used against the other party only: (a) in
proceedings in which the notice to admit is served; AND (b) by party who served
the notice.
Notice to prove documents:
A party shall be deemed to admit the authenticity of a document disclosed
unless he serves notice that he wishes the document to be proved at trial. It is
not incumbent on the disclosing party to seek an admission of authenticity. A notice
to prove a document must be served:
(a) by latest date for serving witness statements; or
(b) within 7 days of disclosure of the document, whichever is later
Witness summons:
If there is a concern that a witness may not attend trial or the witness is a
professional person who may have conflicting appointments, their attendance at
trial can be secured by serving that witness with a witness summons using form
N20. Witness summonses can be served on witnesses of fact and expert witnesses.
 The summons is issued on the date entered on the summons by court and
should be issued no less than 7 days before trial date unless the court
gives permission
 The summons should be served on the witness at least 7 days before the
date on which the witness is required to attend the court
 The summons should include payment (or an offer to pay) ‘conduct money’
to cover the witness’ travel expenses to get to trial and compensation for
loss of time
Evidence by deposition:
Evidence by deposition in CPR 34.8 is where a witness is examined under oath by
a judge or examiner of the court before the hearing takes place. A party wishing
to obtain evidence by deposition must apply for an order to do so. The
examination must be conducted in same way as if the witness were giving
evidence at trial.
The transcription of oral evidence (the ‘deposition’) will then form evidence for
the purpose of the litigation. A party intending to put in evidence of deposition at
a hearing must serve notice of its intention to do so on every other party at least
21 days before hearing date.
Admissibility: general rule
General rule: All evidence relevant to facts is admissible in civil proceedings.
Hearsay:
General rule: hearsay is indirect evidence, whether written or oral. Hearsay
evidence is admissible in civil proceedings by virtue of s.1 of the Civil Evidence Act
1995 (‘CEA 1995’). It is indirect evidence and therefore inherently less reliable
than direct oral, documentary or real evidence.
Definition: hearsay is an oral or written statement made out of court which is
being adduced in court to prove the truth of the matter stated.
There are a number of procedural safeguards to ensure that hearsay evidence is
carefully scrutinised. These only apply to hearsay evidence that is to be given at trial.
If a party intends to rely on hearsay evidence at trial, it must give notice to the
other party that it intends to do so.
(a) If evidence is in a witness statement of a person who is going to give oral
evidence at trial, no formal notice is required as it is deemed served with
witness statement
(b) If evidence is in a witness statement of a person who is not going to give
oral evidence at trial, no formal notice is required but the other party must
be informed that the witness will not be giving evidence at trial with reasons
(c) In all other cases, formal notice must be given to the other party identifying
hearsay, stating that the party wishes to rely on it and the reasons why
witness will not be called. Party proposing to rely on the hearsay evidence
must serve notice no later than the latest date for serving witness
statements (CPR 33.2 (4) (a))
If notice is not given when it should have been, the evidence will be still
admissible, but the weight the court attaches to it is likely to be less and the
offending party may be penalised in costs.
If one party change their decision to rely on a hearsay evidence, other party may still
rely on it without notice and without court permission.
A party has 4 possible options on receipt of notice of intention to rely on
hearsay:
1. Request particulars of hearsay under s 2 CEA 1995
2. Call for cross-examination under s 3 CEA 1995
Where a party adduces hearsay evidence of a statement made by a person
and does not call that person as a witness, any other party to the proceedings
may, with the leave of the court, call that person as a witness and cross-
examine them on the statement as IF they had been called by the first-
mentioned party AND as if the hearsay statement was the evidence in chief
(CPR 33.4). The application must be made no later than 14 days after
hearsay notice was served on the applicant
3. Challenge the weight of hearsay evidence under s 4 CEA 1995
It is possible to challenge the weight the court will attach to the hearsay evidence
at trial. The factors the court will consider are set out in s.4 CEA 1995 and
include, for example:
(a) whether it would have been reasonable and practicable for the party who
adduced the evidence to have produced the maker of the original
statement as a witness
(b) whether original statement was made at a same period to matters
stated
(c) whether the evidence involves multiple hearsay, etc.

4. Attack credibility of an absent witness under s 5 CEA 1995

The party who has received notice can attack the credibility of the absent witness
at trial (even though they are not present). The attack should show that the
absent witness made previous inconsistent or contradictory statements. The
receiving party must notify the adducing party of its intention to do this no
later than 14 days after hearsay notice was served.
Convictions as evidence in civil proceedings:
In civil proceedings, the fact that a person has been convicted of an offence in a UK
court is admissible in evidence to prove that he admitted the offence.
 Offence being proved must be relevant to an issue in the proceedings.
 This is set out in s.11 Civil Evidence Act 1968. In any civil proceedings in
which by virtue of this section a person is proved to have been convicted of an
offence—
(a) he shall be taken to have committed that offence unless the contrary is
proved; and
(b) the contents of any document which is admissible as evidence of the
conviction, shall be admissible in evidence for the purpose of identifying
the facts on which the conviction was based.
A person wanting to prove the contrary will have the burden of proving that the
person convicted did not commit the offence on a balance of probabilities.

Expert evidence:
Expert evidence:
Exchange of expert evidence is generally the step in the action that follows
exchange of witness evidence. An expert is generally a highly skilled or
knowledgeable individual whose role is to advise the court impartially on matters
within their expertise.
The court ultimately decides who is an expert, but the expert should be qualified
and experienced.
Use of expert evidence:
Under CPR 35.1, the court has a duty to restrict expert evidence to that which is
reasonably required to resolve the proceedings. If issues are factual and do not
require expert evidence, court should refuse permission for it to be used at trial.
Therefore, although a party may wish to adduce expert evidence, court permission is
required. The permission is usually sought by seeking a direction at CM stage.
 When parties apply for permission they must provide an estimate of costs of
the proposed expert evidence and identify the field in which expert evidence
is required and, if practicable, the name of the proposed expert
 This information should be set out on the directions questionnaire
The court is more likely to restrict expert evidence in the small claims track and
the fast track. The court has following powers:
 35.1 (duty to restrict expert evidence)
 35.3 (experts’ overriding duty to court)
 35.7 (court’s power to direct that evidence is to be given by single joint
expert) and
 35.8 (instructions to a single joint expert)
Duty and role of an expert:
Duty: to help the court on matters within their own expertise and this overrides
any obligation to the party instructing the expert.
Role: considered in National Justice Compania Naviera SA v Prudential Assurance
Co Limited [1993] and became known as the Ikarian Reefer Guidelines:
1. Independent product of expert
2. Unbiased opinion – expert should never assume the role of advocate
3. Sate the facts/assumptions on which opinion is based
4. Make clear when issue falls outside expertise
5. If there was insufficient data available for the purposes of research, then
this should be noted
6. Change of view should be communicated
7. Docs referred to in the report must be provided

