1.

overriding objective- cases justly and at proportionate cost' interpretation purposive rather than close
analysis. Justice will override any apparent condition, sometimes giving extra time would not be expeditious
but in this situation justice MAY override if just on the facts and just to do so. Proportionality more often
than not applied in financial value of an action and sum of costs cause to seek justice but can be used in
situations with regards to the importance of the case and the judicial timing
a) parties on equal footing
b) save expense
c) proportionate to amount of money, case importance, complex issue, financial position
d) expeditiously(efficiently and cost saving) & fairly
e) allotting appropriate share of ct’s resources to that case
f) compliance-rules PD and orders

2. court- actively managing cases – just and proportionate- claims dealt justly proportionate to sums involved &
matter in issue- how?
a) Parties co-operate
b) Identify issues early stage
c) Cost minimum
d) ADR
e) Timetable control progress to trial

3. What are the powers to achieve case management (cpr 3).

4. Is it an uncomplicated claim?- use this to decide if its being reasonable and/or proportionate
5. Cost consequences if don’t help the ct to further overriding objective/ cost and interest sanctions e.g.
proportionality of costs like who is paying who to what extent
6. Solicitors may charge fixed fee or on an hourly rate

7. Ct fees-
a) hearing fee- claimant pay-cost of trial
b) application fees
c) issue fee- payable by claimant
8. limited means?- entitled to reductions on ct fees
9. counsel fees- fixed price or hourly rate- charge for trial fixed fee for prep
10.first day of trial brief fee
11.add day of trial refresher’s fee
12.general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR
13.Must and should- does not imply discretion
14.May- example any other party may put the witness statement in as evidence- where a party has served a
witness statement but elects not to call witness or use statement at trial but that discretion is actually with
the ct not the other party

15.Four calendar months period- so within four months 1st march then before 1st July

16.Regardless more of less than 5 days clear days- must not include the day on which the period began and if its
an “event” at the end then don’t include the event as well such as hearing. Eg. POC must be served within 14
days of service of CF.

17.More than 5 days?- bacnk hols, weekends, Good Friday and Christmas hols are included if less than 5 days
then those days are not included.

18. Video evidence in personal injury case held to be fair cause took secretly in a public place but not fair if
obtained secretly in the claimant’s own home.

19. Where obvious information private and not in the public domain than art 8 will prevail over art 10

20. Claims under HRA S.7(1)(a) must be brought under the high ct. dep district judges and master sitting in HC
OR CC cannot hear HRA Claims.
21.Ct may not make a declaration of incompatibility under HRA unless 21 days notice been given to CROWN.
Minister or any other person permitted by HRA entitled to join the application. Claim for damages of breach
of human rights, notice must be given to CROWN.

22.general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR
44.2(2)). However, the court can make a different order. Reasonable and proportionate sum to be recovered.

23.Take into account-

a) parties conduct
b) ADR
c) Litigation expensive weighed
d) Review of cost benefit analysis at diff stages like disclosure and witness statement exchanged, when
case progressing.
e) Merits of the case in relation to the total costs of the action so far incurred together with review of
the client’s terms of funding, insurance agreement, opponent’s ability to pay any judgement against
him. Likelihood of enforcing a judgement against him
f) Standard and indemnity basis.
g) Summary assessment or detailed assessment
24. Usually hard to give estimate so, few ways to help client- agree a amx figure by way of cost cap to be
reviewed, identify a stage where more meaningful estimate can be given. Fixed fee at different phases
following a cost estimate or a cap. Can be used at any phase of an action
25.But when using fixed fee of costs cap it must be expressly agreed with client in advance.

26. Discretionary nature of costs- s.51 of the SCA 1981

a) Conduct of parties both before and during proceedings– follow PD on pre action conduct and
protocol, reasonable to raise pursue contest a particular allegation or issue, manner in which party
has pursued or defended it’s case/particular allegation/issue
b) Won wholly or party
c) Offer to settle which is not part 36 offer
d) So failure to comply with pre action protocol
e) Failure to negotiate
f) Refusal to enter into ADR particularly mediation if mediation is suited
g) Rejection of a w/o prejudice or part 36
h) Exaggeration of a successful party’s claim
i) Failure to succeed on the whole claim

27.Such costs do not generally include:

a) Costs incurred by a party in seeking funding either for the prosecution or for the defence of a claim;
b) 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;
c) Costs of a separate, standalone ADR process, particularly if it takes place before the proceedings are
commenced.
28. judge must clearly state their reasons particularly where the costs incurred are disproportionate to the
amount in issue
29. party will only recover 60-70% of the costs which it has incurred even if it is successful on all points and
receives a costs order in its favour.
30. certain situations the court may treat matters as established without evidence being brought into court
where res ipsa loquitur ('the facts speak for themselves'). Accident is such that in the ordinary course of
things does not happen if those who have the management have proper care, it affords reasonable evidence
that the accident arose from want of care
31. Solicitor-client costs- costs payable by the client to the solicitor under the contract of retainer
32.it is likely that there will be a shortfall between the sum recovered from the other party (by way of inter-
party costs) and the sum the client owes to the solicitor as recorded on the solicitor's bill. The existence of
the contract of retainer means that it is up to the client to make up that shortfall to the solicitor. If nor formal
 letter sent (client care retainer letter) then no formal contract, client has no liability to pay and the losing
party will not have to pay the winning party’s costs.
33.Inter-party costs is the term used for the actual figure for costs awarded by the court which one party has to
pay the other party. usually include the cost of counsel's involvement with a case. court may state an opinion
as to whether it was reasonable for one or more counsel to attend a particular hearing. only express an
opinion where they are asked to do so by the paying party
34. Non-part costs- award costs against a non-party (ie to require a person who is not a party to the proceedings
to pay something towards the costs). Aiden:
35. case stated that the jurisdiction to award costs against a non-party was simply an interpretation of the
court's general power over costs but must be just and not exercised against pure funders (no interest in lit &
no benefit from it and doesn’t seek to control it’s course. Funder (real part) but not the only. They should be
given reasonable opportunity to attend hearing which the court will consider the matter further.
36. Determining costs- so ct can decide who's paying who's costs and the amount payable and when they are to
be paid
37. Issue based costs eg. Claim& counter claim- UP pays % of SP costs/ SP pays UP’s cost or in portion/ each
party pay own cost (no costs order)
38. Civil legal aid costs regulation 2013 and laspo 2012- legally aided lit generally protected against adverse costs
orders (costs protection) but only extends to the ambit of the legal aid cert and duration of proceedings. Can
lose protection if solicitor informing LAA change in merits of case of client’s income- cert withdrawn. Or
opponent calling LAA making reps about conduct of person/ merits of legally aided party resulting in their
cert wholly or partially withdrawn.

Standard basis- so basically two words- reasonable and proportionate. Two things to check for whether it is the
amount of the costs itself or that it is incurred. Any doubts? resolved in favour of the paying party. so like 60% to
70% of the costs recovered
Indemnity basis- here there is only one word. REASONABLE. so whether it was it was reasonably incurred and th
amount itself was reasonable or not. THERE IS NO NEED FOR THE TEST OF "PROPORTIONATENESS" HERE. and
doubts will be resolved in the favour of the receiving party. here...70% to 80% of the costs recovered so like
slightly more
39.indemnity costs would be awarded where there is some element of a party's conduct of a case which
deserves some mark of disapproval.
40.Like pursuing unjustified claim, rejecting part 36, abuse of ct process, dishonesty, repeated flouting of court
orders, intransigent/ obstructing opponent- so the other party can make an app and secure costs order and a
letter is written to the opponent warning of it. So to see if unreasonable incurred and is unreasonable in
amount conduct of parties, value of money/property involved, importance of matter, complex/difficult
issue/novelty of question raised. Skill effort time knowledge responsibility involved, time spent receiving
party’s last approved or agreed budget.
41.Proportionality- necessarily incurred doesn’t mean proportionate so check sums involved, value of non-
monetary relief in issues, complex litigation? Additional work generated by conduct of paying party? Wider
factors involved like reputation and public importance?
42.Putting opponent to excessive and disproportionate costs bt tactical manoeuvres may face indemnity costs
orders
43.Work done by council- LR negotiate counsel’s fee (fee note) with counsel’s clerk in advance
44.Expert’s feeagreed in writing before work undertaken
45. Unreasonable refusal to agree to Alternative Dispute Resolution (ADR) Halsey UNLESS AGAIN costs of ADR
would be disproportionately high, regardless that ADR had a reasonable prospect of success and the extent
to which other settlement methods have been attempted; and A finding of an unreasonable refusal does not
automatically result in a costs penalty
46.cause if they're paying the burden is on them to show that the successful party unreasonably refused to
engage in ADR
47. ct can make orders like- a proportion of another party’s cost, a stated amount in respect of another party’s
cost, costs from and until a certain date only, costs incurred before proceedings have begun, Costs relating to
particular steps taken in the proceedings, costs relating to only a distinct part of the proceedings and interest
on costs from or until a certain date, including date before judgement
48.Cost capping- ct places limit on amount party can recover from the other- part 23 app or orally can be made-
like early stage in multi track like CMC- evidence witness statement whether to give wholly or partly and why
 like will it be unreasonably & disproportionately incurred- precedent h form cost budget needed for costs
already and to be incurred- discretion under cpr 3.19(5)&(6). Sometimes instead of cost capping ct chooses
cost management even when there’s real risk of disproportionality. Cpr 3.19 should be considered. Once CC
is made as well as any other order party not limited to what he spends in lit but to what he can recover when
he wins and obtains a cost order in his favour.

49.Cost management also limits cost but not automatically applied in all multi track cases even when it applies
there is no discretion to do it but capping extends to all multi track cases even detailed complex lit but still
has discretion and guidance confines it to exceptional cases which on the other hand if you look at it severely
limits costs capping.

50.Ct’s prefer making percentage based orders instead of issue based cause late the cost judge can decipher the
issues before deciding the individual items attributable to certain issues that have been allowed or
disallowed. Less likely to apply in multi track due to cost budget req.

51.CB (cost budgeting) in all MT cases except admiralty and commercial cts, litigants in person and any part 7
claim valued at over 10 mil

52. QOCS- applies to all personal injury & clinical negligent cases except application for pre-action disclosure
under s.33 SCA or s.52 County Courts Act 1984. Its where claimant in general will no longer have to pay the
defendant’s costs but if the def loses than he will continue to pay the claimant’s costs. it basically imposes
restrictions on the manner in which the costs can be qualified to shift from the defendant to the claimant

53.certain exceptions to the QOCS regime which would allow enforcement of costs orders against the
claimant without the permission of the court only up to the level of the damages and interest recovered by
the claimant and so if claimant doesn’t recover anything then don’t need to pay anything even in such
situations like the claimant has disclosed no reasonable grounds for bringing a claim, proceedings are an
abuse of the courts' process, such conduct is likely to obstruct the just disposal of proceedings pay on an
indemnity or standard basis

54.With permission of the court, where a claim is found on the balance of probabilities to be 'fundamentally
dishonest'

55.Claimant can lose QOCS protection where the defendant has made a successful part 36 offer. But only up to
claimant’s amount of damages and interest. If ATE is taken then claimant will be insured against those costs.
But will have to meet the payment of premium himself.

56. Better for client to see the recovery of legal costs as a bonus rather than a norm

57. MT file and exchange cost budget with DQ if claim less than 50000, 21 days before the first CMC. To make
sure parties are on equal footing. – in the form of precedent h detailed analysis of what they believe their
cost will be(ct fees, LR fees, counsel’s fee medical record fees expert’s fees

58.Also file and serve Budget Discussion Reports precedent R 7 days before CMC. What is agreed and
disagreed for each phase of budget together with brief summary of grounds of dispute.

59.Cost management conferences can be heard same time as CMC. If parties object ct can intervene to
approve the budget or revise the budget by making cmo. And if at any stage the budget exceeds the
approved and agreed budget then have to notify the opponent and the ct seeking approval or revised cmo.
Failure to do so will limit recovery to the approved agreed budget unless there is good reason to depart but if
there is no good reason it’s a loss to the party who exceeded and failed to notify.

60. Always remember to include every stage into the budget like the trial preparation and trial stage. It cannot
be materially incomplete. This is for example when the parties consider it as premature budget when in fact
its not and its safer to put everything and they will be treated as having filed budget comprising only the
applicable court fees . The exception is when the COURT orders, directing that budgets be limited to only part
of the proceedings
61.Disproportionate costs and active case management are linked.

62.Try to file them on time or apply in advance of a deadline or seek court’s approval for late service (case
Seekings and Another v Moores) or parties will have to seek relief from sanction CPR 3.9

63. costs budget now provide much less cope to challenge a detailed assessment of costs. initially they said that
cannot depart from last approved or agreed budget without good reason where costs are being assessed on
a standard basis but after the case of Harrison COA confirmed that where costs management order has been
made the future elements of the costs budgets is binding on subsequent detailed assessment and cannot be
departed from either upwards or downwards without good reason and that’s exactly CPR 3.18.

64.During proceeding, its open to parties to consider and where appropriate challenge precent R. But if it
wasn’t challenged then, it MAY NOT be capable of challenge at a detailed assessment.

65. Bullock order is that the successful defendant (D2) recovers its costs from the claimant and the claimant
recovers those costs and the claimant’s own costs from the losing defendant (D1)- Where an unsuccessful
defendant did nothing to cause the other defendant to be added to the action and did not try to shift blame
to the other defendant,
66.Sanderson order is that the unsuccessful defendant (D1) is ordered to pay the costs of the successful
defendant (D2) directly to the successful defendant- a Sanderson order “should not be made if there is a real
risk that the successful defendant will not receive those costs” from an unsuccessful impecunious defendant.
Also this order is given when the claimant is funded by legal aid agency.
67.Fixed costs= like RTA claims- claim sums up to 10000 that settles before the issue of proceedings. Doesn’t
apply where low value RTA pre-action protocol applies
68.fixed costs regime does not preclude the court from using costs to penalise or reward various types of
conduct (under CPR 44.2).
69.to depart from fixed costs the court is likely to consider the factors listed in CPR 44.4 (for example the
conduct of all parties both before and during the proceedings).
70.Assessed costs- amount payable by way of costs from one party to another. Prior, the court will need to
decide which party should pay the other party's costs
71. Summary assessment- court determining the amount payable by way of costs immediately at the end of a
hearing. Based upon the judge's consideration of each party's: statement of costs and their respective brief
submissions on what that sum should be. unless there is good reason not to do so the court should make a
summary assessment of costs. Fast track cases at the end of the trial. In this situation, the costs of the whole
case will be assessed. end of a hearing of an interim application or matter which has not lasted more than a
day. usually only the costs of the interim application will be assessed. Exceptionally, if the hearing disposes of
the whole claim, the order may deal with all of the costs of the proceedings to date. court will put a figure on
the costs due, and these will be payable by the paying party within 14 days (unless the court orders
otherwise).
72. Summary assessment procedure- parties file signed STATEMENTS OF COST(SOc) serve on each party not less
than 24hrs before time fixed for hearing N260 FORM. For a fast track trial this time limit is extended to not
less than 2 days before the trial
73.SOc no of hrs claimed, grade and hrly rate of the fee earners carrying out work, amount and nature of
disbursements including counsel fees if appropriate. Solicitor’s costs for attending or appearing at the
hearing. And judge will do a summary assessment on either a standard basis or indemnity basis.
74.Summary assessment: interim costs orders- 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. Wide discretion
as it applies to interim costs as well as costs of that hearing at the end of the trial. Conduct includes the way
the parties have behaved during the whole course of the claim, both before and after issue of proceedings.
The starting point will be whether a party has won or lost the application as costs generally 'follow the event'
but the court can depart from this general rule if there is a good reason to, such as unreasonable conduct by
the successful party.
75.Costs in any event- so basically if the judge orders the "cost in any event" order for one party, he can be
awarded the cost of interim hearing application regardless if he loses or wins at trial
76. Cost in the case- the winner of the trial will recover the cost of the interim application
77. Cost reserved- decision of who pays is put off to a later occasion
78. Claimant/defendant’s cost in the case- claimant's costs in the case, if the claimant is successful and receives
an order that it should be entitled to its costs at the end of trial, it can include the costs of the interim
 application. If the defendant is awarded costs at trial, the claimant does not have to pay the defendant's
costs of the interim application and it works vice versa.
79. Costs thrown away- cause to have the order set aside he had to bring the application to have the order set
aside for that judgement and if he is successful costs throw away. so the other part has to pay the costs
incurred for the application
80.Costs of and caused by- party must pay the costs resulting from something that party has done; for example
costs incurred by the defendant resulting from a claimant amending its particulars of claim
81.Costs here and below- party in whose favour the costs order is made is entitled not only to that party's costs
in respect of the proceedings in which the court makes the order but also to that party's costs of the
proceedings in any lower court. In the case of an appeal from a Divisional Court the party is not entitled to
any costs incurred in any court below the Divisional Court.

82.Wasted costs order- something the LR has to pay when he acts improperly, unreasonably, or negligently
because its breach of professional duty, vexatious and incompetent respectively that caused party to incur
unnecessary costs and it was just to make this order against the LR. So the LR will have to pay own client’s
costs by way of an indemnity where those costs have been disallowed as against the other party or to pay
the costs of his opponent. Burden rest with applicant although there is no burden on the respondent to
excuse himself. To see if its unnecessary the court will use the but for test that is w/o the conduct of the LR
would the costs on a BOP have been incurred? Eg of things: failing to attend court appointment, breaching ct
orders, negligently misstating a case, continuing with an action after it has become hopeless, real loss has
been suffered due to the LR’s conduct.

83.For trials that have lasted more than a day, this will require the detailed assessment of those costs. An order
entitling a party to costs is a pre-condition to detailed assessment. Decided by costs officer, ct have the
discretion to order it before conclusion of proceedings. Regardless Detailed assessment of costs must be
assessed within 3 months of the date of judgement.

84.Detailed assessment procedure- receiving party serve notice of commencement & BILL OF COST (prepared by
costs-draftsman with info from solicitor)

85.gotta dispute? serve those points after assessing bill of cost to the receiving party WITHIN 21 DAYS of service
of commencement.

86.the reply from the receiving party should also be within 21 days of receiving those points of dispute

87.Then file REQUEST FOR A DETAILED ASSESSMENT HEARING WITHIN THE 3 MONTHS TIME. CAUSE 3 months
from the date of judgement a detailed assessment should commence

88.after that hearing COST CERTIFICATE IS ISSUED if the costs is agreed between the parties may make an
application to the court for the cert in the sum agreed. after getting that pay within 14 days. THE RECEIVING
PARTY WILL BE ABLE TO RECOVER (ENTITLED) TO THE COST OF DETAILED ASESSMENTS PROCEEDINGS

89.Provisional assessment is a form of detailed assessment which is used when dealing with low value claims. It
is aimed at avoiding the complex rules of detailed assessment for these types of claim. It applies in
proceedings usually commenced in the County Court (although it can be applied in the High Court) to cases
where the base costs incurred are valued at £75,000 or less

90.The costs order will follow the respective budgets and the cost management procedure and if the ct has
made cmo then it will control the parties budgets with regards to recoverable costs

91.If there is a difference of 20% or more between 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 the
reasons for the difference.

92.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.
 93.where there is a difference of 20% or more between the costs claimed by a receiving party and the costs
shown in a budget filed by that party, the court can restrict the costs recoverable if it appears to the court
either that the paying party reasonably relied on the budget (notwithstanding any issues of costs being
reasonably and proportionately incurred by the receiving party) or the receiving party cannot provide a
satisfactory explanation for the difference

Negotiations
1. conducted without prejudice
2. round table meetings- breaks can be taken to discuss privately with legal team
3. appreciate the strength and weaknesses of cases
4. usually but always the first step
5. non-adjudicative form of dispute resolution

Mediation
1. confidential – conducted without prejudice
2. anytime before or during lit
3. on short notice- costly
4. non-binding until final agreement signed by parties that means the mediators decision is not binding
5. ct may investigate behaviour during this and attitude towards this
6. neutral intermediatory- doesn’t rule on the merits nor suggest or imposes on the settlement terms
7. shuttling between parties,eploring their positions bringing them together, help find common ground
8. parties feel like they own the settlement- achieving commercially sensible solutions- relief that ct has no
power to order
9. costly but cheaper than trial
10.if unsuccessful the benefit is that parties know more about strengths and weaknesses
11.Civil Mediation council & EU MEDIATION DIRECTIVE cross border issues but revoked due to Brexit
12.Non-adjudicative form of dispute resolution
Conciliation
1. Neutral intermediary liasing with parties- conciliator suggesting own solution-proactive- employment
disputes through ACAS
The Executive Tribunal
1. Commercial disputes- so the have their own executive table formed by senior reps of the
business/company but they shouldn’t be involved in the dispute
2. They sit with a neutral adviser-mini trial
3. Present case-opportunity evaluate respective claims
4. Panel members retire and endeavour to negotiate a settlement on commercial basis
5. If executives struggke independent advisor would issue non-binding advisory opinion- non-adjudicative
form of dispute resolution

ENE
1. 3rd party- independent legal rep/could be a judge-consider issues, advises likely outcome. If judge providing
the valuation, he wont be there if the case goes ahead.
2. 3rd party acts as a spur to settlement -enable parties to re-evaluate their case or appreciate the critical
issues and the outcome if they don’t settle
3. Non-adjudicative form of dispute resolution

ED
1. Parties jointly instruct- make written submissions to senior judge(retired) or QC who will then make written
appraisals.
 2. Parties agree the form and extent of instructions in advance whether appraisal is to be binding or not.
Decisions cannot be generally appealed but can be challenged on limited grounds where expert materially
departed from his instruction
3. LR carefully draft instructions/mandate
4. Could be used for the preliminary issue, where quantum could be settled through negotiations/mediation
Arbitration
1. 1996 arbitration act- solicitor, barrister, architect, quantity surveyor- private basis on their timetable
discussion with the parties- final and binding decision. Meetings between arbitrators and parties
2. Presentation of statement of case, written submissions and documentary evidence
3. Award not released until he has been paid by parties- award can be enforced in the high court if not
paid/set aside by HC judge on the app of the disgruntled party to a specialist division of the high ct
4. Expensive- long
5. Arbitration clause present must arbitrate. So lit can’t be considered unless both parties agree
6. If didn’t agree and litigate then then opponent can apply to the high ct under s.9 of the AA 1996 to stay
proceedings whilst the arbitration continues
7. Form of adjudicative dispute resolution

Adjudicative
1. Contractual term, agreement between parties through housing grant, construction and regeneration act
1996
2. Party serves notice of intention to proceed to adjudication-nomitates adjudicator
3. Adjudicator issues direction son paper as to when full written submissions are made to him submissions
(referral note) reply (response to referral)
4. Site inspections & directions hearing- strict time limits
5. Construction site
6. Must be a dispute not a difference- already brought to other party’s attention
7. Adjudicator come to written decisions within 28 days of the service of the referral notice- short extension
only if agreed
8. Limited jurisdiction on costs- unless parties confer
9. Bear own costs no matter who is successful
10.Binding unless appealed to the high ct-losing party must comply with the decision until such time its
appealed- if don’t app for summary judgement cpr 24
11.Usually between contracting parties and professional advisors, construction and engineering disputes
12.Some others can like domestic building matters, food processing plants
13.Adjudicative form of dispute resolution

Mediation is commonly used.

