CONTENTS
1. TACTICAL APPLICATIONS – Summary Judgment – CPR Part 24
2. TACTICAL APPLICATIONS – Interim Payments – CPR Part 25
3. TACTICAL APPLICATIONS – Security for Costs – CPS Part 25
4. TACTICAL APPLICATIONS – The White Book Commentary on Impecuniosity
5. TACTICAL APPLICATIONS – Further Settlement Options Pre-Trial
6. TACTICAL APPLICATIONS – Part 36 Offers – Overview – How to make one
7. TACTICAL APPLICATIONS – Part 36 – How to withdraw a Part 36 offer & accept an offer
8. TACTICAL APPLICATIONS – Part 36 Offers.
9. TACTICAL APPLICATIONS – Part 36 Offers.
10. Allocation (following Defence being filed)
11. FORM N149C Notice of Allocation
12. Court’s Case Management Powers – General Powers
13. Directions Questionnaire
14. Directions Questionnaire
15. FORM N181 Directions Questionnaire
16. Scrutinizing Directions Questionnaires
17. Common Directions/Standard Directions Order
18. Where the parties agree directions between themselves & Pre-Trial Checklist.
19. CASE MANAGEMENT CONFERENCES (CMCs)
20. Drafting a Case Summary for the (CMCs) & Costs Management
21. Costs Management - (CMCs)
22. Sanctions and Relief from Sanctions
23. Disclosure of Documents & Inspection of Documents
24. Disclosure of Documents & Inspection of Documents
25. Disclosure of Documents & Inspection of Documents
26. Disclosure of Documents & Inspection of Documents
27. Accidental disclosure of Privileged Documents, Non-Party Disclosure and the Disclosure
Statement
28. Disclosure of Documents – Completing Form N265
29. Disclosure – Document found after N265 is served & continuing obligation.
30. Professional Conduct Issues in Disclosure
31. Witness Statements
32. Witness Statements
33. Hearsay Evidence
34. Hearsay Evidence
35. Format of Witness Statements, Failure to serve WS and requesting an extension 2 serve
36. MCQ Notes
37. Expert Evidence
38. Expert Evidence
39. Expert Evidence
40. Expert Evidence
41. Expert Evidence
42. Tomlin Orders
43. Tomlin Orders
44. TRIAL
45. TRIAL
46. TRIAL
, SUMMARY JUDGMENT – PART 24 CPR
What is Summary judgment is a procedure by which the court can decide a claim or a particular issue without a trial.
Summary The existence of Summary Judgment acknowledges that certain cases need not run to trial; the aim of the procedure
Judgment is to facilitate a quick determination of case, avoid long-running litigation and save costs where a trial is unnecessary.
?
Procedure The application should include: Application Notice (Form N244), supporting evidence (witness statement), fee
(currently £255) and draft order.
C must wait until D has filed an AoS or a Defence, unless court gives permission.
D may apply for summary judgment at any time, but should be without delay and usually prior to or at the time of
filing of directions questionnaires.
Respondent must be given 14 days’ notice of the date fixed for hearing (notice served at least 14 days before hearing
CPR 24.4(3); if respondent wishes to rely on written evidence this should be served within 7 days; an applicant who
wishes to rely on written evidence in response to respondent’s submission must file at least 3 days before hearing.
The respondent should file and serve evidence at least 7 days before the hearing CPR 24.5(1)
If the applicant wishes to respond to the respondent's evidence, he should do so at least 3 days before the hearing
(CPR 24.5(2)).
Grounds CPR 24.2 – the court may give summary judgment is the respondent has:
a)The Claimant has no real prospect of succeeding on the claim or issue or the Defendant has no real prospect of
successfully defending the claim or issue; AND
b)There is no other compelling reason why the case or issue should be disposed of at trial.
No Real Prospect of Succeeding on or Defending the Claim
In order to defeat an application for summary judgment, the respondent needs more than just an arguable case. It
has to be one that has a "real, as opposed to a fanciful, chance of winning" (Swain v Hillman [1999] EWCA Civ 3053).
Commonly, applications will focus on (para 1.3, PD24):
o A point of law which means the respondent has no real prospects of succeeding in his claim.
o Evidence which can reasonably be expected to be available at trial, or the lack of it, which means the respondent
has no real prospects of succeeding e.g. where it is clear beyond question that the statement of case is
contradicted by all the documents.
A combination of these.
No Other Compelling Reason to Try the Case or Issue
The following may constitute compelling reasons:
o Need to investigate:
The respondent may need time to investigate the claim, not having had the opportunity to do so, and such
investigation might provide it with real prospects of success.