Instructing experts:
CPR 35.10(4) confirms that the letter of instruction to an expert is not privileged
from inspection. The court will not however require disclosure.
A party who has no reasonable grounds for suspecting instructions to be
inaccurate cannot use this rule to force disclosure and inspection of
instructions. However, CPR 35.10(4) means it is important to take care when
providing instructions to an expert.
Expert reports:
CPR 35.5: expert evidence is to be given in a written report unless the court
directs otherwise.
In small claims track and fast track cases, the court will only order expert to
appear at trial to give oral evidence if it is in the interests of justice to do so and
restrict to one expert.
If an expert submits a draft report to instructing party before it produces a final
version to be adduced in evidence, the earlier draft is generally subject to litigation
privilege and is usually therefore privileged from inspection. Privilege will be
waived in final version of report when it is served.
Exchange of expert evidence
Experts’ reports must be exchanged with the other side in order to be used at trial.
There is usually a direction to this effect at the direction stage. The court can order
either simultaneous or sequential exchange.
Failure to exchange in accordance with given directions means that the evidence
cannot be used unless the court gives permission.
Single joint experts:
Rather than each party instructing its own expert, to save costs, the parties can
agree to appoint a single joint expert. Even if they do not do so, the court has
power to only permit only single joint expert.
 Where possible the parties are required to agree directions that provide
use of SJE in multi-track cases
 Court gives directions for SJE on fast track unless good reasons not to do
so
A SJE should be copied in to all relevant correspondence – complete transparency
at all times.
Questions by a party to experts
Once expert reports have been exchanged, CPR 35.6 allows a party to put written
questions to the other party’s expert, or to the single joint expert, if there is one.
These must be submitted within 28 days of service of report. There is no time
limit for expert to answer questions unless ordered by the court.
 If the expert does not answer, the court can order that party who instructed
the expert cannot rely on their evidence and/or cannot recover the
expert’s fees from the other party
Questions by experts to the court:
Under CPR 35.14, experts may submit written requests for directions to court
to help them carry out their task. Unless the court orders otherwise, the expert
must:
 1. Provide instructing party, a copy of any proposed request for directions
at least 7 days before filing it at court; and
2. Provide a copy to all other parties at least 4 days before filing it at court
The court, when it gives directions, can direct that a party also be served with a copy
of the directions. The party instructing that expert must serve a copy of the order on
the expert or C must serve it on SJE.
Discussions between experts:
Where each party has submitted evidence from their own expert, court to direct the
experts to discuss various expert issues in dispute so that the experts can
identify issues in the case and (where possible) reach an agreed opinion.
The court can specify the issues which the experts must discuss and direct a
joint statement to be produced after meeting, setting out the issues on which the
experts agree and those on which they do not (with a summary of reasons).
Agreements between experts during discussions do not bind the parties unless
the parties expressly agree to be bound.
The content of discussions between experts should not be referred to at trial
unless the parties agree. In other words, they are without prejudice.
Unfavourable expert reports:
Options to a party who receives an unfavourable report from an expert instructed by
that party or from a single joint expert:
(a) Put questions to expert
(b) Seek advice from another expert
 If the expert’s advice differs substantially from a party’s expectations,
the party may seek permission to call another expert, but difficult &
costly
 Court will allow this on the condition that the first report is disclosed
 Permission is given in exceptional circumstances
 If one party decides it is not intending to rely on its expert’s report once
that report is disclosed, the other party may still rely on report at trial
 If a party is not given permission, that party can use the expert adviser in
preparing questions for XX
 Ultimately, party may consider settlement
(c) If there is no direction for expert to give oral evidence, party may seek such a
direction from the court
Part 36
A part 36 offer is an offer for settlement. It can be made by either party and at any
stage of the proceedings, including before proceedings are issued.
Accordingly, the central rationale behind Part 36 is that parties who make realistic
proposals to settle actions should get some benefit if these are not accepted and
it turns out, at trial, that they should have been accepted. A party who is 'dragged
to trial' having tried to be reasonable should be compensated, and an
unreasonable party who insists on a trial should be subject to a penalty.
Part 36 offers contrasted with Calderbank offers:
A Calderbank offer is an offer, usually communicated in writing, and written
'without prejudice save as to costs', such that it cannot be referred to judge
until costs are considered after trial, but at point can be relied upon.
As a Calderbank offer will not comply with requirements of Part 36 the specific
consequences of Part 36 will not apply to that offer. The Calderbank offer will
usually be made by letter and will state that it is without prejudice save as to costs.
Although the specific consequences of Part 36 do not apply, the court will have
regard to a Calderbank offer when it exercises its discretion on costs.
However, if a party wants to avail itself of the specific cost consequences and
protection afforded by Part 36 it must make the offer in compliance with the rules set
out in Part 36.
How to make a part 36 offer:
Within the rules the party making the offer is defined as the 'offeror' and the party
receiving the offer is the 'offeree'. The rules (CPR 36.5) state that the Part 36 offer
must:
(a) Be in writing (form N242A)
(b) Make clear it is made pursuant to Part 36
(c) Specify a period of not less than 21 days within which D will be liable for
claimant's costs if offer is accepted (called the 'relevant period')
(d) State whether it relates to the whole or part of the claim and
(e) State whether it takes into account any counterclaim
When is a Part 36 offer made?
A Part 36 offer is made when it is served on the offeree. This means that the rules
of service from Part 6 apply.
How to clarify a Part 36 offer?
The offeree can seek clarification of the terms of the offer, for example a breakdown
of the components of the offer, within 7 days of service.

Withdraw a Part 36 offer?