Benefits of ADR
1. Most forms of ADR, rarely take more than a day or two
2. Complex arbitration can be lengthy
3. Non adj is not based on winners and losers- encourages parties to talk for freely
4. Neutral non threatening, more confidential environment, explore respective cases as well as
business relationships
5. Adr apart from arb and adj more flexible than litigation, both parties agree
6. Basis of settlement Not limited by the legal remedies available at the courts. Only if a settlement is
reached it becomes binding. Before this parties can withdraw and revert to lit
7. Provide early settlement and even if fail-better understanding
8. Speed, consensus, flexibility, cost, confidentiality and settlement.
9. Encouraged but never forced
10.Would want to know if ADR was considered, that it was appropriate
11.Always remember discussion with opponent before any type of ADR – w/o prejudice
chat/negotiations with opponents legal rep
ADR AND CPR
 1. Proceedings can be stayed if court considers ADR to be appropriate
2. Lomax v lomax – ct had power (cpr 3.1(2)(m)) to order early neutral evaluation even though one party had
not consented to it
3. All part 7 claims- defence statement served- ct officer track claims serve notice of proposed allocation- fill
up DQ(n180) – DQ requires LR to confirm settlement like costs sanctions if they refuse to settle so try to
settle/ whether one month needed to stay proceedings to settle. All parties agree then ct thinks
appropriate for stay. If one party opposes and cannot show good reason why ADR wont work ct likely to
order stay
4. Onus on claimant to notify ct if settlement reached- no notification- ct will go on with case management as
it considers appropriate
5. Even if ADR not requested at DQ still open throughout lit process
6. At CMC ct will ask of their ADR attempt and justify if there isn’t
7. Sometimes will need to explain at pre trial hearing as to why didn’t attempt, why not appropriate, why
tried and failed without exceeding the realms of confidentiality
8. Usually if many parties ADR is difficult
9. Ct can generally grant stay for ADR from 3 to 6 months.
10.Mediation can take place even during lengthy trials
11.As LR constantly considering when, how and what form of ADR can be used to avoid trial/or judgement
How is refusing ADR justified?
1. Nature of dispute? Merits of case? Extent to which other settlemet methods were attempted? Cost of ADR
disproportionately high? Delay in setting up ADR would have been prejudicial? Whether ADR had
reasonable prospects of success. But the thing is after halsey following PGF 2 v OMFS, failure to respond at
all to an invitation is unreasonable refusal regardless of whether there was good reason. So reject
mediation if inappropriate but engage with the idea. Cannot simply refuse.
2. The court does not take the same approach when considering what the consequences should be for a party
who has simply failed to suggest ADR. The court will not refuse to award costs to a successful party simply
because it did not positively suggest ADR. Clearly where such a failure amounts to a breach of court order
or of one of the pre-action protocols / PD on Pre-action Conduct, then the situation is different.
3. silence in the 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).
4. Reid v Buckinghamshire- when a party unreasonably refuses to mediate and is also the losing party then he
will have to pay winning party’s costs on the indemnity basis as penalty.
5. upon receipt of an offer to engage in ADR, a party should:
(a) Consider with its legal advisors the merits of that offer;
(b) Respond promptly, in writing, setting out reasons for its decision, 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 reasons 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.
6. witness statement creates a record of the situation so that the court can consider this when it comes to
costs and encourages the identification of any obstacles to the adoption of ADR in order that they might
then be overcome (see also 29 PD 4.10(9)).
7. Cannot railroad case to trial if its strong, nor is it necessary to agree to ADR if its inappropriate. Eg situation,
for the former, rather than risking trial, try cpr 24 summary judgement or strike out f you know opponent’s
case is weak or misconceived, for the latter following halsey,; mediation sought within weeks of trial and
negotiations were suggested and refused or have strong case, could be reasonable before 2014 but now its
harder to say its reasonable so must routinely consider and these considerations should be made at regular
intervals during the whole dispute
8. Suggestions for ADR can be used as a weapon to use to attempt to defeat an application for costs, even If
you’ve lost in litigation

ADR IS NOT ALWAYS SUITABLE-

1. Especially where commercial objectives are best chieved by embarking in litigation
2. Emergency injunction needed- prime remedy
 3. Parties looking for a definite ct ruling on particular issue in order to establish binding precedent (public
interest)
4. Client’s case strong to justify for summary judgement
5. Persuing litigation through interim application route may well result in a quicker conclusion than
settlement through ADR
6. Timing or a ref to ADR may be a delicate matter. Whilst there is duty to consider ADR, ADR will be most
effective after litigation has progressed to a point at which the issues have been crystallized in the
statement of case. So all LR must assist clients in making the right decision in line with their personal and
commercial objectives.
7. Realistic appraisal of the case is essential because ADR is likely to be ineffective if key issues have not been
identified and evaluated
8. If some form of intermediary, mediator, expert, or judge is needed, the identity of that person should be
discussed- like whether expert knowledge is needed from a particular field is needed or would a generalist
be better suited.
9. Finding suitable individual, anyone in mind? Wanna go for anyone from the ADR bodies, can agreement be
reached with the opposition regarding the appointment of an intermediary
10.Selection of ADR bodies require careful planning- usually client and LR present but consider whether an
expert, counsel or witnesses needed to clarify issues
11.Inform client in thorough with regards to the process. Strategy and tactics may very throughout the process
so have to be flexible and open minded

Mediation
1. Sometimes for mediation, there will be glaring gaps with regards to liability quantum causation and so will
need an expert’s report for example. This is because w/o the report it will be pointless to try to
compromise on any of those issues because agreement could only ever be subject to its findings – main
idea of mediation is to resolve disputes more quickly and cheaper than litigation- and entering too early
wont help.
2. It is costly but not as costly as litigation so it will be cost saving if resolution is reached. And it could be time
saving depending on how early you mediate but make sure its still at the appropriate time. Regardless
there will be cost implications to the client depending on the value of the claim as it could be seen as
disproportionate to mediate.
3. Mediators fee usually fixed fee for a day or half day and depending on experience, borne jointly and
severally between the parties
4. Mediators seem to fulfil the emotional needs of the clients in this regard
5. Opportunity for the client to see his legal representative in action because LR conduct the opening
statement on behalf of the client
6. Hear opponents’ case, facts issues- they hear the same Info but usually perceive it differently
7. Unearthing the real issue, mediator does digging and gets to the root of the problem because it has been
masked by ancillary ones
8. When discussing mediation – block out time
9. Provide details of costs incurred till the date of mediation -estimate costs to trial- in multi track cost
budget will be prepared- provide risk analysis on the prospects of success and proportionality
10.Newbies- explain client understands what he will achieve and not have high expectations-not about point
scoring- rather getting on with life and business-laying dispute to rest
11.Compromise is key
12.claims for less than £10,000 which would normally be allocated to the small claims track (pursuant to CPR
6.26) will be referred to a free and confidential small claims mediation service operated by Her Majesty’s
Courts & Tribunals Service (HMCTS). The referral will only be made by the court if all parties indicate on
the directions questionnaire that they agree to mediation (CPR 26.4A). There are some exceptions, for
example, the small claims mediation service does not relate to road traffic accident or personal injury
claims
13.some mediators will specifically exclude their liability for breach of contract or negligence, in case the
mediation is unsuccessful and the parties blame the mediator
14.genuine negotiations aimed at settlement will attract without prejudice privilege and therefore be
protected from use as evidence in the court proceedings. The privilege will belong to the parties to the
mediation, not to the mediator. This means that the privilege may only be waived by all parties, and not by
the mediator, and the mediator cannot rely on the privilege (eg to resist giving evidence on the
 negotiations) if it has been waived by all parties. It is, however, common practice for mediation
agreements to state that the mediator cannot be called to give evidence.

Preparation for mediation day

1. Appointment of mediator- needs specialist skills/knowledge/legal or professional/ need joint mediators?
Urgency of mediation will determine which mediators are available, Avoid any conflict of interest, Avoid
appearing to favour one side, or the other; Terminate the mediation if it or any settlement becomes illegal,
unenforceable or impossible; Ensure the parties understood the terms of any settlement reached
2. Once agreed- he will inform and contact both parties simultaneously to confirm his appointment/ most-
mediation agreement- each party got to do it in advance of the mediation day (signing morning of
mediation is common) agreement covers CONFIDENTIALITY AND FEES
3. Procedural steps: M will write to parties simultaneously confirming as to who they and their LR are, where
and when it will take place, anticipated duration, specific req as to docs a person of authority from each
side is present to settle
4. Will need a POSITION STATEMENT as part of the specific docs req from each party and copies be made for
the opposing parties and the mediator 7 DAYS BEFORE MEDIATION. Parties need to consider who will be
responsible for the prep of these submissions (usually LR)
5. Mediators would want submissions kept fairly short (summary of the case and each parties stance on the
matter
6. PARTIES SHOULD TRY TO AGREE A CORE BUNDLE OF AGREEMENTS TO GIVE TO THE MEDITOR ALONG WITH
THEIR POSITION STATEMENTS (LIMITS AMOUNT OF READING TIME) USUALLY THE CLAIMANT IS
RESPONSIBLE FOR THIS PREP
7. Preliminary discussions with the mediator – a day before he would want to hear from both (either the
client or LR from) parties if trouble understanding case/manner in which initial presentation of their case is
to be made/ possible details of any previous failed settlements. Confidential to each party. Chance to get to
know either client or LR ahead-saves time and money.

The mediation day

1. Each starting is different- if the relationship between parties are bitter the mediator MAY decide to
dispense with the opening joint session/ to curtail it significantly.
2. Place- neutral venue/either one of LR’s office. Once mediator is ready- parties will be called into a room-
outline mediation process- establish ground rules. Then LR will make short opening statements of their
case (short summary of written submissions to clary issues) usually built on their position statement
3. After that is over- mediator MAY choose to keep all the parties in the same room or invite them into
separate rooms where they can speak privately. Whatever said in here cant be revealed to the other side
w/o permission (caucuses). Purpose of caucuses- explore business relay between parties (where they are
coming from/taking issues that each side sees as key/ looking at why previous settlements have failed
4. Mediator MAY well engage in shuttle diplomacy mobbing between rooms in a series of private sessions
looking for common grounds/areas in which the parties feel able to make movement
5. But not always want to act as messenger/ the parties may be brought together for joint meetings to
negotiate directly and tackle issues that are blocking. Even sometimes the M would want to meet with the
LR / EXPERTS separately/ meet with parties in absence of their lawyers. Its voluntary, cannot compel
parties to do something that they are not comfortable with.
6. The settlement- settled? Terms written up in formal agreement then and there- task delegated to parties
LR OR MEDIATOR DOES IT HIMSELF. Record as soon as terms are agreed is desirable as there is still impetus
to settle. And once written up and signed by parties it becomes binding and can be enforced through the
usual way through the COURTS

A legal representative should ensure that in any settlement discussions they act within the authority to settle
granted by the client. A client is likely to be bound by any settlement which the legal representative agrees with
the other party: if that agreement was not authorised by the client, then the legal representatives has breached
duties owed to the client
The lawyer can also help the client identify settlement opportunities and assist in risk assessments - these are
sometimes known as 'BATNA' (best alternative to a negotiated agreement) and 'WATNA' (worst alternative to a
negotiated agreement to understand the costs and other risks involved in litigation (or other form of dispute
resolution) if the mediation is not successful. They support negotiated outcome not undermine it.
the mediator may put forward to the parties written non-binding recommendations for settlement

Limitation
1. If proceedings are not commenced within the relevant limitation period, period, the claimant will be barred
from recovering damages and on this basis, the defendant will have a full defence.
2. Limitation Act 1980
a) Claim under the Fatal Accidents Act 1976? S12
b) Other personal injury claim? S11
c) Claim for contribution? S10
d) Latent damages for negligence claim? S2
e) Judgment claim? s24
f) Tort claim? s2
g) Contractual claim? S5
3. Fatal Accidents Act and other personal injury claim lead to a box marked "date of knowledge S14.
4. The Latent Damages box leads to a box marked "S14A & 14B
5. S.14B provides for a 15 year overriding time limit on latent damage negligence claims, notwithstanding that
the cause of action has x yet accrued. Does x apply to cases of fraud, concealment or mistake.
6. PI- bring within 3 years of date when the cause of action accrued/date of knowledge the person injured.
7. DOK s.14- (a) knowledge that the injury was significant, (b) attributable atleast in part to the alleged
wrongdoing, (c) identity of the defendant, (d) If it is alleged that the wrongdoing was by someone other
than the defendant, the identity of that person and the additional facts supporting bringing the claim
against the defendant.
8. S.12 fatal accidents- The Fatal Accidents Act 1976 provides that, in certain circumstances, people who were
depending on that employee (perhaps the employee's children) can claim compensation from the
employer.
9. claim cannot be brought if the person injured (in our example, the employee) could no longer bring a claim-
The LP above applies only in cases where the original limitation period has NOT expired at death (meaning if
he got injured and then died 4 years later instead. If he died within 3 years of getting injured then The clock
starts running again under the provisions above. If the limitation expired before death, there is x extension
just because the person has died and the only way to extend LP is through S.33.
10. if died almost on the spot or that if the limitation period hasn’t expired before death then the 3 year period
starts again from date of death. And so the claim cannot be brought after 3 years from the date of death
11. Furthermore similar to date of knowledge of dependant- you are interrogating the dependent's
knowledge), but the injury referred to is obviously the fatal injury to the deceased
12.it is knowledge of the facts which permits the limitation period to start running. Dates of knowledge include
knowledge which the claimant might reasonably have been expected to acquire from an expert / facts
observable / ascertainable by him
13. court can extend time in relation to s 11 or 12 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- conduct of parties& reason for delay effect of such late claim- s.33
14. S.10 contribution- when youre liable but so is another so claim contribution- the limitation period is 2 years
from the right to recover contribution arose for the retailer if he's claiming contribution, Claims for
Contribution S.1 &2 of the Civil Liability (Contribution) Act 1978 – Any person liable in respect of any
damage suffered by the C may recover contribution from any other person liable in respect of the same
damage (whether jointly with him or otherwise) and the amount of the contribution recoverable shall be
such as may be found by the court to be just and equitable having regard to the extent of that person’s
responsibility for the damage in question. So if the 2 year limitation period has ended for contribution so
now you want to add new party through s.19.5 cause The claim cannot properly be carried on by or against
the original party unless the new party is added or substituted as claimant or defendant; but bear in mind
that 19.5 is not always the exception for contribution
15.right to recover contribution could be through date of judgement imposing liability on the first party, the
retailer. or some cases- date on which the first party agreed to make payment/amount to be paid was first
agreed/ aer lingus- date of assessment of damages
16. Negligence actions where facts relevant to the cause of action are not known at the date of accrual (ss 14A
and 14B) doesn’t apply to PI cases s.11 and 12 takes precedence
17. Section 14A provides that in negligence claims (other than claims for personal injury), the limitation period
is extended to the later of:
(a) Six years from when the cause of action accrued;
(b) Three years from when he had the requisite:
i. knowledge; and (knowledge of the factual essence of the act or omissions, enough information to make
it reasonable for him to commence investigations into the potential claim against the defendant) cannot
postpone date of knowledge by choosing which breach it want to rely on.
ii. right to bring a claim.
18. Tort- time runs from when the damages are suffered. Because loss is an important component. Cause of
action accrues when the alleged act of negligence causes loss
19. 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.
20.S.13 claimant needs to know the material facts about the damage in respect of which damages are claimed
21.Party(company) may be restored for the purposes of defending the claim if it was removed between the
period of accrual of the cause of action and the issue of proceedings.
22. 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
23. Protected party- unsound mind (medically certified) ends then starts but if person was of sound mind at
the time of the cause of action limitation period will continue to run.
24. if they were sound mind at the time of the cause of action but the cause of action caused them to be of
unsound mind (PI CASE) then 3 years from the date of when they are of no longer unsound mind.
25.If the Claimant loses capacity before the three-year limitation period expires, that does not stop the clock.
The limitation period is not suspended although as per Section 33(3)(d) above, the duration of any disability
of the Claimant arising after the accrual of the cause of action is a relevant consideration in the Court
exercising its discretion to exclude the limitation period.
26. To bring an end to a limitation period, C need to bring proceedings – delivering it on time (and not issuing)
the claim to the court accompanied by payment and documents like CF and stuff (entering into a standstill
agreement with the potential defendant) if the ct office is closed on the final day of the limitation period
and you delivered everything appropriately on the next business day it is still in time.
27.If sent by post- receipt of the documents and fee will be date stamped on the receipt and the action will still
be on time even if it does not issue it on the day of when it receives the documents. As long as they receive
on time unless ct office is closed on the last day of the limitation period.
28.Judicial review- 3 months limitation but can be extended on good reason
29.Defamation 1 year limitation if can be shown on balance of prejudice between claimant and defendant to
be equitable
30.section 33(3) states that the Court shall have regard to all the circumstances of the case and in particular to:
a) The length of, and the reasons for, the delay.
b) The extent to which evidence adduced is likely to be less cogent than if the action had been brought
within the time allowed by Section 11 [or Section 12].
c) The conduct of the Defendant after the cause of action arose, including the extent to which he
responded to requests reasonably made by the Claimant for information or inspection for the
purpose of ascertaining facts which were or might be relevant to the Claimant’s cause of action
against the Defendant.
d) The extent to which the Claimant acted promptly and reasonably once he knew injury/circumstances
might give rise to an action for damages.
e) The steps taken by the Claimant to obtain medical, legal or other expert advice and the nature of any
such advice he may have received.
7. Fraud / concealment / mistake (s 32) Where a claim is:
a. based on fraud, or;
b. any fact relevant to the cause of action has been deliberately concealed by the defendant; or
c. the action is for relief from the consequences of a mistake; then
d. limitation does not start to run until the claimant discovered the fraud, concealment or
mistake (or could with reasonable diligence have discovered it).
8. CPR 17.4 New claims in pending actions - Where proceedings have started but the trial has x taken place
and the C wants to make a new claim within the existing proceedings or needs to add a new party.
 9. New cause of action – The court may allow an amendment to the statement of case to add/substitute a
new claim but only if the new claim arises out of the same facts or substantially the same facts as the
original claim. Where claim is added/substituted, the new claim is deemed to have commenced at the
same date as the original action.
10.CPR 19.5- New party – Mistake- Court may allow C to amend the statement of case where it is a mistake as
to name and not identity .
11.The mistake must be genuine and there was no reasonable doubt as to the identity of the party in
question.. (cite the whole thing!). The addition / substitution of a party is necessary only if the court is
satisfied that the relevant LP was current when the original proceedings were started and 
12. The new party is to be substituted for a party who was named in the CF in mistake for the new party –
S.35; or  The claim cannot progress without the addition/substitution of the new party or The Sardinia
Sulcis – The test is whether it is possible to identify the intended D “by reference to a description more or
less specific to the particular case?” What is meant by “reference to a description” is identification “by
reference to what description is material from a legal POV to the claim made” (The Insight Group Ltd v
Kingston Smith)
13.C x fixed w/ knowledge if he took all reasonable steps to obtain expert opinion and expert gave him the
wrong information.
14.for limitation purposes, you begin to count from the next day (Marren v Dawson Bentley Co Ltd)
pre-action protocol
1. emphasis is on encouraging the parties to focus on resolving the dispute without involving the courts
2. emphasis is on encouraging the parties to focus on resolving the dispute without involving the courts
3. if settlement is not achievable, to lay the foundations for expeditious conduct of proceedings. Eg able to
limit the issues in dispute at a very early.
4. Def admit liability? Do early&clearly. Dispute liability? Do it clearly and with reasons
5. Nelson’s- claimant wrote to DEF, def didn’t respond, C issued proceedings then discontinued. Normal rule C
pays costs upon discontinuance but here since D didn’t respond court ordered D to pay the claimant’s part
of the costs
6. Non compliance justified- when limitation period about to expire- necessary to issue order- parties must
comply to the extent possible, and ordinarily will need to apply for a stay of proceedings after issue in order
that the pre-action procedure can be followed
7. Element of surprise- search order- need for urgent proceedings. Apply y oct to revisit Opponent’s premises
8. obtained when there is fear that the opponent will destroy documents rather than honour an obligation to
provide them to the claimant / court.
9. Pre-action Protocol for Personal Injury claim- C writes letter of notification- enable def to notify insurer.
Early rehabilitation needs? And any report obtained during the pre-action phase for rehabilitation needs
shall not be used in litigation arising out of the accident subject of the claim save by consent. Insurer pays
for any rehabilitation report. This is an ongoing process throughout protocol
10.Then C will write again LOC- letter of claim- def acknowledge within 21 days. No response can start
proceedings but sensible to wait and make direct contact to find out reason of delay cause there might be
issues like tardy process of the letter being passed from D to his broker then to insurer and ultimately being
allocated to a case handler which can often take more than 21 days
11.full letter of response within 3 months of acknowledging claim
12.could either accept the liability but not the quantum or denies liability in whole or part. Sometimes C can
send a list requesting documents considered relevant and believed to be in D’s possession and should be
disclosed. Denial of liability? Reply should include listbof all docs material to the issue and likely to be
ordered to be disclosed by the court. If D admits liability but alleged contributory neg then D should
disclose docs that are relevant to his allegations.
13.informing the defendant that C is funded(DBA,ATE,CFA) may be tactically conducive for settlement cause
D’s LR might genuinely believe that C;s case has better than reasonable prospect of success.
14.parties should disclose key docs- engage negotiations – make proposals for settlement. C send schedule of
loses -details of loses
15.Joint selection of quantum report i.e. medical expert), or claimant discloses report and defendant sends
written questions. So basically usually C puts forwards list of suggested joint experts and if no objections
raised by D within 14 days then one of the mutually accepted experts can be approached to examine C
medically and he will be the agreed expert. C will pay the fee in its entirely. Selected report prepared only
sent to C and C will decide if he wants to rely on it or not. If yes then C will disclose and both parties can
 choose to ask written questions and questions copied to the opponent. Answers will be sent to both
parties.
16. If D has agreed to JE but wants own expert then he can get it only if C agrees or the ct so directs or C’s
expert report has been amended and C is not prepared to disclose the original report. Even though agreed
together. The joint expert’s report belongs to C and is paid by C so C’s decision whether he wants to rely on
it and subsequently disclose it. That agreement by D doesn’t give him entitlement to see the report unless
the claimant discloses it. And its not a joint report for the purposes of CPR 35.
17. If admission is made- and any med reports are obtained and any schedule of past and future expenses and
losses are claimed, the C should delay issuing proceedings for 21 days upon disclosure of the above info to
enable the parties to consider whether the claim is capable for settlement unless to do so would make the
claim statute barred
18. Stocktake is the last resort of protocol still cause if protocol doesn’t work then parties will review their
their positions check for strengths and weaknesses. Consider together the arguments and evidence to see
if litigation can be avoided and if that’s not possible to narrow down the issues. Then if insurer is involved,
insurer will nominate solicitors to act in the proceedings and to accept service of the claim form and other
documents.
19.The Practice Direction – Pre-Action Conduct and Protocols- C should send the letter of claim- Para 6(b) - D
should respond within a reasonable time. 14 days in an easy case; maybe 3 months in a very complex
claim- Para 6(b) - The reply must say if liability is admitted; the grounds on which liability is denied; and
whether a counterclaim will be advanced. ALWAYS REMEMBER DISCLOSE KEY DOCUMENTS, ENGAGE IN
NEGOTIATIOND AND MAKE PROPOSALS FOR SETTLEMENTS
20.an admission pre-action cannot be withdrawn once proceedings are commenced and will bind the
defendant.
21.Normal protocol steps  Para 3 - Parties are expected to exchange sufficient information to enable them to
understand each other's position, and to be able to enter into meaningful negotiations or ADR processes 
Para 4 - Taking tactical advantage is deprecated  Para 5 - Costs in complying with the protocol must be
kept proportionate and appropriate  Para 6(a) - Claimant should write to the defendant with concise
details of the claim (basis, facts, remedy & how amount is calculated)  Para 6(b) - D should respond within
a reasonable time. 14 days in an easy case; maybe 3 months in a very complex claim  Para 6(b) - The reply
must say if liability is admitted; the grounds on which liability is denied; and whether a counterclaim will be
advanced.  Para 6(c) - Both parties must disclose key documents to each other  Para 7 - If an expert is
necessary the parties should try to minimise how much the expert evidence will cost. A single joint expert
may be best  Paras 8-11 - Parties should consider whether to use ADR  Para 12 - Where the claim is not
resolved by following the protocols, the parties must stocktake by reviewing their respective positions.
They should at least try to narrow the issues in dispute
22.Non-compliance may be taken into account (para 13):  when the court gives case management directions
 when the court makes costs orders (eg at trial)
23. Ct’s take pragmatic approach when dealing with issue of non-compliance in an advised step in the pre-
action phase like in Higginson Securities it was justified since its important for parties to incur costs in the
pre action stage proportionately. Sainsbury supermarket- the claimant took no steps to comply with
protocol and so after the claims were stuck out the ct ordered C to pay D’s costs in an indemnity basis. If
there is some compliance like in CIP v Galliford then, then ct might award C with pre-action costs but not
on an indemnity basis. KEY WORD SOME COMPLIANCE.
24.PROTOCOL DOESN’T MEAN DOING EVERYTHING. If you exchange letter of claim, claim details and went to
the settlement meeting, you are at liberty to refuse corresponding with the opponent until proceedings
have been issued. Adhering to the letter not necessary but adhere to the spirit of the letter.
25. If claim settles- deal with settlement agreements. Agreed on who is liable for costs but not the sum so
commence cost proceedings under part 8.
26.If claim was issued by C and stayed to comply with protocol due to limitation period and C subsequently
discontinues claim then D can recover it’s costs
27. Pre-action disclosure- the app will be under CPR though its intended cause protocol suggest to exchange
cause necessary to investigate a claim fully especially the docs are not forthcoming from the D. so ct order
important where R is likely to be party to the proceedings, A is likely to be a party to the proceedings and
the docs would be disclosed under standard disclosure. And this disclosure would fairly assist in disposing
of the claim without the need to issue proceedings and save costs.
28. Both parties to claim should identify any more parties, their names, adds, insurer details cause delay could
lead to delay in progress and so and could be construed as failure to abide by the protocol practice.
 Documents are important to disclose during pre action stage cause it directly co-relates to existence of
people who could be involved.
29.Pre action- app to inspect property might be necessary to seek party’s compliance and the ct will have the
power to enforce compliance.
30.Inspecting property before commencement of proceedings against potential party or a non party. Dealing
with accident at work issues. The order will be obtained if can show that the property is or may become the
subject matter of the proceedings or is relevant to the issues that will rise in relation to those proceedings.
31. Pre action in debt claims- letter of claim posted on the day it is dated or if that is not REASONABLY
POSSIBLE the next day- sent by post-if additional contact details like email add then creditor may also send
the letter using that. if debtor has made explicit request not to send by post and provided alternative
details, creditor should use that. if Debtor does not reply within 30 days of the date of letter creditor may
start proceedings but account should be taken to the possibility that reply was posted towards the of the
30 day period.
32.The creditor should not starts proceedings less than 30 days from receipt of the reply form or 30 days from
the creditor proving any documents requested by the debtor.
33. If debtor states that they are seeking debt advise that cannot be obtained within 30 days of their reply
they must provide details and if its reasonable creditor should give reasonable extra time
34. If debtor askes for documentation provide the documentation or explain why the doc or info is unavailable
within 30 days of the receipt of request.
35.The creditor should give atleast 14 days notice of their intention to start proceedings unless urgent action is
needed.

36.Engineering, construction, professional negligence dispute pre action protocol- letter of claim- 14 days for
def to acknowledge and further 14 days to reply..so total 28 days. If fails to acknowledge within 14 days or
respond within 28 days then C can commence proceedings without fear of sanctions. If counterclaim is
raised- then C will have to respond within 28 days- pre action meeting will take place within 21 days after
D’s respond or C’s respond to a counterclaim. Purpose of meeting- narrow issues and identify how issues
can be resolved. If parties see litigation as only way then use the meeting to decide if need expert evidence
and on what issue is the expert needed and whether it will be joint, decide the extent of disclosure, and
discuss the conduct of any litigation having regard to minimizing delay and costs. This protocol permits any
party who attended the meeting to disclose where and when meeting took place, who attended who did
not, and why and any agreement reached, and whether ADR was discussed. Protocol referee procedure- is
for the need for guidance. App fee is substantial, applicant gives brief details of its directions no more than
four sides of A4 size paper, if the nominated refree accepts the appointment then there is provision for the
respondent to reply within 5 working days of the notice of appointment (4 sides A4 size) and then a reply
by applicant within 2 days of appointment (2 sides A4 size). A referee is to reach a written decision no later
than 10 working days after the receipt of notice of appointment although the parties can agree together to
extend this.

