Civil Litigation Revision Notes

Civil Litigation Revision Notes Case analysis Pre-action considerations including funding, costs and alternative dispute resolution Steps taken uder the Practice Direction on Pre-Action Conduct and the professional

Negligence Pre-Action Protocl, including preparation of correspondence The ethos and application of the Civil Procedure Rules including the Overiding objective Issuing proceedings including drafting the claim form Drafting statements of cas

Civil litigation is the use of court procedures to resolve non-criminal disputes. The procedural rules are set out in the Civil Procedural Rules ‘CPR’. Lord Woolf’s reforms, designed to be a new procedural code CPR 1.1 and came into force in 1999.

The CPR are rules covering court procedure, divided into separate ‘parts’ dealing with particular areas eg -Part 6 deals with Service Each Part contains a number of Rules, ie Part 6, Rule 1 = Rule6.1 They are kept short however are supplemented by Practice Directions relating to the rule in question ie – PD6 referred to the practice Direction for Part 6 CPR

You must always read the Practice Direction together with the rule.

CPR1.1 = Overriding Objective- this is the Most Important Rule. It enables the court to deal with cases justly. This includes

a. Ensuring parties are on equal footing (does not mean level playing field)b. Saving expenses; dealing with cases in a way which is proportionate to the money value of

the claim, importance of case, complexity of issued and financial position of parties c. Ensuring case is dealt with expeditiously and fairly; allotting each case an appropriate share

of the courts resources, taking into account the need to allot resources to other cases

CPR1.4 – Court must further the overriding objective by actively managing cases.

Article 6 –HRA entiltles everyone with the ‘right to fair trial’

STAGE 1 – PRECOMMENCEMENT 1. Client interview 2. Prospective parties3. Evidence4. Costs 5. Limitations6. Alternative dispute resolution7. Pre Action protocols 8. Standard Letter Before claim

STAGE 2- COMMENCEMENT OF CLAIM1. Fully brief client of implications of trial, pros and cons etc 2. Issue and serve claim form and Particulars of Claim 3. Defendant files defence4. Court allocates to track

STAGE 4 – INTERIM MATTERS 1. Directions and court case management 2. Disclosure dates to comply ith 3. Case Management Conference for MT cases

STAGE 4 – Trial 1. SCT – Final hearing, usually no costs, 2. TF – Fixed trial costs, summary assessment of other costs 3. MT – Trial

STAGE 5 –POST TRIAL1. Right to appeal 2. Costs assessment and dispute if necessary3. Enforce judgement made

Initial Interview

At the outset a solicitor must obtain instructions (written or oral) from his client. It is first necessary to obtain facts and then goals from the client. The financial status of the defendant must be considered from the outset, there is sometimes little point in pursuing an impecunious defendant.

Advantages Disadvantages

Enforceable outcome Expensive‘Day in court’ for client PublicityLegal precedent SlowTried and tested process No choice of judgeSolution guaranteed Cannot back out easily

There are often other courses of action open to clients; these include; - Arbitration;

o Involves the use of an independent (expert) third party to adjudicate the dispute.- Mediation (and other types of Alternative dispute resolution)

o There are various types of ADR but the most common is mediation. Negotiation is the process of trying to reach a settlement without an intermediary.

- Negotiation.

Costs: Rule 2.03 of the Code of Conduct requires a solicitor to give his client information about costs and methods of funding. This is to ensure clients are given the information they need at the outset and as the matter progresses. Costs information must be clear and must be explained in a way that is appropriate to the particular client. All information given orally should be confirmed in writing as soon as possible and should be updated regularly.

- A solicitor should explain how the firm’s fees are calculated i.e. hourly charge rate and any reasonable foreseeable payments to either the solicitor or third party and when these are likely to be made, e.g. payments to experts or counsel.

- It is good practice for a solicitor to explain that the client will be responsible for paying the firm’s costs regardless of any order made against the opponent and that if they lose they are likely to have to pay their opponents costs too.

- A solicitor should ensure that the client understands the implications of any offers of settlement.

Solicitor/Client costs are the costs of work carried out for an on behalf of the client. These include profit costs plus VAT and disbursements.

Costs on account: This expression is used to describe funds that the client pays the solicitor up front, before the solicitor has begun work

Party/party costs: where one party is ordered to pay the costs of the other party. It is rare for parties to recover 100% of their legal costs from the other side.

Conditional Fee Agreement - solicitor receives no fees if he loses but normal or higher fees if he wins (the success fee). The client will be liable for Disbursements, Damages and the other side’s costs in either event. The client may obtain an insurance policy; the insurance premium is always their liability.

State funding: The Community Legal Service ‘CLS’ has replaced the old Legal Aid schemes. CLS funding is extremely limited in civil claims. The rational for this is that conditional fee arrangements are now available. Excluded categories for CLS include, Personal Injury – other than where a breach of statutory duty and the duty is strict, Conveyancing, boundary disputes, wills, trust law, defamation and matters of company law or partnership.

- Claims made by a consumer against a business that supplied goods or services under a contract may be state funded.

- Should the case fall into one of the categories where CLS funding is available there are 4 types of assistance:

1. Legal help of up to two hours;2. Help at court;3. Legal representation which covers Investigative Help for more complex cases to

determine whether it is reasonable to pursue the case or Full representation; and 4. Support Funding – only partial funding of a case.

- The assessment criteria of the CLS includes Merits testing and Means testing (Capital £8,000 then Income – Gross monthly income of £2,288).

- Special Costs protection is granted to the LSC funded claimant/defendant under s. 11(1) Access to Justice Act 1999

Contingency fees vs conditional fees a summary

Contingency fees% of the clients winnings go to Scan use this method of funding for non contentious biz ( i.e. b4 a claim form is issued)is NOT allowed in contentious biz ( after claim form issued)cant use this method of funding for PERSONAL INJURY as there would be a conflict of interest

Conditional feeNo win no feeHas to comply with the CFA regsUplift for successThe unsuccessful litigant pays the successful litigants feesThe looser still pays the S disbursements ( ct fees/ counsels fees etc)Under the retainer the winner still has to pay the S and gets his money back when the looser paysIf there is a shortfall then the winner has to make it up to their own S.

Case Analysis

Three elements which establish whether the client has a cause of action 1) Was there a Duty owed?

- In contract, necessary to show that a contract existed and a duty (derived from express or implied term) was owed under this contract

- In tort, duty must be from statutory duty or common law principle of negligence 2) Was there a Breach of this Duty?