A Part 36 offer cannot be withdrawn, or its terms changed, if accepted.
If the offer has not been accepted, the ability to withdraw or change the terms of
a Part 36 offer depends on whether the relevant period has expired.
  After expiry of relevant period, if the offer has not been accepted, the offer
can be withdrawn or its terms changed without court's permission. The
offer can also be withdrawn automatically if its terms state so.
 Any notice of withdrawal / change during relevant period will take effect
at the end of relevant period, if offeree does not serve notice of
acceptance during relevant period.
 If they do serve notice of acceptance during relevant period (despite the
notice of withdrawal / change) then the offeror can either allow acceptance
OR apply for court permission to withdraw the offer or to change its terms.
This must be done within 7 days of notice of acceptance or if earlier before
the first day of the trial. The court may give permission for the original offer
to be withdrawn or its terms changed if satisfied that there has been a change
of circumstances since the making of the original offer AND it is in the
interests of justice to give permission.
 At any time, prior to acceptance, the offeror can change the terms of the
offer to make it more advantageous to the offeree. If this is done it will
simply be treated as a new Part 36 offer.
Consequences of a part 36 offer:
If a part 36 offer has been made and it is not withdrawn, two things can happen:
(a) It is accepted – you then need to know the consequences of acceptance
(b) It is not accepted – you then need to know whether court will impose a
‘penalty’ after trial because the offeree did not accept the offer, and if so,
what penalty will/might be
How to accept a part 36 offer?
If the offeree wants to accept, it must do so by serving a written notice of
acceptance on the offeror. If the case is issued the acceptance also needs to be
filed at court. An offer remains open for acceptance unless it has been withdrawn.
Consequences of accepting part 36 offer:
1. The claim will be stayed
2. Settlement sum – offeror has 14 days to pay settlement amount. If it fails to
do so, C can apply to court to enforce obligation, without the need to state
separate court proceedings
3. Costs – the cost consequences of acceptance depend on when offer was
accepted
a) If accepted before expiry of relevant period, the C is entitled to its costs
of the proceedings up to the date the notice of acceptance was served on
the offeror
b) If accepted after expiry of the relevant period then
i. The court will determine liability for costs unless parties agree
them; but
ii. The court must, unless it considers it unjust to do so, order that –
(a) C be awarded costs up to the date the relevant period expired;
AND
 (b) ii. Offeree to pay the offeror’s costs for the period from the date
of expiry of the relevant period to the date of acceptance
c) Special rules where the offer was made less than 21 days before trial:
different rules apply where an offeree accepts an offer, but the offer was
made less than 21 days before trial. In this situation, if parties do not
agree liability for costs the court is likely to order that the claimant will
get their costs up until end of relevant period which in this case is the
end of trial.
Accepting a part 36 offer which relates to part of a claim:
It is possible to make a Part 36 offer which relates to part of a claim only. Special
rules apply if such an offer is accepted.
 If, at time of acceptance, the C abandons remainder of the claim, then the
claimant will be only entitled to costs relating to the part of the claim
contained in the offer, unless court orders otherwise.
 If, at time of acceptance, the C does not abandon remainder of the claim,
then the liability for costs will be determined by court, unless parties can
reach an agreement about the liability.
Consequences for not accepting part 36 offer – C not accepting D’s offer
You need to consider two issues:
1. Trigger: does the failure to accept the D’s offer trigger any consequences?
2. Consequences: if so, what are those consequences?
Trigger:
The ‘trigger’ is set out in CPR 36.17(1)(a) as being where: “a claimant fails to obtain
a judgment more advantageous than a defendant’s part 36 offer.”
Consequences:
The penalty imposed on the claimant in these circumstances is set out in CPR
31.17(3), namely that unless it considers it unjust to do so, court must order that:
(a) The C pays the D’s costs from date of expiry of the relevant period and
(b) Interest on those costs
Obviously, the claimant must bear their own costs for this period as well.
Who pays whose costs in relation to the period before the relevant period expired?
Part 36 does not tell us the answer, so the usual costs rules in CPR 44 apply.
If the 'trigger' is not met, for example because the claimant does better at trial than
offered by the defendant then the defendant's Part 36 offer has no effect.
Consequences for not accepting part 36 offer – D not accept C’s offer
You need to consider two issues:
1. Trigger: does the failure to accept the C’s offer trigger any consequences?
2. Consequences: if so, what are those consequences?
Trigger:
The 'trigger' is set out in CPR 36.17(1)(b) as being where: “Judgment against the
defendant is at least as advantageous to C as the offer contained in a claimant's
Part 36 offer.” Where claimant does the same or better at trial than its own Part 36
offer, then the failure to accept that offer will have consequences.
Consequences:
The penalty imposed on the defendant in these circumstances is set out in CPR
31.17(4), namely that unless it considers it unjust to do so, the court must order:
(a) Interest on award at a rate of up to 10% above base rate for some or all of
the period from expiry of relevant period. This is a penalty because the
award of interest is at a higher rate than the usual rate.
(b) The costs from end of relevant period are to be assessed on the
indemnity basis (in contrast to the usual basis - the standard basis). Any
assessment on indemnity basis can result in significantly more costs being
awarded to C.
(c) Interest on those costs at a rate of up to 10% above base rate. Again, this
rate of interest is in excess of the usual rate.
(d) An additional amount based on a percentage of award. The percentage
being 10% up to £500,000 and 5% above £500,000. The total amount is
capped at £75,000.
For non-money claims (e.g. it is a claim for possession of property, without any
damages claim) then the penalty in (d) above is calculated with the total amount of
costs awarded to the claimant used as the figure instead of award.
If the 'trigger' is not met, for example because the C does worse at trial than it
offered to accept, then the claimant's Part 36 offer has no effect.
Unless unjust to do so:
As already set out, when the Part 36 consequences are triggered, the penalties will
be imposed 'unless the court considers it unjust to do so'. When deciding what is
unjust, the court will take into account:
(a) The terms of any Part 36 offer;
(b) The stage in the proceedings when the offer was made;
(c) The information available to the parties;
(d) The conduct of parties in relation to giving/refusing information or the
purposes of enabling the offer to be made/evaluated; and
 (e) Whether the offer was a genuine attempt to settle
CPR 31.17(5) – the court’s discretion under this provision is much more limited
than the court’s general discretion under CPR 44.
Claimant’s or defendant’s offer, not accepted – special rules:
Where an offer was made within 21 days of trial, then even if the applicable
'trigger' set out above is satisfied, there will be no Part 36 consequences UNLESS
the court shortens the relevant period. This is fair because the relevant period
(which is always at least 21 days) had not expired before trial. The offeree did not
have a fair opportunity to accept the offer.
If offeror fails to mention the relevant period of not less than 21 days within which he
would be liable to pay costs, it is not valid part 36 offer and offeror will have to apply
to court to recover its costs.
The Part 36 consequences also do not apply if:
(a) The part 36 offer was withdrawn or
(b) The part 36 offer was changed so that its terms are less advantageous to the
offeree and the offeree has beaten the less advantageous offer
If a party want to get the full costs protection of Part 36 then it needs to:
(a) Make offer more than 21 days before trial and
(b) Leave offer open (do not withdraw it)
Open claimant’s and defendant’s offer effective at the same time:
What if both the claimant and the defendant have made Part 36 offers, neither of
which have been accepted when the matter goes to trial? You just need to consider
each offer in turn. Consider the examples already provided where the defendant's
offer was £2mil and the claimant's offer was £3.5mil.
If the judge awards, say, £4mil then as the claimant has won the same or more than
his offer (of £3.5mil) the claimant's offer takes effect and Part 36 will apply under
CPR 36.17(4). The defendant's offer has no effect as the claimant has won more
than the defendant's offer (of £2mil).
If the judge awards, say, £3mil, then neither offer has any effect. The claimant's offer
(of £3.5mil) has no effect as the claimant has not won the same or more than his
own offer. The defendant's offer (of £2mil) has no effect because the claimant has
not won the same or less than the defendant's offer. Costs are likely to be awarded
in this situation under the normal principles indicated under CPR 44.2.
If the judge awards, say, £1mil, then as the claimant has won the same or less than
the defendant's offer (of £2mil), the defendant's offer takes effect and Part 36 will
apply under CPR 36.17(3). The claimant's offer has no effect as the claimant has not
won the same or more than his own offer (of £3.5mil).
 Judgment and orders:
A judgment or any other type of ‘final’ order is an order which ends the claim. It will
also make provision for costs.
Judgment after trial/final hearing:
Judgment may be handed down by the judge immediately following trial. If the matter
is complicated however, it is likely that judgment will be reserved which means that
the judge will deliver the judgment at a later date.
Where this is the case, the judge can invite the parties’ legal representatives to give
their views on how the judgment should be handed down. The judge will usually
circulate the judgment in draft to parties in advance of formally handing it down
(by 4pm on the second working day before handing down) so parties can prepare
costs submissions & provide judge with details of obvious errors (typos,
incorrect references etc). The judge may do this by email to the parties’
representatives.
After judgment is given the parties will make appropriate costs submissions and
the judge will make a costs order.
Drawing up and service of judgments/orders:
 Drawing up an order means setting the order out in formal document to
be sealed by the court.
 Generally, unless the court has made the order of its own initiative or
ordered otherwise, the parties will be responsible for drawing up order.
 The party drawing the order up is required to file it no later than 7 days
after becoming responsible for doing so, in order that the court can seal it.
 If the party responsible for drawing up the order fails to do so within 7 days,
any other party may do so instead.
 There is also provision built in for the court to check and approve the contents
first and for the other parties to be involved in agreeing the contents where
appropriate. If preferable, the court may direct or agree that a party is
responsible for service of the judgment / order.
 The rules in relation to drawing up and service of orders differ across
specialist divisions
 They must also file sufficient copies for service on themselves and the other
parties at the same time and, once sealed, the court will serve the sealed
order on everyone
Consent order:
Once a matter has been settled between the parties, it is usual for that settlement to
be recorded in a consent order. This has the effect of a ‘normal’ court order but
indicates that the parties agree the terms it sets out, so that there is no need for
court to hear arguments from both sides. There are 2 types:
Tomlin orders:
A Tomlin Order is a type of consent order. It is made up of 2 parts; the first part is
the public part and the second part, the confidential part that contains the details
of the agreement reached b/w parties.
A Tomlin Order is generally used when either:
 the parties wish for key settlement terms to be confidential; and/or
 when the agreed settlement terms go beyond what court could generally
order as part of the proceedings.
This is why a Tomlin Order contains its schedule; such a schedule is not generally
present in a ‘standard’ consent order.

Importantly, any direction for payment of money out of court or the payment
and/or assessment of costs must be contained in Part 1, the main body of the
order. These directions require action by court and must therefore be included in
the ‘public part’ of the order (as opposed to the ‘private’ schedule).
Putting a consent or tomlin order in place:
Although consent orders and Tomlin Orders reflect the agreement of the parties,
they still need court's approval. Once the parties have agreed the content of the
order, they will need to apply to the court to have the order made.
If court does indeed make the order, then the order takes effect like any other
court order.
Counterclaims:
In cases where the court gives judgment on both the claim and a counterclaim,
instead of giving 2 separate judgments, it may make one order in favour of
whichever party would have had the outstanding balance in their favour.
When a judgment/order takes effect:
A judgment or order is effective from the date it is given or made, not served.
 Judgments will usually include an amount of interest which was awarded as
part of the claim. Once judgment has been given and the claim is concluded,
interest starts to run on the amount of the judgment debt from judgment
date
 The rate of interest on judgment debts is set at 8% per annum under
section 17 Judgments Act 1838 (as amended)
 The parties have 14 days to comply with a judgment or order for the
payment of an amount of money, unless otherwise specified by court
 The court has discretion to allow a stay of execution of judgment or order
Correcting mistakes in judgments/orders:
 Sometimes accidental slips or omissions arise in judgments or orders, as is
possible in any type of document
 CPR 40.12 allows the court to correct these types of errors in judgments and
orders under what is commonly referred to as the ‘slip’ rule
 The slip rule does not permit substantive changes to an order, simply the
correction of defects such as typographical errors
Interim orders:
Interim orders are those made at any time in a claim up to trial which do not finally
conclude the matter. One example are interim costs orders.
 Where a hearing of an interim application has lasted no more than a day the
court will need to consider, then and there, who should pay for the costs of
that hearing
 It will be up to each party to persuade the court that it should agree with their
respective submissions on costs
The types of interim cost orders include:
(a) Costs in any event: the winning party in interim application is awarded
costs regardless of who wins at trial - to be paid within 14 days
(b) Costs in the case: the party who wins the case will recover costs of interim
application from the other party
(c) Costs reserved: decision is reserved. If no decision is later made, then the
costs will be in the case
(d) C’s/D’s costs in the case: if C wins at trial, D pays C’s cost of interim
application. If D wins at trial, C does not have to pay D’s cost of interim
application
(e) Costs thrown away: if a judgment or order is set aside, the party in whose
favour this order is made is entitled to costs incurred as a result of the
hearing (including preparation and attendance) at which the order is set aside
(f) Costs of and caused by: a party must pay the costs resulting from
something that party has done
(g) Costs here and below: the party in whose favour the costs order is made is
entitled not only to that party's costs of proceedings in which the court
makes the order but also to that party's costs of proceedings in any lower
court
(h) No order for costs: each party will bear its own costs of this hearing
(i) Wasted costs order – CPR 46.8: A wasted costs order requires the party's
legal adviser to pay the costs as the court dictates - to punish the lax lawyer
(j) Costs orders already made: the court is under a duty to give effect to any
orders already made
(k) Any costs orders which were not 'in any event' will be dealt with at trial,
once the final result is known
 Costs:
Costs between parties:
 Court fees e.g. court fee payable on issue of claim form
 Witness travel expenses and loss of earnings up to £95 a day
 Disbursements up to £750 per expert
 Litigant in person can claim up to £19 per hour for conducting own legal
work
 Amount assessed by court where one party has behaved unreasonably