37.if a claim is being brought against a partnership, claims must be brought against the name under which a
partnership carried on business at the time the cause of action accrued unless it is inappropriate to do
38.INAPPROPRIATE only if multiple changes of name and multiple mergers not change for one time, or just
one merger.
39.If inappropriate then identify partners by individual name
40.If it seems likely that it will be necessary to seek enforcement of judgment against the partners' personal
assets, as well as the partnership assets, it is useful to name the parties personally to avoid any argument
at the enforcement- full name for a partnership (other than an LLP) will be the full name by which the
partnership is known where partners are being sued in the name of the partnership. Or full abbreviated
names of each partner if they’re being sued as individuals
41. If partnership dissolves before proceedings are issued, the claim is made against the former partners in the
name of the dissolved firm. Will need disclosure and that failure will result in order for disclosure or firm
maybe debarred from defending
42.A claim can also be brought against a business name as if it were the name of a partnership if a claim is
brought against an individual who carries on business within the jurisdiction in a name other than that
individual’s own name (CPR 7A PD 5C).
43.For sole traders, commonly both the individual and trading name will be used- John Flagstone (trading as
John's Café) and if they’re real name not known then, may be sued in business name with (a trading name)
44.LLP is a separate legal entity distinct from its members- LLP have limited liability because the LLP is liable
for all its debts to the full extent of its assets- the claim would be brought against the full registered name,
including the suffix LLP. Flagstones LLP.
45.Company- Rockstone limited- represented by an employee at trial if authorised to do so by company& ct
gives permission. If company in liquidation then add the “in liquidation” in brackets
46.Clubs are associations but will be sued in members’ name/representative proceedings may be brought.
However its diff for incorporated clubs where the incorp club may be sued or sue in its own name.
47.Trusts and trustees-(all trustees should be named on CF). AL should be named in proceedings (as Ds if they
will x consent to act as Cs) the beneficiaries need not be parties but order made in the action will bind the
beneficiaries unless ct orders otherwise
48.CPR 19.8(1), where a person who had an interest in a claim has died- person has no personal
representative the court may order: claim to proceed in the absence of a person representing the estate of
the deceased. person to be appointed to represent the estate of the deceased. Or to order the action to
proceed w/o representation. Interested parties served with notice of the action and now they’ll be bound
by judgement/order made. If any of them serve file of acknowledgement then they’ll be party to the
claim
49.like when claim is made against the deceased before grant of probate or letter of administrations, claim
form cannot be served until ct has appointed a person to represent the deceased defendant taking in the
time limits for service and limitation and this is through C’s app to the ct. if grant of probate or
administration has been made, the claim must be brought against the persons who are the personal
representatives of the deceased
50. mental capacity- Mental Capacity Act 2005- by reason of impairment or disturbance of the brain or mind,
the party is unable to make the decision in question at the time it needs to be made. Presumed to have
capacity until contrary proven, burden rests with whoever who asserts incapacity. In Joanne dunhill v
shaun- it was not whether to set aside a settlement on the grounds that C did not have the requisite
mental capacity but whether she has the mental capacity to litigate at all. legal advisors must satisfy
themselves that the party has the requisite capacity to bring or defend proceedings. Quite often this may
involve an assessment and report by the party’s GP, court may also require the personal evidence of the
solicitor or family and friends.
51.Children- young and need litigation friend. Though in respect of children the court does have the power to
permit the child to conduct litigation cpr 2.2(3), but will not generally exercise this power cause the child
does not have contractual capacity- that is to pay his legal rep fees.
52.Litigation friend- fairly and competently conduct proceedings on behalf of the child or protected party, no
adverse interest to that of the child or protected party, 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 he may have to
be repaid from the assets of the child or protected party.
53.Appointment of lit friend- w/o ct order by filing and serving of a certificate of suitability demonstrating that
the litigation friend satisfies the criteria in CPR 21.4(3) either at the time the claim is made (if the child or
protected party is the claimant) or when the child takes the first step in the proceedings
54.for a protected party, the Court of Protection may appoint someone to conduct proceedings on the
protected party’s behalf under CPR 21.4(2)
55.cannot make an application against a child or a protected party before proceedings have started or take
any step in the proceedings unless there’s lit friend. Exception- issue and serve claim form/apply for the
appointment of lit friend by ct order.
56. During proceedings party lacks cap to continue- cannot make an application against a child or a
protected party before proceedings have started or take any step in the proceedings unless lit friend is
appointed.
57. Consequences of no lit friend- any steps taken against child/pp w/o lit friend has no effect.
58. When does the appointment of a lit friend terminate- when a child is already 18, appointment will cease
automatically and lit friend has no further authority. BUT WHEN PP CEASES TO BE SUCH, the appointment
of his lit friend continues until it is ended by a court order. The application to do this MAY be made by the
former PP, lit friend , or a party. And once its terminated the new party(the former child who is now of age
18 or the former PP) must serve notice on all the other parties, stating that the appointment of his lit friend
has ceased, state his address for service and state whether he intends to carry on the proceedings. He
Must do so within 28 days of the date on which the appointment of his lit friend ceased. If he fails then
the ct or another party may seek to strike out his claim or defence.
59. But remember how LIT friend used to undertake to pay any costs that the child or PP may be ordered to
pay in relation to the proceedings, subject to any right of being repaid from the assets of the child or PP.
 This liability will continue UNTIL HE HAS SERVED HIS NOTICE OR LIT FRIEND SERVES NOTICE THAT
APPOINTMENT HAS CEASED (usually for PP after the ct end its with a court order, the former PP or lit friend
serves the notice). Only then he becomes the new client for the purpose of client care and any CFA entered
into with lit friend, who will then receive the standard retainer and the client care correspondence that all
new clients receive. If funding arrangements are to be entered into with the new client , then notice of this
must be given to the ct and the other parties to the action in the normal way.
60. If someone becomes a lit friend for a child party w/o ct order, without providing any undertaking to pay
any costs order which the child party may be ordered to pay, that lit friend will be expected to be liable for
such costs as the relevant party, if they had been an adult , would normally be required to pay (BARKER v
CONFIANCE).
61. Alice Brown (a child, suing by Kate Brown her mother and litigation friend)/ Adam Black (a protected party
by Clara Dunn his litigation friend)
62.need approval of court to settle, to pay, to compromise or accept money when it involves child or
protected party
63. settlement or compromise is reached before proceedings have been commenced, proceedings should be
commenced under CPR 8 so the lit friend on behalf of C/PP must serve in certain docs like terms of
settlement with draft consent order, to what extent defendant admits liability, age and occupation of the
child or PP, litigation friend's approval of the proposed settlement, copy of any financial advice on the
proposed settlement. Upon sending all this is when the ct will approve the settlement and the cts approval
is needed.
64.In a personal injury case arising from an accident, medical and quantum reports and joint statements
material to the opinion of counsel or a solicitor as to quantum must also be filed (21PD5.1(6) and 5.2).
This ensures that the medical evidence filed is that which is pertinent to the opinion on quantum. In such
a case, schedules of past and future expenses must also be filed and, where consideration of liability are
raised, any evidence in criminal proceedings or inquest and details of any prosecution sought are also filed.
65.where the approval is sought of a settlement or compromise by or on behalf of a child or protected
party after proceedings have been issued, an application must be made to the court for its approval, and
court must be supplied with the prescribed opinion as to quantum of counsel or a solicitor and it must
crucially also include documentary evidence material to that opinion (PD 21 6.4(3)). This has the potential
to affect the court’s ability to approve the settlement or compromise of a claim reached unexpectedly at
trial in case of a sudden settlement that look sketchy to ct.
66.here a settlement is reached before proceedings have been issued, parties should issue Part 8 proceedings
seeking court’s approval.
67. Where part 7 proceedings have commenced but now that it has been settled the parties can apply for a
hearing to approve the settlement.
68. monies are recovered by or on behalf of a child or protected party, or money paid into court is accepted by
or on behalf of a child or protected party. directions may provide that the money (or some of it) is paid into
court and invested or dealt with in a different way. The court may direct that the money is invested for the
benefit of the child and will give directions as to the type of investment. The court may also order that
certain sums be paid directly to the child or litigation friend for the immediate benefit of the child or for
expenses incurred on the child’s behalf, for example, care costs. If the amount of money to be invested is
very small, the court may order it to be paid directly to the litigation friend to be put into a building society
account for the child’s use. If the money is invested in court, it must be paid out when the child reaches 18
years old. The court does have power to order that the monies be invested elsewhere on behalf of a child
subject to the money being invested in a personal injury trust on behalf of the child. The court will also
order the appointment of suitable trustees, to include a professional trustee such as the solicitor.
69.The Court of Protection charges for administering funds and these fees should be provided for in any
settlement.

Commencing Proceedings
1. Sometimes the claimant has a choice of where to issue and sometimes not. If the claimant gets this wrong,
procedural and costs consequences will follow.
2. Theres cpr 7 and cpr 8. Cpr 8 is generally used where there is no substantial dispute of fact or in certain
specialised proceedings
3. Proceedings start- ct issues CF, upon issue stamp and seal and give action a claim number. Must be
commenced within limitation period
4. High ct & County court- have concurrent jurisdiction- C often have a choice but in consideration of three
matters: jurisdiction, governing commencement, rules governing transfer
5. HC- SCA 1981- HC of justice sits in the Royal CT’s of Justice in the Strand,London in various regenal centres
(130). Claims of dispute in london must be commenced in RCJ.
6. Trials in HC- HC judges, Interim matters- Masters in RCJ/ district judges in District registries
7. HC- chancery division, QBD, family division
8. Chancery- land, mortgage, trusts, administration of estates, bankruptcy, probate, intellectual property,
company matters, other contract and tort claims,
9. QBD- contract claims, tort claims, commercial matters, admiralty (shipping) matters, judicial review,
defamation claims and personal injury claims
10.Specialist ct- Commercial Court and the Technology and Construction Court, business and property ct, qbd
and chancery together
11.CC- CCA 1984, trial conducted by circuit judges and recorders who are part time judges. Interim matters-
district judges and are the equivalent of high ct masters
12.High Court and County Courts Jurisdiction Order 1991 (‘HCCCJO’) contains provisions about the jurisdiction
thresholds of each respective court.
13.Non PI claims up to £100,000 must be in County Court(MAY NOT IN HC should be in CC, key word only MAY
NOT be commenced in the High Court. so if theres exceptional circumstance it can commence in the high
court, like the need for specialist ct
14.unless youre issuing a claim form in the high ct then MUST state that the claimant is expecting to recover
more than 100000
15. if you have a choice then determine whether the matter is sufficiently complex or of sufficient public
importance to be dealt with in the High Court.
16.A claim should be started in the High Court if by reason of:
(1) the financial value of the claim and the amount in dispute, and/or
(2) the complexity of the facts, legal issues, remedies or procedures involved, and/or
(3) the importance of the outcome of the claim to the public in general,
17.the claimant believes that the claim ought to be dealt with by a High Court judge.
18.). Non PI claims over £100,000 MAY be in either court.
19.Personal Injury claims up to £50,000 must be in County Court. Personal Injury claims over £50,000 can be in
either court
20.Value for PI claims its is FINANCIAL WORTH disregarding interest, costs, any Counterclaim, Con Neg, and
deduction of social sec benefits. This is FOR THE ISSUING OF CLAIM FORM.
21.If the claim form is to be issued in the High Court it must state that the claimant expects to recover more
than £100,000 (CPR 16.3(5)). For non PI cases must state it expects to recover more than 50,000
22.if the court disagrees with the claimant’s choice once the claim has been issued, the court may consider
whether it should remain in the court of issue. CPR 30 provides for transfer of cases between the High Court
and the County Court. But order C to pay the costs for transfer. And if it continues in the high ct, s.51 SCA
gives penalty, a deduction up to 25% of any costs awarded but with ct’s discretion
23.to issue need copies of claim form N1, one for ct file, one for def, one for C’s own file, and then the ct issues
fee
24.County Court claims should be commenced by sending the claim form (Form N1) to the County Court
Money Claims Centre, rather than to any particular hearing centre, and paying the appropriate issue fee. C
will specify its preferred CC hearing centre on the form and claim wil later be transferred to that cc centre,
though might be transferred to a diff CC centre as the ct sees fit
25.County Court money claims up to £100,000 can be issued using ‘Money Claim Online’, an online service
provided by HMCTS- quick & cost effective resolution for simple claims, CF served the usual way but D
responds through the online service
26.If a claim is issued in HC when it should have been issued in the CC, the ct’s will exercise its power of case
management under CPR Part 3, specifically the powers of transfer contained in CPR part 30. THESE POWERS
INCLUDE, power to rectify error, order a transfer or a strike out as well. Ct will consider if the error was
deliberate or a bona fide mistake. CT should be informed of the error as soon as possible. If a mistake is
made at the end of a limitation period, an order to strike out the claim in error would be a grave mistake.
Even if the order to strike out was well within the limitation period, the issue fees will have to be paid again.
If an order to transfer is made that rectifies the error , then the party at fault will usually be asked to pay
the costs involved in the transfer.
27. Service of claim form- first by CT, they usually send by post- and once they’ve effected service they’ll send C
notice of issue stating the deemed date of service, if unable, the C will be sent a notice of Non-service
28.If the claimant’s solicitor wishes to serve the claim form…
29.They must notify the court when issuing the claim form that they do not wish the court to serve it. And so
CT will send C’s sols the issued CF with sealed copies for service on D
30. Once they’ve sent, they’ll FILE A CERT OF SERVICE AT CT WITHIN 21 DAYS OF SERVICE, including details of
date it was posted/delivered/transmitted and method and add used
31.BUT NOT NECESSARY IF ALL DEF HAVE FILED AOS
32.Personal service- can choose to send this way, usually appropriate in the case of company or similar legal
entity, some rule,statute,pd says must use this. Eg For example, a company may be served by any of the
ways permitted in the Companies Act 2006 in addition to the usual ways under CPR 6.
33. Service by post/DX- delivering at an add but when service at add is permitted consider e-sending.
34.However, service by fax / email is only permitted if the defendant / its solicitor has indicated it will accept
service by fax / electronically.
35.If theres contractually agreed method follow that
36. Q-where CF will be served? Starting point find out D’s current add-include full postal add for service in the
claim form. If D gives sols add, then send to sols add
37.Sometimes not save to rely on known add of D, so C will need to take steps to ascertain the proper place at
which service of the CF on D can be effected.
38. If D doesn’t give add to be served, C believes D no longer resides/works at that add take steps to find out,
then take reasonable steps still and try to ascertain up to date add or seek or ct’s permission for an
alternative place/method(this is an application under CPR 6.15 and the ct believes that there is a good
reason to authorise). And an order under this rule must specify the Method or place of service  Date on
which the claim form is deemed served  Period for filing acknowledgement of service/admission/defence
39. if still cannot then C use the usual/last known add(cpr6.9(1)) this is for an individual notwithstanding C
believes the add to be out of date
40.If for company use, the usual/last known add of the principal office/ any place of business of the D company
within jurisdiction that has a real connection to claim.
41.once issues got 4 months. method of service must be completed before 12.00 midnight on the calendar day
four months after the date of issue
42.If the claim form is not served within this time, then it has not been served within its 'period of validity', and
the claim will fail automatically
43.If it is not possible to serve within the time limit, extension of time under CPR 7.6 (although this is not easy
to obtain because the rules are very strict)
44.application should be made within the four month period of validity- show good reasons
45.If the application is made after the deadline for service of the claim form has already passed, then the court
will grant an extension only if:
a) it is the court that failed to serve the claim form; or
b) the claimant has taken all reasonable steps to comply; and
c) either way, the application has been made promptly.
46. Mistakenly serving to sols/insurer when asked to serve on D doesn’t justify extension
47.C must usually make an app within the time limit, supported by evidence and state  All the
circumstances relied upon  The date of issue  The expiry date for service  A full explanation Where C
makes an app WITHIN time limit, the court may grant the app even if it is x satisfied that C has taken all
reasonable steps : Collier v Williams. The better the reason, the more likely an extension will be granted
(Beli Shipping )
48.SERVING POC- If the particulars of claim is contained in or served with the claim form, the claimant must
also serve the response pack along with the claim form and particulars of claim. Response pack (n9 form
contains form for admissions, acknowledging service and defending).
49.POC served within 14 days of deemed service of CF if not served together and also within 4 months from
date of issue.
50.Deemed date of service important, if missed, significant impact on the ability to defend the claim
51.For the defendant: because the deadline for serving a response to the claim form (if the particulars of claim
are included within it or served at the same time as it) runs from the deemed date of service of the claim
form.
52.CLAIM FORM IS DEEMED SERVED ON THE SECOND BUSINESS DAY AFTER COMPLETEION OF ANY
RELEVANT STEPS TO SERVE. SO IF SENT ON FRIDAY...ITS DEEMED SERVED ON TUESDAY
53.Solicitors should keep a record of the date on which the claim form was dispatched as this might be
challenged. Eg id personally served by a process server, the process server should provide the solicitor with
a written report of personal service, confirming the exact date and time that service was effected.
 54.effected by fax or email, an electronic transmission report is created, which should be printed, checked for
accuracy and kept on file
55.For service by post or DX, the solicitor should record the date and time of dispatch, particularly if the
dispatch is carried out late in the day, in order to avoid potential challenges by the defendant as to the
validity of service.
56.If particulars of claim are contained in the claim form, they are clearly part of the claim form and CPR 6.14
applies as described above.
57.If the particulars of claim are attached to or served with the claim form in a separate document and
contained in the same envelope, then there is some ambiguity. A party responding to proceedings would be
prudent to act on the assumption that the particulars are served at the earliest possible date.
58.For deemed date of service for POC depends on method of service so for FIRST CLASS POST AND DOC
EXCHANGE....SECOND DAY AFTER IT WAS LEFT. SO LIKE MONDAY LEFT...TUESDAY GET
59.FAX, EMAIL, PERSONAL SERVICE IF SENT BEFORE 4:30 PM ON THAT DAY...MEANS DEEMED SERVED ON THAT
DAY IF NOT NEXT DAY
60.once served the POC, claimant must file a copy of it at ct within 7 days of service. unless already been
filed
so important docs like, court fee, vary according to sum claimed. The fee to issue proceedings for the
recovery of money is approximately 5 per cent of the value of the claim for all claims over 10000. Sufficient
copies of CF. Litigation friend’s certificate of suitability
Part 8
1. seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact (CPR
8.1(2)) and where the procedure is not prohibited by the type of claim in question (CPR 8.1(4)).
2. question which the C wants the court to decide OR  The remedy which C is seeking and the legal basis for
the claim to that remedy  If the claim is made under an enactment, what enactment it is  If the C or D is
claiming in representative capacity, what that capacity is
3. obtain the court’s permission to accept a pre-action settlement of a claim by or against a child or protected
party
4. A claim for provisional damages settled before proceedings and the sole purpose is to obtain consent
judgment, to make it valid.
5. Any claim or application in relation to which an Act, rule or practice direction provides that the claim or
application is brought by originating summons.
6. Claimant issues at court (CF AND WRITTEN EVIDENCE HE RELIES ON plus may wish to file at CT a draft order
alongside the CF) and serves on the defendant a claim form and written evidence (Such evidence include
W/S / affidavit / matters set out in CF (verified by SOT CPR 22), (N208 CF for part 8 cases).
7. D who wishes to rely on written evi must file it when he files his AoS not more than 14 days. Aos must state
if D contest the claim, and if it is seeking a diff remedy what is that remedy) C may file further evi in reply
within 14 days. (n210)
8. Unlikely to be as lengthy/complicated as part 7 claims
9. If D doesn’t AOS withi the time period and the time period has expired, D may still attend the hearing but
MAY NOT take part in it. No need defence
10.Id D doesn’t provide with WRITTEN EVIDENCE CANNOT RELY ON ANY WRITTEN EVIDENCE DURING
HEARING
11.oral evidence is not normally given at part 8 hearings, the court can permit or require a party to give oral
evidence under CPR 8.6(2). The court can also give directions requiring a witness who has given written
evidence to attend for cross examination
12.If oral evidence or extensive cross-examination is necessary, it is likely that the court will consider that the
part 8 procedure is inappropriate and order the claim to continue as if the claimant had not used the part 8
procedure(so it will continue as a part 7 claim)
13.so when youre serving aos within that 14 days and cannot serve evidence within that time you must agree
with other party for an extension no more than 14 days after filing aos. The agreement to extend should be
filed at ct the same time you file at ct the AOS
14.parties can agree to an extension of time for the claimant to file and serve further evidence in reply
provided the extension is not more than 28 days after service of the defendant’s evidence on the
claimant.
15.If parties don’t agree for extension, party may apply to ct for the extension or for permission to file and
serve further evidence (for example, where a party needs permission to rely on evidence at the hearing
under CPR 8.6 because it has not been served in accordance with CPR 8.5).
 16.Def can object to pt 8 claim but must show there’s substantial dispute and pt 8 not required/permitted by
rule/PD, state reasons for objecting in AOS
17.After that next part- after ct receives everything, it will give directions for further management of the case
including (at any stage of the proceedings giving directions) to continue the claim as if the C had not used
pt 8. Likely to do this if ct feels there’s substantial dispute. Ct will not strike out claim but def will be costs
sanctions
18. If appears to a court officer that a claimant is using the part 8 procedure inappropriately, the court officer
can refer the claim to a judge for consideration (8A PD 3.4).
19. Modifications to pt 8:
a) There is a different claim form to the part 7 procedure
b) The defendant is not required to file a defence CPR 8.9(a)(ii)
c) No particulars of claim is required CPR 8.9(a)(i)
d) Judgment in default is not available to the claimant CPR 8.1(5)
e) The claim is allocated to the multi-track CPR 8.9(c) so no DQ’s are required
f) There is not usually any disclosure of documents (as there is no substantial dispute)
g) There is not normally any oral evidence at the part 8 hearing
20.Ct do have the power to permit for oral evidence but its rare for this to happen, since if it happens then the
part 8 procedure is usually not appropriate for this claim. Cost budgets are only likely to be required if the
COURT REQUEST COST BUDGETS.

Specialist Courts
1. Four specialist ct’s in QBD:
a) Commercial Court - Complex national and international business disputes
b) Circuit Commercial Court - Commercial and business disputes
c) Admiralty Court - Shipping and maritime disputes
d) Technology and Construction Court - Disputes about buildings, engineering and surveying
2. THESE FOUR OF QBD A THE CHANCERY DIVISION ARE KNOWN AS Business and Property Courts and are
subject to particular rules, including those in CPR 57A and PD 57AA. Business and Property Courts and are
subject to particular rules, including those in CPR 57A and PD 57AA.
Responding to a claim
1. Admit part or all of the claim/file a defence/ file AOS longer period to file defence
2. If D fails to do so, they at risk of C entering DJ (DEFAULT JUDGEMENT)
3. How and when to admit a claim- different versions depending upon whether the claim is for a specified
amount (Form N9A), or is a claim for an unspecified amount, non-money or return of goods (Form N9C).
4. Even if wanna admit the claim must do it within 14 days of deemed service of POC. They can either admit it in
whole or part on the admissions form and send it to the the ct, or direct to claimant if it has been admitted in
full. If D doesn’t respond on time the claimant is able to take steps to request an early judgment against the
defendant, bringing the claim to a conclusion.
5. If a claim for a specified sum is admitted, the amount of money that needs to be paid is already known.
Interest can also be calculated to the date of payment, the court fees are known and fixed court costs will
apply, so there are no obstacles to a prompt determination of the amount of the claim.
6. If D admits whole claim of specified sum, the exact amount due can be be calculated and the judgement
amount is known, like the debt,ct fees, interest, fixed costs. If partly admitted then part of the judgement
amount is know and for the rest of the part as it is disputed, the defendant will have to file a defence with
regards to the unadmitted balance of the claim
7. If it is a claim for unspecified amount and the D admits wholly then, liability is resolved but not quantum and
so there will be a subsequent hearing and judgement determining quantum. Or they will be instances where
the defendant may admit liability to pay the whole claim for an unspecified amount/ offer a sum in satisfaction
of the claim. All this he will state in the N9C form.
8. This is a very tricky area cause if it was this easy then things could have been settled in pre-action protocol but
in this situation this might be the situation where liability was hard to admit during pre-action, so they started
a part 7 claim. But if liability is admitted in full and that only quantum left, ct may shift this to a part 8 claim.
9. If the whole claim is admitted, following a request being made by the claimant, the court will enter judgment
for an amount to be decided later by the court and costs. The provisions in relation to money claims online
might apply instead of the usual rules.
10.If the admission pertains to any specified amount of money (ie whole/part of a specified claim or an offer to
pay an amount in satisfaction of an unspecified claim), the defendant may make a request for time to pay
(CPR 14.9(1)).
11. request is, in effect, a proposal by the defendant to pay by a certain date or by instalments.
12. Either N9A/N9C, makes provision that the request of time to pay be made at the same time as the admission
following personal financial information(income, outgoings, debts etc). if unable to pay immediately the
include reasons for this.
13. If C doesn’t accept this then the court will determine the rate of payment taking into account the info
supplied by D and the objections raised by C.
14.claimant will be notified of an admission and has the option to enter judgment against the defendant. A
judgment is a ‘final order’ which disposes of the claim. (In unspecified claims, quantum will still need to be
determined.) C will prefer to have judgement entered
15. Defendants usually prefer not to have a judgment against them to avoid the possibility of enforcement
proceedings, and because most judgments for money will be placed on a public, searchable register (the
Register of Judgments, Orders and Fines) for a period of six years, which can have an impact on an individual’s
credit rating.
16. Depending on parties views&bargaining position, the might wanna conclude an admitted claim by way of
settlement instead of entering judgement such as a TOMLIN ORDER(there might be a stay of proceedings), or
by C agreeing to withdraw the claim. Furthermore, if specified claim has been admitted and paid in full with
interest, ct fee and costs within the 14 days period for responding (cause during this responding period is
when you’re admitting the specified claim in full to the claim, so pay one shot) it is unlikely that judgement
will be entered
17. For specified sum, Except where one of the parties is a child or protected party, the claimant will have the
right to enter judgment against the defendant for the admitted sum, which will also include interest.
18. For unspecified sum- Except where one of the parties is a child or protected party, the claimant will have the
right to enter judgment against the defendant for any amount offered in satisfaction, if accepted by the
claimant, or for an amount to be decided later by the court (and costs).
19.unspecified claims, the judgment will be on liability only, so there will be no amount of damages recorded.
listed for a subsequent hearing where evidence will be heard on the issue of quantum and the judge will hand
down a judgment recording the amount due, including interest and provision for costs.
20.Section 35A Senior Courts Act 1981 / section 69 County Courts Act 1984 provide the court with the power to
award simple interest on debts due where eg there is no other provision (such as a contractual term) allowing
for interest to run.
21. How to enter judgement- its an administrative process, no judicial involvement. C simply files the correct
paperwork which will be processed by the court staff, no hearing. So upon getting the admission form, C
replies to it and completes a request for judgement within 14 days of receiving the notice of admission. When
replying the will indicate judgement amount including interest & fixed costs as well as any amounts of
payment already made by D.
22.Judgement is payable by D within 14 days. Enforcement proceedings can be taken against D to secure
payment of any sums outstanding after this time.
23.Automatic stay after 6 months if neither party takes action. Eg like C after issuing, def fails to respond and the
C doesn’t enter judgement. This stay could be because parties are negotiating, or issue which is subject to the
claim has become less important for some reason.
24.Any party can apply for the stay to be lifted and, although the court is likely to agree to this, parties are likely
to need to explain the reason for the delay when doing so.
25.Another provision to be aware of is CPR 16.8 which gives the court express power to make an order which
dispenses with all statements of case other than the claim form.
26.The court will make such an order to save time and costs in a situation where the statements of case are not
necessary for some reason. For example, analogous to the CPR 8 situation, there may be no dispute on the
facts which would ordinarily be set out in statements of case.
27.When will the ct dispense the statement of case? Once CF has been issued and served. Also ct might give
further directions as to case managements like allocation of the claim to a particular case management tract.
The response to the proceedings depends on the ct’s order rather than the usual rules in responding

MONEY CLAIMS ONLINE

 1. Special online procedure- claim is 100000 or less excluding interest or costs- file AOS/DEFENDE by email in
response to a money claim issued online. Apply for DJ or judgement following an admission by sending an
online request form
2. If claim is defended, usually will be transferred to the relevant CC hearing centre upon completion of DQ

