CHAPTER 1: Introduction

Civil Procedure Rules 1998 (CPR) have statutory force as they are made by a statutory instrument.

1.1 Outline of the Usual Steps in a Case

Main stages in a common law action, in High Court or County Court:

Issue of proceedings

Service of proceedings

Service of statements of case

Track allocation

Directions

Disclosure of documents

Exchange of witnesses’ statements and experts’ reports

Listing for trial

Trial

Assessment of costs

The nature of the claim must be indorsed on a prescribed claim form, together with its value. Full particulars of claim can be incorporated into the claim form, although they can be served separately.

Particulars of Claim is document in which claimant sets out nature of its claim against D. Sets out facts claimant alleges which, if proved, would establish one or more causes of against D. At end, usual to set out a ‘prayer’ listing remedies sought. Contents of Particulars of Claim must be verified by a ‘statement of truth’ signed by claimant or their solicitor.

Particulars of Claim may be incorporated into claim form. If not, must be served within 14 days, unless time for service is extended by agreement or by court order.

Normally, Particulars of Claim stand on the own. In PI, however, must also serve:

1. medical report dealing with all the injuries alleged in Particulars of Claim and on which evidence is proposed to be adduced at trial; and

2. schedule of past and future expenses and losses claimed (incl. loss or earnings and pension rights)

Assuming no settlement, stages of the action after service of the Particulars of Claim are usually:

Acknowledgment of Service within 14 days by D by returning form to court. D may ignore this, and simply file Defence within 14-day period after service of Particulars of Claim
Service of the Defence by D with 14 days of service of Particulars of Claim or 28 days if acknowledgement of service filed
Service of the Reply, if any, by claimant within 14 days
shortly after defence is filed, court will send allocation questionnaire to the parties
after allocation questionnaires returned, a District Judge will decide which case management track to allocate the case to. Usually,

– cases worth < £5K, allocated to small claims track

– cases worth £5K – £15K, to the fast track

– cases worth > £15K, to the multi-track

at same time, court will usually give directions re steps needed to be taken to prepare case for trial and which lay down timetable for those steps
parties exchange documents in accordance with court’s directions
parties inspect documents seven days later, usually by sending copies through post
if claimant needs money pre-trial (eg. to convert house), application notice may be issued applying for order requiring D to make interim payment
parties prepare for trial. Take witness statements, which need to be exchanged. Prepare expert evidence, in accordance with court’s instructions. Serve notices to admit facts and to prove documents. If may be relying on hearsay, to serve notices under Civil Evidence Act 1995
defendant may seek to protect position by paying money into court
confirmation of trial date by court
particularly in multi-track cases, management hearings conduct by court
prior to trial, counsel will need to be briefed, witnesses served with witness summonses if necessary, bundles of documents prepared for court
trial
judgment and costs
court will usually send parties a sealed copy of judgment, which is simply a record of the result of the trial, not the judge’s reasons
winner is usually entitled to costs award against the loser. In fast track cases, costs usually assessed by judge there and then. In multi-track, costs usually subject to assessment
if loser fails to pay damages/costs, winner may have to go on to enforce the judgment

1.2 Jurisdiction of the Courts

County Court

Creature of statute; jurisdiction exercised by its judges and officers must be derived from CCA 1984 and CPR, otherwise will be ultra vires. Now established that CC has inherent jurisdiction to make local practice directions. However, may only be made with approval of Lord Chancellor.

Remedies: CCA 1984, s38(1) provides that “Subject to what follows, in any proceedings in a County Court the court may make any order which could be made by the High Court.”

CC has no power to order remedies available on judicial review (mandatory, prohibiting or quashing orders)

County Court Remedies Regulations 1991, made under CCA 1984, s. 38(3)(b), provide that CC shall not have power to grant search orders and will only have the power to grant freezing injunctions in limited circumstances – eg. over subject matter of CC proceedings and in aid of execution of CC judgments.

Where CC has no such power, proceedings are transferred to HC , then transferred back.

High Court

HC procedure governed primarily by SCA 1981 and CPR, filled in by rules of court. The Rules Committee’s power to make rules is derived from the Civil Procedure Act 1997, ss 1, 2, which is to be exercised with a view to securing that the civil justice system is accessible, faire and efficient.

Matters of practice are also regulated by Practice Directions which supplement the main CPR.

The High Court can also fill any gaps in its inherent jurisdiction. In this way, it can ensure justice is done between the parties where otherwise there might be a gap in the rules. The ambit of the court’s inherent jurisdiction moves with the times: Harrison v Tew [1990] 2 AC 523, where it was held that the court’s inherent jurisdiction in an area may be ousted by later statutory provisions covering same area.