- To prove breach, necessary to establish propositions of FACT not LAW3) Is there Damage and Loss?

o Prove that the breach caused loss to the claimant and that this loss was foreseeable

Remedies = Damages injunctions and Specific Performance

Client: Opponent: Cause of action: Implied terms relied on: Elements to establish

Facts to establish Available evidence Evidence to obtain

Contract

Implied terms

LEGAL ELEMENTS AND FACTS

Facts to be establishedEstablish Legal Elements

AVALIBLE SUPPORTING EVIDENCE

Liability Quantum

FURTHER EVIDENCE TO OBTAIN

Liability Quantum

D’s LIKELY RESPONCE TO;

LIablity Quantum

Responses to any breach of legislation?

Loss/damage too remote?

WEAKNESSES

LIablity Quantum

OtherIe- limitation

CONCLUSION

LIablity Quantum

Breach

Causing Loss

LETTER BEFORE CLAIM

When Solicitor is satisfied that the client has a claim, he should advise the client and obtain instruction to send a letter to the defendant setting out full details of the claim. ‘Letter before Claim’

Letter should contain all the information required by pre-action protocol.

Nb. Letter should be addressed to Defendant, however if they have instructed solicitors, should always be addressed to them or breach CoC Outcome11.1 and IB11.4

CONTENT;- Claimants full name and address-Basses on which the claim is made (why D liable) -Clear Summary of the facts claim is based And-What the claimant wants from the defendant -If financial loss is claimed. – explanation of how it has been calculated and -Details of any financial funding arrangement within the meaning of rule 43.2(1)(k) CPR Para 2.2 should also-List the essential documents on which the claimant intends to rely;-Set out the form of ADR, if any, the claimant considers most suitable and invite the D to agree this -State the date by which the claimant considers it reasonable for a full response to be provided by the defendant and -Identify and ask for copies of any relevant documents not in the claimant’s possession and which he claimant wishes to recover Para2.3 – unless the defendant is know to be legally represented, the letter should also- Refer the D to the practice directions and draw attention to Para 4- concerning the courts powers to impose sanctions for failure to comply with practice directions; and-Inform the defendant that ignoring the letter before claim may lead to the claimant starting proceedings and may increase the D’s liability for costs.

Defendants Response to Letter of Claim

Where the defendant is unable to provide a full written response within 14 days of receipt of the letter before claim the D should instead provide a written ack within 14 days which: Should state whether an insurer is or may be involved and Should state the date by which the d (or insurer) will provide a full written response and If longer than the period stated in the letter before claim, the d should give reasons why

(para3.3 PD pre-action conduct) The d may also request additional info from c to provide response

If the D does not provide a letter of response or ack-14 days and proceedings have subsequently started, the court is likely to think that the c has complied with para3.3 – pre-action PD

Where D unable to provide a written response <14 days as is seeking advice, should give ack para3.5 that the D is seeking advice from whom seeking advice when d expects to have received advice and be in position to provide full response

See ANNEX B(1) and B(2) for examples of Letters before Claim for pre action conduct and Professional Negligence

para3.6 c should allow reasonable time (14 days) for d to obtain advice

Defendants Full Response Should:- give reasons why claim not accepted-which facts and parts are accepted and disputed, basis

of the dispute- state whether intends to make a counter claim – info equivalent to letter before claim- state if the d alleges that the c was Wholly or Partly to blame for the problem and

summarise facts relied on- state if d agrees to c’s proposals for ADR- if not why not and suggest alternative ADR- list essential documents intends to rely- enclose copies of documents requested by c- or explain why not provided - identify and ask for copied of further relevant doc are not in d possession and which d

wishes to see

Claimants Reply the c should provide the doc requested by d within as short time as

possible/practicable or explain why will not be provided para5.1 if d has made a cc- C should provide info equivalent to d full response

Commencing ProceedingsWhich court?

Jurisdiction of the courts at commencement of a claim – CCA1984

High Court County Court

Tort Claims <£25,000 Tort claims >£50,000 s.15 CCA

Contract claims <£25,000 Contract Claims >£50,000 s.15

Personal Injury Claims <£50,000 Personal Injury Claims > £50,000

Two stages here to be considered 1) Issue of Proceedings CPR72) Service of Proceedings

Practice Rules for Statements of Case1.state all material facts2. state facts relevant to action3. state facts not evidence4. refer to any point of law on which claim/defence is based (pd16:13.3)5. Give name of any witness a party proposes to call 16:13.36. attach to or serve with the statement of case a copy of any document which is necessary to the claim/defence (inc experts report) 14:16.3

CPR7.2 Proceedings are commenced when the court issues a claim form at the request of the claimant (subject to PD7 Par 5.1&2) there are time limits to responding so it is importance to get date of service and certificate of service.

Claim form is usually the first document in the “statement of Case” o This sets out the basis of a parties claim against other parties. o Set out the facts relied on and allegations made in support of the caseo Should clearly and concisely set out the Background Facts to enable the factual

basis on the claim and the material facts/allegations.

DRAFTING PARTICULARS OF CLAIM – CHECKLIST

Essential paragraphs on PoC where breach of contract

1) Title of Action - Party Names

2) Name of Document- ‘Particulars of Claim’

3) Formation of the Contract - Who entered into it- When was it entered into- How was it entered into

i. If written attach copyii. If oral give details

- What did the parties agree to do- How much was given as consideration

4) The implied terms in Sale of Goods/Supply of Services Claim- State the business carried out by the defendant- Can it be said that the defendant sold, and/or supplied the services during the course of

its business dealings with claimant. -

5) Terms Relied on- Written/oral/implied terms

i. Ie from sale of goods/supply of services act. 6) Purported performance of contract

- Delivery of goods/completion of services 7) Breach of Relevant Terms

- Under Heading ‘Particulars of Claim/Breachi. Explain how D breached relevant terms of contract

8) Factual Consequences of Breach - What happened next/after breach- Money paid by claimant for repairs?

9) Damages and loss alleged - Heading; ‘Particulars of Loss and Damage’

10) Interest Claimed. - Specified or unspecified amount?

i. Late payment of commercial debts act – interest at 8% from day of lossii. Senior Courts Act – interest is discretionary and for the courts to decide

iii. High Courts interest sought under SCA 1981 s.35Aiv. County Court Interest sought under CCA 1984 s.69

Note on Interest:Rule 16.4(2)- detail must be supplied where C’s seeking interest

a. State whether doing so for; terms of contract, enactment or some other basis

b. If claim for specified amount of money – state percentage rate, date claimed, date calculated, total amount and daily rate

See Apendix C(4) pg 362 for flow diagram to calculate

11) ‘the particulars of claim issued on.....(date)’ 12) Statement of truth

- Statements of case drafted by a legal rep as a member or ee of a firm should be signed in the name of the firm –pd 5A para 2.1

- Must be verified by a statement of truth as follows;- [I belive] [the claimant believes] that the facts stated in these particulars of claim are

true’ pd16:3.4

Who signs: Signature by a Registered Company –must be by a person holding a senior position in the company/corporation who must state the office/position heldSignature by Partnership –must be by any of the partners or a person having the control or management of the partnership businessSignature by a solicitor –statement refers to ‘clients belief’ not his own. S must sign own name and not that of the firm. He must state the capacity which he signs and the name of his firm where appropriate No statement of truth – effective unless struck out but party cannot rely on this as evidence of any matters

The claim form is the document used to commence proceedings. It is the first “statement of case” and must be in standard form CPR 16.2.