Statement of case
1. purpose is to set out the facts relied on and the factual allegations made in support of that party's case.
2. It informs the parties of each other's case(s);It enables the parties and the court to identify the points of
dispute (the factual matters in issue) between them, and It provides the judge with a concise statement of
each party's case.
3. They need to be concise, clear and correct and they must comply with all necessary content requirements
as prescribed by the CPR and be in the correct format. If not might require formal amendment, needs input
from ct, permission from c, will impact other SOC’s from other parties. Even if don’t need formal
amendment the deficiency will cause time to be wasted by ct and parties working around the problem and
there will be cost consequences causing any of these issues and tactical disadvantage, some of which could
be very serious.
4. Every statement of case needs a statement of truth, can be used as evidence in the proceedings only if
verified by a statement of truth, if turns out to be false and the person signing the SOT doesn’t have an
honest belief that statement was true, there may be proceedings for contempt of court brought against
that person and could lead to sanctions within the proceedings, fines and/or imprisonment in serious cases.
5. Claim form- Part 7 Claim Forms A Part 7 claim must state in their CF and POC :  A concise statement of the
nature of the claim and,  The remedy sought and  The address A part 7 CF must  Contain Statement Of
Truth  Include a form for defending/ admitting the claim and AoS
6. If C is making a claim for money r16.3, C must in the CF, state –  The amount of money claimed ;  That
the amount he expects to recover is not more than 10k ; more than 10k but not more than 25k ; or more
than 25k or that the C cannot say how much is likely to be recovered  In a claim for PI, C must state if the
amount he expects to recover as general damages for PSLA is 1k (don’t include interest,set off, counter
claim, con neg, costs- unless its for a money claim) If claim by tenant against landlord seeking an order to
carry out repair or other work to the premises, claim in relation to the possession, occupation, use or
enjoyment of land, or for an injunction or declaration in relation to land, must identify the land and make
clear whether it includes residential premises, must also state in CF(a) whether est costs is more / not more
than 1k and (b) whether the value of any other claim for damages is more / not more than 1k.  If the claim
is for a specified sum state the interest of that sum and the basis for claiming the interest
7. Sometimes the claimant has a choice whether to issue the claim in the County Court or High Court. If the
High Court is chosen in this situation, a special ‘jurisdictional endorsement’ must be included in the claim
form (see CPR 16.3(5)): if for unspecified amount
8. Even for non- PI claim, for the purposes of working out the value of claim the statement of value in the CF
will not take account of interests. Costs, counterclaims, set offs, con neg, and state benefits that D may be
liable under social sec act
9. 7.4 Particulars of Claim A POC must include  A concise statement of the fact relied upon  Whether C
seeks interests and if so, whether C does so under a ctt or by an enactment and if the claim is for a specified
sum of money, the rate of interest claimed, the day from which it is claimed, the date to which it is
calculated, the total amount claimed to date to which it is calculated and the daily rate at which it is
accruing , calculating exact amount of interest/ by pleading interest generally (unspecified claim, loss of
goodwill or damage to reputation (which can usually only be estimated),loss of future earnings or profits,
and .any damages where remoteness, foreseeability and/or mitigation is an issue
10. If C is claiming for any aggravated or exemplary damages and the grounds for it and his grounds for it  If
the C is seeking provisional damages and the grounds for it
11.Generally, POC are included with/in the CF and are issued and served at the same time. But where there are
issued and served separately, the POC must be served on D within 14 days of service of CF and no later than
time limit of CF (4 months/6 months). If POC is not served with CF, the CF must state that the POC will
follow.
12.If PoC is served separately from CF, must contain: i) Name of court where C is proceeding ii) Claim number
iii) Title of proceedings iv) C’s address for service If the Claim is for PI, C must give in POC  His DOB  Brief
details of his PI  Attach schedule of past and future losses  Medical report if he is relying on one and  If
his condition will worsen  PD16.4 on soft tissue injury and provisional damages claim
 13.set out all the material facts and allegations which, if proved by evidence, would entitle the claimant to the
remedy it seeks as a matter of law. Meaning showing a duty owed by the defendant to the claimant, breach
of that duty, and that the breach caused recoverable loss.
14.claim is partly specified and partly unspecified? hybrid claims treat it separately also can cause working out
the interest for the specified and pleading interest for unspecified. or make it unspecified all together
15.PI case...over 200 pounds..some interest MUST BE AWARDED but the amount is at ct's discretion
16.pays whole of the debt during the proceeding...some interest MUST BE AWARDED
17.the particulars of claim closes with a summary of the remedies sought by the claimant aka prayer- prayer
provides the court and the defendant with a quick means by which to ascertain what the claimant actually
wants.
18.Judges rarely read the front page of the claim form, the details should be reserved to the POC.
19.If the claim is in the HC, C must state in CF.  That he expects to recover >100k  Where relevant, identify
the enactment which provides that the claim may only be commenced in HC  In the claim is for PI, state
he expects to recover >50k  Which specialist HC list the C would like the case4 to be in.
20. Personal service during partnership- leaving it with a partner/person who at that time of service has
control/management over partnership at it’s principle place of business. What if person hands them back or
throws it- Nottingham building society v peter bennet – states that once doc has been handed over and
been told of the general nature of the document. It has been duly served.
21.Senior position includes director, treasurer, secretary , chief executive, manager/ other officer
22.Where D is a limited liability partnership/ corporation / company = principal office or any place of business
which has a real connection with the claim.

Defence
1. React to every point or allegation in the claimant's particulars of claim. State full particulars of the
defendant's own case. Each allegation in the particulars of claim must be dealt with individually.
2. Must include- address for service in the jurisdiction (unless an acknowledgment of service has already been
filed) (CPR 16.5(8)), and also indicate where the defendant resides or carries on business if the claim form
does not contain such information.
3. Admit/deny/require proof of allegation.
4. Admit- not disputed- non-controversial-narrow issues and save cost and time. Cost consequences of not
admitting something that should have been done so
5. DENY- deny? Give reasons, and if want put forward diff/own version of events. Don’t do “bare-denial”.
Denial means- C have to proof allegation
6. Requiring proof- ask C to prove allegation
7. Confused between 5 and 6- question yourself what direct knowledge do you have of the facts
8. Failing to deal with allegation means deemed to be admitting it. D disputes C’s statement D must state why
he disputes it and put forward his own statement if possible. A D who fails to deal with an allegation but
has set out in his defence the nature of his case in relation to the issues to which the allegation is relevant
shall be taken to require that allegation to be proved. When the claim is for money, amount claimed is not
admitted unless the defendant specifically admits it (CPR 16.5(4)).
9. defence of limitation is being raised, the defendant must state the date on which the limitation period is
deemed to have expired.
10.Disputing statement of value- MUST state why and what are his estimates.
11.PI cases- state whether, agrees/disputes/no knowledge of the matters in the schedule of past,future
expenses and loses. Include any med report and give reasons.
12.Include mitigation/reduction of damages.
13.Set off
14.Defence and counterclaim should be in one doc
15. The claimant might serve an additional statement of case in response to the defence called a reply.
16.Counterclaims- cpr 20 cause form of additional claim- 20.4.- there is a court fee payable for this by D
17.Counterclaims normally made at the same time of defence. But if mad after, permission of ct is needed
18.More convenient to combine counterclaim with the main claim although it may or may not have anything
to do with the claimant’s substantive cause of action against D. but parties MUST be suing/being sued in
the capacity.
19.If ct feels they don’t want to hear the Counterclaim together with main claim then ct can order for it to be
struck out or head separately.
 20.This the facts that amounts to a Counterclaim gives rise to a defence in the main claim through a set off
and could be a complete or partial defence to the main claim
21.Claimant is unsuccessful – Defendant is successful - There is no judgment in favour of the claimant for the
set off to attach to. Judgment will simply be entered for the defendant against the claimant in the sum of
£10,000.
22.Mutual debts not damages- s.53(1) price of delivered goods to the breach of implied term as to quality,
fitness for purpose- defective services, money for service and poor service, equitable set off- close
connection between two transactions then unjust to allow enforcement for one claim w/o taking into
account the other
23.Set off be in the defence part of defence and counterclaim. Remember C has to reply to D’s counterclaim
and so similarly it can either be admitted or defended and must be done withing 14 days after service of
counterclaim.
24.AOS doesn’t apply to C who’s wishing to defend a counterclaim.
25.Reply- optional- to allege facts in answer to D- not in poc earlier. So if there’s one, should be filled with DQ.
reply will be served with DQ...given 14 days notice of the deadline to serve and file DQ. usually after claim
is defended
26.Reply verified by SOT- c’s reply sometimes got counterclaim in it as well so- reply and defence to
counterclaim forms one doc, where reply comes first followed by defence to counterclaim.
27.Reply- last statement of case, whatever after that need ct’s permission

MULTIPLE CAUSES OF ACTION, CC AND ADD CLAIMS

1. rules on limitation apply to all new claims regardless of it brought as a separate action/added to an existing
claim
2. Multiple causes of action = single claim form should be used to start all claims that can be conveniently
disposed of in the same proceedings (test of convenience). Multiple persons hold the same right = all must
be joined as Cs. If they do x consent to being joined as Cs, they must be added as Ds. no person may be
added/substituted as C unless he gives his WRITTEN consent which is FILED with the court. Liability joint x
several- every person must be a D.
3. Added to be a new party if desirable to add the new party so that the court can resolve all the matters in
dispute in the proceedings
4. issue involving the new party and an existing party which is connected to the matters in dispute in the
proceedings, and it is desirable to add the new party so that the court can resolve that issue
5. The court may also order that any person cease to be a party if it is x desirable for that person to be party
to proceedings
6. Procedure for adding and substituting- CF has been served, permission of the court is required to add/
remove/ substitute P. app can be made without notice supported with evidence. The order for it served on
all parties.
7. app may be dealt with without a hearing where all existing and proposed new parties are in agreement.
8. In adding or substitution CLAIMANT, party must file app notice; proposed amendment CF and POC. Signed
written consent of the new claimant. Where order has been made, this must be done within 14 days and
order by court will not take effect until this is filed
9. S.35 LPA. Adding or substituting after the limitation period- MAY only order if- The relevant LP was current
when the original proceedings were started and  The addition/ substitution is ‘necessary’, which means
where the Court is satisfied that - There has been a mistake in nomenclature or identification in naming a
party or - The claim cannot progress without the addition/substitution of the new party or - The original
party has died or is bankrupt, and his interest has passed to the new party. Usually when new cause of
action is an original set-off or counterclaim (under s.35(3) Limitation Act 1980),
10. The new claim is deemed to have been commenced on the same date as original action. However, in third
party proceedings, the date is the later date. Expense and delay caused by amendment is likely to be an
increasingly prominent consideration for the Courts.
11.Mistake in identification- Where the party can be identified correctly by their description, but the wrong
name is used. Claim cannot property be carried on without addition/substitution – think of suing capacity.
Is it joint interest?
12.CPR 17 relates to any type of amendments to statements of case, and not just amendments which relate to
new causes of action, counterclaims and additional claims.
13.Changes in the parties’ knowledge of a case (eg upon disclosure or the exchange of witness statements) or
even simple drafting errors sometimes necessitate the amendment of a statement of case.
14.CPR 20 is as follows- add claims is- Any claim other than the claim by the claimant against the defendant’
15.Counterclaim by D against C 20.4 
16. Counterclaim by D against C and some other person 20.5  Must apply to the court for an order for the
person to be added as an additional party. May be made without notice. So, 20.5 is cc against the claimant
AND some other person. other party will need to be joined into the main claim as a third party so that the
defendant’s counterclaim can proceed. some connection between the claimant and third party in respect
of the counterclaim
17.Additional claim by D against existing party for contribution or indemnity or some other remedy 20.6 
must file and serve contribution notice (notice containing a statement of the nature and grounds of
additional claim). No permission required if filed with Defence. If against a party added later, within 28
days after that party files his defence
18.Additional claim by D against new party for contribution or indemnity 20.7. A party upon whom an
additional claim is served becomes a party to the proceedings if he was not already a party (CPR 20.10). No
Permission? If the additional claim is issued before or at the same time as the defence is filed.
19.serve with response pack and every other SOC and other doc
20. or for existing party claiming for some other remedy 20.7  So this would include a claim for some remedy
other than a contribution or an indemnity from a co-defendant.
21.difference between 20.6 and the first part of 20.7 is that the former claims contribution or indemnity the
later claims some other remedy. the other 20.7 is an additional claim by the D against any person not
already a party to the proceedings. 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 an existing party
(most likely a co-defendant) by filing a contribution notice with the court and serving that notice on the
other party. This is if he is not serving with the defence.
22.So again, there would need to be a legal basis on which the defendant could base this claim against the
third party and case analysis will be essential as when considering any other claim.
23.A copy of the additional claim form must also be served on every existing party (CPR 20.12(2)).
24.Additional claim by a new party against any other person (3rd party v fourth party claims) 20.7- Permission
required at any other time. May be made without notice. POC must be contained in or with CF.
25.Against non party – No permission required if issued before or at same time as Defence. Permission
required at any other time
26.Permission required at any other time. May be made without notice. POC must be contained in or with CF.
If such an additional claim is made without the court’s permission the claim form should be served on the
person against whom it is made within 14 days of it being issued (see CPR 20.8).
27. However, Permission is applied for using the ‘normal’ CPR 23 procedure. The Application Notice will be
accompanied by a draft order and evidence in support which will include details of the stage the main claim
has reached, details of the additional claim, a summary of the relevant facts, explanation of any delay and
the name and address of any proposed party
28.Any other additional claim – CF must be served against the person whom it is made within 14 days after
additional claim issued by the court. Claimant’s job
29.Except counterclaim, all other claims are brought under Part 20.
30.D may make a CC against C WITHOUT permission if filed together with Defence.
31.Acknowledgement of service does x apply to C wishing to defend a CC.
32.Any claim form must be served on every other party when defence is served.
33.Contribution ‘A right of someone to recover from a third person all or part of the amount which he himself
is liable to pay.’
34.Indemnity ‘A right of someone to recover from a third person the whole amount which he himself is liable
to pay
35.party served with an additional claim must file a defence in accordance with CPR 15.2. If it does not, it will
be deemed to admit the additional claim. although default judgment will not be available to the additional
claimant unless the claim was a counterclaim against a claimant who then failed to respond to it – see CPR
20.3(3))
36. A right to a contribution might arise in tort, contract or under the Civil Liability (Contribution) Act 1978 –
for instance, in a road-traffic accident case.
37.right to an indemnity will often arise from a contract (with one party contracting to indemnify another) or
some other statutory provision: for example, a defendant being sued for professional negligence might
have a contractual right to claim an indemnity from his insurers.
38. When deciding if additional claim should be separate, court will consider connection with original
proceedings and remedy sought. Matters which court may have regard include:  Connection between the
 additional claim and claim made by C against D  Whether the add C is seeking substantially the same
remedy which some other party is claiming from him; and  Whether add C wants court to decide any
question connected with the subject matter of the proceedings.
39. app include for p20- main claim number, stage at which ori proceedings have reached, details of C and D,
summary of facts and details of add claim, name and address of TP, POC, statement of truth.
40.An add C may not enter default judgment under Part 12 if he has not satisfied the DJ given against him or
wishes to obtain judgment for any other remedy other than contribution or indemnity.
41.Amending SOC- can do it at any time if its before it has been served. If after- only W the written consent of
all other parties OR  W/ permission of the Court.
42.applicant should file an application notice and a copy of the statement of case w/ proposed amendments.
Pt 22 – amendments to SOC to be verified by Statement of Truth unless court orders otherwise. Served to
every party.
43.The application will then be dealt with at a hearing or on papers where the other parties consent or if court
considers hearing unnecessary
44.Where P has amended SoC where permission is x required, the court may disallow the amendment (usually
amendments which are vexatious/ dishonest). If the opposing P wishes to challenge the irregular
amendment (e.g. where permission needed) they must apply within 14 days of service of the amended SOC
to strike it out. Court will consider whether it is just and at a proportionate cost to allow amendment.
Generally allowed so that the real matters in dispute can be adjudicated upon (Cobbaold v Greenwich LBC)
but not where the resulting prejudice on the opposing party cannot be compensated by cost.
45.Permission to amend defence will not be allowed if no real prospect of success. Heavy burden on the party
seeking late amendment to prove, demonstrate that it will not put the parties on unequal
footing/jeopardise any party’s prep for trial (swain maison). But party will x be prejudiced where it has had
the opportunity to make submissions on the new case and would x have called any further evidence in
response to it.
46.Where court gives permission, it may give directions as to amendments to be made to any other SOC and
service. amended statement of case should usually be filed by the applicant within 14 days of the date of
the order granting amendment unless the court orders otherwise.
47. Amendment after LP- MAY ALLOW- only if the new claim arises out of the same facts or substantially the
same facts as a claim in respect of which the party seeking permission to amend has already claimed a
remedy. Correct a mistake to name of a P, but only if mistake was genuine and x one which would cause
reasonable doubt as to the identity of the party in question (17.4(3)), Alter the capacity in which a party
claims if the new capacity is one which the P had when the proceedings started or has since acquired
(17.4(4))
48.An amendment adding a new duty or obligation on the part of a defendant (or possibly even a claimant)
will usually raise a new cause of action so this will be a new claim.
49.amendment adding additional facts or particulars which clarify a duty or obligation which has already been
alleged, will not normally be interpreted as raising a new cause of action.
50.If there is a new distinct allegation, it will be a new cause of action and will need to be justified within CPR
17.4 as this amendment will add a new claim after the limitation period has expired
51.So in a gist- If a party seeks to amend their SOC in order to add/ substitute a new claim after the LP has
expired the court asks:  Whether the amendment would involve the addition / substitution of a new
cause of action. If it would NOT, the court has the discretion to allow the amendment.  If the amendment
WOULD add/ substitute a new cause of action: the court asks whether the new cause of action arise out of
the same facts / substantially the same facts as those already pleaded. If not, the court may NOT allow the
amendment.
52.Court will NOT grant D permission to amend D’s SOC where the effect of the amendment would be to
transfer responsibility for the claim on to a new party who CANNOT be sued by C because C would be time-
barred
53.However even if C has been time barred with the new party, if C KNEW of the facts indicating the new party
would be sued prior to commencing proceedings, D may be allowed to amend since C has effectively
chosen x to pursue the proposed new party so decision will always involve the court seeking to find
a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing
party and other litigants in general, if the amendment is permitted.
54.General rule- court is required to give effect to the overriding objective of dealing with cases justly and at
proportionate cost.
55. App for for permission to amend a defence will be refused if it is clear that the proposed amendment has
no prospect of success. Ct may reject amendment if its seeking to raise a version of the facts of the case
 which is inherently implausible, self-contradictory or is not supported by contemporaneous
documentation. Or even allegation which is unsupported by any evidence and is therefore pure speculation
or invention. Cause required SOT can’t be properly given.
56.a late amendment (ie an 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 to the respondent’s task of
preparing for trial. especially be the case if the amendment does not result from late disclosure or new
evidence or C cannot adequately justify making the amendment at such a late stage (see Swain-Mason case
above
57.So, will need to work very hard to convince the court that permission should be given, providing a good
explanation as to why they did not apply earlier and must show the strength of the new case and why
justice to them, their opponent and other court users requires them to be able to amend.
58. 2 months before trial is considered as late. as it may jeopardise the trial date and might put a considerable
burden on D to amend its own statements of case and to produce further disclosure and evidence
(witnesses and experts). However, may be allowed but it would be with a heavy costs penalty on C.
59. CPR 19.- Court may add/sub a party. The main test is that the amendment is ‘desirable. policy objective of
enabling parties to be heard if their rights may be affected by a decision in the case, and the overriding
objective.
60.Finally, the court’s permission is always required to add, remove or substitute a party, unless the claim
form has not yet been served (CPR 19.4(1)). But this for after the limitation period
61.Necessary-
a) named in CF in mistake of the new party
b) Claim cannot properly be carried on by or against the original party unless the new party is added or
substituted as claimant or defendant; or
c) The original party has died or had a bankruptcy order made against him and his interest or liability
has passed to the new party
62. Mistake- is it possible to identify the intended defendant? By ref to a description more or less? If it is, then
it is a mistake type covered. There must be A CAUSAL LINK between the mistake being made and the issue
of the CF with the wrong name
63.General rule: the party seeking to amend will pay the other side’s consequential costs of the amendment.
amendments to the claim form in the period between issue and service and amendments to other
statements of case (such as particulars of claim) prior to service. Unless when c seeks to make reasonable
amendments at an early stage of proceedings D (and other parties) should consider giving consent.
Unreasonable refusal may result in the loss of the usual costs orders against the party applying to amend.
64.Where C seeks to amend SOC at very late stage , C may face particularly onerous costs orders.
65.An amendment to add a new cause of action or party to existing proceedings is deemed to be a separate
action which is commenced on the same date as the original action.
66.addition of a new party now takes effect on the date the amended claim form is served upon him
67. for after LP- s 33 Limitation Act in relation to personal injury claims, This provision gives the court a
general discretion to disapply that time limit if satisfied that it is equitable to do so.
68.Adding parties post limitation- CPR 17.4 also deals with amendments which change the parties to an
action- CPR 17.4(3) Relates to correcting a mistake as to the name of a party, CPR 17.4(4) Relates to
changing the capacity of a party.
69. But CPR 19.5 Relates to changing the identity of a defendant, Parties may only be added or substituted
after the end of the relevant limitation period if: • the limitation period was current when the proceedings
were actually started; and • the addition or substitution is ‘necessary’. And necessary means CPR 19.5(3)(a)
the new party is to be substituted for one that was named in the claim form in mistake for the new party;
or CPR 19.5(3)(b) the claim cannot properly be carried on/by/against the original party unless the new
party is added or substituted; or CPR 19.5(3)(c) the original party has died or had a bankruptcy order made
against him and his interest or liability has passed to the new party.
70.CPR 17.4(3) and 19.5(3)(a) both deal with mistakes in the name of a party. The court will distinguish
between mistakes in name only, and those which actually result in an entirely different person or entity
becoming a party ie mistakes as to identity. However, misleading 19>5 statement is, both these provisions
cover amendments in relation to the name of the party and not someone with an entirely new identity
(which will not be allowed).
71.Ø CPR 17.4(3) applies where the intended party was named in the claim form but there was a genuine
mistake such as causes no reasonable doubt as to the identity of the party in question. So, for example, the
claim form will have been served on this defendant despite their name being wrong.
 72.Ø CPR 19.5(3)(a) applies where the mistake is more fundamental and the situation can only be made right
by the new party being substituted. So here, a new person will be joining the action, however their identity
will have been known already. Meaning they got the description of the person more or less. The Sardinia
sulcis.
73. This test might allow the substitution of a new defendant, unconnected with the original defendant and
unaware of the claim until after the expiry of a relevant limitation period. the court may allow the
amendment but is not obliged to allow it if it would be unjust.
Further information
1. Further information- Before approaching the courts, the P seeking FI should first serve on party from whom
info is sought a written request for that, clarification/information stating a date by which the response to
the request should be served. Allow reasonable time to respond, only if this request is unsuccessful then
apply to court
2. Things that can be requested-
a) To obtain admissions (although this is rare)
b) To obtain information which may reveal weaknesses in the other party’s case
c) To obtain information about facts which the other party needs to prove to make good their case
d) To acquire advance details of what a witness may say before exchange of witness statements.
e) To obtain clarification of the other party’s case (a common and useful function as it limits the other
party’s ability to depart from it later)
f) To narrow the issues between the parties to save time and costs
3. In multi-track claims, directions setting out the time period for serving requests for further information and
responses to them will usually be included in the directions at the first case management conference
4. Request should be concise and strictly confined to matters which are reasonably necessary and
proportionate to enable the first party to prep his case/ understand the case he has to meet.
5. The format for FI= headed with name of court and claim number- state that it’s a P18 req- identify first and
sec party and date of request. Set out in separate para each req/clarification. Where request relates to doc,
identify the doc. State the date by which the party making the reqexpects the response.
6. court may at any time order a party to clarify any matter which is in dispute in the proceedings or give
additional info to any such matter. May be dealt with without hearing.
7. person against whom the order is made must  File his response and  Serve it on other parties within
specified time by the ct.
8. if the other party rejects this or is unable to do so within the time limit, he must inform requesting party
promptly and within date stated. No need to apply to court to object.
9. application to the court would be appropriate where the other party has not responded or has responded
with an objection to provide the information
10. The requesting party need x serve app notice on the other party where he made NO response after 14
days have passed and date stated for response has expired. application should be made as an interim
application under CPR 23 (18 PD 5). If, the other party has not responded after 14 days have passed, the
court can deal with the application without a hearing. Ct may deal w/o app and w/o hearing
11.Response- Where the response is in a letter, the letter should identify itself as a response to the request
and deal with no other matters than the response. The response becomes a statement of case.
12.Unless the responding party responds on the same document, the response must have the features above
(heading, identify as a response, attach copy of any docs etc).
13.sent to the other party and filed at court