All disputes in London must be commenced in the Royal Courts of Justice; elsewhere claimant can choose between Royal Courts of Justice and the local District Registry.

Most interim applications are heard by a Master or a District Judge in the first instance. Masters exercise this jurisdiction in the HC sitting in London (both QBD and Ch.D.). District Judges perform the same function in HC cases proceeding in District Registries. The corresponding official in CC is also a District Judge, and one person may be the District Judge for both a HC District Registry and its local CC.

CC District Judges have jurisdiction to try small claims and fast track claims, and also possession proceedings. Unless they have trial jurisdiction over the claim, generally Masters and District Judges cannot grant interim injunctions, and can never try claims under the Human Rights Act 1998, s. 7(1)(a) in respect of a judicial act, nor claims for declarations of incompatibility.

1.3 The appropriate court?

HC and CC often have concurrent jurisdiction. Choice will be dictated by importance of case, whether case is likely to raise difficult questions of law or fact, convenience of the court building to the parties. Generally, it is most apt to commence proceedings in the court in which the case is likely to be tried.

Rules restricting the choice:

personal injuries claims must be brought in CC if value of claim <£50K
consumer credit cases must be brought in CC if upper credit limit <£25K
other money claims may be brought in HC provided value >£15K; i.e. > £15K, there is a choice
as an exception, HC proceedings can always be justified if they are suitable for inclusion in one of the specialist lists
equity proceedings, contentious probate proceedings and proceedings under Law of Property Act 1925 can be brought in CC only if amount of fund or value of land <£30K
judicial review and defamation proceedings can only be commenced in HC
claims under the Human Rights Act 1998, s. 7(1)(a) in respect of a judicial act must be brought in the HC (CPR, r. 7.11)

HC, together with the Crown Court and the CA forms part of the Supreme Court of Judicature. Three divisions:

– The Chancery Division (Ch.D)

– The Queen’s Bench Division (QBD)

– The Family Division

Business is allocated between the Divisions in accordance with SCA, s61 and sch 1. Broadly,

Ch.D. deals with land, mortgages, trusts, administration of estates, probate, bankruptcy, IP and company matters

QBD deals with judicial review, admiralty and commercial matters

Family deal with matrimonial and related matters

Specialist Courts

Eg. the Commercial Court, the Admiralty Court, Mercantile Courts, Technology and Construction Court, Companies Court, Patents Court

Personal injury cases

Claims for damages in respect of personal injuries where the claimant does not reasonably expect to recover more than £50K must be commenced in CC. The term ‘personal injuries’ includes disease, impairment of physical and mental condition, and death. The value of the claim is determined as at the date the claim is commenced, and:

claims for interest and costs are disregarded
contrib neg is disregarded
if provisional damages are claimed, any possible future application for further damages is disregarded
sums required to be paid to the Secretary of State by virtue of the Social Security (Recovery of Benefits) Act 1997 are part of the claim

The £50K is the sum of the claim for:

special damages for actual financial losses
general damages for PSLA
special damages for future loss of earnings and cost of medical care

Cost Implications

Unless there are good reasons for bringing an action in HC, claimant who starts there when should have done so in CC is likely to be penalised in costs, even if successful. Usual penalty is that successful claimant’s award is reduced by up to 25%.

Where proceedings are commenced in wrong court and court satisfied claimant knew or ought to have know of any relevant provision allocating jurisdiction, court may order proceedings to be struck out.

Restick v Crickmore [1994] 1 WLR 420 (CA): where a claimant knew or ought to have known that the action should have been started in one court, but started it in the other, the court has a discretion whether to strike the action out or to transfer it to the correct court.

Normally, court will simply order a transfer and penalise the claimant in costs. Striking out should only be used where it was plain that action was being started in the wrong court, and the claimant chose to do so in an attempt to harass the defendant, or deliberately run up unnecessary costs, or ignored a clear warning from D, or had persistently started actions in the wrong court.

Trial Allocation

Generally, an action will be tried in court where it is commenced. However, courts may, either of own motion or on application by any party, transfer proceedings either up or down. Main rules for ordering such transfers are:

equity and contentious probate proceedings involving no more than £30K begun in CC will be tried there
where at least one of the claimants seeks relief having no quantifiable commercial value (eg. many injunctions), the place of trial is determined according to the criteria set out below
subject to the criteria set out below, claims for <£25 (valued when proposed transfer is considered) should be tried in CC
claims of £25K-£50K are flexibly allocated using the criteria set out below
subject to the following criteria, claims >£50K are tried in HC.