Court’s jurisdiction to order costs:

S.51 Senior Courts Act 1981 states that the court shall have full power to
determine by whom and to what extent costs are to be paid. These are 'the costs
of' and 'the costs incidental to' all proceedings and can include costs incurred:
 Prior to proceedings being issued
 When complying with a pre-action protocol in respect of claims which are
then brought in subsequent proceedings and
 In the reasonable negotiation of interim solutions to problems arising
between the parties in connection with pending litigation
Such costs do not generally include:
 Costs incurred by a party in seeking funding either for the prosecution or for
the defence of a claim
 Costs incurred at the stage of a pre-action protocol, in dealing with issues
that are subsequently dropped from the action when proceedings are
commenced
 Costs of a separate, standalone ADR process, particularly if it takes place
before the proceedings are commenced
When making an order for costs, the judge must clearly state their reasons
particularly where costs incurred are disproportionate to the amount in issue. If the
judge does not make an order as to costs (or gives an order that there is 'no order
as to costs'), each party pays its own costs.
Court’s discretion and the general rule: CPR 44.2
(1) The court has discretion as to:
a) Whether costs are payable by one party to another
b) The amount of those costs and
c) When they are to be paid

(2) If the court decides to make an order about costs:

a) The general rule is that the unsuccessful party will be ordered to pay
the costs of the successful party but
b) The court may make a different order
(3) …
 (4) In deciding what order (if any) to make about costs, the court will have
regard to all the circumstance including:
a) Conduct of all parties
b) Whether a party has succeeded on part or whole of its case
c) Any admissible offer to settle made by a party which is not a part 36
offer (a Calderbank offer)
(5) The conduct of parties includes:
a) Conduct before, as well as, during proceedings
b) Whether it was reasonable to raise/contest an issue
c) The manner in which an issue was raised/contested
d) Whether C exaggerated its claim

(6) The orders court may make under this rule include an order that a party
must pay:
a) A proportion of another party’s costs
b) Stated amount in respect of another party’s cost
c) Costs from/until a certain date only
d) Costs incurred before proceedings commenced
e) Costs relating to particular steps taken during proceedings
f) Costs relating to only a distinct part of proceedings
g) Interests from the costs from or until a certain date, including a date
before judgment
Basis of assessment:
When the court makes a cost order it must specify the basis of assessment.
If the costs order does not specify the basis, it will be on a standard basis.
There are two basis:
1. Standard basis: the courts will allow costs which:
 Have been proportionately and reasonably incurred OR
 Are of proportionate and reasonable amount
 Any doubt is resolved in favour of paying party
 It will usually recover 60% of costs
 CPR 44.3(5) Costs incurred are proportionate if they bear a reasonable
relationship:
a) To the sum in issue in proceedings
b) To the value of any non-monetary relief in issue in proceedings
c) To the complexity of litigation
d) To any additional work generated by conduct of paying party
e) To any wider factors involved such as reputation / public
importance

2. Indemnity basis: the courts will allow costs which:

 Have been reasonably incurred and
 Are reasonable in amount
 Any doubt is resolved in favour of receiving party
  It will usually recover 70-80% of costs
 This is applicable where court decides that costs are unreasonably
incurred/in amount and so awards only reasonable costs
For standard and indemnity assessment, the court will regard to following
factors – under CPR 44.4(3)
a) Conduct of the parties
b) Amounts involved in the case
c) Importance of matter to all parties;
d) Complexity of matter
e) Skill, effort, specialised knowledge and responsibility involved
f) Any admissible offers to settle
g) Time spent on the case
h) The place where and circumstances in which work was done; and
i) The receiving party's last approved / agreed budget
When are costs to be paid:
CPR 44.7 states that a party must comply with an order for the payment of costs
within 14 days of:
(a) the date of judgment or order if it states the amount of costs, OR
(b) the date of certificate which states the amount if the amount of those costs
(or part of them) is decided later in accordance with Part 4, OR
(c) in either case, such other date as the court may specify
Qualified one-way costs shifting (QOCS)
QOCS is the regime for the recovery of costs b/w parties in proceedings involving
claims for damages in respect of death and personal injury (CPR 44.13).
Essentially in a case in which QOCS applies (and subject to certain exceptions):
(a) If C wins the case or any aspect of it, they may recover and enforce costs
orders obtained in the usual way; and
(b) If C loses the case or any aspect of it, costs orders against them cannot be
enforced EXCEPT up to the level of damages and interest awarded to C (if
any)
Exception to QOCS (b):
Without permission of court, D can enforce to full extent where D wins strike out
on the grounds that:
 C had no reasonable grounds for bringing proceedings
 Proceedings are an abuse of court process
 C’s conduct likely to obstruct just disposal of proceedings
With permission of court, D can enforce to full extent where claim is found on
balance of probabilities to be ‘fundamentally dishonest’
Bullock & Sanderson orders (qualification to general rule: ‘loser pays winner’s costs’)
 Sometimes C does not know which of two Ds is responsible for the losses
sustained. It may therefore bring proceedings against both Ds and succeed
against only one
 The court's discretion as to costs allows it to make a 'Bullock' or a
'Sanderson' order as to costs in circumstances where it considers that it was
REASONABLE for C to bring proceedings against multiple D’s to avoid
such unfairness OR
 Where it is JUST to do so, with regard to all circumstances (Fouladi v Daront)
 A Sanderson order occurs where the unsuccessful D is ordered to pay the
costs of the successful D direct to successful D (direct costs order) and C
 A Bullock order is different in that the successful D initially recovers
her/his costs from C, and C later recovers those costs (reimbursement)
from the losing D (indemnity order) AND in addition C’s own costs against
unsuccessful D
 After the case of Woodland v Swimming Teachers, judge could order the
unsuccessful D to pay the C’s costs against the successful D as well

Costs procedure:
Fixed costs are specific amounts that are recoverable by one party from
another in certain circumstances in litigation (unless the court orders otherwise).
 They apply to the following type of situations: uncontested disputes,
enforcement proceedings and small claims.
 An order for fixed costs usually comprises both any applicable court fee that
has been paid by party awarded costs (CPR 45.1(4)) and a fixed sum for
particular circumstances.
Where fixed cost regime does not apply, court has to assess costs. There are two
procedure: summary and detailed assessment.
Summary assessment:
This involves the court determining the amount payable by way of costs
immediately at the end of a hearing.
This is the procedure by which the court, having made an order for one party to pay
the other party's costs, then goes on to assess the amount of those costs.
The general rule is that unless there is good reason not to do so, the court
should make a summary assessment of costs:
 In fast track cases at the end of trial and
 At the end of a hearing of an interim application / any matter which has
not lasted more than a day
The outcome of the summary assessment is that the court will put a figure on the
costs due, and these will be payable by paying party within 14 days (unless the
court orders otherwise).
Procedure:
 Parties file signed statement of costs on form N260 & serve copies not
less than 24 hours before hearing on any party against whom order is to be
sought
 For a fast track case, this time limit is extended to not less than 2 days
before hearing
 The statement of costs must contain:
 The number of hours claimed, the grade and hourly rates of the fee
earners carrying out the work
 The amount and nature of disbursements including counsel’s fees if
appropriate
 The solicitor's costs for attending or appearing at hearing
 Counsel’s fees
 Any VAT to be claimed on these amounts
 Failure to file statement of costs within specified period without
reasonable excuse will be taken into account by court and may result in:
 Adjournment to allow unsuccessful party to consider a late statement
of costs by successful party
  Adjournment to a later date for summary assessment before same
judge
 Adjournment for further, detailed assessment