Interim applications, default judgment and summary judgments

1. Interim applications should be made as soon as it becomes apparent that it is necessary or desirable to
make it.
2. If app to the ct is made with notice, then R can deal with it WITH a hearing.
3. In contrast, an app without notice is made by A to the judge without R present and Any interim order made
at a without notice hearing should make provision for a return date where both A and R may make
submissions.
4. court may only grant an interim remedy before a claim has been made if  The matter is urgent OR  It is
otherwise necessary to do so in the IOJ.
5. D x file for an interim order before he has filed D or acknowledgement of service.
 6. Application notice must be served on each P as soon as practicable after it has been issue and if there is a
hearing, at least 3 clear days before hearing.
7. However, the court may grant an interim remedy on an application made without notice if it appears to
the court that there are good reasons for not giving notice.
8. But only if, there is exceptional urgency  Where the overriding objective is best furthered by doing so 
By consent of all parties  W/ permission of the court  Where a court order, rule or PD permits
9. But ct expects party to give atleast an informal notice.
10.Once an order is made w/o notice (granting/dismissing app), A is under a duty to serve the R with all the
relevant documents from the hearing. And if R is not served with those docs that R can set aside the order
or have it varied within 7 days of being served with the order.
11.Where app is made without notice, must state the reasons why notice has x been given.
12.Generaly app notice is made to the ct where claim was issued and must include title of claim, ref number of
claim, full name of applicant and state its Either request for a hearing / request that the app be dealt with
without hearing, What order the A is seeking &  Briefly, why the app is seeking the order  Any relevant
evidence.
13.Duty of Full and Frank Disclosure Applies to all without notice apps. It requires A to reveal all material facts
or evidence even if it may weaken his case (golden rule). If A obtains an injunction having x adhered to this
duty, R may apply for a discharge of injunction on the basis of material non-disclosure.
14.A copy of application notice must be accompanied by  A copy of any supporting W/S  A copy of draft
order which app attached to his application
15.All applications for an interim remedy:  Must be supported by evidence  The general rule is that urgent
apps are usually dealt with at a court hearing; however cases of extreme urgency may be dealt with by
telephone.  The Court may deal with an application without a hearing if the parties agree to the terms of
the order sought, the parties agree that the application should be disposed without hearing or the court
does not consider that a hearing would be appropriate.
16.Court has power to proceed in absence of party.
17.Where an application is dismissed because the court is of the opinion that it is totally without merit, the
court must first record that fact on the order and secondly, consider a civil restraint order.
Default Judgment and Summary Judgment
DJ
1. Parties may apply for judgment without a trial where  No defence/ acknowledgement of service has been
filed (default)  No trial is needed (summary)
2. default judgment may NOT be obtained: a) Claim for delivery of goods subject to Consumer Credit Act 1974
b) Part 8 procedure used (alternative procedure for claims) c) The claim is an admiralty, arbitration,
contentious probate, provisional damages or possession claim. d) Admiralty proceedings e) Arbitration
proceedings f) Contentious probate proceedings g) Claims for provisional damages h) Possession claims.
3. amount awarded in DJ will be the amount claimed by C in the POC. If C claiming for unspecified amount,
court will decide the amount. Judgment may be given for interest if interest has been claimed.
4. Conditions for DJ- C serves D with POC, D has 14 days to file either an AoS or Defence. If D files an AoS, he
then has 28 days from RECEIPT OF POC to file a D. and No application for summary judgment or strike out
has been made has been made by the defendant.
5. Default judgment covers cases where the defendant has failed to respond to the claim and does not look at
the contents of the statement of case. It is therefore procedural. court does not consider the merits of the
case when ordering default judgment
6. Claimant MAY NOT obtain DJ if: i) D has applied for case to be struck out or for Summary Judgment &
either app has not been disposed of ii) D has satisfied the whole claim iii) Claim for money D has filed or
served an admission & request for time to pay iv) App S6 Justice and Security Act 2013.
7. Procedure for DJ C must make either a request or an application. Request = requires administrative act of
court. Application (permission) = to the judge. Money claim = request Other claims = application
(permission)
8. C must show that (this is the evidence)  POC were served. A certificate of service on the court file will be
sufficient.  D has not filed an AoS/ Defence/ Admission / Satisfied C’s claim  Prove D’s date of birth.
9. DJ obtained through filing of request (i.e money claims) may include the amount of interest claimed to the
date of judgment. N205A or N225 forms – for specified amount of money / delivery of goods where D given
alt of paying specified sum rep their value / for fixed costs only. Money claims – specified sum- application
will be dealt with on paper. The court will make a judgment for the amount sought, fixed costs and interest
accrued to the date of judgment.
 10.N205B or N227 forms – for unspecified sum of money- Claims against children and protected parties  For
costs only  Tort claims by one spouse/ civil partner against another  Non-money remedy. Part 23 notice
requirement applies. application will be dealt with on paper. The court will enter a judgment for a sum to
be decided by the court and will set a timetable leading up to a hearing at which the court will decide that
sum.
11.Non money claims- cannot be decided on paper. Instead the claimant must apply for a default judgment
hearing to be listed under CPR 23. The court will then give whatever judgment it considers appropriate
12.Can proceed w/ the other Ds. Where the claim can be dealt with separately from the claim against the
other D, the Court may enter a DJ against that D and the claimant may proceeding with other Ds.
13.If the claim x be dealt with separately from claims against other Ds, the court will NOT enter DJ against that
D and the court must deal w the application at the same time as it disposes of the claim against the other
D. C can only enforce judgment for possession of land or for delivery of goods if he has obtained DJ against
ALL Ds or court gives permission.
14.D may apply to set aside or vary a DJ entered against her. MUST set aside DJ if judgment was wrongly
entered (e.g. D filed AoS/D/satisfied claim). For example, time limit for acknowledging service or serving a
defence has not, in fact, expired when judgment was entered; or An acknowledgment of service or defence
had, in fact, been filed on time; or Summary judgment or strike out had been applied for before judgment
was entered; or The defendant had, in fact, satisfied the whole of the claim before judgment was entered
or admitted the claim or required time to pay.
15.MAY set aside DJ if  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 (i) the judgment should be set aside or varied; or (ii) The
defendant should be allowed to defend the claim. So its not enough if D shows that it has merely an
arguable defence. application which requires a hearing and must be supported by evidence. court may set
aside default judgment with conditions attached, eg that the defendant pays the claimant’s costs of the
hearing
16.– whether D made application to set aside promptly. Where the D is an individual and the judgment was x
obtained in the D’s home court, the HC or CC will send the D’s app to the D’s home court. Where D is x an
individual, the app will be sent to D’s preferred hearing centre.
17. Ct’s way of setting aside- is a relief from sanctions and Denton- cpr 3.9-
18.the claimant can obtain judgment in default by either request or application (to the judge)
SJ
1. The court may order a SJ against the C or D on the whole of the claim or on a particular issue if C has no
real prospect of succeeding on the claim or issue/ D has no real prospect of successfully defending the
claim or issue & There is no other compelling reason why the case or issue should be disposed of at trial. =
Court will disregard prospects which are false, fanciful or imaginary. The respondent must have a case
which is better than merely arguable even if it is improbable. So don’t have to show that the case will
probably succeed just some chance even if it is improbable– although a weak case is likely to warrant a
conditional order. The burden of proof rests with the Applicant.
2. Not a mini trial so will only look into the merits only to the extent that it is necessary.
3. summary judgment covers cases which are weak on the facts. If summary judgment is granted on an issue,
that issue is no longer considered at trial which saves costs. SJ furthers the overriding objective because it
allows the court to deal with weak cases or issues proportionately and expeditiously.
4. appropriate for a party to combine a striking out application with an application for summary judgment.
enables the court to strike out the whole or part of a statement of case which discloses no reasonable
grounds for bringing or defending a claim (CPR 3.4(2)(a)), or which is an abuse of the process of the court
or otherwise likely to obstruct the just disposal of the proceedings
5. Always available against C. Available against D except in  Residential possession proceedings against a
mortgagor or tenant, or  An admiralty claim in rem. If an order for SJ is made against a R who does x
appear at hearing of the app, the R may apply for the order to be set aside or varied.
6. SJ x available if there is some other compelling reason for a trial. If the Respondent is counterclaiming or
claims set-off then the Respondent may argue that the facts of the CC/ set-off are so closely related to the
claim that a trial is required.
7. Here, court has three possible options :  Accept R’s argument and refuse to grant summary judgment 
Grant summary judgment but with a stay on enforcement pending trial of the CC, or  Where set-off is
claimed, D must quantify the amount. The court may give summary judgment for the balance.
8. If C applies for SJ after D’s dishonoured cheque, D will x not be able to rely upon set-off.
 9. Claimant can apply after the defendant has filed an Acknowledgement of Service or defence. Defendant
Can apply anytime after proceedings have commenced. And the ct can fix hearing of its own initiative with
regard to cpr 3.3
10.Ideally, the claimant or defendant should apply for summary judgment either before or at the same time as
filing the Directions Questionnaires to avoid incurring unnecessary costs (26 PD 5.3(1)). If the application is
made on filing Directions Questionnaires, the court will delay allocating the matter to a track until after the
summary judgment hearing.
11.claimant fails to comply with a relevant pre-action protocol, the application for summary judgment by the
claimant will not normally be considered before the defence has been filed or time for doing so has expired
12. SJ app is to create a pause in the proceedings.
13.If the claimant applies for summary judgment before the defendant has served a summary judgment
defence, the time for the defendant to file a defence is extended until after the hearing (CPR 24.4(2)).
14.If the defendant applies for summary judgment, the defendant does not have to file either an
acknowledgement of service or a defence until after the summary judgment hearing.
15.application made under Part 23. Applicant must identify any point of law or provision that the applicant
relies upon and the application must be supported by evidence.
16.Timeline for SJ- C may x apply until D has filed either an AoS or D.
17.When hearing is fixed, R must be given at least 14 days notice of  The date fixed for the hearing and 
The issues that will be decided. If the Respondent wishes to rely on written evidence at the hearing, he
must file the witness evidence and serve a copy on all parties at least 7 days before hearing. If the applicant
wishes to rely on written evidence in reply, he must file the written evidence and serve a copy on the
respondent at least 3 days before hearing.
18.At hearing the court will make one of the four orders/judgments:  Grant SJ  Strike out or dismiss the
claim  Dismiss the application  Make a conditional offer ( for weak cases, requires a party to pay a sum
of money into ct. take specified step in relation to his claim or defence).
19.application notice must: • Include a statement that it is an application for summary judgment under Part
24; and • Direct the respondent’s attention to the provision of evidence in CPR 24.5(1).
20.Either the application notice or supporting evidence (usually a witness statement) must: • Identify
concisely any point of law or provision in a document on which the applicant relies; • State the application
is made because the applicant believes that on the evidence the respondent has no real prospect of
success and knows of no other compelling reason why there should be a trial; and • Details of the facts and
documentation to show there is no real claim or defence.
21. Dismissing or striking out the claim - It is as if the claim never existed. The judge will make an order for
costs to compensate the defendant. So after it is dismissed, remember to strike out. Dismissing the SJ
means the claim continues and the judge will make a costs order. If the claim is to continue, court may: •
Give directions for the defendant to file and serve its defence by a specified date if this has not already
taken place in the proceedings; and/or • Give any other further directions required for the management of
the case.
Strike out
1. court’s power to strike out a statement of case is in CPR 3.4. Strike out focuses on a statement of case and
so covers cases which do not amount to a legally recognisable claim or defence.
2. Strike out is designed to target cases that are inadequately drafted in the statements of case or are
otherwise an abuse of the court process.
3. Strike out is used quite sparingly by the courts as there are often more suitable ways to deal with defective
cases such as requiring the party at fault to amend its statement of case
4. Or if ground for striking out is failure to comply with previous orders made by the court, imposing a
sanction such as an adverse costs order.
5. jurisdiction to strike out should therefore only be used in cases where there is no point in having a trial on
the issues that are subject to the strike out- don’t want to deprive party of the right to trial and the ability
to strengthen its case during litigation
6. Strike out in CPR 3.4(2)(a) and (b) focuses on the statement of case and so covers cases which do not
amount to a legally recognisable claim or defence. Strike out is not purely procedural.
7. Alternative grounds for strike out- CPR 3.4(2)(a) No reasonable ground for bringing/defending the claim A
statement of case may be struck out if it discloses no claim or defence as a matter of law. So soc must be
properly set out
8. Defences which state that the claim is denied without providing any reasons for that denial contrary to CPR
16.5- soc that doesn’t make sense. SoC that are suitable for striking out are those which raise an
 unwinnable case where continuance of proceedings is without any possible benefit to the respondent and
would waste resources on both sides (Harris v Bolt Burdon).
9. A claim/defence may also be struck out as being invalid as a matter of law (Price Meats Ltd v Barclays Bank
plc) Where strike out is on this basis, the hearing will assume that the facts stated in the SoC are true.
10.CPR 3.4(2)(b) Abuse of process / likely to obstruct just disposal of proceedings Abuse of process is a misuse
of procedure- commence a claim with no intention of taking the case further as it is not using the court
procedure for the purpose for which it is designed-
11.Examples include attempts to re-litigate decided issues. depends upon all the circumstances. A broad,
merits based judgment should be adopted, taking into account public and private interests involved and all
the facts of the case
12.Obstructing just disposal includes claims that are vexatious, scurrilous or obviously ill-founded.
13.A further potential form of abuse is a party attacking a final decision against them made by a court of
competent jurisdiction. In Hunter v CC of the West Midlands Police the HoL reasoned that the party had full
opportunity to contest the decision in the court in which it was made and that it would be an abuse to
allow that party another chance.
14.However, it might not be an abuse of process if the claimant could show that they had fresh evidence
which entirely changed the previous case and that the further evidence could not by reasonable diligence
have been obtained beforehand. It was important to consider: (i) The nature and extent of the earlier
judgment (ii) The nature and basis of the claim made in the later proceedings (iii) The grounds relied on to
justify the collateral challenge
15.statement of case which discloses no reasonable ground may also be an abuse of the court’s process
16.CPR 3.4(2)(c) Failure to comply with a rule, practice direction or court order, where the abuse is not in the
statement of case itself, but is in the way the claim or defence has been conducted.
17.When considering whether to strike out a statement of case on this ground, the court will consider
whether it is still possible for the parties to receive a fair trial and will weigh this against any prejudice
suffered by the innocent party.
18.Examples of the failure to comply with a rule, practice direction or court order would be late service and
exchange of documents, not attending court when ordered to do so or being unprepared for court
hearings.
19.Where the court has struck out C’s case and C has been ordered to pay the costs of D and before the C paid
those costs, he starts another claim against D arising out of facts which are the same / substantially the
same, the court may – on APPLICATION OF D - order that the claim be stayed until the costs of the first
claim is paid.
20.If the court has struck out the C’s claim on the basis that it is totally without merit, the court’s order must
record that fact & the court must at the same time consider whether it is appropriate to make a civil
restraint order.
21.Where the court gives an unless order with the consequence of striking out and the party fails to comply, a
party may obtain judgment with costs by filing a request for judgment. The request must state that the
right to enter judgment has arisen because the court order has x been complied with.
22.fair hearing will still be possible it is unlikely that the court will strike out a statement of case on this ground
as it would not be carrying out justice to bar a litigant from proceedings due to a technical breach of the
rules. Instead, the court would be more likely to make an order imposing a sanction for non-compliance.
23.statements of case filed by the parties will be considered by the court at the allocation stage. If
appropriate, the court may decide to strike out the whole or part of a party’s statement of case, or, more
likely, it could give the party an opportunity to amend its statement of case or correct the breach. If the
court decides to strike out proceedings, it spares the other party the expense of having to initiate ‘strike
out proceedings’.
24.Also parties make app to strike out whole/part of the other’s case as an interim app. Better for it to be
done before allocation
25.Judgement- ct can make automatic strike outs, ther order includes such terms that soc of a party will be
struck out if party does not comply with the order. Cpr.3.5 sets out procedure for the other party to obtain
judgement with costs
26.Party wanna set aside this judgement- cpr 3.6 is the procedure to it.
27.court can impose sanctions to ensure its orders are complied with for the smooth running of the case.
28.main sanctions the court can impose are listed in CPR 3.1 and include: Making an order subject to
conditions, including a condition to pay money into court (CPR 3.1(3)(a). Specifying the consequences of
failure to comply with an order or condition (CPR 3.1(3)(b)). When giving directions, the court will take into
account whether or not a party has failed to comply with a rule, practice direction or relevant pre-action
 protocol. Non payment of court fees always serious, late with cost budgets. consider why the breach
occurred. Circumstances outside the control of the defaulting party. E.g. solicitor debilitating illness,
accident.
29.Thirdly, evaluate all the circumstances of the case, so as to enable the court to deal justly w/ the
application under 3.9.1(a)(b). Eg strong cogent evidence
30.automatic sanctions for default- where failure to disclose an expert report prevents a party from using that
report at trial)- where failure to file a costs budget will be treated as only filing a costs budget of applicable
fees.
31.Unless order- unless order is an order which provides for an automatic sanction in the event of non-
compliance with the order- must specify the date and time within which the act must be done.
32.Non-compliance with orders imposing sanctions CPR 3.8- fails to comply with a rule, practice direction or
court order imposing a sanction, the sanction takes effect pursuant to CPR 3.8(1) unless the party applies
for and obtains relief from that sanction under CPR 3.9.
33.the time for doing the act may not be extended by agreement between the parties except as provided for
in CPR 3.8(4). CPR 2.11 allows for time limits to be varied by written agreements between the parties, but
this is subject to CPR 3.8(4).
34.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 court orders otherwise.
35.parties must make applications to the court if the parties wish to vary the date for a case management
conference in a multi-track case.
36.parties cannot vary the time limits by agreement. For example, the date for compliance with a notice of
proposed allocation may not be varied by agreement between the parties (CPR 26.3(6A)).
37.Where, provisions appear in the CPR either by placing a positive duty on parties to make applications to
court or specifically stating that parties cannot agree variation of the rules between themselves, those take
precedence over CPR 3.8(4).
38.‘the parties are required to further the overriding objective’ and therefore parties who opportunistically
and unreasonably oppose applications for relief from sanctions for minor and inadvertent errors by the
other party take up court time and act in breach of CPR 1.3. The parties should be ready to agree limited
but reasonable extension of time up to 28 days as envisaged by CPR 3.8(4) where possible
39.on an application for relief from sanctions, the court will consider all the circumstances of the case so as to
enable it to deal justly with the application. Example For litigation to be conducted efficiently and at
proportionate cost. To enforce compliance with rules, practice directions and orders. An application for
relief must be supported by evidence.
40.Identify and assess the seriousness and significance of the failure to comply with the relevant rule, practice
direction or court order which engages CPR 3.9(1). If the breach is neither serious nor significant, then
relief should be granted, if otherwise, consider why the default occurred. Then evaluate all matters of the
case to deal with it justly.
41.particular weight to be given to the requirements under CPR 3.9 that (1)(a) litigation must be conducted
efficiently and at proportionate cost and (1)(b) the court must enforce compliance with rules, practice
directions and orders.
42.Whether significant ? whether it has imperilled future hearing dates or otherwise disrupted the conduct of
litigation.
43.Lord Dyson also made it clear that an assessment of the seriousness or significance of a breach should not
involve, at the first stage, an assessment of the general conduct of the parties.
44.Check if breach caused problems to the efficient conduct of the litigation at proportionate cost.
45.In time applications- deadline is looming and a party realises that it is not going to be able to comply with
that deadline. application for an extension of time to take any particular step in litigation is not an
application for relief from sanctions provided that the applicant files his application before expiry of the
permitted time period. This is the case even if the court deals with the application after the expiry of the
relevant period.
Syllabus Area 15 & 16 Part 23 Interim Applications: Interim Payments, Security for Costs & Injunction
1. An interim payment is defined as an order for payment of a sum of money by D on account of any
damages, debt or other sum (except costs) which the court may hold D liable to pay.
2. where C considers that he is likely to achieve some success in the claim and it would be unjust to delay
payment of that money until after trial.
 3. P is to suppose a C who has suffered a loss and might otherwise have to wait long periods before receiving
compensation. Not entirely disadvantageous to D as his liability to interest on the total award will be
reduced.
4. The fact that D has made an IP shall x be disclosed to the trial judge until all questions on liability and
quantum has been decided unless the D agrees to disclosure.
5. Procedure- C may only apply for IP after the period for AoS by D has expired.
6. C may make more than one app and a copy of the app notice must be served at least 14 days before
hearing and be supported by evidence.
7. Every app should be made as soon as it becomes apparent that it is necessary or desirable to make it.
8. If the R wishes to rely on written evi at hearing, he must file the written evidence and serve copies on every
other party to the app at least 7 days before hearing. If A wishes to rely on written evidence in reply, file
the written evidence and serve a copy on R at least 3 days before hearing.
9. Court may order IP in lump sum or by instalments.
10.Supporting evi should set out all the relevant matters :  Amount sought  Items or matters in respect of
which the IP is sought  The likely amount of total award  The reasons for believing the relevant ground
is satisfied  In a PI claim, details for special damages and past and future losses  In a claim under Fatal
Accidents Act 1976, details of the persons on whose behalf the claim is made and the nature of the claim
11.Conditions to be satisfied for an IP- IP may only be ordered if one of the following is satisfied  D has
admitted liability to pay C  C has obtained judgment against D  The court is satisfied that, if the claim
went to trial, C would obtain judgment against D for a substantial amount of money  C is seeking
possession of land, and the court is satisfied that if the claim went to trial D would be held liable to pay C a
sum of money for use and occupation of the land or  The claim is brought against more than one D, and
the court is satisfied that if the claim went to trial, C would obtain judgment for a substantial amount of
money against at least one of the D and all the defendants are either insured or is a public body.
12.court must not order an IP of more than a reasonable proportion of the likely amount of the final
judgment, taking into account the likely effect of set-offs or counterclaims and the probable finding of con
neg.
13.Power of court after it has ordered IP  Order part or all of the IP to be repaid  vary or discharge the
order,  Order a D to reimburse, either wholly or in party another D who has made the IP where the paying
D made a claim for contribution or indemnity.
14.Where D made IP and final award is lesser, court may award him interest on the overpaid amount from the
date of payment.

Security for costs

1. The question of who pays costs is not usually addressed until the merits of the claim have been
determined. However, in order to protect Ds facing an expensive defence of potentially unjustified claims D
can seek security for costs in limited circumstances.
2. Where a significant risk exists that D has no real prospect of recovering her costs if she is ultimately
successful D can apply to the court for an order for security for costs
3. SFC are made against parties in the position of C. Therefore, the order may be sought by D in a standard
claim or by C where D has counterclaimed.
4. Where the court make an order for SFC, it will determine the amount of security, the manner in which and
the time within which it must be given.
5. Conditions  Having regard to all the circumstances of the case, it would be just to make such an order
AND  The C is a resident outside England and Wales but x a resident in a European MS. (Residence
determined by C’s ‘habitual or normal’ residence – Lysaght v IRC and remains a question of fact and
degree. BOP on D) OR  C is a company and there is reason to believe it will be unable to pay D’s costs if
ordered to do so (i.e. insolvent company) r25.13(2)(c).
6. Exercise of discretion to order SOC  Likelihood of respondent’s claim succeeding  Prospect of success 
Admissions by D  Open offers and payment into court  Satisfactory legal expenses insurance under
r25.13(2)(c):  Satisfied that it is just to make the order  All circumstances:  Wth claim is bona fide and
not a sham  Wth C has reasonably good prospects of success  Wth there is an admission by D in their
defence that money is due  Substantial payment into court / open offer  Wth app for security was being
used oppressively eg to stifle a claim  Wth C’s want of means has been brought about by D’s conduct eg
delay in payment  Wth app is at late stage of proceedings.
 7. Procedure- pt23 app- state which ground, written evidence, details of the costs incurred, likely figure for
costs in the future.
8. Payment of security into court Money must be sent to court funds office by DX/ handed in / posted to 22
Kingsway. Money must be in the form of cheque or banker’s draft made payable to the accountant general
of the senior courts accompanied by a written request plus sealed copy of court authorisation orders.
9. Amount is in the discretion of the court as it thinks just- court may take into account the “balance of
prejudice” and amount the respondent is likely to be able to raise. Manner which security is given By unless
order / payment to applicant’s solicitors to hold / security by bank guarantee / undertaking / insurance
policy.

Interim Injunctions
1. an app for interim injunction is made w/ the filing of an app notice which must state what order A is seeking
and the date, time and place of the hearing. Notice and evi served at least 3 clear days before hearing. notice
must usually be served on the D.
2. Application must be worded clearly.
3. a draft of the order sought should be filed with the application notice and a disk containing the draft should
also be available to the court in a format compatible with the word processing software used by the court.
4. W/o notice app: Where an interim injunction is sought on a w/o notice application with incomplete evidence,
there is a basic condition that there must be a real urgency for the injunction sought: or Defendants consent ;
overriding objectives; secrecy; court gives permission.
5. court may grant an interim remedy on an app made without notice if it appears that there are good reasons
for not giving notice. the evidence in support of the app must state the reasons WHY notice has not been
given.
6. And if notice is not given, At the hearing, the A is under a duty of full and frank disclosure, to investigate the
facts and fairly to present the evidence on which they rely and disclose all matters relevant to the application
which are or may be adverse to it, in particular any which may constitute a defence.
7. So like, For app dealt with after issuing of CF, the application notice, evidence in support and a draft order
should be filed with the court two hours before the hearing whenever possible. A should take steps to notify
the D informally.
8. For app dealt with before issue of CF, application notice, evidence in support and a draft order together with
an undertaking (which is a must) to the court to issue a CF immediately and where possible, the CF should be
served with the order for the injunction.
9. note that D may not apply for an interim injunction before he files AoS/ D
10.Where the court grants an order for and app for injunction which was made without notice, the applicant
must make an undertaking to the court to serve on the respondent the application notice, evidence in
support and any order made as soon as practicable (later that day or the next day) (if CF isn’t issued) and
should contain a ‘return date’ for a further hearing where the other party can be present.
11.At the return date, the parties will make submissions as to the continuation or discharge of the interim
injunction
12.If R has offer undertaking to A that A has accepted the parties should be clear as to whether .the interim
injunction granted at the without notice stage is discharged or simply adjourned.
13.Determining whether it is one or the other involved construing the terms of the undertaking in the context of
the order as whole.
14.App for interim injunctions must be supported by evi in the form of w/s or a statement of case verified by
statement of truth or the application (verified SoT) setting out;
15.Evidence- WS/SOC verified by a SOT. Or in the application setting out  The fact relied upon, including all
material facts of which the court should be made aware  Where app made w/o notice, the reasons why
notice was x given.
16. Mandatory/prohibitory- Courts generally more reluctant to grant mandatory injunctions because there is a
higher chance of irremediable prejudice
17. Interim prohibitory injunctions- American cyanamide- there must be a substantive cause of action
(substantive or actual claim of relief), serious questions on the merits, damages are an inadequate remedy
for the claimant (the claimant needs INJUNCTION), claimants undertaking in damages being good protection
in case the injunctions is wrongly granted because damages are inadequate (to check to see if anything goes
wrong will damages be an inadequate remedy for the defendant
18.After considering that then move onto balance of convenience, preserve the status quo, any special factors,
last resort: merits .
 19.So what the ct will consider is if there is a serious issue (the lesser serious issue the higher chance of getting
interim injunction) to be tried
a) and in considering this the claim has substance or reality and its not frivolous or vexatious
b) So for the ct its not concerning difficult questions of law but whether A has an arguable cause of
action, however improbable his chance of winning are. The threshold is low, no mini trial.
c) So if claim has no possible defence, no serious issue to be tried then C can is entitled to interim
injunction.
d) All that is required is that the claim has substance and reality. It does not matter whether C’s
prospects of success are 20% or 90%
20. Second question is the adequacy of damages:
a) if A succeeds at trial, he would be adequately compensated by damages caused by the refusal to
grant an interim injunction. If yes, no injunction will be granted
b) If no, then the court must consider if R can be properly compensated by A’s undertaking as to
damages. If yes, there will be no reason to refuse injunction.
c) here there is doubt, the question of balance of convenience arises. Where factors appear evenly
balanced, the court will normally preserve the status quo.
21.balance of convenience- The court will look at the balance of convenience by  Preserving status quo, 
Avoiding risk of injustice and  Looking at the relative strength of each parties’ case (last resort).
22. Undertaking as to damages - The ability of an ultimately unsuccessful applicant to provide undertaking in
damages if required is an important factor in determining the balance of convenience. The point of a
crossundertaking is to provide a means of compensation for loss if it occurs.
23.Someone who has limited means but present a good case should not deprive them of the IJ.
24.Status quo- The relevant status quo is the state of affairs: • in the period immediately before the cause of
action arose / before the claim form is issued, or • if there has been unreasonable delay in applying for the
injunction after the claim form was issued / after the claim form was issued, in the period immediately
before the interim application was issued.
25.Minimal periods between D starting the conduct complained of and C issuing the claim form are ignored.
26. Special factors These turn on the individual facts of particular cases. Such as doctors getting used to using
the suture produced by D in American Cyanamid.
27.Merits This factor only rarely arises, as a last resort. And only if there is no credible dispute.
Exceptions and variations to American Cyanamide: Final disposal injunction; mandatory injunctions; negative
covenants; no arguable defence
28.American Cyanamid imposes a low threshold on the merits of the claim, which can be justified as a means of
keeping use of court time proportionate in cases where it is anticipated there may well be a trial
29.But here are some cases where there is no realistic chance of the case ever going to trial.
30.Granting an interim injunction without considering the merits in a meaningful way in such a case contravenes
the defendant's right to a fair trial
31.Court will x grant an injunction where the granting will in effect dispose of the action finally in favour of the
successful party in the app.
32.Test The "finally disposes of the claim" exception applies if 2 conditions are satisfied: (a) Assume injunction
refused: Claimant has no practical reason to take claim to trial (b) Assume injunction granted: Defendant has
no practical reason to take claim to trial.
33.Where this exception applies C has to establish a far stronger case than merely a "serious question" may be
as high as "an overwhelming case" on the merits. test from Chambers case- Applied a “high degree of
assurance” test (old test).
34.Test: The court should investigate the likelihood of the Claimant succeeding in trial on the merits
(overwhelming case on the merits) – quite a high threshold.
35.American cyanamide for defamation claims- Where D in a defamation claim: (a) states in its witness
statement that it intends to plead the defence of:  substantial truth  honest opinion  public interest (b)
and the alleged libel is not obviously untruthful / malicious, the court will refuse an interim injunction (or
discharge an existing injunction) in order to protect free speech.
36. Mandatory Injunction- court will take a more cautious approach and the overriding consideration is which
order is likely to involve the least risk of injustice if it turns out to be “wrong” at trial. an order which requires
a party to take a positive step may well carry a greater risk of injustice than preserving the status quo if at
trial the order turns out to been wrongly made.
37. So for man injunction- the court must have a “high degree of assurance” that the A will ultimately establish
his right. The greater the assurance the less the risk of injustice. However, there may be cases where the
 court does not have a high degree of assurance but the risk of refusing an injunction outweighs the risk of
granting it.
38. Even where the court does not feel a high degree of assurance, there may be circumstances in which it is
appropriate to grant an interim mandatory injunction. The court still has to balance the risk of injustice
between the parties.
39. Negative covenants- njunctions in these cases are normally granted as a matter of course. All you have to
prove are: (a) That the defendant has made the promise not to do something; and (b) That they are now
doing it. (c) Covenant is prima facie valid if they are reasonable in duration, geographical area and type of
work.
40.All the injunction is doing is enforcing compliance with what the defendant has already promised not to do.
41.If the D did not have a defence- Do not even have to go through the test because you can just apply for
summary judgment to get that injunction.