Usually Form N1 is used. - The claim form will contain a heading,- the parties addresses for service- , a concise statement of the nature of the claim,- the remedy sought by the claimant, a statement of value (more than £15,000; £5,000 -

15,000 or less than £5,000)

Parties: Children (under 18) and mentally ill are represented by ‘litigation friends’ per CPR 21. NB Sole traders are referred to as Joe Bloggs (trading as Bloggs Café).

Once the claim form has been issued it must normally be served on the defendant within four months after issue (six if it is to be served out of the jurisdiction) CPR 7.5. It may be possible to obtain an extension under CPR 7.6, although the rules are very strict.

!!! CONDUCT ISSUES !!!NB. Cannot be ‘economical’ with the Truth –Chapter 5 SCOC Duties to client and court

5.1 must not knowingly deceive or mislead the court5.2 not complicit in another person deceiving court5.5 inform client of circumstances where duties to the court outweigh their own5.4 do not place yourself in contempt of court

Indicative Behaviours 5.1 inform the client5.4 immediately inform the court, with the clients consent if you/they have misled the court. 5.5 refuse to continue acting for client if does not agree to inform the court

Oc4.4 still owe duty of confidentiality

Service

CPR 6 = Service is the process of giving the other side notice of a document. CPR 6 II gives additional rules relating to the service of claim forms and CPR 6 III gives rules relating to service outside the Jurisdiction.

Service must be by a recognised method or it may be invalid. - serving personally on the defendant, - by delivering or leaving the document at a permitted address, by 1st class post,- Fax, DX etc.

- PD6 (par 1-3) sets out strict conditions that have to be met. - CPR 6.8 The court may permit service by an alternative method if there’s good reason to do so

Method Deemed servicePersonally on the defendant Effective immediately, if on a

business day & before 5pm. Otherwise the next business day.

By delivering or leaving the documentat a permitted address

Effective day after leaving/delivery

By first class post Effective 2nd day after postingBy fax Effective same day if a business

day and before 4pm. Otherwise, the business day after day of transmission.

By document exchange (DX) Effective 2nd day after left at DXBy any electronic method (e.g. e-mail)

Effective 2nd day after transmission

(page 38)

- All parties must give an address for service within England and Wales. - CPR 6.5 (2) Where a solicitor is acting for the party, the address for service is the business

address of the solicitor. - CPR 6.5 (6) If there is no address for service given and there is no solicitor acting, service must be

effected according to the rules on page 36

A document may be served by either the court or a party’s solicitor. If the court serves it will send the claimant a notice of issue containing the deemed date of service. If the solicitor serves he must notify the court on issue that it does not wish the court to serve.

Response Pack

Particulars of claim and Response Pack. You must serve the following documents:1) Claim form2) Particulars of claim3) Response pack (Form N9) containing:

- form for admission- form for defending- form for acknowledging service.

If the particulars of claim are not contained in or served with the claim form (ie. Option 3), they must be served within 14 days after service of the claim form and must also be verified by a separate statement of truth CPR 7 PD 3.4. They must also be served within the period of validity of the claim form CPR 7.4

The Defendant’s response Until the particulars of claim and response pack are served, the defendant does not have to react to the claim at all. After that, the defendant can do one of three things within 14 days of service of the particulars of claim:

1) admit part or all of the claim (CPR 14)2) file a defence (CPR 15.6)3) file an acknowledgment of service - needs longer to prepare defence (CPR 10)

The form for acknowledging service (Form N9) is sent to the defendant in the response pack. Once the defendant has filed an acknowledgment of service, the court will notify the claimant in writing (CPR 10.4).

Normally a defence must be filed 14 days after service of the particulars of claim. - If however an acknowledgment is filed, it extends the period for serving the defence, and gives the defendant an extra 14 days.- So the defence will be due effectively 28 days after service of the particulars of claim.

Counting time The basic rules are set out in CPR 2.8-10 ‘Days’ means ‘clear days’ ie excluding the day on which the period begins and, if the end of the period is defined by reference to an event, the day

on which that event occurs. See CPR for details.

CPR 15.5 If the defendant cannot serve the defence in time both parties’ solicitors can agree an extension of up to 28 days CPR 24.4 (2). Any extension beyond 28 days must be approved by the court CPR 3.1(2)(a). If either party applies for summary judgment, the defendant need not file a defence before the application is heard

CPR 12 If the defendant fails either to serve a defence or acknowledge service within the prescribed time limits, the claimant will usually apply for judgment in default CPR 13. Judgement in default may be set aside

Defence

The Defence is the document in which the defendant sets out his case. The defence must be filed at court and served on every other party within 14 days of the particulars of claim (or 28 days where an acknowledgement of service is filed). The document must do two things:

1. react to each paragraph of the claimant’s particulars of claim, point by point; and 2. state full particulars of the defendant’s own case.

CPR 16.5 Each allegation in the particulars of claim must be dealt with individually. A defendant must either; Admit; Deny or No admission, require the claimant to prove the allegation.

Admit: Paragraphs 1 to 3 of the Particulars of Claim are admitted. It is advisable to admit anything that is not disputed or non controversial in order to narrow

the issues and save costs and time. The consequences of not admitting something when you should have are dealt with in CPR

44.

Deny: The Defendant denies paragraph x of the Particulars of Claim. The xxx were in fact …, in accordance with the terms of the Agreement. A defendant must give reasons and put forward a different version of events CPR 16.5(2).

Require proof: The Defendant is unable to admit or deny paragraph x and requires the Claimant to prove the loss and damage claimed.

NB: CPR 16.5 (3)(5) If the defendant omits to deal with any allegation made by the claimant, he will be deemed to admit it

Counterclaim o A counterclaim is a claim by the defendant against the claimant.o It is governed by CPR 20. It is a separate claim to the main claim and is normally made at the

same time as the defendant files his defence. o If it is made after the defence has been filed permission of the court is needed. It may or

may not have anything to do with the claimant’s case, however the parties must be suing/or being sued in the same capacities as the main claim.

o An additional fee will be payable to the court on filing the counterclaim.o A counterclaim may also be set-off against the main claim if; there has been a breach of an

implied statutory term under the Sale of Goods Act, mutual debts exist, or it is equitable to do so as the counterclaim is closely connected with the transaction that gives rise to the claim.

