TIMELINE • If starts proceedings in wrong court = costs sanctions
• CPR 30.3(2) Transfer order criteria
ALLOCATION & CASE MANAGEMENT CPR 26
o Financial value
à ADR/settlement/Part 36 offers from commencement of claim • After defence filed, court provisionally assigns case to a suitable track + sends Notice of Proposed Allocation
o Convenience / fair
• 1) Comply w/ pre-action rules o Availability of specialist judge in regional specialist court o CPR 26.3(6) N181 Directions Questionnaire = filed 28 days after notice deemed served for fast/multi-
à Interim applications from issuing CF CPR 23 o Complexity track (4.30 business day rule, except post) **
• 2) CPR 7.5 Serve CF within 4 months of issue o Public interest § Which court to allocate case, no. of witnesses/experts, estimated trial length, directions sought
• 3) CPR 7.4 Serve Particulars at same time as claim form / if POC sent separately = 14 clear days after CF served o Facilities for disabled/potential witnesses o CPR 29.4 Agreed proposed directions order / if disagree, proposed directions = filed within 7 days
• 4) CPR 10.3 File AoS = 14 days after POC before CMC
• 5) CPR 15.4 If acknowledged service, file defence = 28 days CLAIM FORM § Parties should take standard directions as starting point + adapt it
• 6) CPR 26.3 Notice of proposed allocation VALIDLY SERVED
• N1 Claim Form must be issued within limitation periods CASE MANAGEMENT CONFERENCE
o CPR 15.8 Reply to defence = served w/ DQ
o Sealing CF = starts proceedings + stops limitation period running • CMC: Meeting to narrow issues before trial ∴ sets directions for conduct of action before trial
• 7) CPR 3.13 If multi track:
• Take CF to court w/ copy for each D, 1 for claimant, 1 for court + fee o File case summary before CMC if assists court to understand case
o < £50k: File first page of precedent H w/ DQ
• CPR 7.5 If CF served in this jurisdiction = 4 months to take the “relevant step” • Directions: Court instructions on how to prepare for case, e.g. deadlines, time + place of hearings, how to
o > £50k: File precedent H = 21 days before CMC
exchange witness statements/expert reports, consider ADR
o File agreed budget discussion report 7 days before CMC
o If parties ≠ agree directions = case and costs management conference
• 8) CPR 26.5 Claim = allocated to a track / holds allocation hearing
o If agree = no CMC + separate costs management conference
• 9) Case + costs management conference
• 10) Directions CPR 26 ALLOCATION CPR 26.6
• 11) Instruct experts • Small claims track < £10k + personal injury claims
• 12) Disclosure + inspection CPR 31 • Fast-track £10k – £24,999
• 13) Exchange witness statements CPR 33 o Lasts < 5 hours
• 14) Exchange experts’ reports CPR 35 o Requires 1 expert per party
DEEMED SERVED
• 15) Preparation for trial à Best time to make Part 36 offer, b/c ↑ is disclosed • Multi-track > £25k
• CPR 6.14 Claim form = deemed served on 2 nd business day after “relevant step” is taken
• 16) Pre-trial checklist
o E.g. If posted on Friday = deemed served on Tuesday • CPR 26.5 Claim = allocated to a track / holds allocation hearing
• 17) Trial
• CPR 2.8 Counting time *ALWAYS REFER TO CPR 2.8 WHEN STATING DEADLINES! • CPR 26.8(2) Factors, e.g. nature of remedy sought, complexity, no. of parties, views + circumstances of parties
• 19) Appeals CPR 52 o (3) Count “clear days” ≠ incl. first day / if last day ends w/ event (hearing), then add a day o Claim value ≠ incl. ££ not in dispute/interest/contributory negligence
• 18) Enforcement CPR 70 o (4) If period is 5 days or less ≠ incl. weekends + bank holidays
COURT POWERS
CASE ANALYSIS § E.g. Notice served at least 3 days before hearing (Friday 20 Oct) ∴ last date of service = Monday 16 Oct
• CPR 3.1 General management powers, e.g. require party to attend court, but cannot choose their lawyer
• Limitation periods *Claim concurrent duties, b/c ↑ successful + if only 1 = may start w/ earlier limitation period o ∴ If period is > 5 days = incl. weekends
§ E.g. PoC served within 14 days of CF. If CF deemed served on 3 Feb, last date of service = 17 Feb o (2)(m) Sweep-up provision to take any step/order to manage case + further overriding objective
o Contract: 6 years from breach of contract, even if unaware of breach + damage occurred later, e.g.