 The trial judge will go through statement of costs, assessing the costs on
standard or indemnity basis, reducing any figures he or she feels are not
permitted when applying that basis
 The judge will then make an order for whatever figure he or she considers
appropriate
Detailed assessment:
This involves leaving the quantification of costs to an authorised court officer.
Assessment takes place at a later date when the officer will look at the costs
incurred and decide how much should be paid. This must be commenced within 3
months of the date of judgment.
Procedure:
1. Receiving party to serve a notice of commencement AND a copy of its
bill of costs on paying party
2. Bill of costs is a document itemising all the work carried out
3. Points of dispute in relation to any item in the bill of costs should then be
served on receiving party by the paying party within 21 days of service of
the notice of commencement
4. The receiving party may then serve on paying party a reply to this
document within 21 days of service of the points of dispute
5. The receiving party should then file a request for a detailed assessment
hearing within three-month time period outlined above
6. A final costs certificate is issued which includes an order that the costs to
which it relates be paid
7. The receiving party is also ordinarily entitled to its costs of the detailed
assessment proceedings unless an act, CPR or practice direction provides
otherwise or the court orders otherwise
8. If the parties agree costs, either party may make an application to the
court for a costs certificate in the sum agreed
9. Costs are generally payable within 14 days of the order/certificate unless a
later date is specified by the court or an order is made for a payment on
account of costs
Provisional assessment is a form of detailed assessment which is used when
dealing with low value claims. It applies in proceedings usually commenced in
the County Court to cases where the base costs incurred are valued at £75,000 or
less.
Interaction between the parties' budgets and assessment of costs
 Any consideration of costs orders made by the court must include, where
relevant, the role played by the parties' respective budgets and the costs
management procedure
  If there is a difference of 20% or more b/w the costs claimed by a receiving
party on detailed assessment and the costs shown in a budget filed by that
party, the receiving party must provide a statement of reasons for the
difference
 If a paying party (a) claims to have reasonably relied on a budget filed by
a receiving party; OR (b) wishes to rely upon the costs shown in the
budget in order to dispute the reasonableness or proportionality of the costs
claimed, the paying party must serve a statement setting out the case in
this regard in that party's points of dispute
 On assessment of costs, the court will have regard to the last approved or
agreed budget and it will not depart from such approved or agreed
budget unless satisfied that there is good reason to do so.

Court’s power in relation to misconduct:

Judges can disallow all or part of costs claimed OR order the party at fault or that
party's legal representative to pay costs which that party or legal representative has
caused any other party to incur if:
 Failure to comply with a rule, PD or court order or
 It appears to the court that the conduct of the party/legal rep was
unreasonable or improper

 Where court makes such an order against a legally represented party and the
party is not present when the order is made, the party’s legal
representative must notify that party in writing of the order no later than 7
days after the legal representative receives notice of the order
 Introduction to enforcement:
Enforcement proceedings are the steps taken post judgment by successful party in
order to obtain payment from the unsuccessful party, who can now be described
as the judgment debtor.
Investigating the opponent’s means:
Whether D is able to or will pay any judgment given must always be considered both
before an action is commenced and as it progresses.
It is important to ensure the assets intended to enforce against belong to the debtor
and are not jointly held with another person e.g. a spouse who might have an
overriding interest in them.
Order to obtain information from the judgment debtor CPR 71:
Once a judgment has been obtained, it is possible to use the procedure under CPR
71 to involve the court in obtaining information directly from judgment debtor
about their assets.
Therefore, a judgment creditor may apply for an order requiring:
 A judgment debtor or
 If a judgment debtor is a company or other corporation, an officer of that body
To attend court to provide information about the judgment debtor’s means OR
any matter about which information is needed to enforce a judgment or order
CPR 71 procedure:
 The process is started by using Practice Form N316 if the application is to
question an individual judgment debtor, or N316A if the application is to
question an officer of a company or other corporation.
 This application may be made without notice to the judgment debtor: CPR
71.2(2).
 The order must contain a ‘penal notice’, stating: ‘If you the within-named [ ]
do not comply with this order you may be held to be in contempt of court and
imprisoned or fined, or your assets may be seized’: CPR 71.2(7).
 Unless the court orders otherwise, the order to attend court must be served
personally on the person ordered to attend court not less than 14 days
before hearing: CPR 71.3(1).
 The judgment debtor must then attend court and produce any documents
referred to in the order, and answer any questions asked of him on oath
 The questioning will be carried out by a court officer or a judge if deemed
necessary.
 If the judgment debtor fails to attend the hearing or attends but refuses to
comply e.g. refuses to answer questions, the matter will be referred to a
judge who may make an order for judgment debtor’s committal, as set out
in the penal notice.
Which court:
Some methods of enforcement are only available in one particular court so you may
need to have the proceedings transferred to a different court for the purposes of
enforcement.
Methods of enforcement:
The most common methods of enforcement are:
 Taking control of goods:
 This procedure allows an enforcement officer (‘EO’), to seize a
judgment debtor’s goods and sell them in order to use the proceeds of
sale to satisfy the judgment debt and expenses
 quick and simple method of enforcement as long as the judgment debtor
has goods which can be taken and sold off
 essential that the goods to be enforced against are owned by the
judgment debtor and also that there are no third-party claims to the
goods from anyone else
 Tools of judgment debtor’s trade and basic domestic and necessities are
exempt
 In most cases the judgment creditor can apply for TCG as soon as
judgment has been obtained and the judgment debtor has failed to pay by
the time payment is due. The High Court and County Court procedures for
TCG are different and the judgment creditor will first need to decide
which court to proceed in.


 The judgment creditor commences the process of TCG by requesting
the issue of relevant court document as follows and will also need to
pay the applicable fee:
a) HC: writ of control
b) CC: warrant of control
 The writ or warrant of control is addressed to EO and it is this document
that entitles the EO to seize and sell the judgment debtor’s goods to
raise funds to satisfy the judgment debt. It contains necessary details
and amount of outstanding debt to be recovered and a fixed amount
for the costs of TCG will be added which includes the court fee
 The EO is able to take their own charges out of the proceeds of the
goods seized and sold
 After the writ/warrant of control has been delivered to EO. The EO will
give notice to judgment debtor of enforcement at least 7 days before
taking control of goods. EO has 12 months after giving notice in which
to take control of the judgment debtor’s goods.
  EO will then enter premises and secure the goods – may use
reasonable force to enter if necessary but EO must generally not take
control of goods before 6am or after 9pm on any day, nor at any
premises when a child or vulnerable person is the only person
present. After entering, EO must inform of what is happening. An
alternative to removing goods at this stage is for the EO to enter into a
controlled goods agreement with the judgment debtor. It is a ‘last
chance’ for the judgment debtor to pay up before losing his goods.
 Unless the judgment debtor now makes payment, the goods must be
sold for the best price that can be reasonably obtained at a public
auction. Any surplus funds are paid back to judgment debtor.

 Third party debt orders:

 appropriate when there is a ‘debt due or accruing due’ to a judgment
debtor by a third party within jurisdiction
 In short, the order intercepts money owed to the debtor by a third party
before it reaches the debtor’s hands, requiring third party to pay the
judgment creditor with the money instead
 Any third party / judgment debtor, who objects to making of order
must file and serve written evidence stating the grounds for objection
 The rules provide first for an INTERIM order to be made without notice
to judgment debtor. This will be served on the third party first and
prevents the third party from making any payment to judgment debtor
until further order
 The interim order will then be served on judgment debtor and will be
followed by an on notice hearing where the judgment debtor (and
third party if they wish) will be heard. The court will decide whether to
make a FINAL order requiring the third party to pay the debt to the
judgment creditor directly OR to discharge the interim order

 Charging order:
 A charging order is a form of charge taken over land (or other specified
assets) which secures a judgment debt. It therefore does not, of itself,
produce any money
 Once the charging order is made final it will generally remain in place
until the property is sold by debtor, at which point the debt will be paid
using the sale proceeds and the charge removed as part of the process of
selling the property
 Like third party debt orders, applications for charging orders follow a
similar two-stage procedure with an interim order followed by a final
order
 After final charging order, the judgment creditor may want to force the
sale process rather than wait for it to happen, in which case a
 subsequent application needs to be made for an order for sale before
any funds can be realised. This process can be somewhat lengthy.