Reply to Defence and Counterclaim If the defendant raises new matters in his defence, then the claimant may wish to serve a reply.

- The reply (and defence to counterclaim) must be filed and served at the same time as the allocation questionnaire and like all statements of case it must contain a statement of truth.

Part 20 Claims

Where the defendant wants to blame someone else, he may wish to claim against a third party. Part 20 claims can only be made by a defendant and cover a claim for contribution or indemnity by a co-defendant or against a third party.

Amendments After a statement of case is served it can only be amended with permission from the other side or with the courts permission. The court has wide powers to add or substitute a party to proceedings if it considers it desirable to do so CPR 19. Requests for Further Information may be made if reasonable under CPR 18.

CASE MANAGEMENT AND ALLOCATION

CPR 1.4. The court has a duty to further the overriding objective by actively managing cases

Examples of what the court should do are set out in CPR 1.4(2) and include encouraging co-operation. The bulk of the courts Case management powers are specified in CPR 3.1.

- These powers are wide, enabling the court to extend or shorten the time for compliance with any rule, practice direction or court order;

adjourn hearings or exclude any issue from consideration and ‘take any other step or make any other order for the purpose of managing

the case and furthering the overriding objective’ CPR 3.1(2)(m). The court has the power to make an order with or without a hearing and with or without giving the parties an opportunity to make representations CPR 3.3.

CPR 3.4. A court may strike out a statement of case if the issues are weak and the way the case is pleaded is abuse of process

- This is only done when there is no point in having a trial.- Fundamentally a statement of case may be struck out if it discloses no claim or defence

as a matter of law (assuming the facts are true) i.e. no duty, breach & loss. Or if defence of just a whole denial with no coherent statements of fact Court will have to consider all circumstances of the case and CPR3.1 before

striking out

It is unlikely that the court will strike out a statement of case for failure to comply with a rule, PD or court order, as it would not be carrying out justice to bar a litigant from proceedings due to a technical breach of the rules. The court has wide power of sanctions e.g. costs, payments into court.

Alternatives to striking out a case –

Requiring the party in default to pay other sides costs occasioned by delay on an indemnity basis/ wasted costs order- if fault is with legal rep, then they pay (improper, unreasonable or negligent conduct)

Limiting the issues- that are allowed to proceed to trial.- AXA insurance co awarding interest at a higher/lower rate-

‘Unless order’- suspended sanction- unless compliance then strike out case.

-Relief from sanctions-

-when a party applies for relief from any sanction for failure to comply with any rule, PD or court order, court will consider all circumstances, including- RULE.3.9.1-

o -interests of administration of justice,o -application for relief made promptly,o -intentiono -explanationo -extent to which other rules complied witho -by part/legal repo -likely/trial date can still be meto -effecto -effect of granting relief

ALLOCATION

Arises when defence has been filed.Process – allocation questionnaires- form N150 Once Court receives D’s defence, will send ‘allocation questionnaire’ to both parties, which they

are required to complete and send to Court within 14 days. Parties are also required to submit set of draft directions with complete AQ, which should as far

as possible be agreed with other side. Purpose of AQ = to help Court allocate and subsequently manage the costs, by giving it info as

to the number of Ws involved, likely length of trial etc. Also enables Court to monitor costs incurred by parties to date, and established costs up to trial parties required to submit schedule containing info at same time as submit AQ.

Once Court receives completed AQ, will allocate claim to appropriate track and give directions. Para 6.1 of PD 26 gives Court power to hold allocation hearing if necessary. This power will

usually be exercised in multi-track cases, where allocation hearing takes form of CMC. All cases in Commercial Court are multi-track, so not necessary to complete AQ & always CMC,

where judge will give directions.

3 tracks:1) Small claims2) Fast track3) Multi-track

Significance of the tracks = affects how long until trial, level of costs and type of directions the court makes

Track Part of CPR Amount/type of case Which Court Time scale

Small claims 27Straightforward claims value up to £5k

Always County Ct because of low value

Fast track 28£5k-£15k, cases which can be tried in 1 day or less

Always County Court unless genuine point of public interest

Expected to proceed from allocation to trial in 30 weeks

Multi-track 29Cases worth £15k, where trial will last for 1 day

Complex cases in High Court.

No set rules for how long from allocation to trial. Will depend on complexity of case.

- Rule 26.8.1 - sets out factors to which court must have regard, including-

-financial value of claim-nature of remedy sought-likely complexity of facts, law and evidence-number of likely/parties-value of any counterclaim/additional claim and complexity attached-amount of oral evidence which may be required-importance of claim to 3rd parties-views expressed by parties-circumstances of parties

-fast track- 1 expert per party, no more then 2 expert fields.

-financial value of claim- court will disregard any amount not in dispute, claim for interest, costs and allegation of contributory negligence.

-Rule 26.7.3- if there is consent with all parties, then if financial limit exceeded of track still can be used.-PD 26 para 11- allows for appeal for re-allocation.- CPR 3.7.An allocation fee of £200 is payable by the claimant when the AQ is filed. Failure to pay will result in the claim being struck out

DIRECTIONS

- Directions = term given to timetable Court lay’s down, together with any restrictions imposed on disclosure/expert Ws.

- Purpose = to enable Court to implement overriding objective, by ensuring parties have clear instructions.

Small claims track-hearing will be informal.-common directions set out in form A in appendix b to pd 27 cpr 1998.

Fast trackStandard directions because cases very similar. In full in Para 3.12 PD28:

Disclosure 4 weeksExchange of witness statements 10 weeksExchange of experts’ reports 14 weeksSending of pre-trial checklists (listing qnnaire) by the court 20 weeksFiling of completed pre-trial checklists 22 weeksHearing 30 weeks

-These periods run from date of allocation.-Rule 28.4- court consent required when parties want to vary directions by agreement.

Multi-trackGreater variety of case because wider range of values – so not standard directions.Court will either-

-give directions for management of case and set timetable for the steps to be taken between giving of directions and trial or

-fix a case management conference, or a pre-trial review or both and such directions as it sees fit.

BUT sequence of directions broadly same as for fast track: 1) Disclosure;2) Exchange of WSs of fact;3) Exchange of expert ev

CASE MANAGEMENT CONFERENCE- In most cases, Court will allocate claim to multi-track, and then order CMC for giving

directions. Also for where a more ‘hands on’ approach is needed.

CPR 29.3.2 – should be attended by a suitably qualified legal rep, who must be familiar with the case and suitably qualified to deal with any issues likely to arise.