The criteria are:

i. the financial substance of the action, including the value of any counter-claim

ii. the importance of the case, and whether it involves questions of general public interest

iii. the complexity of the facts, law, remedies and procedure involved

iv. (although not sufficient on its own) whether transferring the action is likely to result in a more speedy trial

1.4 General Principles

The overriding objective

CPR, r. 1.1:

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Deal with a case justly includes, so far as is practicable-

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate-

i. to the amount of money involved,

ii. to the importance of the case;

iii. to the complexity of the issues; and

iv. to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

CPR r. 1.2: court has to give effect to the overriding objective when making decisions.

CPR r. 1.3: parties are expected to help the court to further the overriding objective.

CPR r. 1.4: court must further the overriding objective by actively managing cases, which, by r 1.4(2) includes:

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b) identifying the issues at an early stage;

(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

(d) deciding the order in which issues are to be resolved

(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure;

(f) helping the parties to settle the whole or part of the case

(g) fixing timetables or otherwise controlling the progress of the case

(h) considering whether the likely benefits of taking a particular step justify the cost of taking it

(i) dealing with as many aspects of the case as it can on the same occasion

(j) dealing with the case without the parties needing to attend court

(k) making use of technology

(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently

Dealing with cases justly

Shutting litigants out because of technical breaches of the rules will not be consistent with the main concept in the rules, ie. that the primary concern of the court is doing justice.

Jones v Telford and Wrekin DC, The Times, 29 July 1999: service delayed beyond period of validity because claimant’s solicitors had problems obtaining experts’ reports for service with particulars of claim. CA upheld extension of time. The Master of the Rolls commented that court must not lose sight of fact that its primary concern was doing justice.

Chilton v Surrey CC [1999] CPLR 525: CA indicated that dealing with a claim justly involved dealing with the real claim, and allowed claimant to rely on a revised statement of past and future loss and expense quantifying claim at £400K, rather than original statement which indicated claim of about £5K.

Thurrock Borough Council v SS for the Environment, Transport and the Regions, The Times, 20 December 2000: a party who starts a claim using wrong form, or relying on wrong statutory provision, is likely to be granted permission to amend in order to deal with claim justly, particularly if D not misled by the mistakes.

Equal footing

Maltez v Lewis, The Times, 4 May 1999: the concept of dealing with the parties on an equal footing was held not to extend to the court being able to prevent a party from instructing the lawyers of its choice, even if one side could not afford lawyers as expensive as those being used by the other.

McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775: if a party wanted the court to restrain the activities of other party with object of achieving greater equality, party making the application had to demonstrate they were themselves conducting the proceedings with a desire to limit expense so far as practical. However, the powers of the court to restrain excess did not extend to preventing a party from putting forward allegations which were central to their case. That said, it was open to the court to attempt to control how those allegations were litigated with a view to limiting costs.

Dealing with cases expeditiously, fairly and saving expense

Cadogan Properties Ltd v Mount Eden Land Ltd [1999] CPLR 476: at first instance, order made for service by alternative method where not justified. Order was set aside on appeal, with the result that proceedings had not been served and period of validity had expired. CA relied on CPR, r 1.1(2)(d) and need to deal with cases fairly and expeditiously, and also on the need for proportionality (r 1.1(2)(c)) to justify making an order extending the validity of the originating process. D was aware of the proceedings and suffered no significant prejudice by the course adopted by the court.

Keene v Martin, The Times, 11 November 1999: held that, on the facts, better to allow claim to continue as ordinary chancery proceeding rather than striking it out as that was more cost-effective than forcing claimant to start again by issuing fresh proceedings.

Allotting an appropriate share of the court’s resources

Stephenson (SBJ) Ltd v Mandy, The Times, 21 July 1999: D appealed against interim order restraining breaching a restrictive covenant in employment contract. Appeal came before CA on 30 June and trial had been fixed for 20 July. Given the short period before trial and fact that claimant had given usual undertaking in damages, court decided that considering the merits of the appeal would not be in accordance with the overriding objective. Expense would not be saved by hearing the appeal, and given the short time to trial, hearing the appeal would not be a good use of the court’s resources.

Adoko v Jemal, The Times 8 July 1999: appellant had failed to correct the notice of appeal despite warning from respondents that it was seriously defective, and had failed to comply with directions relating to appeal bundles. CA spent over an hour trying to sort out the mess, and then decided it was inappropriate that any further share of the court’s resources should be allocated to the appeal. Appeal was dismissed (with costs on indemnity basis!).