 Attachment of earning order:

 only in County Court, so if the judgment creditor wants to use it, the
judgment (i.e. debt) must be transferred to CC.
 It is available where the judgment debt / amount outstanding is not
less than £50. If the order is obtained:

 This method of enforcement is most relevant where a debtor does not

have substantial assets but does earn a salary from employment.
 The judgment creditor applies by filing an application in a standard form,
certifying the amount of judgment that is outstanding and paying a fee.
 The application and a reply form is served on the debtor who should
complete and return the reply form to the court.
 The court may then make an order (without the attendance of either
party) attaching a proportion of the judgment debtor’s earnings.
 That order is served on the debtor and judgment debtor’s employer
who is required to make appropriate deduction from debtor’s
earnings and pay it to court for onward transmission to judgment creditor.
 However, a debtor is not obliged to stay in the same job and, by the time
the order has been obtained, or while it is enduring, the debtor may
change jobs. Then, the court may discharge the order and judgment
creditor will need to start again in respect of enforcing any outstanding
balance.
 There is opportunity for delay if judgment debtor chooses not to return
the reply form. The court staff will then issue an order served personally
on the judgment debtor compelling judgment debtor to respond.
Eventually this process can lead to the judgment debtor being imprisoned,
but further hearings are required.

 Insolvency proceedings
 Useful method of enforcement in proceedings for insolvency. This
includes bankruptcy (for individuals) and winding up (for companies).
 The petition is issued and presented to judgment debtor’s local court.
 Once the petition is issued, it is served on judgment debtor.
 The court fixes a time for hearing of the petition and the debtor will
therefore be notified of a date to attend a court hearing to decide whether
a bankruptcy order or winding-up order should be made against them.
 If they do not attend to oppose the petition at the hearing, the
bankruptcy or winding up order will very likely be made.
 The debtor’s assets will be distributed to their creditors according to
very specific rules setting out the order of preference of particular types of
creditors
 It is important to know what other debts the judgment debtor has as your
client will not be ‘preferred’ to any other of the judgment debtor’s creditors
and may end up at the end of the queue sharing in assets pari passu (i.e.
in proportion to the amount owed to each non- preferential creditor) on a
bankruptcy/winding up
 A statutory demand might be served on debtor prior to petition being
issued. So long as the debt remains unpaid for a period of 21 days after
service of the demand, the debtor is at risk of court presuming that
he/it is unable to pay its debts and is therefore insolvent. This makes
the bankruptcy or winding-up petition much more difficult for the
judgment debtor to resist
 Serving a statutory demand is a very simple and low-cost step for the
judgment creditor to take and can be highly effective.
 Introduction to appeals:
Sometimes court decisions are wrongly made. The system of appeals is designed to
ensure that these are corrected.
Permission:
Appeal against a decision made by a court (‘the lower court’) will only be allowed by
a higher court (‘the appeal court’) where lower court’s decision was wrong /
unjust because of a serious procedural OR other irregularity.
There is no automatic right of appeal and the general rule is that permission will
be required in order to proceed. However, there are three exceptions when
permission is not required and an appeal can happen as or right, are:
 A committal order
 A refusal to grant a writ of habeas corpus
 A secure accommodation order
How and when to apply for permission:
They can either:
(a) Apply for permission from lower court at the time when decision to be
appealed is made – done orally (parties are already before a judge) OR
(b) Make the application to appeal court later – done in writing

Apply for permission from the appeal court:

They might be applying to the appeal court having already applied to the lower court
and had that application for permission refused.
It is made by filing a document known as appellant’s notice (Form N161) within
time limit. It will be considered on papers and without oral hearing. Where the
lower court has refused permission to appeal, the order refusing permission must
specify the court to which any further application for permission should be made and
the level of judge who should decide the application.
In some circumstances, the paper application might be followed by an oral hearing
(see below).
(a) Where the appeal court is CC or HC, then if that appeal court refuses the
paper application for permission, the appellant may normally request
(within 7 days after service of notice refusing permission) that the decision
be reconsidered at an oral hearing. If permission is refused at oral
hearing, no appeal against that decision is possible.
(b) Where the appeal court is the court of appeal, the default position is that
applications for permission will be determined on papers alone, unless the
judge considers that the matter should be dealt with orally, in which case
they can exercise their discretion to summon the parties for an oral hearing if
they cannot ‘fairly determine’ the application on papers. Any oral
hearing will be listed within 14 days, unless the circumstances are
exceptional.
Time limits for obtaining permission:
The general rule is that an appeal (including the application for permission if this
has not already been granted) must be made within 21 days after lower court’s
decision
The court may order differently if a party has a good reason for seeking a longer
period.
Judgments and orders take effect from the date they are given or made or such later
date as the court may specify. A delay in formally drawing up a judgment or order will
not delay time running for the purpose of making an appeal.
Stay:
The general rule is that an appeal does not operate as a stay of execution on
lower court’s order
The High Court and the Court of Appeal therefore do have power to order a stay
pending outcome of any appeal in certain circumstances, it will be justified and the
application should be made
Example: Carrying out a lower court’s order to demolish a building would defeat the
benefit of a successful appeal. It would therefore serve justice to stay the order to
demolish pending the appeal being heard.
Test for granting permission – first appeals:
How will the court (be it the lower court or the appeal court) decide whether to grant
permission? Permission will only be granted where the court considers:
 That the appeal would have a real prospect of success OR
 That there is some other compelling reason why the appeal should be
heard
Test for granting permission – second appeals:
The Court of Appeal will not give permission unless it considers that appeal
would:
 Have a real prospect of success and
 Raise an important point of principle / practice
 There is some other compelling reason for the Court of Appeal to hear it

Permission granted – what happens next?

If permission is granted, this means that the appeal can proceed:
 The appellant’s notice form (Form N161) which is used to request
permission, doubles as the document which initiates the appeal itself
 In it, the appellant also gives details of grounds of their appeal and other
information, evidence and supporting documentation
 The appeal court uses the contents of the appellant’s notice to progress to
the appeal to its final determination
Grounds of appeal:
The normal practice is for appeals to take the form of a review of the lower
court’s decision based on the evidence and representations the lower court
heard, rather than a re-hearing of the matter in question.
This means that when assessing whether either of the grounds of appeal have
been made out, the appeal court will normally not have access to any new
evidence and will not have had the benefit of being able to hear and examine the
evidence ‘live’ as the lower court has done.
Wrong decisions in the lower court:
A decision can be wrong in this context due to either:
 An error of law or
 An error of fact or
 An error in the exercise of the court’s discretion
The appeal court will be reluctant to declare the lower court’s decision wrong if, for
example, that decision was primarily based on an assessment of evidence which the
appeal court is unable to conduct.
Unjust decisions in the lower court:
This is an onerous ground to prove. The irregularity must be ’serious’ and it must
have caused the lower court's decision to be unjust. There are many ways in which
an irregularity might occur, for instance:
 A party being given no chance to make submissions
 A party’s submissions or too much of their skeleton argument being
incorporated into the judgment
 The lower court judge having been involved in previous proceedings
 The manner in which the judge handled the evidence
Routes of appeal:
The ‘route’ of an appeal (also referred to as the ‘destination’ of an appeal) refers to
which court/judge will be the appeal court for the lower court’s decision.
General rule: appeal lies to the next level of judge in the court hierarchy.