- Must also be someone personally involved in the conduct of the case, - and who has the authority/info to deal with any matter which may reasonably be expected

to be dealt with eg fixing of timetable- identification of issues and matters of evidence

CPR 29 PD Para 5.1 – summarises steps Court takes at CMC:1. Review steps parties have taken to prepare, and compliance with any directions given2. Decide and give directions about the steps to secure progress of a claim in acc with the

overriding objective3. Ensure as far as poss that all agreements that can be reached between the parties about the

matters in issue and the conduct of the claim are made and recorded

CPR 29 PD Para 5.3 – Topics to be considered by the Court at a CMC1. Whether the C has made clear the claim he is bringing – in particular the amount he is

claiming – so that the other party can understand the case he has to meet2. Whether any amendments are required to the claim, a statement of case or any other

document3. What disclosure of documents, if any, is necessary4. What expert evidence is reasonably required in accordance with Rule 35.1 and how and

when that evidence should be obtained and disclosed.5. What factual evidence should be disclosed6. What arrangements should be made about the giving of clarification or further information

and the putting of questions to experts7. Whether it will be just and will save costs to order a split trial or the trial of one or more

preliminary issues

CPR 29 Paras 5.6-5.8 – Should have a case summary-

CPR 29 Para 5.7 – Case summary should include:1. brief chronology of claim2. issues of fact agreed/in dispute3. evidence required to prove facts in dispute

Parties are also expected to agree CM directions before conference Submissions in advance of CMC – Ct will give parties 3 days’ notice of hearing:

- AQ- Draft directions

- Where a party wishes to obtain an order not routinely made at a CMC, and believes the application will be opposed, should issue and serve application in time for it to be heard at CMC. Court should be informed if need extra time.

CPR 29 PD Para 5.5 – Consideration of Expert evidence1. The Court will not give permission for expert evidence unless can identify each expert by

name/field in its order and say whether evidence is oral/in report2. Party who obtains expert ev before obtained directions about it does so at their own risk

with costs, except where obtained in compliance with a pre-action protocol

Questions Court will ask before granting permission:A. What is the matter(s) in issue which expert ev will assist in resolving? ensures no ev on

irrelevant issues or ones which judge could determine without helpB. Would it be appropriate for a joint expert between the parties? CPR 35.7 empowers

Court to direct that ev on any issue should be given by one expert only. Courts will generally consider question of proportionality in determining this.

Expert ev is one of key areas always discussed at CMC. Is expensive process in both time and money therefore to ensure compliance with overriding objective, Court must make sure that expert ev is proportionate in the case.

STANDARD DISCLOSURE

Aims to achieve overriding objective of:o dealing with cases justly (CPR 1.1(1))o Taking into account: (CPR 1.1(2))

a. Parties on equal footingb. Save expensesc. Deal proportionatelyd. Deal expeditiously and fairlye. Allot appropriate share of court resources

Rule 31.2- a party discloses a document by stating that the document exists or has existed.

Rule 31.4 – defines document as “anything on which information is recorded” covers wide range of material, including written contracts, computer data, emails, CCTV footage, photos and mobile phone records

Rule 31.6 – stipulates that SD requires a party to disclose docs:on which his case relies

a. those which adversely affect his own caseb. those which adversely affect another party’s case c. those which support another party’s case

includes unfavourable as well as favourable docs. Disclosure obligation is absolute, and can’t avoid disclosing because may harm your case.

Sol should outline need to preserve docs, ascertain with client what docs exist and their location, and advise client not to mark/destroy any potentially relevant docs, or create new ones that comment on dispute.

Obligation to disclose continues after Form N265 served and until proceedings concluded – must notify other side of new docs as practicable and disclose them in supplemental list.

Party receiving N265 list has right to look at the contents of documents where no privilege from inspection is claimed.

Client will have to sign disclosure statement, confirming they understand their obligations and have complied with them. A false statement could mean they’re in contempt of Court. Statement should include any limits on the search, and certify that client u/stands his obligations and has fully disclosed.

Rule 31.8 – party’s duty to disclose docs which are/have been in his control Have control if:

a) Is/was in his physical possessionb) Has/has had a right to possession of it; orc) Has/has had a right to inspect or take copies of it (even if never possessed it) eg accounts,

medical records-docs held by a parties agent, is in control.

Reasonable and Proportionate Search

Procedural step whereby each party searches for and discloses to the other in Form N265 the existence of Rule 31.6 documents which are or have been in their control.

Rule 31.6(b) – obligation to do reasonable and proportionate search, and to disclose what have not searched for Factors in deciding reasonableness of search include;

1. number of docs involved;2. nature/complexity of proceedings; 3. ease and expense of retrieval of any parties doc; 4. and significance of any doc which is likely to be located during the search.

These 4 criteria are subject to overriding objective – requires Court to deal with disclosure in proportionate way to sums in issue.

Significance- for electrical docs- accessibility/location/likelihood of locating relevant data/cost of recovering any electronic docs.

Search must be wide enough to uncover any potentially disclosable docs. Should discuss nature/scope with other side.

Rule 31.3- Right of inspection-gives party right of inspection except where-

Doc in no longer control. Party disclosing has right/duty to withhold inspection of it. Party thinks it would be disproportionate to the issues in the case.

Rule 31.11- continuing obligation of disclosure until proceedings are concluded.

Privilege from Inspection

Docs can only be withheld from disclosure if not within definition of standard disclosure, OR if privileged Legal Professional Privilege (LPP)

Privileged docs are put in Part 2 of N265 with general description and explanation of why privilege claimed.

2 types of LPP:1. Advice privilege2. Litigation privilege

1) Advice privilege Communication between legal adviser and client for sole/dominant purpose of

giving/obtaining legal advice. (or between party’s legal advisers) Litigation does not need to be contemplated.

o Covers eg letters, and attendance notes when legal advice was given, provided they are in professional capacity.

o With Cos, only those employees expressly/implicitly tasked with obtaining/receiving legal advice can be classed as client should ensure docs do not cease to be privileged by copying to employees who are not the client.

o E.g- briefs to counsel, counsel’s opinions, drafts and notes

2) Litigation privilegeCommunications between:

a) Solicitor and third party (report from expert)b) Client and third party

BUT communications only privileged if created:a) When litigation was reasonably contemplated or ongoingb) For sole/dominant purpose of obtaining legal advice or having as evidence

-client and 3rd part- litigation was reasonably in prospect at the time.-dominant purpose at time it was created was litigation.

Less common forms of privilege- Docs which tend to incriminate spouse or client- Docs privileged on grounds of public policy eg national security

‘Without prejudice’ communications

Means cannot be produced at Court by either side before judgement. Protects communications aimed at settling the matter.

NOT the same as privilege – if all parties have seen, will be listed in Part 1 or Part 3 of Form N265. If 1 or more parties has not seen, in Part 2.