CASE MANAGEMENT
1. OO- deal with cases justly and at proportionate cost includes, as far as practicable :-  Ensuring that parties
are on equal footing ;  Ensuring cases are dealt with expeditiously and fairly;  Saving expense ;  Dealing
with the cases in way which are proportionate  To the amount of money involved  To the importance of
the case  To the complexity of the issues and  To the financial position of each party  Allotting an
appropriate share of the court’s resources while taking into account the need to allocate resources to other
cases ; and  Enforcing compliance w/ rules, PD and orders.
2. The court must further the OO by actively managing cases.
3. court’s general powers of management- Extend/ shorten time for compliance w/ any rule/ pd/ order 
Adjourn / bring forward hearings  Require a party/ party’s legal rep to attend court  Direct that part of
the proceedings be dealt w/ as separate proceedings  Stay the whole/part of any proceedings / judgment
 Consolidate proceedings  Try two or more claims on the same occasion  Direct a separate trial of any
issue  Decide the order in which issues are to be tried  Exclude an issue from consideration  Dismiss /
give judgment on a claim after a decision on a preliminary issue  Order any party to file and exchange a
costs budget, Take any step/order for case management purposes.
4. When the court makes an order, it may make it subject to conditions (e.g. paying a sum of $ into court) and
specify the consequence of failure to comply with the order/ condition (unless order).
5. Active case management includes  Encouraging the parties to cooperate  Identifying issues at an early
stage  Deciding promptly which issues need full investigation and trial and accordingly disposing
summarily of the others (summary judgment)  Encouraging ADR  Fixing timetables or otherwise
controlling the progress of the case  Considering whether the likely benefits of taking a particular step
justify the cost of taking it (proportionality principle)  Dealing w/ case without parties having to attend
court  Giving directions to ensure that he trial of a case proceeds quickly and efficient .
6. Case management – 1) Transfer, 2) Allocation, 3) Directions.
Small claims track – Overall PI claim <10k AND value of any claim for PSLA <10k. Claims against landlord
<2K (<1K for repairs and <1k for damages).
7. Fast track – £10 000 – 25k subject to two considerations :  Length of trial < 1 day  Claims where expert
evidence required will x exceed 2 expert fields with the limit of one expert per field.
8. Multi-track Where neither the small nor the fast track is the normal track. Also, Part 8 claims with disputed
facts.
9. After pleadings, the court forms a provisional view on which track the case should be allocated to and the
court will serve a notice of PROPOSED allocation on the parties. Because after commencement of
proceedings is pleadings and then allocation.
10. The notice will required the parties to complete a directions questionnaire and the court will allocate the
claim to a track.
11.Each party must file and serve the DQ no later than 14 days after it is served (small track) or 28 days (fast
and multi track). If s party does x comply w/ notice, the court will serve a further notice requiring
compliance within 7 days and further default = that party’s statement of case will be struck out.
12.When filing DQ, parties may make a written request for proceedings to be stayed while the parties try to
settle the case by ADR. If all parties request for a stay, usually a one month stay will be granted although
the court has the discretion to extend the stay for a period it considers appropriate. Where the court stays
proceedings, C must tell the court if settlement is reached.
13.The court will then allocate the case to a track x later than 4 weeks from the date the last DQ was filed.
14.If the parties do not agree about the allocation, the court may hold a hearing
15. When considering which track- court will have regard to the following matters :  The financial value of
the claim  The nature of the remedy sought  The likely complexity of the facts, law or evidence  The
number of parties or likely parties  The value of any counterclaim or other Part 20 claim and the
complexity of any matters relating to it;  The amount of oral evidence which may be required  The
importance of the claim to persons who are x parties to the proceedings ;  The views expressed by the
parties; and  The circumstances of the parties.
16.And when assessing the financial value of the claim- the court will disregard  Any amount x in dispute 
Any claim for interests  Costs and  Any Con-Neg
17.The matters to be dealt with by directions for fast track claims include –  Disclosure of documents 
Service of W/S and  Expert evidence If the court decides against standard disclosure of documents, it may
specify the documents to be disclosed.
18.For multi track, the court will give directions for the management of the case or MAY fix  A case
management conference; or/and  A pre-trial review. If a party has a legal rep, a rep familiar w/ the case
and with sufficient authority to deal w any issues likely to arise must attend the CMC / PTR.
19.Ct can give direction without cmc-  Give direction for filing and serving or additional info  Direct
standard disclosure between parties  Direct simultaneous exchange of W/S  Give directions for single
joint experts unless there is a good reason x to do so  Direct simultaneous exchange of expert reports
where single joint expert x appointed  If expert reports x agreed, direct discussion between experts  List
a CMC to take place after the date for compliance w/ those directions  Specify trial period  Where
appropriate, directions requiring parties to consider ADR.
20.If it appears to the court that expert evidence will be required for both liability and quantum, reports
relating to liability shall be exchanged simultaneously and reports for quantum be exchanged sequentially
21. CMC- in multi track parties must endeavour to agree on appropriate direction submit proposals to the ct
atleast 7 days before cmc. If the court agrees w/ the agreed directions/ issues its own directions, the
parties will be notified and the CMC will be vacated.
22. Vary timetable for directions/cmc- within 14 days of service if not considered content- 3 days notice of
hearing
23.Issues likely to be considered at CMC include:  Whether the C has made clear the claim he is bringing, in
particular the amount he is claiming, so that the D can understand the case.  Whether any amendments
are required to the SoC.  What disclosure of documents is necessary  What expert evidence is
reasonably required and how and when that evidence should be obtained and disclosed  What factual
evi. should be disclosed  What arrangements should be made about the giving of clarification/ further
information and the putting of question to experts and  Whether it will be just and will save costs to order
a split trial or a trial of one or more preliminary issues.
24.Court will usually NOT at this stage consider permission to use expert evidence.
25.Failing to comply with cmc directions? Any other party may apply for an order, AFTER notifying the
defaulting party of his intentions, that the defaulting party must comply or for a sanction to be imposed or
for both. Court will x allow a failure to comply w directions to result in postponement of trial unless
circumstances are exceptional.
26.Pre-trial check lists (Listing Questionnaires)- the date for filing PTC is x later than 8 weeks before trial date/
period. The court will serve the PTC on the parties at least 14 days before that date.
27.Where x party files a PTC the court will order that unless a PTC is filed within 7 days from that order, the
claim, defence and any other counterclaim will be struck out without further order of the court
28.Where one party files and the other doesn’t, the court will hold a hearing fixing/confirming the trial date
and make other orders about the steps to be taken to prepare the case for trial, regardless of whether the
defaulting party attends.
29.Where the court decides to hold a hearing, the parties will be given at least 3 days notice. The hearing will
be on a date as early as possible
30.Directions given on Listing – the court MUST fix the trial date/week, give a time estimate and fix place of
trial.
31.That aside, the parties should seek to agree directions and may file an agreed order and the court may
make an order in those terms. Agreed directions should include provisions about evidence especially
expert evidence, a trial timetable and time estimate, the preparation of a trial bundle and any other matter
needed to prepare the case for trial.
32.If it hasn’t already done so, the court will give direction giving permission to use expert evi and will say
whether it approves the use of oral evi or reports or both.
 33.The trial- multi track cases will normally take place at a Civil Trial Centre (note value of claim) but may be at
other courts where necessary (eg: needs of parties / availability of court resources). Fast track cases
normally take place at the court where the case is being managed but may be at other courts where
necessary.
34.Where the court proposes to make an order of its own initiative –  It may give any person likely to be
affected by the order an opportunity to make representations and  Where it does so it must specify the
time by and the manner in which representations must be made.
35.The court may make an order of its own initiative without a hearing and without representation by either
party but where it chooses to hold a hearing to decide whether or not it should make an order, it must give
each party likely affected by the order at least 3 days notice of the hearing.
36.party affected by the order may apply to have it set aside, varied or stayed AND
37.order that the court makes MUST state that an affected party has the right to so apply to the court. Where
it is not specified, the affected party has 7 days from service of order to apply.
Cost management
1. applies to ALL part 7 multi track claims EXCEPT  Claims commenced on or after 22 April 2014 and valued
at 10m or more  Where the proceedings are subject to fixed costs (e.g. small claims track, or RTAs,
Employer Liability and Public Liability cases on the fast track)  Where in proceedings commenced on or
after 6th April 2016, a claim is made by or on behalf of a person under the age of 18 (a child) (and on a child
reaching majority this exception will continue to apply unless the court orders otherwise).
2. Court has wide discretion to order costs management regardless of exceptions above.
3. all parties except litigants in persons, must file and exchange budgets (must use Precedent H and if budget
less than 25k or value less than 50k, must use only first page of Precedent H):
4. file and exchange budgets Where value <50k with directions questionnaire or
5. Otherwise by the date directed in the notice of proposed allocation or if x such date is specified, no later
than 21 days before the first Case Management Conference (CMC).
6. AND MUST file an agreed budget discussion report no later than 7 days before the first case management
conference. Figures agreed/disputed, summary for grounds of dispute.
7. If parties cannot agree on the budget through budget discussion report- court may make a costs
management order. The court WILL order a CMO unless satisfied that the litigation can be conducted justly
and proportionately without such an order.
8. costs management order the court will  Record the extent to which the budgets are agreed between the
parties and  In respect of budgets / parts of budges which are x agreed, record the court’s approval after
making appropriate revisions.
9. When making any case management decision, the court will have regard to any available budgets of the
parties and will take into account the costs involved in each procedural step.
10.once parties have agreed parts of the budget, the court cannot alter those figured BUT it can refuse to
make a CMO if it regards those parts as clearly disproportionate and/or unreasonable.
11.Where agreed budgets are filed but x CMO made, and there is 20% or more difference between the costs
claimed by receiving party on detailed assessment and the costs shown in budget filed, the receiving party
must provide a statement of the reasons for the difference with the bill of costs. Where it appears to the
court that the paying party reasonably relied on the budget, the court may restrict the recoverable costs to
such sum as is reasonable, notwithstanding that such sum is LESS than the amount of costs reasonably and
proportionately incurred by the receiving party.
12.If costs management order has been made, the court will thereafter control the parties’ budgets in respect
of recoverable costs.
13.When assessing costs on the standard basis, the court will have regard to the receiving party’s last
approved or agreed budget for each phase of the proceedings AND not depart from such budget unless
satisfied that there is GOOD REASON to do so.
14.Court may hold a costs management conference solely for the purpose of costs management and where
practicable, such conference should be conducted by telephone / in writing.
15.Failure to file a budge = treated as having filed a budget comprising only the applicable court fees.
16.So even if the party is successful, costs recovery will be limited to the court fees.
17.The expectation is that the sanction will apply unless (i) the breach is trivial or (ii) there is a good reason for
it.

Discontinuance
 1. A claimant may discontinue all or part of a claim. A claimant who claims more than one remedy and
abandons one but continues with others is not treated as discontinuing under this Part.
2. Where the court has granted an interim injunction or any party has given an undertaking to the court, a
claimant must obtain the permission of the court to discontinue.
3. Where the claimant has received an interim payment, he may only discontinue if: the defendant who made
the payment consents in writing or the court gives permission.
4. Where there is more than one claimant, a claimant may discontinue if every other claimant gives consent
in writing or the court gives permission.
5. Where there is more than one defendant, the claimant may discontinue against all or any of the
defendants.
6. Procedure 1. File a notice of discontinuance AND 2. Serve a copy on every party 3. Must state in the notice
that he has served 4. Where consent of some other party is needed, a copy of the consent must be
attached to the notice 5. Where there is more than one defendant, notice must specify which defendant.
7. Set aside notice of discontinuance Defendant may apply to have the notice of discontinuance set aside
within 28 days after the date when the notice was served. Discontinuance against any defendant takes
effect on the day when notice is served on him and proceedings brought against him ends on that date, but
does not affect proceedings on costs.
8. Liability for costs Unless court orders otherwise, the presumption is that C is liable for costs D incurred on
or before the date on which the notice of discontinuance was served on the defendant. Burden is on C to
show a good reason from departing from that position such as a change of circumstances which he himself
has not contributed and is brought by some form of unreasonable conduct on D’s part. If proceedings are
only partly discontinued, C is only liable for costs relating to that part and must not be assessed until the
conclusion of the rest of the proceedings unless court orders. The normal rule of costs does not apply to
small claims track.
9. If C discontinued claim after D filed a defence and makes another new claim against D where the facts are
the same or substantially same, he needs permission of the court.
10.Failure to pay Where proceedings are partly discontinued and C is liable to pay costs and failed to pay
within 14 days of date agreed by parties or court ordered to pay, court may stay remainder of the
proceedings until payment is made.

Syllabus Area 13 Disclosure & Inspection of Documents

1. Doesn’t apply to small claims track- ct will give directions for disclosure
2. Fast track- ct direct less than standard disclosure
3. Judicial review- DIS not required unless ct says
4. Inspection- automatic right to it for that party if it has been DIS to them (non-privileged) but few
exceptions- document is no longer under A’s control (31.8 “control” – is or was in his physical possession;
has or had right to possession; has or had a right to inspect or take copies of it), right/duty to withhold
inspection(privilege), disproportionate to the issues in case to permit inspection within a category or class
of documents (he must state so in disclosure statement), Evidence arising out of mediation of certain cross-
border disputes.
5. A party disclose a document by stating that the doc exists or has existed.
6. DIS cause relates to the fact in issue- Doc = “anything in which information of any description is recorded”
and Copy = “anything onto which information has been copied, by whatever means and whether directly or
indirectly.”
7. Where B has the right to inspect doc, he must give A a written notice of his wish to inspect it & A must
permit inspection x more than 7 days from date of request. B may also request for a copy provided he
undertakes to pay reasonable copying cost and A must supply copy within 7 days of request.
8. DIS- continuing duty- if A come to known of doc anytime during proceedings- immediately notify B.
9. But normally disclosure is ordered at the first case management hearing, after the defence is filed and on
the allocation of the case to a track, but prior to service of witness statements.
10.Not MT? Order to give disclosure = standard disclosure (unless otherwise ordered) Court may dispense with
or limit standard disclosure, or disclosure/inspection/both take place in stages…. …. parties may agree in
writing.
11.Apply to all MT except PI.
12.Procedure- Not less than 14 days before first case management conference each party must file and serve
report (about docs) verified by SOT which ; a) describes briefly what docs exists/ may exist that are or may
be relevant to the matters in issue in the case b) Describes where and w/ whom those docs may be located
 c) Electronic docs, describes how those docs are stored d) Estimates the broad range of costs that could be
involved in giving SD in the case e) States which of the directions under para 7 and 8 are sought.
13.Not less than 7 days before first case management conference, parties MUST, at a meeting or by telephone,
discuss and seek to agree a proposal in relation to disclosure- meet OO- done that? Ct thinks appropriate?
MAY Approve proposals without a hearing and give directions in the terms proposed.
14.At the first or any subsequent case management conference, the court will decide, having regard to the
overriding objective and the need to limit disclosure to that which is necessary to deal w the case justly,
which of the following orders to make an order ; a) dispensing w disclosure b) a party disclose the docs on
which it relies, and at the same time request any specific disclosure it requires from any other party c)
disclosure be given by each party on an issue by issue basis d) each party discloses any docs which it is
reasonable to suppose may contain information which enables that party to advance its own case or to
damage that of any other party, or which leads to an enquiry which has either of those consequences e)
standard disclosure The court may give directions as to how disclosure is to be given (see 31.5(8)).
15.SD - A relies upon  Adversely affects(starting point is that the statements of case are vital in determining
the material allegations in the litigation and are an essential reference point to what constitutes an adverse
effect. A doc which may provide a line of inquiry in a case is insufficient) A’s case  Adversely affects
another party’s case or  Support another party’s case  A is required to disclose by a relevant PD.
16. Doc relates to XX as to credit and no other issue in trial/ other relevant docs which provide information to
the background to the story or train of inquiry documents - outside scope of SD
17.Own adverse docs- in scope-deciding relevance? reference should be to statement of case and not witness
statements.
18.A party need x disclose more than one copy of a doc & a copy of doc which contains a modification,
obliteration or other marking or feature shall be treated as a separate doc.
19.Procedure for SD- requires each party to make and serve on every other party a list (in form N265) of
relevant docs which must be identified a convenient order and as concise as possible.
20.Parties may agree in writing to disclose without making list and to disclose docs without the disclosing party
making a disclosure statement.
21.The list must set out  the docs in respect of which A claims a right or duty to w/hold inspection  the docs
no longer in A’s control and what happened to them The list must include disclosure statement setting out
 Extend of search that has been made to locate the docs  That A understands his duty to disclose  That
he has carried out that duty to the best of his knowledge.
22.Where party is company or firm, statement must also identify person making statement (inc name, address,
office/position) and explain why he is considered an appropriate person to make the statement.
23. Duty of search- reasonable search- Number of documents involved  Nature & complexity of proceedings
 Ease & expense of doc retrieval  Significance of doc.
24.All these factors apply to SPECIFIC DISCLOSURE too.
25.Where a party has not searched on grounds that to do so would be unreasonable, he must state this in his
disclosure statement and identify the category or class of documents.
26.A’s duty to disclose limited to amount of docs; costs; docs which are or have been in his control. Docs
deemed to be under A’s control where  It is/was in his physical possession  He has/has had a right of
possession of it  He has/ has had a right to inspect or take copies of it.
27.Specific disclosure or inspection cpr 13.12- Where B believes that disclosure has been inadequate, he may
apply for an order of specific disclosure under CPR 23. May be made at any stage but best during CMC.
28.The issue may be revisited later in the lit but may carry with it costs consequence and may be indicative
that the doc is not in fact necessary for the forthcoming proceedings.
29.An order for ‘specific disclosure’ requires that A must ;  Disclose the docs specified in the order  Carry
out a search to the extent specified in order  Disclose any docs located as result of that search
30. Considering SsD, CONSIDER OO- Inland Revenue v Exeter City AFC). CPR 1.1 requires A to give access to all
docs which may assist B’s case. Factors include relevance of the document sought; are or have been in
party’s control; PI cases GP and hospital records only in exceptional cases; balancing Art6 and Art8 ECHR
31.An order for specific inspection is an order that a party permit inspection of a document referring to rule
31.3(2) – where a party considers that it would be disproportionate to the issues in the case to permit
inspection of docs, he is not required to permit but must state in his disclosure statement.
32.Inspection 31.14 – A party may inspect a document mentioned in a statement of case; witness statement;
witness summary; or affidavit
33.Right to inspect: A right to inspect may arise by any of the following means: a) By r31.3, where the
document has been disclosed (including by voluntary disclosure), if the document is in the disclosing party’s
control, there is no right to withhold inspection, and it is not disproportionate to permit inspection b) By
 r31.14(1) the document being mentioned in a statement of case, witness statement, witness summary or
affidavit c) By r31.14(2) where an order for inspection has been made.
34.ment,  That party must give notice of his wish to inspect it  The party who disclose must permit inspection
not more than 7 days after the date on which he received the notice; and  That party may request a copy
of the docs , undertake to pay reasonable copying costs, must be supplied with a copy not more than 7 days
after date receiving request
35.A may make a pre-emptive claim to withhold inspection or disclosure of doc- While 31.12 protects B, 31.19
protects A. A may apply for an order permitting him to w/hold disclosure of a doc on the ground that
disclosure would damage the public interest.
36.For this, A must state in writing that he has a right or duty to withhold inspection; and the grounds on which
he claims that right/duty. App must be supported by evidence.
37.For deciding this app, court may:  Require A to produce that document to the court; and  Invite any
person to make representations.
38.31.22 Collateral use of docs- B may use doc disclosed ONLY for the purpose of the proceedings unless : 
The doc in question has been read to or by the court or referred to in a public hearing (Court may
nevertheless make an order restricting / prohibiting. Other parties may make such an app)  Court gives
permission  The parties agree upon its collateral use.
39.A prospective party to a lit may apply to the court for Dis of Doc before proceedings have started (part 23
app notice).
40.rules do not support blind ‘fishing expeditions’: application must be precise and limited to what is strictly
necessary.
41.Applicant must show that it is more probable than not that the docs requested are within the scope of SD
should an action commence (Hutchinson 3G UK v O2 UK), and that he is prima facie entitled to substantive
relief (Mars UK Ltd v Waitrose).
42.Conditions ;  Both respondent and applicant likely to be a party to subsequent proceedings 
Hypothetically, standard disclosure would apply to the document the applicant is seeking if proceedings
have started  Disclosure before proceedings is desirable to :  Dispose fairly of anticipated proceedings or
 Assist the dispute to be resolved without proceedings or  Save costs.
43.In assessing ‘desirable’ , the court undertakes a two-stage approach: jurisdictional and discretionary stages
(Black v Sumitomo).
44.For jurisdictional purposes, the court is only permitted to consider granting pre-action DOD where there is a
real prospect in principle of such an order being fair to the parties if litigation is commenced.  If yes, court
proceeds to consider question of discretion which mean considering all the circumstances of the case on all
the facts and not merely in principle but in detail.
45.The cost for pre-action DOD considered a special case under CPR46.1. General rule: person against whom
the order is sought will pay the opposition’s costs of making the app and of complying with the order.
46.Non-party disclosure- The court has power to order following Part 23 app notice or its own initiative. Does
not support blind ‘fishing expeditions’. When considering whether to order disclosure, ECHR Art 8 may be
engaged.
47.Once proceedings have started, Court MAY only order non-party disclosure where;  The doc is likely to
support the applicant’s case (“may well” do so as opposed to “more probable than not” : Three Rivers DC v
Bank of England) / adversely affect the case of the other parties to proceedings and  Disclosure is
necessary to dispose fairly of the claim or to save costs (Ordering disclosure against non-parties is an
exception, x the rule and must be exercised w caution. Court will x make order if insufficient information to
evaluate necessity for fair disposal of claim : Comm of Police of the Metropolis v The Times Newspapers).
48.Note court’s discretion. Even where criteria of relevance and necessity satisfied, court must take into
account factors such as strong public interest.
49.This may include having regards to a party’ opportunity to receive legal advice to commence proceedings,
and where refusal would be contrary to the ordinary principles of fairness & justice (Tchenguiz v Director of
the Serious Fraud Office).
50.CPR 31.18 – Norwich Pharmacal Principle (disclosing identity of wrongdoer)- 31.16 and 31.17 do x limit
powers of Court to order disclosure before proceedings have started and disclosure against a TP.
51.Where identity of wrongdoer is unknown to the party seeking to bring a claim, the Court may order
disclosure by TP if;  The information x be obtained by other means and  The wronged party has a real
interest in suing the wrongdoer
52.Conditions in Mitsui & Co Ltd v Nexen Petroleum UK:  A wrong must have been committed by a
wrongdoer  A need exists for the order to enable the action to be brought against that wrongdoer  The
TP must:  Be mixed up in so as to have facilitated the wrongdoing (A claim does x lie against a D who has
 neither facilitated nor committed the committal of the wrongdoing)  Be able to provide the information
necessary to enable the wrongdoer to be sued
53.Legal Professional Privilege & W/ O Prejudice Communications in Civil Cases- LPP is a fundamental right at
common law & the principle that runs through all these cases where LPP is not waived or abrogated is that
a man should be able to consult his lawyer in confidence (R v Derby Magistrates’ Court ex p B).
54.General rule : LPP do not extend to cover documents- which came into existence BEFORE litigation was
contemplated or commenced, Original or copy docs obtained or prepared by the party for the PURPOSE OF
OBTAINING SOLICITOR’S ADVICE in view of pending or anticipated litigation are privileged.
55.Legal Advice Privilege- LAP covers all legal advice, assistance & ‘wise counsel’ communicated between a
client and their lawyer. The lawyer must be a qualified lawyer : communications w a specialist tax
accountant giving legal advice will x be covered by legal advice privilege.
56.Not merely confined to legal advice concerning legal rights and obligations. Privilege also extends to advice
from lawyer to client as what should or should x be done in the “relevant legal context”.
57.Test: whether the comm or other docs is made confidentially for the purposes of legal advice.(Three Rivers
DC v Governor & Company of Bank of England).
58.Comm between TP  lawyer = X COVERED Advice received from TP  client = COVERED (Getty v Getty). So
basically the client must get the advice.
59.Litigation Privilege- est: whether document was created fr the PURPOSES of litigation. Narrower : it only
applies to communications made with the dominant purpose of being used in litigation or obtaining advice
about litigation (ie if doc existed before litigation was contemplated, privilege does x apply). Doc which
comes into existence for some other purpose other than to instruct a lawyer are excluded and x
subsequently become privileged simply because they are sent to a lawyer as part of their instructions
(Dubai Bank Ltd v Galadari).
60.Wider: It protects not merely comm between a party & lawyer but also  between lawyer and his client
and/or TP or  between client & TP.
61.Without Prejudice Communications- Comm that are made with the purpose of settlement of litigation are
protected by without prejudice privilege. Attaching the label ‘without prejudice’ to a communication does
not conclusively append the accompanying privilege to the doc.
62.Court take a ‘substance over form’ approach by examining the nature of doc (South Shropshire DC v Amos).
63.Privilege is founded on the PP of encouraging settlement of litigation & on agreement between parties that
comm based on negotiations should not be admissible as evidence (Ofulue v Bossert).
64.Where such privilege attaches, the comm are only admissible to the extent of proving whether or not
negotiations resulted in an agreed settlement (Walker v Wilsher). Comm ‘without prejudice save as to costs’
are admissible for the purposes of assessing costs.
65.Waiver/loss of privilege- LAP and LP belong to the client and therefore can only be waived by the client
(Proctor v Smiles). W/O prejudice protection belongs to both parties & must be jointly waived.
66.n determining what constitutes a waiver, the Court must consider what has been disclosed by the privileged
party and the circumstances in which disclosure has occurred (Digicel (St Lucia) Ltd v Cable & Wireless).
67.Fundamental question: would it be unfair for the party making disclosure to not reveal the whole of the
relevant information because it would risk the court and the other party only having partial & potentially
misleading understanding of the material.
68.If part of doc is put in evidence or read to the court, privilege waived for the whole doc unless the
remaining part deals w/ an entirely diff sub matter.
69.Advice given in relation to one transaction= fairness need x necessarily mean that waiver must extend to all
advice given relating to the dispute.
70.Court should first identify the transaction in respect of which disclosure have been made and there may be
instances where transaction is identifiable simply from the nature of disclosure
71.but if it’s apparent that the transaction is wider, the whole of transaction has to be disclosed in order to
avoid unfairness or misunderstanding from what had been disclosed (Fullham Leisure Holdings Ltd v
Nicholson Graham & Jones)
72.Where someone bring a claim against his solicitor, privilege automatically waived.
73.Inadvertent disclosure If a privileged doc accidentally released for inspection, B may use it only w/
permission of court.
74.A document is “anything in which information of any description is recorded”