Transfer of first appeals:

There is provision for a court lower than the Court of Appeal for transfer of first
appeal directly to Court of Appeal where a) the appeal will raise an important
point of principle or practice or b) there is some other compelling reason for the
Court of Appeal to hear it. This power will be used sparingly & in exceptional
circumstances.
Appeals to the Supreme Court:
Appeals from the Court of Appeal are to the Supreme Court. (These will be
second appeals.) Very rarely, it is possible to appeal directly to the Supreme Court
from the High Court. The rules in relation to appeals to the Supreme Court are
covered by the Supreme Court Rules 2009.
 Documents, procedure and hearings:
Appellant’s notice:
An appellant’s notice gives all the details of the appeal including:
 The grounds of the appeal
 The arguments in support of the appeal
 The order sought from the appeal court and
 The evidence in support
When to file and serve the appellant’s notice:
 If the application for permission was made at the lower court, the time
limit will be directed by lower court
 If the appellant seeks permission from appeal court, the appellant’s notice
must be filed with the appeal court within 21 days after date of decision of
the lower court which the appellant wishes to appeal
 An appellant’s notice is required in every case, whether or not permission to
appeal has already been granted by the lower court
 Unless the appeal court orders otherwise, an appellant’s notice must be
served on each respondent as soon as practicable and in any event no
later than 7 days after it was filed
Documents to serve with the appellant’s notice:
The documents that must also be filed and served with the appellant’s notice include:
 A copy of the order under appeal
 A copy of the order granting or refusing permission to appeal if applicable
 A separate sheet setting out the grounds of appeal
For appeals to the Court of Appeal, there will be additional items to file with the
appellant’s notice including:
 An approved transcript of the judgment being appealed against
 Skeleton arguments in support of the appeal
Transcript: The appellant will need to obtain a transcript of the judgment of the lower
court that is being appealed, or other record of reasons of the lower court
Appeal bundle: The appellant will also need to compile an appeal bundle for use at
the appeal hearing, containing documents which are relevant to the appeal. This
must be filed within 35 days after filing appellant’s notice

Respondent’s notice:
There is an equivalent document for the respondent to an appeal to complete called
a respondent’s notice. This mirrors Form N161 (appellant’s notice) in terms of
content and is also in a standard form (Form N162). It will not be needed in every
case however
When to file and serve the respondent’s notice:
The respondent’s notice must be filed:
 Within such period as may be directed by lower court
 Where the court makes no direction, the notice must be filed within 14 days
after the date on which the respondent became aware that the appeal was
going ahead
 Unless the appeal court orders otherwise, a respondent’s notice must be
served on the appellant and any other respondent as soon as practicable
and in any event no later than 7 days after it is filed
List of persons/glossary/chronology/skeleton argument: The parties should consider
what other information the appeal court will need. This may include a list of persons
who feature in case or glossaries of technical terms. A chronology of relevant
events will be necessary in most appeals. Skeleton arguments will also be
required.
Skeleton arguments:
Subject to any order of the court, the parties to an appeal should file and serve
skeleton arguments only where:
(a) The complexity of the issues of fact or law in the appeal justify them or
(b) Skeleton arguments would assist the court in respects not readily apparent
from the papers in the appeal
Subject to any order of the court, a copy of the appellant’s or respondent’s skeleton
argument should be included in the appeal bundle.
Hearing of the appeal:
General rule: An appeal will be limited to review of decision of lower court,
unless:
(a) a practice direction makes different provision or
(b) in the circumstances of an individual appeal ‘it would be in the interests of
justice to hold a re-hearing’ – depends
(c) on the facts of particular case
What is a review:
A review means that the appeal court will scrutinise lower court’s decision and
decision-making process, whilst giving appropriate respect to the decision of the
lower court.
The nature of the decision the lower court had to make will be relevant. A decision
based on an analysis of a documentary material is suitable for a review as compared
to a decision based on fact reached after an evaluation of oral evidence where
credibility is in issue or a purely discretionary decision.
The appeal court has complete discretion, however certain decisions will be more
amenable to review than others.
No fresh evidence unless ordered:
Unless the appeal court orders otherwise, it will not receive evidence (oral or
written) which was not before the lower court
Taking new points/facts/law on appeal:
General rule: where a party has successfully contested a case advanced on one
basis in the lower court, it should not be expected to face, on appeal, a new case
advanced on a different basis.
The appeal court will be cautious about allowing a new point to be raised on
appeal that was not raised before the lower court.
The appeal court will be alive to the possibility of prejudice to the respondent, or
unfairness, arising from allowing new material on what is effectively likely to be a
review of the lower court’s decision without the benefit of full evidence and witnesses
present.
What orders can the appeal court make?
The appellant will already have stated the order they wish the appeal court to make
when initiating their appeal.
In any event, the appeal court has all the powers of the lower court, so it could
replace lower court’s judgment with its own judgment. Alternatively, the appeal
court might take a different approach.

Powers of appeal court:

(a) Affirm, set aside or vary any order or judgment made or given by the lower
court
(b) Refer any claim or issue for determination by lower court
(c) Order a new trial or hearing
(d) Make orders for the payment of interest
(e) Make a costs order
(f) The appeal court may instead, of course, dismiss the appeal
 Arbitration
Arbitration within the context of commercial dispute resolution is a process by which
a dispute is resolved by an impartial adjudicator whose decision the parties to the
dispute have agreed will be final and binding.
Arbitration agreement:
In order for a matter to be dealt with by way of arbitration a valid arbitration
agreement must exist.
Staying legal proceedings:
Even though there may be an arbitration agreement in existence, some parties still
commence court proceedings when disputes arise. If this happens, the purported
defendant who still wants to arbitrate must:
(a) Acknowledge service of POC (or claim form in the Commercial of the
particulars of claim to stop the purported claimant from obtaining default
judgment under CPR 12.
(b) In acknowledgment of service form, the D should indicate that they are
contesting court’s jurisdiction.
 (c) Apply to the court under CPR 62.8, asking court to stay the proceedings,
asking the court to stay the proceedings pursuant to s. 9 of the Act so that
the dispute can be dealt with by arbitration.
S. 9 of the Act is a mandatory provision. It is important that the purported
defendant does not take any other steps in the court proceedings if he does, he
may be treated as having ‘submitted’ to court’s jurisdiction which means the
litigation will continue in place of arbitration (see s 9(3)).
CPR 62.8 procedure:
The documentation purported D must prepare asking the court to stay the
proceedings, is:
 an application notice
 a draft order
 evidence in support (either in a witness statement or in the application notice)
The evidence should confirm that there is a valid and binding agreement b/w
parties, there is a dispute and, importantly, that the dispute falls within scope of
arbitration clause.
The court is obliged to grant a stay unless it finds that the arbitration agreement is
‘null and void, inoperative or incapable of being performed’ – s 9(4).
Commencement of the arbitration: The arbitration agreement usually sets out the
procedure for commencing the arbitration. Most common procedure is for one party
to serve a written request to arbitrate on the other. The request will contain:
 the names and addresses of the parties
 a brief statement of nature and circumstances of dispute and the relief
sought and
 a list of possible arbitrators and/or how they should be appointed
Any arbitration institutional rules that have been adopted by the parties will set out
very clearly what needs to be included in the notice/request that commences the
arbitration.
Appointing an arbitrator:
 The arbitration agreement or the rules incorporated into it will usually
contain a procedure for appointing arbitrators.
 In the absence of agreement, this issue is dealt with by ss.16-18 of the Act,
which imposes time limits within which the parties must make an
appointment.
 The parties often agree to appoint one arbitrator each, with a third
arbitrator appointed by co arbitrators OR the relevant arbitral institution.
The preliminary meeting:
Following its appointment, it is common practice for the tribunal to arrange a
preliminary meeting with the parties. This meeting is sometimes referred to as the
‘procedure hearing’ and its purpose is to cover matters including:
 Outline statements of case
 Preliminary issues
 Rules and procedures
 Timetable
 Disclosure, witness and expert evidence
 Details about hearing: venue and language etc
Involvement of HC:
Arbitration is generally a ‘self-standing’ process. Court intervention is rare and,
generally, the court will only make an order if the arbitrator has no power to make
this order or his order would not be effective.
Section 44 of Act gives the courts power to make orders relating to:
 Taking evidence from witnesses and preserving evidence.
 Inspecting, photographing, preserving, taking samples or experimenting on
any property or goods involved in the proceedings and for the custody or
detention of such property - including authorising any person to enter the
premises of any party to do this.
 Selling goods which are involved in the proceedings.
 Interim injunctions.
 Appointing a receiver.
Arbitration claim procedure:
Application made to court in these circumstances is known as an arbitration claim.
As there are no court proceedings underway, the party applying needs to issue an
arbitration claim form (Court Form N8) in accordance with the CPR Part 8
procedure for commencing claims.
The sole purpose of arbitration claim is to decide whether order sought under
s. 44 should be made. After this has been decided, the matter will go back to the
arbitration tribunal and will continue according to the arbitration procedure as agreed.
The hearing: The parties and the arbitrator will usually decide the practical
arrangements at the preliminary meeting. Generally, unless parties agree
otherwise, the hearing will be conducted in private with only tribunal, parties and
their representatives being allowed to attend.
The award: Section 46 of the Act states that the arbitrator will decide the dispute
under the law parties have chosen or in accordance with any other
considerations they have agreed upon.
An award is equivalent to a judgment in litigation. It is ‘final and binding’ in that it
provides a final determination of the dispute, subject only to closely defined statutory
rights of challenge.
Costs of the arbitration:
The arbitrator is also able to make an award in relation to costs. Alternatively, the
parties can agree themselves about how costs of arbitration will be paid:
 Provision for the arbitrator to order one party to pay the costs of the
arbitration.
 Applying the general principle that costs will follow the event.
 Allowing for costs awards to include the arbitrator’s fees.
These provisions can all be excluded if parties wish.
Challenging and appealing an award:
Unless the parties agree otherwise in their arbitration agreement, the arbitrator’s
decision is final on questions of fact. There is no right of appeal to the court on a
question of fact.