Form N265Part 1 = docs which are open to inspection. PD to CPR 31 – set out docs in chronological order which detailed description of content.Part 2 = docs which are not open to inspection (privileged). Set out in generic terms.Part 3 = docs which part had, but no longer has in their control.

Things to check in opponent’s N265- Examine disclosure statement search limited in any way?- Compare lists does their list mirror yours?- Scrutinise docs themselves paper trail?- If docs are missing, write to other side and ask for them to be supplied within seven days. If

no response, apply to Court for Specific Disclosure (CPR 31.12). Order may ask for wider search, and disclose docs found in that search by specified date.

Exchange of evidence- Once SD has been dealt with, will subsequently be exchange of evidence in accordance with

CM Directions. Each party will exchange WSs and expert ev they rely on. - What is not exchanged – any WSs/experts’ reports which are privileged from inspection and

are not being relied on. These remain privileged from inspection and the other side will never see them.

How to put documents on the list – see p1341. Why it is a part 31.6 document – ie doc:

I. on which client’s case relies II. which adversely affect his own case

III. which adversely affect another party’s case IV. which support another party’s case

and if relying, whether is relevant to costs, liability or quantum. e) the documents which he is required to disclose by a relevant PD. At the time of writing there are none.

1. Which part would go in (ie Part 1 b/c not privileged (and why not privileged) and party has control, Part 2 because privileged (and why privileged) or Part 3 because party no longer has control). With copies of documents – copy goes in Part 1, original goes in Part 3.

2. Description that would put on form. If Part 1, very detailed eg Sale agreement for (address) on (date). If Part 2, only general eg attendance note for meeting between claimants and solicitors for the purpose of giving legal advice; obtained by solicitor for the purpose of having as evidence when proceedings were contemplated. If Part 3 – same level as detail as for Part 1.

-Disclosing the existence of docs- THE LISTS-2 ways-the actual doc.-the type of doc.

-First part- actual docs are indentified.- so other party can decide whether they wish to inspect them.-docs in parties control which he does not object to being inspected.

-Second part-disclose type of docs for which he is claiming privilege from inspection. E.g ‘confidential correspondence between claimant and his solicitors; various expert reports and witness statements.- the objection to inspection must then be stated.

-Third part- parties must state the actual (non-privileged) docs that he once had, but no longer has in his control.- necessary to state when it was last in parties control and where it is now

Failure to disclose/false disclosure statement (31.23)

May not rely on anything that fail to disclose or refuse inspection of without court permission Case may be struck out for failure to comply with standard disclosure rules Client may be held in contempt of court and liable for jail term and fine

Disclosure Obligations and Solicitor’s Duties Solicitors’ Code of Conduct Rule 11.01 states that solicitor must never deceive or knowingly

mislead the court Must ensure client understands initial and ongoing elements of the duty

o Conduct reasonable and proper searcho Give full and frank disclosure

Solicitor under duty to examine client’s docs himself to ensure proper disclosure is made (Woods v Martin’s Bank)

o If client will not permit this, or insists on giving imperfect disclosure, solicitor must withdraw from case (Myers v Elman)

Client should sign disclosure statement only after receiving legal advice [PD31, para 4.4 – duty to make sure person signing disclosure statement understands his duty]

Statement includes the following:

Advise that if client destroys disclosable docs deliberately and contumaciously , or such that a fair trial is rendered impossible, his statement of case will likely be struck out

ON RECIEVING OTHER PARTIES LIST

1. If not happy with the lista. Write to the party requesting either:

i. Extra informationii. Disclosure of certain documents etc

b. If they refuse/don’t reply:i. Solicitor applies to court under 31.12 for specific disclosure using:

1. Application Notice, AND2. Witness statement supporting claim for specific disclosure stating

whether:a. A document is not privileged and is claiming to be, ORb. The search was too narrow, ORc. There are documents missing, AND

3. Give reasons in the witness statement to justify the claimsa. This may include a further witness statement from an expert,

perhaps saying why he would expect to see a certain document etc

Failing the above, get an UNLESS ORDER from the court for the claim to be struck out for non-compliance.

2. If any documents are amended or anything new comes to lighta. Must immediately disclose to other party

What should a party do on receipt of the opponent’s list of documents? Check the disclosure statement – are the limits places on the search reasonable?

o Parties are under a duty to carry out a reasonable and proportionate search for [r31.6] documents [r31.7].

o What is ‘reasonable’ depends on: •no. of docs •nature & complexity of proceedings •ease & expense of retrieval •significance of doc.

Check Part 1 – Is the list complete? If not, requesting specific disclosure:o Write to the other side explaining why you believe the document(s) to be

disclosable and ask them to comply with disclosure.o If no satisfactory response is received – apply to the court for an order for

specific disclosure [r31.12] in form [N244] supported with a ground and witness statement in our capacity as solicitor.

o An order for specific disclosure can require a party to (a) disclose specified documents or classes of documents (b) carry out a search as specified by the order and disclose any documents located as a result of that search.

o In considering whether to make an order – the court will consider all circumstance of the case and the overriding objection.

Check Part 2 – Are all claims to privilege from inspection justified? If not, apply to court to ask it to consider whether the claim to privilege should be upheld.

Check Part 3 – Is there any document worth tracing to obtain a copy?

PART 36 0FFERS..

D serves Part 36 offer on C’s sol.

C accepts within 21 days of service of offer by filing written acceptance at court and serving copy on D’s sol.

Proceedings are stayed.D pays amount of offer within 14 days.Note: if not paid within 14 days C may enter judgement for unpaid sumD pays C’s costs up until date of acceptance served on D (costs agreed by parties or otherwise assessed by ct on standard basis).

C accepts after 21 days of service of offer by filing written acceptance at court and serving copy on D’s sol.

Proceedings are stayed.D pays amount of offer within 14 days.Note: if not paid within 14 days C may enter judgement for unpaid sumD pays C’s costs up until the relevant period expired (costs agreed by parties or otherwise assessed by ct on standard basis).C pays D’s costs from when relevant period expired to date of acceptance (costs agreed by parties or otherwise assessed by ct on standard basis).

C does not accept offer and case proceeds to trialC accepts…

C wins but is awarded the same as or less than* D’s Part 36 offer.

‘Split Costs Order’ under [r36.14 (2)]

C will receive from D:

The damages awarded by the ct.Interest at the ct’s discretion on the damages awarded provided claimed in the particulars of claim.

Costs (no interest) on the standard basis potentially from when first incurred by C up to and Inc the end of the relevant period (usually day 21).

C will pay D:

D’s costs on the standard basis from and Inc the day after the relevant period expired (usually day 22) up to judgement, plus interest on the costs incurred during this time [r.36.14 (2)]

C loses at trial.