Cooperating

Chilton v Surry CC [1999] CPRL 525: CA decided against D partly because it seemed D was attempting to take tactical advantage of mistake by claimant’s solicitors in overlooking to serve revised statement of past and future loss and expense rather than cooperating with the claimant’s solicitors to put matters right.

Computation of time

CPR, rr 2.8, 2.9 lay down rules for computing periods of time fixed by the Rules and by court orders and judgments:

“month” means calendar month. (If an act is required to be done within a month after 31 October, the period begins on 1 November and the last day for doing the act is 30 November)

“clear days”: a period of time expressed as a number of days is computed as clear days, i.e. if an act is required to be done within 3 clear days before or after a specified date, at least that number of days must intervene between the two dates

Short periods: when computing periods of less than 5 days, Saturdays, Sundays and bank holidays are excluded

Court office closed: when time expires on a day on which the court office is closed, and for that reason the act cannot be done on that day, the act will be in time if done on the next day that the court office is open

Time applications

CPR, r 3.1(1)(a) provides that the court may extend or shorten any time period laid down in the rules or any court order. Extensions may be granted after the initial period has expired. The power to extend time may be exercised even when a rule says a step ‘must’ be taken within a stated period. An application made close to trial may be refused where its effect would be unfair on the other party. The costs of the application will usually be borne by the party applying for the order.

In practice, many time limits are extended by consent between the parties. Such agreements should be in writing, and do not require an order being made by the court. However, parties cannot agree to extend time so as to impinge upon certain ‘key’ dates, such as dates set by the court for case management conferences, pre-trial review, or trial.

Errors of procedure

CPR, r 3.10:

Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

The wide drafting of the rule means that most procedural failures will be treated as irregularities that can be remedied, and not nullities. However, some procedural failings are not failures ‘to comply with the requirements of these rules’:

Dubai Bank Ltd v Galadari (No. 4), The Times, 23 February 1990: it was assumed that P had ceased to exist as a corporate body when the writ was issued through failing to comply with Dubai company law. Morritt J held that the requirement for a plaintiff was a basic principle of law, and if P did not exist when the writ was issued, proceedings were a nullity and could not be saved.

Bank of America National Trust and Savings Association v Christmas [1994] 1 All ER 401: held that the rule is subordinate to the Limitation Act 1980, s 35(3) which prevents certain amendments after the expiry of the limitation period. Purported service of an amended claim in breach of s 35(3) could not be cured under this rule.

Must be kept in mind that errors are of differing gravity.

CHAPTER 2: Pre-action conduct of litigation

2.2 Pre-action Protocols

Currently, there are published protocols only for PI claims, medical negligence claims (known as clinical disputes), building disputes, defamation claims and professional negligence claims.

Compliance with pre-action protocols is intended to break down old adversarial secretive approaches to case preparation, and to promote prospects of achieving settlements as early as possible and on an informed basis.

Compliance with relevant protocol will be regarded as normal reasonable approach for solicitors to take, failure to adhere being punished by harsher response to applications for extensions of time later on, and possible costs penalties and other sanctions.

In cases not covered by an approved protocol, the court will expect the parties, in accordance with the overriding objective, to act reasonably in exchanging information and documents relevant to the claim and generally in trying to avoid the necessity for proceedings.

2.4 Personal Injury Protocol

Designed primarily for PI claims <£15K, i.e. cases likely to be allocated to the fast track. The spirit of the protocol should be followed in larger cases. The parties can depart from the detail in the protocol, but the court will want an explanation of the reasons for departing if proceedings are subsequently issued.

The protocol says that before issuing proceedings the following matters should be deal with in the following order:

Time	Action
Soon after being retained	Claimant’s solicitor may choose to send informal letter to D or D’s insurer
	2 copies of letter of claim should be sent to D immediately sufficient information is available to substantiate a realistic claim. One copy is for D, the other for his insurer. If insurer is known, letters should be sent separately.