Enforcement of arbitration awards:

If the unsuccessful party does not voluntarily comply with the award, the successful
party will have to take steps to enforce it. There are two ways the successful party
can enforce the award against the unsuccessful party.
 Domestic arbitration awards may be enforced by bringing an ordinary civil
claim in High Court OR by using the summary procedure in s. 66 of the Act
which allows a party to apply to High Court for permission to ‘convert’ the
arbitration award into a court judgment.
 Cross border enforcement will involve the successful party enforcing the
award through the New York Convention which provides an extensive
enforcement regime for international arbitration awards.
 Arbitration

Where parties have agreed to refer their dispute to arbitration, this implies that they
want their dispute decided:
- By a tribunal they have chosen
- In a neutral location and with neutral arbitrators
- In privacy
- Speedily and efficiently
- With light but efficient supervision by courts

Requirements
For an effective arbitration to take place, the following requirements should be
satisfied:
- Dispute or difference
 - Dispute must be arbitrable; should be a private law dispute rather than a
dispute relating to public law or legal status
- Agreement to arbitrate
- Agreement should be in writing
- Nature of dispute must come within terms of agreement
- Parties must have had legal capacity to enter into the agreement
- Any contractual condition precedent to arbitration must be complied with
- Parties must find an arbitral tribunal willing to act and decide the dispute

Expert (or Neutral) Determination

- An expert or neutral third party is appointed to make a determination on

issues referred by the appointing parties
- Parties can contractually bind themselves, before or after any dispute
arising
- Can take place before or after the issue of proceedings
- Usually final and binding depending on what parties have agreed in their
terms of the contract
- However, circumstances in which it will be binding may be agreed by the
parties
- Where no agreed terms as to whether determination will be binding/final,
court may imply a term
- Not supervised by court unless non-compliance or challenge of
determination by a party
- In expert determination, expert acts as a decision-maker instead of a witness
(as in court proceedings)

Procedure
Typical procedure will provide for each party to send to the expert:
- Written submissions setting out their case
- Copies of all relevant documents

Breach of contract
- Expert determination clauses in a contract between parties will be upheld by
the court
- If one party refuses to comply with an expert determination clause in case of a
dispute arising, the other party may be entitled to damages for breach of
contract

Application to stay proceedings pending expert determination

 - Court has discretion to stay court proceedings issued by a party who failed to
use the contractually agreed expert determination to determine the dispute
- Burden on party seeking to litigate to show why claim should not be
stayed in face of a contractually good method of ADR
- In deciding whether to grant a stay, court will consider:
 Compliance of parties with any pre-action protocol
 Whether the dispute is suitable for determination by contractually agreed
method of ADR
 Whether dispute could be solved more quickly by court proceedings
 Overriding objective
 Costs and time

Challenging the determination

- Court will consider the terms of the contract to determine whether the
determination can be challenged
- If parties have agreed that their dispute should be resolved by expert
determination and the determination is to be final and binding, then it can
generally not be challenged in court

Procedure for challenging:

- Part 8 proceedings
- If determination is set aside, court may make the determination itself OR
direct a new expert to be instructed to determine the dispute

Enforcing a determination:
- Cannot be enforced in the same way as a court decision/order
- Failure to accept a determination amounts to breach of contract
- Proceedings can be issued in relation to breach
- Court may make an order to enforce the decision
- It is then enforceable just like a court judgment/order

Difference b/w Arbitration and Expert Determination

- Grant for stay to proceedings in arbitration is mandatory order subject to
requirements
- Grant for stay to proceedings in expert determination is discretionary
order subject to requirements
- Expert determination cannot be enforced as if it were a court
order/judgment
- Arbitration can be enforced as if it were a court order/judgment

When is Non-adjudicative method preferable?

- Relationship b/w parties is personal
 - Relationship is b/w small and medium businesses
- Parties communicate well and can find some other way around to resolve a
dispute
- Parties do not want to have a decision imposed on them

Early Neutral Evaluation

- Non-binding
- Confidential and private
- Neutral third party
- Opinion on the merits
- Recommendation may or may not contain detailed reasons
- Advisory and evaluative process (mediation is facilitative process)
- Can take place within court system (evaluation by judge) or outside court
(other neutral third party)
- Can be carried out at any time
- Enables each party to learn strengths and weaknesses of the case
- In turn encourages them to proceed with settlement (by negotiation or
mediation)

Procedure:
- Written submissions and relevant documents provided to evaluator
- Can take place with or without hearing
- Evaluator gives the recommendation/opinion based on his evaluation of the
case
- In case of a judicial evaluation (evaluation by judge in court), parties can have
an idea on merits of case if it goes to trial

Conciliation

- Non-adjudicative
- Non-binding
- Facilitative process like mediation
- Confidential
- Neutral third party as conciliator
- Mostly statute-based services
- Can be appointed by parties or conciliation bodies (ACAS)
- Might facilitate a negotiation b/w parties or propose a decision if parties
cannot reach one
- Might suggest ways in which parties can reach a compromise
 Mediation

- Neutral third-party (mediator) facilitates discussions/negotiations b/w parties

- Also described as neutrally assisted negotiation
- Favourable where a future relationship between parties is important
- Mediator acts as facilitator/intermediary
- Parties make their own decisions
- Suitable for all kinds of disputes which can be resolved by negotiation
- Can be contractually agreed
- Can take place at any stage up to trial
- If not possible before issue of proceedings, best time to attempt it is after
exchange/disclosure of documents
- Earlier it takes places, more costs savings
- Court can encourage but not compel parties to engage in mediation
- Any decision to refuse mediation should be reasonable, otherwise court
may make adverse costs order against that party
- Parties can withdraw from mediation at any time, without giving any
reason
- Confidential and private
- Duty of confidentiality will apply to all parties and throughout mediation
and after mediation
- Without prejudice rule operates for parties to mediation (to protect
confidentiality)
- Without prejudice rule only protects the parties to the dispute;
confidentiality rule protects the mediator as well
- If privilege is waived by parties, mediator cannot rely on it to prevent non-
disclosure of communications of mediation
- Mere fact that parties have agreed to resolve by mediation or have had a
mediation is not confidential; however, the events during mediation
process are confidential
- Confidentiality can be overridden by the court where it thinks appropriate
- Without prejudice rule will not protect documents that were not created
for settlement even if they were used in mediation (if those documents
ought to be disclosed in standard disclosure)
- Mediation agreement itself is also not protected by without prejudice rule
and can be produced to prove its terms
- If all parties waive privilege, communications of mediation can be placed
before court
- Parties should produce agreed bundles where possible, that include all
relevant documents; should be provided to mediator at least 7 days
before mediation

Stages in Mediation:
Opening stage:
- Intros
- Each party setting out their position in case
- Usually in open joint meeting

Exploration (of information) stage:

- Can take place in open joint meeting or closed private meeting
- Depending on preferences of parties

Negotiation stage:
- In closed private meeting
- Mediator acting as broker between parties

Settlement (or closing) stage:

- Usually in open joint meeting
- Between all parties and/or lawyers who will draw the agreement