Order for Interest on Costs under [r36.14 (2)]

C will not receive any damages and will have to pay:

unless it is unjust to do so – D’s costs of the proceedings on the standard basis (subject to any AEI) plus interest on the costs incurred after the relevant period expired (day 21) to judgement.His own costs (subject to any CFA, etc).

C wins and is awarded more than* D’s Part 36 offer but less than* his own Part 36 offer.

Part 36 has no effect – D’s offer too low [& C’s offer was too high].

C will receive from D:

The damages awarded by the court.Interest (from date of judgement) at the court’s discretion on the damages awarded provided claimed in the particulars of claim.

Costs on the standard basis potentially from when first incurred by C up to judgement.

C wins and is awarded more than* D’s Part 36 offer.

Tactical considerations: D (with considered risk of liability): [amount] pressure C by offering reasonable settlement (pitch offer just high enough for C to feel that it would be unsafe not to accept - not too low as no real pressure) [timing] earlier offer made greater potential costs protection for the D and greater pressure placed on C (but make sure you have enough costs info to hand). If C’s Part 36 offer is too high and/or D’s Part 36 offer too low Part 36 has no effect.

*The ‘like with like’ comparison – must be used to see if C has been awarded more or less than or the same as a Part 36 offer:(a) Calculate interest that would have accrued on sum awarded by judge from when it becomes payable (loss sustained) up to the end of the relevant period; (b) add figure in (a) to amount of judgement; (c) has figure in (b) bettered (or equalled) Part 36 offer?

C serves Part 36 offer on D’s sol.

D accepts within 21 days of service of offer by filing written acceptance at court and serving copy on C’s sol.

Proceedings are stayed.D pays amount of offer within 14 days.Note: if not paid within 14 days C may enter judgement for unpaid sumD pays C’s costs up until date of acceptance served on C (costs agreed by parties or otherwise assessed by ct on standard basis).

D accepts after 21 days of service of offer by filing written acceptance at court and serving copy on C’s sol.

D does not accept offer and case proceeds to trialD accepts…

C wins but is awarded less than* C’s Part 36 offer.

Part 36 has no specific consequences – although may be taken into account by ct in exercising its general discretion as to costs – esp. if C exaggerated his claim.

C will receive:

The damages awarded by the ct.Interest at the ct’s discretion on the damages awarded provided claimed in the particulars of claim.

Costs on the standard basis potentially from when first incurred by C up to judgement.

C loses at trial.

Order for Interest on Costs under [r36.14 (2)]

C will not receive any damages and will have to pay:

unless it is unjust to do so – D’s costs of the proceedings on the standard basis (subject to any AEI) plus interest on the costs incurred after the relevant period expired (usually day 22) to judgement.His own costs (subject to any CFA, etc).

C wins and is awarded the same or more than* C’s Part 36 offer.

[r36.14 (3)]

C will receive:

The damages awarded by the court.interest at the court’s discretion on the damages awarded provided claimed in the particulars of claim – normally from when loss sustained to and inc the day before the relevant period expired (usually day 20).

Under [r36.14 (3)] ‘enhanced’ interest on the damages awarded at a max. Rate of 10% pa over base rate from and Inc the day the relevant period expired (usually day 21) until judgement.Costs on the standard basis potentially from when first incurred by C up to and Inc the day before the relevant period expired (usually day 20).

Under [r36.14 (3)] costs on the indemnity basis from and including the day the relevant period expired (usually day 21) up to judgement.under [r36.14(3)] interest on those indemnity basis costs at a max rate of 10% pa over base rate from when each item was incurred. Note that the norm is 4% pa over base rate [Rowlands v Bryn Alyn Community (Holdings) Ltd 2003].

C wins but is awarded less than* C’s Part 36 offer and more than* D’s Part 36 offer.

*The ‘like with like’ comparison – must be used to see if C has been awarded more or less than or the same as a Part 36 offer:(a) Calculate interest that would have accrued on sum awarded by judge from when it becomes payable (loss sustained) up to the end of the relevant period; (b) add figure in (a) to amount of judgement; (c) has figure in (b) bettered (or equalled) Part 36 offer?

Tactical Consideration – considerable pressure on D: [amount] No downside for the C in making a Part 36 offer!! – where C fails to beat or equal his own offer is in no worse position, but if C equals or beats his own offer D will pay heavy price [timing] since penalties imposed in [r36.14(3)] are imposed from expiry of relevant period – earlier C makes offer greater pressure on D.If C’s Part 36 offer is too high and/or D’s Part 36 offer too low Part 36 has no effect.

The existing proceedings may be disposed of in four ways: 1. Stay – The proceedings will be suspended until such time as the court may direct2. Dismissal – Claim is dismissed, no automatic cost consequence.

3. Discontinuance – Presumption that the claimant pays the defendants costs. In certain situations the claimant may bring fresh proceedings on the same facts

4. Judgement – The court can be asked to give judgment for one or other of the parties

Negotiations can be orally or in writing and are usually on a ‘Without Prejudice Basis’ - This means that discussions regarding settlement can not be used in court. - The purpose of the rule is to encourage parties to settle without fear that anything said in

the course of negotiations may subsequently prejudice their positions.- It is essential to keep ‘without prejudice’ correspondence separate from open

correspondence. - The without prejudice rule covers any negotiation genuinely aimed at settlement, whether

or not it is headed ‘without prejudice’.

Settlement before proceedings:If settlement is reached prior to issue of proceedings Claimant will not be able to recover costs until it has been argued, nor will he be able to claim any interest. (this should be taken into account when negotiating settlement)

Settlement after proceedings: Where Settlement is achieved after proceedings issued either

a. Consent OrderI. Order expressed as ‘by consent’

II. Order drawn up in terms parties agreeIII. Signed by a legal representive acting for each party to which order relates

i. Open for public inspectionii. Terms agreed must be within the power of the court

b. Tomlin OrderI. enables the parties to agree to settle in the Court Order (public document)

II. will order a stay in proceedings indefinitely and can refer to a schedule which can remain private. Rule 40.6(7) / PD 40B 3.5

III. The schedule can furthermore include conditions that a judge can not usually order a party to do, e.g. to enter into contracts.

IV. Any direction for:i. Payment out of court

ii. Payment of assessed costs – should be contained in the body of the order and not in the Schedule

V. Where one party wants costs assessed by the court, that direction must go in the order:

a. Who Pays?b. For What?c. How Much?d. By When?

Negotiations may or may not result in a settlement, whether this is binding depends on normal contractual principles, i.e. acceptance, consideration etc. Negotiations are often made ‘subject to contract’ and the final settlement is a carefully drafted settlement agreement or deed.