Letter of claim should contain clear summary of facts, the nature of the injuries and details of the financial losses claimed. If possible, it should indicate which documents should be disclosed by D at this stage.21 daysD must reply naming any insurer or insurer should acknowledge. Failure to reply within this time justifies issue of proceedings without further compliance with protocol3 months from acknowledgementD, or D’s insurer, has maximum of 3 months from acknowledging letter of claim to investigate and state whether liability is denied, and if so, on what grounds Where D disputes liability, D must disclose reasons for denial and documents relevant to liability (these should be the categories identified by the claimant in the letter of claim) which must be enclosed with the denial letter. If contrib neg is alleged, claimant should respond to the allegations raised before proceedings are issued.ASAP thereafter A Schedule of Special Damages, together with supporting documents, sent to D. This is a formal document which sets out the various categories of past and future financial losses that are claimed. 14 days 24 daysObtaining medical evidence dealing with the client’s injuries. Claimant sends D list of suggested experts. Letter should also state the basis of the proposed joint instructing of necessary experts Defendant has time to raise objections to suggested experts If D objects to all suggested experts, both parties free to instruct own experts Sending of reports / request for further questions to experts Parties should wait 24 days after receiving experts’ reports before issuing Parties should consider sending Part 36 offers to the other side (re paying money into court) Parties should consider negotiating and other means of ADR14 days before issue of proceedingsClaimant should ask D’s insurers to nominate solicitors

Standard disclosure list for road traffic accidents

Section A

In all cases where liability is at issue-

(i) documents identifying the nature, extent and location of damage to D’s vehicle where there is any dispute about point of impact

(ii) MOT certificate where relevant

(iii) Maintenance records where a vehicle defect or unforeseen defect is alleged to have caused or contributed to the accident

Section B

Accident involving commercial vehicle as potential defendant-

(i) Tachograph charts or entry from individual control book

(ii) Maintenance and repair records required for operator’s licence where vehicle defect or unforeseen defect is alleged to have caused or contributed to accident

Section C

Cases against local authorities where highway design defect is alleged-

(i) Documents produced to comply with s39 of Road Traffic Act 1988 in respect of the duty designed to promote road safety to include studies into road accidents in the relevant area and documents relating to measures recommended to prevent accidents in the relevant area

2.5 Selection of Experts under the Protocol

PI Protocol regards joint instruction of a single expert to the norm.

Before claimant instructs an expert, should give other party list of name(s) of one or more relevant experts who are considered suitable to instruct. Within 14 days, D may indicate objections to listed experts. Provided D does not object to all, claimant should then instruct a mutually acceptable expert from the list.

If D object to all, parties may instruct experts independently. It is for court to decide later if either party acted unreasonably.

Where a medical expert is to be instructed, claimant’s solicitor will organise access to the relevant medical records.

The cost of a report from an agreed expert will usually be paid by the claimant.

Any medical report obtained by agreement under the protocol should normally be disclosed to the other party.

Claimant should delay issuing proceedings for 21 days from disclosure of report, to enable parties to consider settlement.

Either party may send to the expert questions on the report via the claimant’s solicitors. The expert should send answers to the questions separately and directly to each party. The costs of the expert replying to questions will usually be borne by the party asking the questions.

Distinction between jointly selecting an expert and jointly instructing an expert. A party instructing a jointly selected expert retains legal professional privilege in the expert’s report, and can refuse to disclose it to the other side. Both parties are entitled to see a jointly instructed expert’s report.

2.7 Failure to comply

If limitation period is close when solicitor receives instructions, solicitor should give as much notice to D as is practicable. Parties might invite the court to extend time for service of documents, or to stay proceedings pending completion of the required steps.

Where there is a rational justification for non-compliance with protocol, there will be no adverse consequences for failure to comply. Where failure arises through slackness or deliberate flouting, claimant may be justified in commencing proceedings without going through rest of protocol’s procedures, and either party may be penalised in costs. If, in opinion of the court, non-compliance has led to the commencement of proceedings which might otherwise not have needed to be commenced, or has led to costs being incurred in the proceedings that might otherwise not have been incurred, by virtue of Pre-Action Protocols Practice Direction, para 2.3, the orders a court may make include:

(a) an order that party at fault pay costs, or part of costs, of other party(s);

(b) an order that party at fault pay costs on indemnity basis;

(c) if party at fault is a claimant in whose favour an order for payment of damages is made, an order depriving that party of interest on such sum and in respect of such period as may be specified, and/or awarding interest at a lower rate than at which interest would otherwise have been awarded;

(d) if party at fault is a defendant and an order for the payment of damages is made in favour of the claimant, an order awarding interest on such sum and in respect of such period as may be specified at a higher rate, not exceeding 10% above base rate, rather than the rate at which interest would otherwise have been awarded.

These powers are to be used to place the innocent party in no worse a position that he would have been in had the protocol been complied with.

It is expressly provided that if court has to consider the question of compliance, it will not be concerned with minor infringements, such as failure by short period to provide relevant information.