Syllabus Area 17 Part 36 Offers to Settle

1. Part 36 does not apply to small claims.
2. A Calderbank offer is a written offer expressed to be an offer ‘without prejudice save as to cost’ or ‘without
prejudice’ but subject to an express reservation of the right to refer to the letter on the issue of costs
should the claim proceed to judgement. considered by the court on a discretionary basis under CPR 44.2.
3. Part 36 offer is accepted, the C can be more certain on receiving costs on standard basis instead of relying
on court’s discretion.
4. er to gain the benefits of Part 36 offers, CPR36.5 requirements must be met;  Be in writing  Make clear
that it is pursuant to Part 36  Specify a period of not less than 21 days (“the relevant period”) within
which the D will be liable for C’s cost if offer accepted (where offer made less than 21 days before start of
trial, ‘relevant period’ = period up to the end of trial)  State whether it relates to whole or part of the
claim or to an issue that arises in it and if so. To which part or issue; and  State whether it takes into
account any CC.
5. sufficiently certain and precise for an effective ctt to be formed if offer is accepted, clearly indicate whether
the offer is in full and final settlement and offer a single sum of money (for money claims). An offer to pay
all or part of the sum of money at a date later than 14 days post acceptance = X a Pt 36 offer unless
accepted by offeree.
6. Additional requirements for PI claims.  Comply w requirements relating to recovery of State Benefits 
Address further requirements if the claim includes future pecuniary loss or seeks provisional damages.
7. Where formal and technical defects cause no real uncertainty or other prejudice to the offeree, the court is
likely to correct the errors in procedure. (AF v BG ; Hertsmere Primary Care Trust v Administrators of
Balasubramanium’s Estate). Significant departures will disqualify the offer (Phi Group Ltd v Robert West
Consulting Ltd).
8. Clarifications Offeree may request for clarification within 7 days of service of the offer and the offeror
should respond within 7 days for receiving the request. Failure in doing so= offeree may, unless trial has
started, apply for an order that clarification be provided and such an order will specify the date when the
Pt 36 offer is to be treated as having been made.
9. Pt 36 offers can be made at any time including before commencement of proceedings or in appeal
proceedings. Made when served on offeree. Where offeree legally represented, must be served on the
legal rep. Deemed served under CPR Part 6: 21 days from date of service.
10.Non- disclosure to trial judge Must x be disclosed until all questions of liability and remedies have been
decided unless  Defence of tender before claim has been raised  Where both parties agree otherwise in
writing  Any part of or issue in the case has been decided & the offer only relates to those part or issue, in
which case the judge may be told whether there are other Part 36 offers but must not be told of the terms
of such other offers unless exceptions above applies.
11.General rule does x apply to interim applications and upon breach, judge has the discretion to continue or
to recuse. Usually will continue where to do so will cause no injustice or prejudice (Garratt v Saxby). The
existence Part 36 offers could only be used on arguments as to costs, not on arguments as to interest on
damages.
12.It is a fundamental error to penalize a party in costs for failing to achieve a better result that HIS own pt 36
offer (Rolf v De Guerin).
13.Acceptance of Pt 36 Offers- Accepted through serving a written notice of acceptance and filing it with the
court.
14.The court’s permission is required (Part 23 application to a judge other than a trial judge unless parties
agree) to accept a Part 36 offer where:  Made by one or more, but not all D  Rule on deduction of
benefits and lump sum payments applies, the relevant period has expired and further deductible amounts
have been paid to C since the date of the offer  An apportionment is required under Fatal Accident Act or
 A trial is in progress.
15.Where permission is given, unless agreed by all parties, court must make an order dealing with costs.
16.Acceptance within RP  C entitled to standard basis costs up to date of notice of acceptance (NOTE: in PI
cases below 25k, fixed costs).  Claim stayed on terms of offer ( Where offer relates to part of claim, the
claim will be stayed as to that part upon the terms of the offer)  Payment must be made within 14 days.
17.Costs are to be assessed on a standard basis unless court orders otherwise, ie reasonably and
proportionately incurred
18.Where such sum is x paid within 14 days of acceptance, C may enter judgment for the unpaid sum. Where
$ x involved = apply to enforce the terms of offer without need for a new claim.
19.Acceptance after RP A pt 36 offer may be accepted at any time so long as it has x been withdrawn. Unless
the parties agree on costs, the court must determine and usually order that  C entitled to costs up to the
expiry of RP  Offeree liable for offeror’s costs for the period from the expiry of RP to date of acceptance 
Costs assessed on standard basis unless unjust.
20.ability for costs must be determined by court (unless otherwise agreed by parties) – CPR 36.13.
21.liability for costs must be determined by court (unless otherwise agreed by parties) – CPR 36.13  Where
Pt 36 offer which is made lesser than 21 days before the start of trial is accepted  Where a Pt 36 offer
which relates to the whole of the claim is accepted after the expiry of RP (above)  A pt 36 offer which
does x relate to the whole of the claim which is accepted at any time (except where C abandons the
balance of claim).
22.Acceptance during trial = effective only w/ court’s permission.
23.Acceptance of offer made by one or more, but not all Defendants
24.If Ds are sued jointly or in the alternative, C may accept offer if: (i) C discontinues claim against Ds who
have not made offer AND (ii) Those D give written consent to the acceptance of the offer.
25.If Ds have several liability, C may accept offer and continue claims against other Ds.
26.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
27.Withdrawing, reducing and increasing offers to settle- A Part 36 offer cannot be withdrawn, or its terms
changed, if the offeree has accepted it
28.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
29.after the expiry of the relevant period, if the offer has not been accepted, the offer can be withdrawn or its
terms changed without the court's permission
30.Any notice of withdrawal / change during the relevant period will take effect at the end of the relevant
period, if the offeree does not serve notice of acceptance during the relevant period.
31.If they do serve notice of acceptance during the relevant period (despite the notice of withdrawal / change)
then the offeror can either allow the acceptance or apply to the court for permission to withdraw the offer
or to change its terms.
32.done within 7 days of the notice of acceptance or if earlier before the first day of the trial. court may give
permission if satisfied that there has been a change of circumstances since the making of the original offer
and that it is in the interests of justice to give permission. court's permission is required to withdraw an
offer if the trial is in progress.
33.At any time, prior to acceptance, the offeror can change the terms of the offer to make it more
advantageous to the offeree
34.If this is done it will simply be treated as a new Part 36 offer (and the relevant period for the new offer will
start from when notice of change is served on the offeree).
35.If the offeree wants to accept, it must do so by serving a written notice of acceptance on the offeror. Letter
will be sufficient, filed at ct.
36.Consequences of accepting? Claim stayed no continue to trial. defendant has 14 days from acceptance to
pay the settlement amount agreed. If the defendant fails to do so, the claimant can apply to court to
enforce the obligation to pay, without the need to start separate court proceedings (CPR 36.14(8)). cost
consequences of acceptance depend on when the offer was accepted, as shown on the next pages.
37.If accepted before the expiry of the relevant period, the claimant is entitled to its costs of the proceedings
up to the date the notice of acceptance was served on the offeror (CPR 36.13(1)).
38.claimant will receive a sum of money in settlement and has therefore 'won' its claim and so should be
entitled to its costs of the proceedings. This is the case regardless of which party made the offer to settle.
39.Outside of relevant period? claimant be awarded costs up to the date the relevant period expired; and -
the offeree do pay the offeror's costs for the period from the date of expiry of the relevant period to the
date of acceptance.
40.from the end of the relevant period up to when the offer was accepted, the offeree (which could be the
claimant or the defendant) should pay the costs as a punishment for not accepting within the relevant
period when it had the chance.
41.where an offeree accepts an offer but the offer was made less than 21 days before trial. In this situation, if
the parties do not agree liability for costs the court is likely to order that the claimant will get their costs up
until the end of the relevant period which in this case is the end of the trial
42.if, at the time of acceptance, the claimant abandons the remainder of the claim, then the claimant will only
be entitled to the costs relating to the part of the claim contained in the offer, unless the court orders
otherwise.
43.at the time of acceptance, the claimant does not abandon the remainder of the claim, then the liability for
costs will be determined by the court, unless the parties can reach an agreement about the liability.
 44.Where offeror changes the terms of the Part 36 offer to make it more advantageous to the offeree, such
improved offer shall be treated, not as the withdrawal of the original offer but as the making of a new Part
36 offer and the relevant period is 21 days or identified in the written notice.
45.Where C fails to obtain a judgment more advantageous that D’s Pt 36 Offer (split costs order), the court
must , unless it considers it unjust to do so, order that the D is entitled to  Costs from the date on which
the RP expired and interest on those costs x exceeding 10% above base rate. It is likely that the claimant
will gets its costs up to the end of the relevant period under CPR 44.2, but this is at the court's discretion.
46.Trigger: claimant has failed to obtain a judgment more advantageous than a defendant's part 36 offer (this
situation is not having obtained judgement at all, words are misleading). Consequences apply- £2mil:
defendant's offer-Judgment for defendant at trial. Consequence: defendant gets: a) Its costs from expiry of
the relevant period; and b) Interest on those costs; Unless unjust (CPR 36.17(3) and (5)). It is likely that the
defendant will gets its costs up to the end of the relevant period as well under CPR 44.2, but this is at the
court's discretion.
47.Trigger: claimant has not failed to obtain a judgment more advantageous than a defendant's Part 36 offer.
On the contrary, the claimant has obtained a judgment more advantageous than the defendant's offer. The
defendant's offer has no consequences- £3mil: Judgment for claimant at trial-£2mil: defendant's offer.
Consequence: there are no consequences under Part 36. It is likely that the claimant will gets its costs of
the whole claim under CPR 44.2, but this is at the court's discretion.
48.Claimant’s offer not accepted- Trigger: claimant has obtained a judgment 'at least as advantageous' as its
offer (in fact much more advantageous). Consequences apply- £3.5mil: claimant's offer- £4mil: judgment
for claimant at trial.
49.Consequence: defendant gets: a) Indemnity costs (from end of relevant period); b) Interest on those costs
up to 10% above base rate; c) Interest on damages up to 10 % above base rate (from end of relevant
period); and d) An additional amount (in this case) of £75,000
50.Trigger: claimant has not obtained a judgment 'at least as advantageous' as its offer. The claimant's offer
has no consequences- £3.5mil: claimant's offer- £2mil: judgment for claimant at trial
51.Consequence: there are no consequences under Part 36. It is likely that the claimant will gets its costs of
the whole claim under CPR 44.2 (the claimant has still won the claim), but this is at the court's discretion.
52.Where D fails to obtain a judgment at least as advantageous to C’s Pt 36 Offer, C entitled to  Interest on
judgment x exceeding 10% above base rate,  Cost on indemnity basis from date RP expired  Interests on
costs x exceeding 10% above base rate  An additional amount x exceeding 75k calculated by applying the
‘prescribed percentage’ to either the sum awarded to C or, where there is x monetary award, the sum
awarded to C in costs.
53.Trigger: claimant has not obtained a judgment 'at least as advantageous' as its offer. The claimant's offer
has no consequences- £3.5mil: claimant's offer- Judgment for defendant at trial
54.Consequence: there are no consequences under Part 36. It is likely that the defendant will gets its costs of
the whole claim under CPR 44.2 (the defendant has won the claim), but this is at the court's discretion.
55.These consequences do x apply where  ‘Unjust to do so’  Offer withdrawn  Terms changed to be less
advantageous where the offeree has beaten the less advantageous offer  Made less than 21 days before
trial, unless the court has abridged that period.
56.Definition of unjust-  The terms of the Pt 36 offer  Stage in proceedings including in particular how long
before trial started the offer was made  Information available  Conduct of parties w/ regard to the
giving of or refusal to give information to enable an offer to be evaluated  Genuine attempt to settle
proceedings The onus being on the party at risk to establish
57. The terms of the Pt 36 offer  Stage in proceedings including in particular how long before trial started
the offer was made  Information available  Conduct of parties w/ regard to the giving of or refusal to
give information to enable an offer to be evaluated  Genuine attempt to settle proceedings The onus
being on the party at risk to establish.
JUDGEMENTS, ORDERS AND ENFORCEMENT
1. court may give or reserve judgment. Once judgment has been given a party may need to enforce that
judgment.
2. Drawing up judgment/ order :40.3 General rule: Judgments are drawn up by the court unless exception
applies Exceptions;  Court orders a party to draw it up  A party, with the permission of the court, agrees
to draw it up  The court dispenses with the need to draw it up  It is a consent order under 40.6.
3. judgment is to be drawn up by a party, he must file it no later than 7 days of the court order so that it can
be sealed and if he fails, any other party may draw it up and file it.
4. Court has power to check: The court may still direct that a judgment/order drawn up by a party must first
be checked by the court before it is sealed or that before a judgment/order is drawn up by the court, the
parties must file an agreed statement of terms.
5. Service- Unless the court directs otherwise, any order made other than at trial must be served on the
applicant and the respondent and any other person on whom the court orders it to be served.
6. The person who drew up the judgment/order must file a copy to be retained at court- sufficient copies-
once sealed court must serve a copy of it on each party to the proceedings.
7. J/O take effect from the day it is given or made unless court specified a later date.
8. Interest is payable under a judgment and the general rule is that interest begins to run from the date
judgment is given. The court may order a different date, including a date before judgment is given.
9. A non-party to the J/O who is directly affected may apply to the court to have the order varied or set aside
10.For money judgments, the sum must be paid within 14 days of the judgment unless the judgment specified
a different date (e.g. instalments) or the CPR specifies a different date (e.g. certain default judgments) or
the court stays proceedings or judgment.
11.For judgments/ orders requiring an act to be done, the order must specify the time within which the act
should be done. The consequences of failure to do an act within the time specified may be set out in the
order. In such cases, very specific language must be used. For example-“Unless C/D serves his list of
documents by __ on __, his Claim/Defence shall/will be struck out and judgment entered for D/C.”
12. If a party fails to comply with an ‘unless order’, the relevant statement of case shall/will be struck out and
the opposing party may simply obtain judgment with costs by filling a request for judgment using a CPR 23
application notice. The defaulting party may apply to set the judgment aside within 14 days.
13.Consent judgement and orders- where all the parties agree the terms in which judgment should be given or
an order should be made. So even if agreed court officer may enter and seal an agreed judgment or order if
–The J/O listed in sub 3 (below)  None of the parties is a litigant in person and  The approval of the court
is x required by the CPR, PD or any enactment before an agreed order can be made.
14.Earlier stated the J/O listed in sub three are basically the types of judgement orders where the ct officer
may enter and seal and agreed judgement/order- The payment of an amount of money (including a J/O for
damages/ value of goods to be determined by Court) or  The delivery up of goods with or without the
option of paying the value of the goods or the agreed value or
15.Or an order for- The stay or dismissal (in whole or in part) of any proceedings,  the stay of enforcement
for a judgment (either unconditionally or on a condition that the money due under the judgment is paid by
instalments specified in order),  the setting aside of a default judgment, the payment out of money which
has been paid into court,  the discharge from liability of any party- so these are things a ct officer may
enter and seal if parties have agreed but not forgetting them non are LIP, approval of ct due to the stuff
mentioned above in no.13.
16.What are the formalities when consent J/O applies? the order which is agreed by the parties must be
drawn up in the terms agreed  Must be expressed as being ‘By Consent’  Must be signed by legal
representative acting for each party to whom order relates  Court may deal with app w/o hearing
17.Tomlin orders- type of consent order- “The C and the D having agreed to the terms set out in the schedule
hereto, IT IS ORDERED THAT all further proceedings in this claim be stayed except for the purpose of
carrying such terms into effect…” and ‘such terms’ meaning the agreed terms
18. Tomlin orders are used if settlement terms are complex- wanna keep some info confidential- deal with
issues which weren’t part of the claim.
19. There are two schedules right (one is actually called the order and the other is called the schedule), for the
schedule, parties can include in the schedule provisions which could x have been ordered by the court and
which go beyond the limitations of the dispute itself.
20.For a ct official to seal a Tomlin order- no LIP involved, Court’s approval x required by CPR, PD or enactment
21.A Tomlin order records the terms of a settlement agreed between the parties - these terms are divided into
two distinct parts: the order itself and the schedule attached to it. The terms in order are restricted to the
issues the Court has jurisdiction over (main issues between parties and costs) and that all proceedings to be
stayed except for the purpose of carrying the terms in the schedule into effect. As such, provision for the
detailed assessment of costs should be within the order and not the schedule (Horizon Technologies
International) .
22.Terms within schedule do x form part of the order. They cannot be directly enforced because the terms
contain agreement or issues outside the court’s jurisdiction (issues it was never asked to adjudicate in the
first place). But to have this A injunction or an order for specific performance must first be obtained.
23.Hence, the need for “Liberty to apply for the purposes of carrying such terms into effect”. Judges x approve
schedule.
 24.The schedule creates a binding contract between parties and if there is a breach Firstly, apply for the stay
to be lifted and apply for an order compelling compliance.  Secondly, once that order is breached,
enforcement through normal court enforcement process.
25.Grounds for setting aside/ vary order:  Where there was, at date of order, an erroneous basis of fact and
 Where there has been a material or unforeseen change in circumstances after the order to undermine or
invalidate the order’s basis.
26. Judgement on both claim and CC- ct may net off the claim and make order for payment of balance.
27.court may at any time correct an accidental slip or omission in a judgement or order. The application notice
may be informal (such as a letter) and should set out the error and correction required. If opposed, there
should be a hearing before a judge. (note: only typographical errors).
Enforcing Money Judgements
1. Judgment creditor (JC) can use any enforcement method available against Judgment Debtor (JD) and can
use more than one either at the same time or one after another. Pt 70 – it is for the judgment creditor, not
the court to enforce the judgment.
2. Money Judgment may be enforced by  A writ of control or warrant of control (HC= writ. CC= warrant)  A
third party debt order (bank / building society) CPR Part 72  A charging order , stop order or stop notice
(security over land, stock, dividends)  An attachment of earnings order (in CC) (basically, payment made
out of earnings)  Appointing a receiver (property is generating income – job is like a portfolio manager).
3. Part 83 – Writs and Warrants Part 83 applies to: (a) Writs and warrants of control (b) Writs of execution (c)
Warrants of delivery (d) Warrants of possession.
4. Writ of possession = mortgage repossession Writ of specific delivery = seizing goods only Writ of delivery =
seizing goods or taking payment only.
5. A relevant writ/warrant MUST NOT be issued without the permission of the court where: (i) 6 years+ have
elapsed since the date of judgment or order (ii) Any change has taken place, whether by death or
otherwise, in the parties entitled to enforce or liable to J/O (iii) J/O is against assets of deceased person
coming into the hands of executors/admins after date of J/O, and it is sought to issue execution against
such assets (iv) any goods to be seized are in the hands of a receiver appointed by court or sequestrator (v)
under the J/O, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged
that the condition has been fulfilled; or (vi) the permission sought is for a writ of control or writ of
execution to be in aid of another.
6. Writ of control or writ of execution (the permission order) will cease to have effect if it is not issued within
one year after the date of the permission order. The court may grant a fresh permission order.
7. Enforcement by Taking Control of Goods: Writ/warrant of control= A duly authorised person attends and
seizes JD’s goods. Goods sold if he does not pay. Take away ownership from JD so that if he sells goods, he
may not succeed in passing good title.
8. Process- The enforcement agent gives notice of enforcement to the debtor (ii) The debtor either makes
contact with the enforcement agent and pays the debt or enters into an arrangement for payment which is
maintained or the enforcement agent takes control of goods (iii) Goods may be taken control of by the
enforcement agent in 4 ways (securing goods on premises; securing goods on a highway; removing goods
and storing them elsewhere; by entry into a controlled goods agreement). The enforcement agents may
only do this within the prescribed period and on any day of the week within certain hours. (iv) The goods
are sold at public auction. (v) The proceeds of sale are used to pay the amount outstanding - which includes
the debt and costs.
9. Items that do not belong to the debtor are protected from seizure by enforcement agent as are items that
are defined as exempt under regulation 4.
10.At various junctures the enforcement agent may make applications to the court and these are provided for
in Pt 84. These are:  To shorten the period for notice to the debtor of enforcement  To extend the
prescribed period within which the enforcement agent may take control of goods  To take control of
goods during prohibited periods  To enter, re-enter or remain on premises outside permitted hours  To
re-enter premises giving less than minimum period of notice  To issue a warrant in respect of specified
premises and to use reasonable force to enter premises  To use reasonable force in respect of goods on a
highway  To sell other than by public auction  To deal with abandoned goods  To obtain exceptional
disbursements.
11.The debtor, creditor, any co-owner and enforcement agent may also make applications to resolve disputes
about co-owner’s share of proceeds and about the recoverable fees and expenses.
12.The debtor may also make an application for a remedy in relation to goods taken into control.
13.Controlled Goods Agreement- An agreement under which the enforcement agent and the debtor agrees
terms for the repayment by the debtor of the sum outstanding under the J/O. Agreement must be in
writing and be signed by the enforcement agent and the debtor, person over 18 authorised by him, person
in apparent authority on premises used, in part or wholly, to carry on trade or business. The debtor must
be provided with a copy of the agreement, regardless whether or not it is the debtor or someone with
authority who actually enters into the agreement.
14.Where and how to make applications App must be made under Part 23. Where there are no pre-existing
proceedings, app must be made to the County Court. Where there are preexisting proceedings, app must
be made to the High Court or CC according to r23.2.
15.Pt 71 enables judgment creditor to require judgment debtor / (if company) an officer of that body, to
attend court to provide information about his means or any other matters (such as title deeds) to enable JD
to enforce J/O against him- THIS IS THE ORAL EXAMINATION TO FIND OUT ABOUT THE DEBTOR’S ASSETS.
16.THE PROCEDURE- who makes the app? Creditor! app may be made w/o notice MUST be issued in the ct or
CC hearing centre which made the J/O which it is sought to enforce. (EXCEPT if proceedings have been
transferred to a different court/centre, then it must be issued there or if J/O is made in the County Court
Money Claims Centre, then must be in accordance with that)
17. App may be dealt with by CT officer w/o hearing- what the app must contain? Filing app notice form N316
(INDIVIDUAL) FORM N316A (company). What it must state? Name and address of debtor (ii) Identify J/O
sought (iii) If J/O for payment of money, state amount presently owed by debtor (iv) If J/O is company,
state name, address and position of officer (v) If creditor wishes questioning to be conducted before a
judge, state this and give reasons (vi) If creditor wishes for specific documents to be produced at court,
identify those docs; and (vii) Identify any matters other than money that wished to be questioned.
18.A person served with an order MUST:  Attend court at time and place specified (usually debtor’s place of
residence or business)  Produce specified court docs in his control  Answer on oath such questions as the
court may require.
19. The last part usually infront court officer? Questions will take place before a judge if there are compelling
reasons.
20.Judgment CREDITOR/rep may attend and ask questions where questioning takes place before a court
officer but MUST attend if the hearing is before a judge.
21.Failure to comply with order Failure to attend court/ take oath/ answer questions/ comply with order –
court will refer matter to high Court judge or Circuit judge Where the creditor has paid debtor’s travelling
expenses and filed affidavit, a committal order for debtor’s failure to attend may be made. If a committal
order is made, the order shall be suspended provided that the person attends court and complied with the
terms and if he fails to comply, he shall be brought forward before a judge to consider whether the
committal should be discharged.
22.Third party debt orders- Judgment creditor may apply for third party to pay him the amount of any debt
due or accruing due to the judgment debtor or the amount from the debt which is sufficient to satisfy the
judgment debt and the creditor’s costs of application.
23.court must first make an interim third party debt order (a hearing to decide whether to and how much
money should be retained by the third party).
24.In making a third party debt order on the debtor’s money in an account (such as a deposit account /
withdrawable share account with a bank or deposit taking institution) to which s40 Senior Courts Act 1981
or s108 County Courts Act 1984 relates, any conditions applying to the account that a receipt for money be
produced before withdrawals will be disregarded. This means that conditions such as these can be ignored:
that notice is required before money can be withdrawn; personal application must be made; a bank
passbook must be produced.
25.APP PROCEDURE- An application may be made without notice AND MUST be issued in the court or County
Court hearing centre which made the J/O which it is sought to enforce (EXCEPT if proceedings have been
transferred to a different court/centre, then it must be issued there or if J/O is made in the County Court
Money Claims Centre, then must be in accordance with that)
26.Requirements of contents: Application for third party debt order must be made with Form N349 and
contain: (i) Name and address of debtor (ii) Details of J/O to be enforced (iii) Amount of money remaining
due under J/O (iv) If payable by instalments, amount fallen due and unpaid (v) Name and address of third
party (vi) Name and address of branch of bank/building society where debtor’s account is and acc number
(vii) Confirmation that to the best of the creditor’s knowledge or belief that 3rd party is within the
jurisdiction and owes/hold money for debtor (viii) If any person other than debtor has claim to that money
held by 3rd party, name and address and any info (ix) Details of any other 3rd party debt applications by
creditor (x) Sources or grounds of creditor’s knowledge for (vii), (viii) and (ix).
 27.Charging orders, stop orders and stop notices A charging order must be made to the County Courts Money
Claims centre unless the application is for a charging order over an interest in a fund in court, which then
should be made to the County Court hearing centre where the J/O was made.
28.A single charging order can be applied in respect of more than one J/O against the same debtor.
29.Application procedure -Use Form N379 Contents:  Name and Address of judgment debtor  Details of J/O
to be enforced  Amount of money remaining due  If J/O is payable in instalments, whether order was
made on or after 1 Otc 2012 and the amount fallen due  Existence of any other creditors, names and
address (if known)  Identification of the asset(s) which is intended to charge including title number of land
registered  Details of the debtor’s interest in the asset; and  Name and address of person(s) on whom
interim charging order must be served.
30.Attachment of earnings To secure payments under a HC or CC judgment where the debt or amount due is
more than £50, or payments under an admin order. Former power of HC to make attachments revoked
thus most orders made by CC and administratively, there is a centralised system for collection.
31.Procedure: Creditor makes an application to CC Money Claims Centre. App must include a certificate of the
amount of money remaining due under the J/ O and that whole/part of any instalment due remains
unpaid.