Once a settlement has been reached, it is a binding contract even if not embodied into a formal consent order. A consent order determines the future status of the claim and considers how the agreement can be enforced. A court order is a public document.

If a settlement agreement is reached and there is no court order, the only option is to commence proceedings for breach of contractIf the terms of the agreement are embodied in a court order the non defaulting party can proceed to enforcement immediately.

Part 36 Offers r.36 CPR

The claimant may make a Part 36 offer to settle any type of claim at any time.

- Offer to settle on a ‘without prejudice basis - Generally money claims, however can be for injuctions ect. - Can be made up to 21 days before Trial (r.36(3)

However it can be made closer to trial under r.36.3.1.Co Any offer would be inclusive of interest up to 21 days after the offer was made.

- Offer is made when it is served on the offeree or Solicitor r.36.7.1

- No set form, parties can make the offer to settle in any way R.36.2.2 – should:a. Be in Writingb. State it is intended to have the consequences of Part 36c. Specify Period of less than 21 days they may decide to acceptd. State whether it relates to whole of claim or part of ite. State whether it has taken into account any counterclaim.

- It provides financial incentives for actions to be settled. a. A party who is dragged to trial having tried to be reasonable should be

compensated. b. The compensation or penalty takes the form of costs and or interest. Part 36

offers/payments may be made before actions have begun.

If a Monetary Claim:- The amount set out in Part 36 is full and final figure (to include costs) - The D has to be prepared to pay the sum within 14 days. - The defendant will usually be required to make a payment into court to demonstrate his

ability to finance what is effectively an offer to settle, however, if he is defending a non money claim (for example he is being sued for

specific performance) he will be able to make an offer to settle the action (i.e. offer to perform the contract within a reasonable time).

Healthcare trusts may not have to make payments into court as the payment would have been from public funds and could have been better employed elsewhere.

Withdrawal of the offer R.36.3.5 only possible to withdraw where the court gives permission, however after expiary of relevant 21 days- a new offer can be presented. - The offeror can serve formal withdrawal or change of terms of the offer- fonr by letter. Where d increases or C reduces the amount they are willing to accept, need not withdraw the offer. BUT-P.36 may be accepted at any time whether or not the offeror has made a differed offer- unless notice of withdrawal has bees served.

Acceptance - A Part 36 offer/payment must remain open for acceptance for 21 days. - After that time it can only be accepted if the parties agree the liability or costs OR if the

court gives permission.- The offer is accepted on receipt of a notice of acceptance. This must also be filed at court.

The court’s permission is required to accept a Part 36 offer if it is made within 21 days of trial and the claimant is a minor or the offer is not made by all the defendants.

- If the offer/payment is accepted the action is stayed and the defendant pays the claimants costs up to the date of giving notice of acceptance.

- If the offer relates to only part of the claim, only that part is stayed and the court will asses the costs unless agreed between the parties.

NB. R.21.10 acceptance on behalf of a child or protected party is not valid unless the court has approved the settlement

Rejection

CLAIMANT’S OFFER: If the claimant makes an offer to settle on lesser terms than the original claim there are three consequences for the defendant:

1. The claimant wins and beats the offer The claimant is awarded more by the court than he had declared he would have been

prepared to accept by means of the Part 36 offer The defendant will be penalised for not accepting a reasonable Part 36 offer The defendant will be ordered to pay:

interest on damages at up to 10% above the base rate costs on an indemnity basis additional interest on costs of up to 10% over the base rate

for some or all of the period from the latest date for acceptance of the offer (without permission of the court)

The court will take into consideration the conduct of the parties in giving information to enable the offer to be evaluated.

2. The claimant wins and fails to beat the offer The claimant asked for more in his offer than he was forced to accept by the judge The offer has no effect.

3. The claimant loses, defendant wins The claimant has to pay costs in the usual way.

The effects of the rules are to require the defendants to accept reasonable offers by the defendants.

DEFENDANTS OFFER: The only way that a defendant can get the benefits attached to Part 36 is if he actually makes a payment into court. Again there are three possible consequences for the claimant:

1. The claimant wins and beats the offer or payment The claimant is awarded more by the court than the defendant has paid into court under

Part 36

The court will rule that eth defendant pays the claimant’s costs in the usual way under CPR 44, the payment has no effect

2. The claimant wins and fails to beat the offer or payment The claimant is awarded less by the court than the defendant has already paid into court The claimant has been greedy in taking the case to trial. Although the claimant is still entitled to costs up to the last date that he could have

accepted the Part 36 payment (i.e. 21 days after the service of the notice of the Part 36 payment), after that point, he has acted unreasonably and the court will order that the claimant pays the defendants costs. As this is the trial, these will be significant.

3. The claimant loses, defendant wins The claimant has to pay costs in the usual way.

C beats own offer C beats D’s offer but not own offer (only one where P36 offers are irrelevant)

C does not beat D’s offer (still disastrous for C is damages low because eaten by costs)

C loses at Trial (disastrous!)

D pays C interest on damages at 8% p.a.From: Date ATo: Day before Date E

D pays C interest on damages at 8% p.a.From: Date ATo: Date H (judgement)

D pays C interest on damages at 8% p.a.From: Date ATo: Date H(judgement)

C Pays D’s costs on the standard basisFrom: Date CTo: Date H

D pays C’s costs on the standard basisFrom: Date BTo: Day before Date E

D pays C’s costs on the standard basisFrom: Date BTo: Date H

CPR Rule 36.14(2)From: Day after Date GTo: Date H(See above notes if C doesn’t make offer)

CPR Rule 36.14(2) – kicks in from day after could have accepted offer (see box to left)

CPR Rule 36.14(3) – see above notes

D pays C’s costs on the standard basisFrom: Date BTo (and including): Date G

C pays interest on D’s costsFrom (& incl):Day after Date GTo: Date H

D pays C interest on damages at a max rate of 10% above base rate From (& incl):Date ETo: Date H

C pays D’s costs on standard basis From (&incl): Day after Date GTo: Date H

C pays own costsFrom: Date BTo: Date H

D pays C’s costs on the indemnity basis From (& incl): Date E

C pays interest on D’s costsFrom (& incl): Day after Date GTo: Date H

To: Date HD pays C interest on C’s costs at a max rate of 10% above base rateFrom (& incl):Date ETo: Date H

C pays own costsFrom (& incl): Day after Date GTo: Date H

EVIDENCE –

Rules 32 & 33 CPR rules on evidence and court, through management powers can control evidence brought to court.

R.31.1.1 Thr court may control the evidence by giving directions as to: a. the issues requiredb. nature of the evidence it requires to decide these issuesc. the way evidence is placed before court

r.31.1.2 The Court may use uts power under this rule to exclude ecvidence that would otherwise be admissible

r.31.1.3 The court may limit the cross examination.