Checklist for information to be obtained from clients in PI claims

(1) Circumstances of accident, to include:

(a) date of accident

(b) where

(d) who is/are likely defendant(s)

(e) what happened

(f) names and addresses of witnesses known to client

(2) Did police attend?

(3) Was there any other accident investigation?

(4) Were criminal proceedings brought? If so, what was the result and is a certificate of conviction available?

(5) Nature of the injuries and treatment

(6) Financial losses:

(a) employment

(b) accident related damage to car, clothes, etc

(d) nursing care (incl from family)

(e) DIY loss? Gardening loss? Car maintenance loss?

(7) Have documents in support of financial losses been preserved:

(a) pay slips

(b) P60s and P45s

(d) correspondence about job applications since injury, and advertisements for jobs applied for

(e) receipts

(f) correspondence about, eg., pension rights, early retirement

(8) client’s GP and hospital notes and records

(9) client’s DOB for Particulars of Claim

(10) client’s NI No. for Compensation Recovery Unit certificate on recoupable benefits.

2.10 Pre-action Relief

The CPR allow parties to make applications before commencing proceedings in certain situations.

CHAPTER 3: Commencement of proceedings

Proceedings commenced usually by issuing claim form, for which there is a prescribed form. Issuing involves the court sealing the form with its official seal. Issuing stops time running for limitation purposes, and it starts time running for service purposes.

3.3 The Claim Form

It is the claimant’s solicitor’s responsibility to prepare the claim form before issue. For most proceedings there is a general purpose claim form (Form N1). A completed claim form will:

(a) set out names and addresses of the respective parties;

(b) give concise statement of nature of claim;

(d) contain statement of value where claim is for money. This will be the amount sought if the claim can be specified, or, if not, whether it is expected that the amount to be recovered in <£5K, £5K-£15K, or >£15K. In PI claims, the amount expected for PSLA must be stated as being either below or above £1K.

3.4 Jurisdictional Indorsements

In cases to be issued in HC, claim form must, unless claim is for a specified amount, be indorsed with either:

(a) a statement that claimant expects to recover >£15K (>£50K in PI cases); or

(b) a statement that a named enactment provides that the claim may only be commenced in the HC; or

(c) a statement that claim is for a named specialist HC list, or the claim form must comply with the requirements laid down in a Practice Direction for one of the specialist lists.

3.5 Particulars of Claim

Particulars of claim are the formal written statement setting out the nature of the claimant’s case together with the nature of the relief or remedy sought. Can be included in the claim form, or be set out in a separate document. If a separate document is used, must be served either with the claim form, or within 14 days after service of the claim form (CPR, r. 7.4(1)), and in any event within the period of validity of the claim form. If contained in a separate document, the claim form must state that the particulars are either attached or will follow.

3.6 Issuing the Claim Form

Claimant’s solicitors send copies of claim form to the court office, together with prescribed fee. Court issues claim by sealing the claim forms, and enters details of the claim in its records. Court sends a form called a notice of issue to the claimant’s solicitors telling them the claim number, date of issue, and, if service is effected by the court, the date of service.

3.7 Service

Service on D in England and Wales must be effected within 4 months of issue. Ex-England and Wales, validity of service is six months (CPR, r. 7.5(3)).

Under the CPR, there is a single system dealing with service, whether the document to be served is the originating process, or other documents during the course of proceedings, such as statements of case, lists of documents, etc.

Address for service

CPR, r. 6.5 provides appropriate places for service for different types of party:

Nature of party to be served

Place of service

IndividualUsual or last known residenceProprietor of businessUsual or last known residence, or place of business or last known place of businessIndividual who is suing or being sued in the name of a firmUsual or last known residence, or principal or last known place of business of the firmCorporation incorporated in England and Wales other than a companyPrincipal office of the corporation, or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claimCompany registered in England and WalesPrincipal office of the company, or any place of business of the company which has a real connection with the claim. Note, a company may also be served at its registered officeAny other company of corporationAny place within the jurisdiction where the corporation carries on its activities, or any place of business of the company within the jurisdiction

For the purposes of service of a claim form, if D’s solicitor is authorised to accept service for D, service must be effected at D’s solicitor’s office.

When any party is acting by a solicitor, all documents must be served at the address of the party’s solicitor: CPR, r. 6.5(5).

The documents to be served comprise the sealed claim form, the particulars of claim (perhaps), and a ‘response pack’. The response pack consists of practice forms of acknowledgment of service, admission, defence and counterclaim.