E.g. if the respondent has been unable to contact a witness.
o Where one party holds all of the factual cards:
Summary Judgment can be sought prior to disclosure. It is therefore possible that, in certain cases, one party will
be in possession of the majority of the evidence before they are under an obligation to disclose.
Where the facts are wholly in the applicant's hands and it would be unjust to enter judgment without giving
the respondent the opportunity to establish a defence in the light of disclosure, or after serving a request for
further information (Harrison v Bottenheim (1878) 26 WR 362).
o Questionable conduct by the applicant:
Summary judgment has been refused where the applicant's conduct can be questioned, for instance where they
are being dishonest or devious (Miles v Bull [1969] 1 QB 258).
o The case is particularly complex:
Summary judgment is not intended to be a substitute for a trial in which the court can make a detailed
investigation of all of the issues. Therefore particularly complex claims are less suited to Summary Judgment
(Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16).
o The case is on a novel point of law for which there is little prior authority. Swain v Hillman [1999]
Possible Make a judgment on claim (where Claimant makes application), Striking out or dismissal of claim, Dismiss
orders by application, Conditional order
court o Require either party to pay a sum of money into court; or
o To take a specified step in relation to his claim or defence, as the case may be & provides that party’s claim will be
dismissed or his statement of case will be struck out if he does not comply.
o Likely to be made where it appear to court that a claim or defence may succeed but improbable to do so.
Costs Where Claimant is successful: if claim is for a specified sum, usually fixed costs - £175 for judgment between “25
and £5000 and £210 if higher. If claim is for an unspecified sum: claimant’s costs of making app and then fix a date
to assess quantum
If D secures summary judgment: Defendant’s costs of the claim (including pre-action costs) and if not agreed, will be
subject to a summary judgment
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, If a conditional order is made: costs in the case.
INTERIM PAYMENTS ORDERS – PART 25 CPR
What is an An interim payments order requires a party to make an advance payment of damages, a debt or other
Interim sum (excluding costs) which a Defendant may be held liable to pay.
Payments Claimant should first try to negotiate with Defendant or Defendant’s insurance company.
Order? Must wait until after the time for acknowledging service has expired, and may apply for more than
one application.
The idea behind this power is that a claimant can avoid the financial hardship of any delay between
commencing the claim and its final determination.
Procedure The claimant may NOT make an application until after the time for acknowledging service.
(10.7.1) The claimant MAY make more than one application.
An application notice must be:
o Supported by evidence.
o Served at least 14 days before the hearing.
If the respondent wishes to rely on written evidence, this must be:
o Served at least 7 days before the hearing.
If the applicant wishes to use evidence in reply, this must be:
Served at least 3 days before the hearing.
Evidence The application must be accompanied by evidence of:
(10.7.1) o The amount of the payment being sought.
o The items or matters in respect of which the interim payment is sought.
o The likely amount of the final judgment.
o The reasons for believing the conditions for an interim payment are satisfied.
o Any other relevant matters.
Grounds The applicant must provide, on the balance of probabilities, that:
(10.7.2) 1. The Defendant has admitted liability to pay damages or some other sum of money
2. The Claimant has obtained judgment against the Defendant for damages to be assessed or for a sum of money
to be assessed.
3. The Court is satisfied that if the Claimant went to trial the Claimant would obtain judgment for a substantial
amount of money from the defendant. (The court has held that this is a high burden- litigation inevitably
involves risk, and so essentially the court must be satisfied that the applicant will succeed at trial, not merely
that this is likely - British and Commonwealth Holdings PLC v Quadrex Holdings Inc
4. In a claim where there are two or more defendants and order is sought against one or any:
a) The Court is satisfied that if the claim went to trial the Claimant would obtain judgment for a
substantial amount of money against at least one of the defendants (but cannot determine which);
b) All the Defendant’s liability will be insured (Road Traffic Act 1998), Motor Insurers Bureau
Agreement, Motor Insurers Bureau acting for itself), or
c) D is a public body
Note: There is no need for C to show need for payment or that he will suffer prejudice if he does not receive it.
However, if delay in assessment of damages is unlikely to be substantial, court may be reluctant to exercise
discretion unless there is a special reason. There is a high burden of proof – the court must essentially believe that
the applicant will succeed. (Stringman v McArdle)
Defendant cannot contest an application on grounds of poverty, but can provide sufficient detail of his financial
position as evidence in reply to application.
Determining If the applicant can establish an entitlement to an interim payment, the court will then consider
Amount/ 1. Whether to make an order at all: the court may decline to make an order if the issues are complicated or if
The Court’s complicated questions of law arise.
Discretion 2. The amount of the order if made
The court must not make an interim payment of more than a “reasonable proportion of the likely
amount of the final judgment” and will consider what sum the defendant is able to pay.