32.Where AOE is sought to enforce an order of a mags court, app must also include: a certified copy of the
order; and a witness statement verifying the amount due under the order or if payments to be made to a
designated officer for the mags court, a certificate by him.
33.When advising in exams for the JD  Set aside judgment  Appeal  Ask for stay of execution.
34.Transfer of proceedings for enforcement A case may need to be transferred before enforcement
proceedings are commenced.
35.CC  HC  HC more efficient.  Taking control of goods over £5000  Enforcement of a charging order by
sale where amount sought > £350k
36.C  CC  Taking control of goods < £600  Enforcement of a charging order by sale where amount sought.
37.Interest Where interest is payable on judgement, time runs from date judgment is given. Interest shall not
be payable where J/O is:  For the payment of a sum of money of less than 5k  Is given in proceedings to
recover money due under an agreement regulated by the Consumer Credit Act 1974  Grants the landlord
or the mortgagee of a dwelling house a suspended possession order.
Appeals
1. General rule: Permission to appeal required for decisions by CC judge or HC judge unless appeal is against
 A committal order (when someone is sent to prison)  A refusal to grant habeas corpus  A secure
accommodation order (* all three concern PRISON ie liberty of A)
2. Permission to appeal may only be given where the court considers that the appeal would have a real
prospect of success or there is some other compelling reason why the appeal should be heard.
3. When deciding real prospect of success, Court must consider 52.11 whether it was a (wrong/unjust
procedure).
4. An application for permission to appeal may be made at the lower court at the hearing (oral) to be
appealed or to the appeal court in an appeal notice (written).
5. Where lower court refuses application, a further application may be made to the appeal court and the
order refusing permission will specify the court to which any further applications should be made (the will
used the refused order to decide) and the level of the judge who should hear that application.
6. Where appeal court refuses A’s application w/o hearing= A may apply within 7 days for a reconsideration at
a hearing.
7. CC JD  CC CJ
8. HC masters and CC CJ  HCJ
9. CC CJ HCJ
10.HCJ  CA
11.CA—SC
12.However, appeals are made to the CA rather than HCJ if  The lower court’s decision was a ‘final decision’
made in a final decision multitrack part 7 claim  The lower court’s decision was itself an appeal from a CC
DJ (means it’s a second appeal and now the case currently w/ CC CJ) (so like if you look at point 9, its from
cccj to hcj right? Sometimes itll go from cccj to ca cause the case in cccj was already an appeal from ccdj).
13.A ‘final decision’ = decision that finally disposes of proceedings but does x include summary judgment or
strike out.
14.Appellant’s notice- Where A seeks permission from the appeal court(usually in writing) it must be
requested in his appellant’s notice which must be filed w/ the appellant court within such period as
 directed by the lower court or where there is no direction, within 21 days of the decision which is being
appealed.
15.Once filed with the appellant court? Appellant’s notice must be served on each R as soon as practicable and
in any event, within 7 days of filing with the court
16.Respondent’s notice- A respondent’s notice must be filed when R is:  Appealing from the lower court to
the appeal court (cross-appeal) OR Appealing to the appeal court to uphold decision of lower court for
other or additional reason. Should be filed with the appeal court in the time directed by the lower court. If
no time is given, then within 14 days from  R being served w/ A’s notice (where permission to appeal was
given by the lower court/ permission x required)  R being notified that the appeal court has given A
permission to appeal  The date R was notified that A’s application to appeal and the appeal itself will be
heard together.
17.Respondent’s notice should be served on each A as soon as practicable and in any event, within 7 days
after filing.
18.An application to vary time limit for serving appeal notice must be made to the appeal court.
19.Stay Unless the appeal/lower court orders otherwise, an appeal should NOT operate as a stay of any order
or decision of the lower court. Relate this back to the limitation act for contribution which is two years
from the date of judgement.
20.Whether SA are required is subject to any order of the court. The usual rule is that SA are only required
where  The appeal is in CA  There are complex issues of fact or law  A skeleton would assist the court
in a way that is x obvious from the other documents.
21.Purpose of SA is to assist the appeal court in case management. Should concise, containing references to
the appeal bundle and a summary of the party’s submission. It should x be more than 25 pages long and
must provide a reason if giving more than one authority per point of law. Non-compliance may result in
cost consequences.
22.Appeal Court’s powers Appeal court has all the powers of the lower court i.e it can:  Affirm, set aside or
vary an order/judgment  Refer any issue or the claim back to the lower court  Order a new trial/hearing
 Make orders for the payment of interest and costs.
23.Having refused, where court considers the application, the appellant’s notice or the appeal is totally
without merit, it may make a civil restraint order.
24.Hearing of appeals- Every appeal limited to a review of the decision of the lower court unless the appeal
court find that it is in the IOJ to order a rehearing (Audergon v La Baguette Ltd). Rehearing is an exception
to the general rule – Ealing LBC v Richardson.
25.Unless it orders otherwise, the appeal court will NOT receive oral evidence or evidence which was not
before the lower court.
26.When will appeal be allowed- Appeal will be allowed where decision of lower court was wrong / unjust
because of a serious procedural / other irregularity in the proceedings. The appeal court must be satisfied
that the lower court has made a sufficient error in the exercise of its discretion.
27.An A is restricted to relying on what is contained in Appellant’s notice unless he obtains permission from
appeal court. An appeal court is entitled to draw any inference of fact which it considers justified from the
evidence.
28.Fresh Evidence in appeals (correct)- General rule: No. Ladd v Marshall ; Exception where  The evidence
could x have been obtained w reasonable diligence for use at the hearing (read: new evidence come to
light) and  The evidence would have had an important influence on the result of the case and  The
evidence is apparently credible.
29.Even if tests are proven, admittance is still court’s discretion in applying overriding objective because it
would essentially amount to a rehearing.
Evidence of Fact, Expert Evidence, Civil Trial and Evidence
1. For fast track and multi-track, a judge will generally have read the papers in the trial bundle and may
choose to dispense w an opening address by C and/or D.
2. Evidential Sequence- Consider relevance  Consider admissibility  Hear evidence  Decide if evidence is
true.
3. Role of judge in controlling evidence- by giving directions as to the issues on which it requires evidence, the
nature of such evidence and the way in which the evidence are to be placed before the court. Court may
limit trial time and issues explored in cross examination and also allow W to give evidence through video
link.
4. General control  Exclude an issue from consideration  Exclude evidence otherwise admissible  Order
Party A to serve on the other parties any witness statements of the evidence which Party A intends to rely
on in relation to any issues if fact to be decided at trial.
5. Control through permission- Disclosure (31.5)  Specific disclosure / inspection  Issue of witness
summons.
6. Control where a party has failed to act  Party may x rely on any document he fails to disclose or allow
inspection og  Where WS / W summary is x served, witness may x be called unless court gives permission
 Where expert report x disclosed, may x use the report at trial or call expert to give oral evidence unless
court gives permission.
7. Relevance and admissibility of evidence- Evidence must be relevant to issue in dispute in order to be
adduced at trial.
8. So how is relevance determined? Evidence will be relevant where it has a rational probative value in
relation to the facts in issue.
9. I.e., the evidence must be relevant to  Background facts (which enable the court to understand/ help
explain an issue)  Facts in issue (Relevant if it renders probable the truth or falsity of facts in issue) or 
Connected facts.
10.X enough that evidence is relevant; it must also be admissible. Where inadmissible, the court x even
consider it. Where it is admissible, it will be considered by the court if it should be admitted. (so relevance
first? Test (rational probative value in relation to the facts in issue) then consider the admissibility).
11.Two categories of inadmissible evi :-  Privileged evi  Evi subject to parole evidence rule.
12.Burden of proof :  Evidential BoP on C (burden of adducing evidence)  Tactical BoP (evi in rebuttal) 
Legal (persuasive) BoP – “he who asserts must prove”.
13.Civil SoP- on a balance of probability i.e. 51% i.e. more probable than not. There is a single SoP but the
more serious the allegations, the stronger and the higher the quality the evidence must be.
14.Similar fact evidence- O’Brien v Chief Constable of South Wales Police [2005] In civil proceedings, the test
for admissibility of similar fact evidence is seen in 2 stages.
15.Stage 1 is admissibility- (a) whether the evidence is relevant, as being potentially probative of an issue in
the case (b) there is no need to insist on the additional requirements for admissibility for such evidence
that apply to criminal cases.
16.Stage 2 case management discretion- A judge should keep in mind the (i) policy considerations in s101 –
106 CJA 2003 and (ii) (ii) the need to deal with the case in a way which was proportionate to what was
involved – expeditiously and fairly, including the need to weigh the probative value of evidence against its
potential for causing unfair prejudice, and the need to consider the burden which its admission would lay
on the resisting party, and distortion of trial.
17.Competence- general rule all witnesses are competent unless  Incapacitated witness (physical/mental
infirmity or lack of understanding)  Children  Hearsay cases.
18.S.96 Children Act 1989 provides that where someone below 18 may give unsworn evidence if he does x
understand the solemnity of the oath as long as he understands his duty to speak the truth and has
sufficient understanding. Evidence can be given through video link to reduce stress.
19.ALL competent witnesses are compellable except The Queen, Diplomats, Bankers, Experts and Judges.
20.Evidence General rule: Evidence in civil proceedings established by W evi either orally or in writing.
21.Any facts which need to be proven by the evi of a W must be proved at trial by way of public oral evidence.
22.This requirement considered met in cases where evi given through video link.  Evi at trial = oral  Evi at
other hearings= evi in writing
23.Court may give directions: identifying or limiting issues / witnesses called/ length or format of WS. Evidence
by video link or other means.
24.Judgment has to be made by the court as to whether its use will be likely to be beneficial to the efficient,
fair and economical disposal of the proceedings; any direction is made for good reason and serves a
legitimate purpose.
25.Witness- A WS is a written statement signed by a person containing evidence which that person would be
allowed to give orally.
26.Court will order a party to serve WS/ W Summary of the oral evidence on the other parties relating to any
issues of fact to be decided prior to trial.
27.Failure to serve = W may x be called to give oral evidence unless court gives permission . The party in
breach may x receive costs for preparing the WS and must apply for relief from sanctions.
28.Must be verified w Statement of Truth. A false statement in WS may result in contempt proceedings.
29.Rules of WS: (i) Should contain evidence that the maker would be allowed to give orally (ii) Should cover
only those issues which the party serving the WS wished to give evidence-in-chief (iii) Should not provide a
 commentary on the documents in the trial bundle nor set out quotations from such documents or engage
in matters of argument or legal propositions (iv) Should not deal with other matters merely because they
may arise in the course of the trial (v) Important that WS is in W’s own words (vi) Must indicate which of
the statements in it are made from the witness’ own knowledge and which are matters of information or
belief (vii) The source of matters of information or belief.
30.Use of WS at trial- Where a party has served the WS and intend to rely on the evi in trial, he must CALL the
W to give oral evidence unless he puts in the statement as hearsay evi (i.e WS x evi in own right. Must give
orally).
31.Where a party has filed a WS but fails to ATTEND trial, the evi contained is not hearsay for that party and is
not to be automatically treated as relied on by that party (Williams v Hinton).
32.Where party A has served B WS but does x call X or put his WS as hearsay evi, B may put it in as hearsay evi
and A may then ask for the court’s permission to have X called from crossexamination. In these
circumstances, A does x breach the rule prohibiting a party from crossexamining his own witness (Douglas v
Hello! Ltd) .
33.At trial, the WS stands as evidence in chief unless court orders otherwise, which results in W giving
evidence orally (Cole v Kivells).
34.A W giving oral evi in trial may with the permission of the court :  Amplify his WS and  Give evi on new
matters which has arisen since the WS was served.
35.Permission will only be given where there is good reason to not confine the evi to the contents of WS (eg:
unforeseeable change of circumstances).
36.If a party wishes to adduce evi such as plans, photographs or models, such evi shall NOT be receivable at
trial unless the party intending to put it in evi has given notice to the other parties at least 21 days before
the hearing. Where the evi is part of EE, he must give notice when the ER is served on the other party.
37.General rule for evidence in proceedings other than trial is that such evi can be given through WS, although
a party may rely upon a matter set out in his statement of case or application notice provided that is
verified by a statement of truth.
38.Where a signed WS x be served in time then a party may apply without notice for W Summary to be served.
39.A W summary is a summary of the evidence, if known, which would otherwise be included in a WS or if the
evi is x known, the matters about which the party serving the W Summary proposes to question the W.
40.Unless court orders otherwise, W Summary must include name and address of intended witness and
served within the period in which a WS would have had to be served.
41.Use of WS for other purposes-Collateral use of WS not permitted unless  The W gives consent in writing 
The court or PD allows the use by court order  The WS has been put in evidence at a public hearing.
42.Use of written evidence in cross-examination At hearing others than trial, evi is given in writing; party may
apply for permission to XX the person giving evidence. If permission given but person in question does not
attend as required, his evidence may not be used unless the court gives permission.
43.Availability of witness statements for inspection WS which stands as evidence-in-chief is open to inspection
during the course of the trial unless the court orders otherwise. Any person may ask for such direction.
Such direction will direct WS should not be open to inspection for reasons of: (a) Interests of justice (b)
Public interest (c) Nature of any expert medical evidence (d) Nature of any confidential information (e)
Need to protect interests of any child or protected party Court may exclude from inspection words or
passages in the statement.
44.Issuing and Serving Witness Summonses Served by court. To compel W to give oral evidence at trial and/or
produce specified documents to the court. General rule : Witness summons served at least 7 days before
date of hearing (x trial) is binding.
45.Permission of court required if summoning W less than 7 days before trial or for any hearing other than a
trial and a court direction is required to make it binding. A court may issue a witness summon in aid of an
inferior court or tribunal. At time of service, W must be offered/paid a sum reasonably sufficient to cover
his expense of travelling to and from court and such sum by way of compensation for loss of time. Failure
to comply in CC – may result in fine up to £1000; in HC – may be punished for contempt of court.
46.Evidence by Deposition- If a W cannot attend trial, it may be possible to obtain an order for him to give
evidence by deposition An order under this rule shall be for a deponent to be examined before :  A judge
 An examiner of court  Such other person as the court appoints Order must state the date, time and
place of examination. Examination must be conducted in same manner as if W were giving evidence at a
trial. Examiner must ensure evidence is recorded in full and must send a copy of deposition to :  The
person who obtained the order (who must then send a copy to other parties) and  To the court.
47.Compensation for travelling exp and loss of time applies.
 48.If person served w deposition order fails to attend before examiner or refuses to be sworn for the purposes
of the examination or to answer any lawful questions or produce any document at the examination, a
certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the
deposition.
49.The party may then apply (without notice) for an order requiring that person to attend/ sworn/ answer
question/ produce doc. Court may order defaulting deponent to pay costs.
50.Party wishing to put in evi a deposition in a hearing must serve notice of his intentions on other parties at
least 21 days before hearing. Court may nevertheless order deponent to attend court and give oral evi.
51.Subsequent use of deposition for other purposes same as above for WS.
52.Affidavit Evidence- Evidence must be given by affidavit instead of/in addition to WS if required by court or
rule.
53.Witness can choose to give evidence by affidavit but may not recover the additional cost of making it
unless ordered by court.
54.Affidavit is ‘a written, sworn statement of evidence’ and is a form of ‘evidence in writing’ and so, cannot be
used for trial but can be used for any other hearing. It must be authenticated by a jurat. See Practice
direction for Form of affidavit
55.Notice to admit facts- A part may serve a notice on another party (at least 21 days prior to trial) requiring
him to admit facts. Where facts are admitted, the admission :  May only be used in proceedings in which
the notice was served  May only be used by the party who served notice.
56.Court may allow a party to withdraw or amend any admission as it thinks just.
57.Notice to prove documents- Note primary evidence rule whereby original document must always be
available in case judge wants to examine but copies suffice for purposes of proving authenticity unless
challenged.
58.General rule: all docs treated as authentic unless objected. Objecting party can serve a notice to prove doc
at (whichever is later):  The latest time for serving WS  Within 7 days of disclosure of docs.
Expert evidence
1. General rule: W who are x qualified may only be give evidence as to facts and not opinions. Reason is that
inferences to be drawn from facts are a matter for the judge.
2. Exceptions:  S.3(1) Civil Evidence Act 1972 – Expert Evi  S.3(2) – Opinions on issue(s) in the proceedings
made as a way of conveying facts personally perceived by W.
3. The court has a duty & power to restrict E evi to that which is reasonably required to resolve proceedings.
(note: general power of control above).
4. Guidance by British Airways plc v Spencer [2015]: (i) Is expert evidence necessary to decide an issue? – if
yes, then allow (ii) If no – will it assist the judge in determining an issue? (iii) Consider the value of the claim
and proportionality, cost of evidence and who will pay for it.
5. Court of Appeal guidance & cases since 1999 has made clear that the unavailability of E will rarely be a
sufficient ground to vary directions or trial dates. The court managing an action needs to know specifically
why an E is x available before it can consider rearranging date: Matthews v Tarmac Bricks & Tiles Ltd.
6. Court also entitled to prefer the evi of one E over another esp if the preferred E’s opinion is supported by
other evi but reasons should be given for the preference : Temple v South Manchester HA.
7. Permission to call E- No party may call an E or put in evi an E’s report without the Court’s permission. When
applying for permission, the party must provide:  An estimate of the costs of the proposed E evi  The
field in which E evi is required  The issues E evi will address  Where practicable, name of E.
8. ER MUST be disclosed to all parties in order to be relied upon and once disclosed, may be relied upon by
ALL parties.
9. Cases allocated to fast track and small track – permission given usually only for evi from only one expert on
a particular issue.
10.The Court may limit the amount of a party’s expert’s fees and expenses that may be recovered from the
other party. The court will attempt to limit EE so that its cost & complexity proportionate to case: Hayward
v Plymouth Hospital NHS Trust. A party may always apply to the court if it believes that further EE is
required.
11.Duties and responsibilities of experts- An expert owes an overriding duty to the court to help the court on
matters within the expert’s expertise.
12.Content of E’s duty elaborated in The Ikarian Reefer:  EE present to the court should be objective,
unbiased & uninfluenced by the litigation  Es should state the facts or assumption on which their opinion
is based  Es should state when an issue falls outside their expertise  When the opinion is not properly
research due to lack of data, E must state that it is a provisional opinion  Es should communicate any
 change of view w/o delay  Plans, measurements, calculations & similar docs must be provided to other
parties at the same time as exchanging reports.  If after producing a report, the expert’s opinion changes
in any material matter, that should be communicated to all parties without delay and when appropriate to
the court.
13.Failure of E to comply w/ duty can result in the evidence being inadmissible: SPE International v
Professional Preparation Contractors.
14.EE is to be given in an expert report and if a claim is on a small claims track or fast track, the E need x
attend a hearing unless it is necessary to do so in the IOJ.
15.Expert reports must be written & addressed to the court. They must give details of:  E’s qualification 
Any literature or other material relied on  All facts and instructions material to the opinions expressed in
the report  Which facts stated in the report are within the expert’s knowledge  Outline who has carried
out any examinations or measurements, their qualifications & whether they were carried out under E’s
supervision  Summarize conclusions reached  Where there is a range of opinions that range must be
summarized and reasons for E’s opinion must be given.
16.An expert report must be verified by a statement of truth, a statement that E understands the duty to the
court and has complied with it and a statement that E understands CPR 35 and PD 35 and the Protocol for
Instructions of Experts.
17.ER must state the substance of all material instructions, oral or written, he received.
18.Cross-examination of E on contents of their instructions will NOT be allowed unless court permits it.
19.Cross-examination of E on contents of their instructions will NOT be allowed unless court permits it.
20.E’s have a right to ask court for directions for the purposes of assisting them in carrying out their functions
by filing written requests and provide copies to the party instructing them at least 7 days before they file
the requests; and to all other parties at least 4 days before they file them.
21.Written questions to experts- Parties may ask written questions about an ER and such written questions : 
May be put once only  Within 28 days of service of ER and  for clarification purposes only.
22.Unless the court gives permission / the other party agrees. An E’s answer to the questions are treated as
part of the report. Where E fails to answer, the court may order that the party who instructed the E may x
rely on the evi of the E and/or that the party may x recover the fees & expenses of that E from any other
party (costs sanction).
23.Single joint expert- Where 2 or more parties wish to submit E evi on a particular issue, the court may direct
that evi be given by a single, joint expert. Where the relevant parties cannot agree on who to appoint, the
Court may select the E.
24.When considering whether to give permission for parties to rely on EE and single joint expert, court will
take into account all circumstances in particular.
25.whether: (a) it is proportionate to have separate experts for each party on a particular issue with reference
to: (i) the amount in dispute (ii) the importance to the parties (iii) the complexity of issue (b) the instruction
of SJE is likely to assist the parties and the court to resolve the issue more speedily and in a more
costeffective way than separately instructed experts (c) issue of liability, causation or quantum (d) EE is
within substantially established area of knowledge which is unlikely to be in dispute or range of opinions (e)
Party has already instructed E in compliance with PD or PAP (f) Written questions likely to remove need for
separate expert (g) Questions put to SJE may not conclusively deal with all issues (h) A conference may be
required with the legal reps, experts and other witnesses which may make SJE impractical (i) Claim to
privilege makes SJE inappropriate.
26.Each party may give instructions to the joint expert, provided that such instructions are also sent to the
other parties.
27.Where one party is unhappy w the report produced, the court may grant permission to that party to
instruct another E to produce a report in view of challenging the report produced by the single joint expert,
provided that there are good reasons in doing so. The Court will also consider the OO when deciding.
28.Discussions between experts- The court can require Es to identify and discuss the expert issues in the
proceedings and where possible, reach an agreement on those issues
29.The court may also order that they prepare a joint statement setting out the issues on which they agree &
disagree (w/ a summary of their reasons for disagreement).
30.The content of the discussion (different from the joint statement which is stuff already concluded from the
discussion) between the experts shall not be referred to at the trial unless the parties agree.
31.Where experts reach agreement on an issue during their discussions, agreement shall not bind the parties
unless the parties expressly agree to be bound by the agreement.
Hearsay Evidence
1. Admissible – S.1(1) Civil Evidence Act 1995 Def: “hearsay” means a statement made otherwise than by a
person while giving oral evidence in the proceedings which is tendered as evidence of the matters stated.
2. There are 3 distinct procedures:- i) W/S served + W will give oral evi at trial= Notice given by serving WS ii)
Where W/S is served but W will x be at trial = the party intending to rely on the hearsay evi must inform
the other parties that the W is x being called to give evidence and give REASON why W will x be called. iii) X
W/S served + W will x be at trial = Serve notice on the other parties which identifies the hearsay evi, state
that the party serving the notice proposes to rely on the hearsay evi at trial and give reason why W will x be
called.
3. Notice must be served no later than the latest date for serving W/S. Notice x required for evi at hearings
other than trial.
4. Failure to comply w/ procedure may result in the court refusing to allow the costs of the evi or attach less
weight to the evi (does x render inadmissible altogether)- S.2(4) CEA.
5. An application to cross-examine maker of hearsay statement (not maker of original statement) must be
made x more than 14 days after the notice was served.
6. A party who wishes to call evidence to attack the credibility of the maker of original statement must give
notice to the other party x more than 14 days after the day hearsay notice is served.
7. S.4 CEA’95 - In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court
shall have regard to any circumstances from which any inference can reasonably be drawn as to the
reliability or otherwise of the evidence.
8. Keyword: reliability + factors.
9. (2)Regard may be had, in particular, to the following— (a) whether it would have been reasonable and
practicable to produce witness (b) whether the original statement was made contemporaneously (whether
statement made near time of incident) ; (c) whether the evidence involves multiple hearsay; (d) whether
any person involved had any motive to conceal or misrepresent matters; (e) whether the original
statement was an edited or collaborative account (f) whether the circumstances in which the evidence is
adduced as hearsay are such as to prevent proper evaluation of its weight.
10.Options available to a party served w a hearsay notice- A party served w hearsay notice can  Request for
particulars of evi  Make submissions aimed at reducing the weight to be attached to the evi, which may
include the motive of the statement maker and whether W should have been present.
11.In a case where hearsay in W/S but W will x be at trial, the party may  Apply to cross-examine the
maker of the of the original evi (i.e. apply to have him give oral evi, that means basically asking him to
attend)  Call evidence to attack the maker’s credibility (must give notice of intention).  Both app/notice
must be made within 14 days of service of hearsay notice.
12.Hearsay INADMISSIBLE where  The reporter/listener of statement was x competent at time they reported
it. (mental/ physical infirmity / lack of understanding)  The statement is opinion evi.
13.Convictions as evidence in civil proceedings- S.11 CEA’1968 – criminal convictions are not admissible
provided that it is x spent.
14.Conviction admissible and prima facie evi that X committed the offence (since the criminal std is higher
anyway) and the onus will then be on X to show that he was x guilty of the offence.
15.Done by placing certificate of conviction before the court.
16.S.11 applies only to criminal convictions and NOT civil convictions. For civil convictions, the rule in
Hollington v Hewthorn still holds good. A stranger to a civil judgment may x put it in as evi to prove the fact
of a later case. HOWEVER, following Sec State Trade v Bairstow, the civil judgment may be put in to  Show
that what happened in the earlier case is of similar fact to the present case  On the question of motive 
On the question of credit of the W.
17.Use of plans, photos and models as evidence- Where party intends to use evidence as evi of facts, he must
give notice x later than latest date for serving WS.
18.If there are not to be WS, or he intends to put in evi solely to disprove an allegation made in a WS, he must
give notice at least 21 days before the hearing.
19.Where evidence forms part of expert evidence, he must give notice when the expert’s report is served on
the other party.
20.For any other reasons (x as evi of fact or EE), he must give notice at least 21 days before hearing.
21.Where party has given notice that he intends to put in the evidence, he must give every other party an
opportunity to inspect it and to agree to its admission without further proof.