The permissible methods of service are set out in CPR, r. 6.2:

(1) A document may be served by any of the following methods-

(a) personal service, in accordance with r. 6.4;

(b) first class post;

(c) leaving the document at a place specified in r. 6.5 [the address for service]’

(d) through a document exchange in accordance with the relevant practice direction; or

(e) by fax or other means of electronic communication in accordance wit the relevant practice direction.

Personal service is effected by leaving a copy of the document with the person to be served. If a person has knowledge of the nature of the document and has been given a sufficient opportunity of possession to enable that person to exercise dominion over it for any period of time, however short, it will amount to ‘leaving’ for the purposes of this rule: Nottingham Building Society v Peter Bennet & Co, The Times, 26 February 1997 (CA).

Personal service on a company means service on a person in a senior position, i.e. director, treasurer, secretary, chief executive, manager or other officer (PD , para 6.2).

Personal service on partners sued in the name of the partnership is effected by leaving the claim form with a partner or a person having the control of management of the partnership business at its principal place of business (CPR, r. 6.4(5)). When effecting service in this way, at the same time, it is necessary to serve a notice stating whether the person being served is served as a partner or as having control of management or both.

Document exchange: generally documents will arrive the next business day. It is only a permissible means of service if the other side’s solicitors are uses of the DX system and have indicated a willingness to accept service through the DX system. Such a willingness may be evidenced by including a DX number on the solicitor’s usual headed letter paper (PD 6, para 2.1).

Electronic methods of service: PD 6, para 3, re fax and email, requires recipient to have previously indicated willingness for service to be accepted this way. Where the recipient is acting in person, the willingness to accept service by fax must be expressly stated in writing (para 3.1(3)(a)). Where the recipient is acting by a solicitor, such a willingness may be shown by including a fax or e-mail number in the solicitor’s printed stationery.

Contractual service: in contract claims, the contract may provide for court proceedings to be served by a specific method.

Usual method of service: generally service will be by the court (CPR, r. 6.3), but there are exceptions, the main one being where the party notifies the court he wishes to do it himself. Court service will generally be by first class post (PD 6, para 8.1).

3.8 Deemed date of service

Deemed service is not rebuttable in any circumstances, even if actual service can be proved!!

CPR, r 6.7 provides documents are deemed to be served as follows:

Method of service

Deemed day of service

First class postThe second day after it was postedDocument exchangeThe second day after it was left at the DXDelivering the document or leaving it at a permitted addressThe day after it was delivered or left at the permitted addressFaxIf it is transmitted on a business day before 4pm, on that day, or in any other case, on the business day after the day on which it is transmittedOther electronic methodThe second day after the day on which it is transmittedPersonal service of claim form at any time of day, or of any other document before 5pm on business dayDay of deliveryPersonal service of any document other than a claim form after 5pm or on a non-business dayThe following business day

Service of any kind of document excludes Saturdays, Sundays and Bank Holidays: Anderton v Clwyd CC, LTL, 25 July 2001.

A claimant effecting service must file a certificate of service within seven days of service: CPR, r. 6.14.

3.9 Non-compliance with the Rules on Service

Service in accordance with an ad hoc agreement between the parties as to the mode of service reached just before service was effected was held to be valid under the old system even though it was strictly outside the rules regulating service. It is possible that the same result would be achieved under the present rules.

When a party attempts to serve a claim form out of time, service will be set aside if an application is made by the defendant. The claimant may apply for an extension on the period of validity, but there are restrictions.

Where a party purports to serve a claim form within its period of validity, but by an incorrect method, or at an incorrect address, the court has a discretion whether to grant relief under CPR, r 3.10. On an application for an order remedying such an error in procedure, the court will consider whether the claimant has taken all reasonable steps to put the matter right once the problem was discovered.

3.10 Alternative Service

Sometimes D might be difficult to find or is avoiding service. In such cases, it is sometimes possible to persuade the court to allow service by an alternative method under CPR, r. 6.8. Such orders can only be made prospectively, and cannot be made after the event to cure some defect in effective service: Elmes v Hygrade Food Products plc (2001) LTL 24/1/01. An application for such an order needs to be supported by written evidence which must:

(a) state the reason alternative service is sought; and

(b) describe the steps already taken

Eg.s of alternative service are advertisement in newspaper, affixing copy to D’s door, service at address of D’s insurer.