E.g. British and Commonwealth Holdings PLC v Quadrex Holdings Inc [1989] 3 WLR 723 – Court of Appeal
held that an interim payment of £75 million when the total claim was for £100 million was unnecessarily
high having regard to the impact this would have on the defendant’s business in the intervening period.
Interest If the defendant is ordered to make an interim payment that ultimately is more than the final
judgment, the court will likely order that the outstanding sum be paid back to the defendant
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, with interest (10.7.3).
SECURITY FOR COSTS – PART 25 CPR
What Defendant can ask the court to exercise discretion and order Claimant to provide security for costs that the Defendant is
is it? likely to be awarded if he defeats the claim.
The order requires the claimant to provide security that the defendant can use to enforce any costs order made in his
favour in the event that the claimant fails to pay costs awarded by the court.
The Court may make an order for security for costs if:
a) It is satisfied having regards to all the circumstances of the case that it is just to make such an order&
b) One or more of the grounds in Part 25 applies (CPR 25.13-25.14)
Proce Defendant should apply as soon as facts justifying application are known, ideally in directions questionnaire
dure Defendant should write to Claimant first (and ask if willing to provide security voluntarily)
Where application is made to court, must be supported by written evidence (often in witness statement), with aim to:
oEstablish ground exists;
oPersuade the court it is just to exercise its discretion; and
oJustify the amount sought.
oApplication will specify: Amount of the security; Date by which Claimant must provide it; and the form it must
take.
Defendant may reapply as claim progresses
There is no provision in CPR 25.12 for the claimant to make an application. However, the court can under CPR 3.1(5)
require any party to provide security for a sum if that party has, without good reason, failed to comply with a rule.
Grou 1. The Claimant is based outside the UK and the EU (CPR25.13(2)(a)) – therefore claim cannot be enforced against
nds him as it will be difficult to successfully enforce award of costs (Brussels Convention
2. Impecuniosity (i.e. financial situation) (CPR 25.13(2)(c)) – if the client is a company, and there is reason to believe it
will be unable to pay the defendant’s costs e.g. involving consideration of the company’s available assets and the
nature and liquidity of these. Evidence the company is in liquidation will make out this ground (Northampton Coal
Company v Midland Wagon Company)
White Book Commentary on CPR 25.13(2)(c) :Security is not ordered as of course against such companies / The net
asset balance of a company being negative (i.e. assets < than liabilities) is not determinative; the nature and liquidity
of the assets are key considerations / The defendant does not have to show on the balance of probabilities that the
claimant company will be unable to pay.
3. Evasive Claimant: (CPR 25.13(2)(d)-(e) & (2)(g)) Claimant has taken steps in relation to his assets that would make it
difficult to enforce an order for costs against him (CPR 25.13(2)(g) for example dissipation of assets, transfer
overseas to places unknown to the defendant(analogous to Claimant’s right to apply for a freezing injunction against
the defendant). Claimant changed address since commencement of claim to evade consequences of litigation (CPR
25.13(2)(d)). / Claimant failing to give address on claim form/giving incorrect address (CPR 25.13(2)(e)).
4. The Nominal Claimant: A claimant who is acting as a nominal claimant (i.e. he is suing for the benefit of some other
person) and there is reason to believe that he will be unable to pay the defendant’s costs if ordered to do so (CPR
25.13(2)(f)).
5. Other specific statutory provisions: i.e. related to applications challenging an arbitration award of appeal on a point
of law.
Facto In the event that one of the above grounds apply, the court will only make an order if it is satisfied that it is just, having
rs regard to all the circumstances of the case. The court will consider the following:
Court 1) Does the claim have a reasonably good prospect of success? Likelihood of D winning to justify security?
will 2) The Claimant’s ability to provide security? Court will be reluctant to make an order which the claimant cannot pay.
Consi Court does not want to stifle the claim but will want to balance this with D’s rights.
der 3) Cause of client’s impecuniosity – I.e., if the shortage of money caused by the defendant’s behaviour therefore may
be unjust to make an order.
4) Property within jurisdiction: the court is unlikely to grant an order if the claimant has substantial property in the
jurisdiction even if they are not resident in the EU.
5) Timing of the Application: where the D has delayed making the app for no good reason, the court may be less willing
to order security.
Order If ordered, security may take the form of: the claimant being required to make a payment into court by a particular
made date; provide a banker’s guarantee or an undertaking.
The claim will be stayed until the date payment is due, and if the claimant fails to provide prayment on time, the
claim may be struck out and D entitle to apply without further order for judgment to be entered with costs to be
assessed (or D can apply for a struck-out for non-compliance with a court order)
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