3.11 Objecting to Jurisdiction

D who wishes to object to the court having jurisdiction over a claim should make an application pursuant to CPR, Pt 11, the main provisions of which are:

(1) A defendant who wishes to-

(a) dispute the court’s jurisdiction to try the claim; or

(b) argue that the court should not exercise its jurisdiction,

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have

(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10

(3) A defendant who files an acknowledgement of service does not, by doing so, lose any right he may have to dispute the court’s jurisdiction.

(4) An application under this rule must-

(a) be made within the period for filing a defence and

(b) be supported by evidence.

(5) If the defendant-

(a) files an acknowledgment of service; and

(b) does not make such an application within the period for filing a defence, he is to be treated as having accepted that the court has jurisdiction to try the claim.

…

(9) Where a defendant makes an application under this rule he need not file a defence before the hearing of the application.

Although the rule says the application must be made within the time for filing a defence (usually 28 days after service of the particulars of claim, where an acknowledgment has been filed), this period, like most others in the rules, may be extended under CPR, r. 3.1(2)(a): USF Ltd v Aqua Technology Hanson NV/SA (2001) LTL 30.1.01.

3.12 Other Types of Originating Process

Two most common:

Part 8 claim forms, where there is no dispute of fact
Petitions, as in divorce, bankruptcy and winding up proceedings

3.13 Part 8 Claims

A claim brought under Part U has its own Part 8 claim form; used where there is no substantial dispute of fact (CPR, r. 8.1(2)(a)). A Part 8 claim form must state that Part 8 applies, and must set out the question the claimant wants the court to decide or the remedy sought. If the claim is brought pursuant to statute the relevant statute must be stated. Any evidence the claimant relies upon must be filed and served with the claim form. After the claim form has been issued and served, any D will have 14 days to acknowledge service, which will usually be on an official form which includes a statement of truth, but may be given informally by latter. Defendants must file their evidence when they acknowledge service. The claimant may file and serve evidence in reply within 14 days thereafter. Part 8 claims are treated as allocated to the multi-track.

3.15 Filing

Documents are filed by being delivered to the court. A court manager has no jurisdiction to refuse to accept a document, eg, on the ground that it should have been filed in another CC

CHAPTER 4: Responding to a Claim

Time only starts running against D from service of the particulars of claim. After service of the particulars of claim, D has a choice of:

(a) filing an admission;

(b) filing a defence, which may be combined with making a counterclaim; or

4.2 Admissions

A D who admits the claim should complete the admission form (N9A or N9C depending on whether the claim is for a specified sum of money) included in the response pack. The admission form allows D to admit either the whole claim or just a party. If the whole claim is admitted, D needs to decide about payment. If the whole sum is paid within 14 days of service of the claim form, D’s liability for the claimant’s costs are limited to certain fixed sums laid down in the rules. The admission form also allows a D who wants time to pay to make an offer to pay by instalments. If accepted by the claimant, he will notify the court and a judgment will be entered for payment by the instalments offered by the defendant. If the claimant does not agree to the offer to pay by instalments, the rules make provision for the rate of payment to be determined by the court.

D can also use the admission form to make a partial admission, denying the rest of the claim. The part that is denied has to be dealt with in a defence, which should be filed at court together with the admission form.

4.3 Defences

If D disputes a claim, must file a defence. A defence and counterclaim are including among the forms in the response back (N9B or N9D depending on whether the claim is for a specified sum of money).

4.4 Acknowledgment of Service

These are used if D not able to file defence in the time limited, or if D intends to dispute the court’s jurisdiction.

4.5 Agreed Extensions

The parties may agree to extend the time for serving a defence, but any agreements can only be for a max further 28 days. D has to notify the court in writing of the agreed extension.

4.6 Transfer

Defended claims for specified sums of money against individuals are automatically transferred to D’s home court on receipt by the court of a defence.

CHAPTER 5: STATEMENTS OF CASE

Statements of case are formal documents used in litigation to define what each party says. ‘Statement of case’ is defined by the CPR to include all of:

(a) the claim form;

(b) particulars of claim where these are not included in a claim form;

(d) counterclaim;

(e) Part 20 claims;

(f) reply to defence; and

(g) any further information given in relation to the above whether voluntarily or by court order.

Statements of case serve two main purposes:

(a) to inform the other side of the case they will have to meet to ensure that they are not taken by surprise at trial; and

(b) to provide an outline of the contentions that will be put forward by the parties so that the trial judge can readily see what is in issue.

Particulars of claim

set out the facts that the claimant needs to prove in order to establish the cause of action
set out the material facts of the claim, i.e. the facts giving rise to the dispute and the facts which are essential elements as a matter of law for the cau