• CPR 3.3(4) Power to make orders on its own initiative, regardless of hearing / representations
letter w/ poor advice EXAM STRUCTURE FOR COUNTING DAYS • CPR 3.4(2)(a) Power to strike out a statement of case
o Tort: 6 years from when damage was suffered, e.g. when bought property • 1) What doc is served? If CF, CPR 7.5 / If ≠ CF, CPR 6.26 o 1) No reasonable grounds for bringing/defending claim, e.g. no explanation, nonsensical /
• 1) Duty? • 2) How has it been served? o 2) Abuse of court’s process, e.g. vexatious claims, claims already decided
o Contract: Reasonable skill + care o If CF, deemed served on 2nd business day / o 3) Failed to comply w/ rule/PD/court order
o Tort: Reasonably competent solicitor *Sue company = deepest pockets o If ≠ CF: If post = 2nd business day, otherwise 4.30 business day rule *VS. Summary judgment = ends proceedings if other side has “no real prospect” of success + “no
• 2) Breach? • 3) Clear day rule: If last day ends w/ hearing, then add a day other compelling reason” to go to trial
o E.g. Solicitor’s specialism? Would similarly qualified property lawyers advise differently? Caveated advice? o Period < 5 days ≠ incl. weekends
SANCTIONS
• 3) Causation? E.g. Did X rely on this advice? What would X have done if caveated advice? o Period > 5 days = incl. weekends
• Court consider if ≠ comply w/ pre-action protocol, b/c may have avoided litigation if complied
• 4) Loss suffered? E.g. £5m loss for property, but damages recoverable = £3.5m premium
WHERE TO SERVE CLAIM FORM? • 1) Impose sanction immediately /
• 5) Damages?
• Solicitor’s address / if no solicitor, D’s last known place of residence / company’s principal office o 1. Strike out whole/part of case
o Contract: Put injured party in position had the contract been properly performed
• ≠ Matter if CF was actually received, despite serving party knew other party wasn’t there o 2. Prevent party putting forward evidence
o Tort: Put claimant in position had the tort not occurred
o Unless claimant has reason to believe party no longer there = reasonable steps to find address o 3. Costs order
o But remote damages / contributory negligence (occurs before) / mitigate loss (occurs after: what did X
o 4. ↑/↓ Interest
do to stop ↑ damage?) WHO SERVES CLAIM FORM ON D?
o 5. Order to pay ££ into court
• Court by post / claimant (file certificate of service = within 21 days of service, unless all Ds filed AoS)
• 2) Unless order: Unless party complies w/ relevant rule, sanction will be enforced
COMMENCEMENT OF CLAIM
OTHER DOCS
EXTENDING DEADLINE
OTHER DOCUMENTS = DEEMED SERVED e.g. separate particulars of claim, defence, AoS
• 1) Which CPR was breached? E.g. CPR 3.14
• 2) Deadline for compliance expired / extended by parties or court?
• CPR 1.1 Overriding objective: Ensures cases dealt w/ justly + at proportionate cost • 3) Did applicant apply for extension before deadline expired?
o If no, apply for relief from sanctions *E.g. fails to exchange disclosure list/witness statements/expert reports on time
PRE-ACTION RULES o If yes, in-time application
PRACTICE DIRECTION – PRE-ACTION CONDUCT Chartwell v Fergies
• Para 3 PDPAC Court expects parties to have: - Applications made before deadline expired ≠ application for relief from sanctions
o 1) Exchanged sufficient info to understand each other’s position PARTICULARS OF CLAIM § Even if court deals w/ application after deadline expired
o 2) Consider ADR • CPR 7.4 Serve Particulars at same time as claim form / if POC sent separately = 14 clear days after CF served
o 3) ↓ Costs of resolving dispute Teresa Baker
o CPR 7.4(2) CF must be served within 4 months
• Para 8 Litigation = last resort - Allows reasonable applications made before deadline expires, if ≠ disrupt conduct of litigation
ACKNOWLEDGEMENT OF SERVICE + DEFENCE § Give reasons for delay, but court likely to allow extension if no hearing is imperilled
• Para 13 PDPAC When giving directions, court considers non-compliance, not minor/technical breaches
• CPR 44.2(5) When making costs orders, court considers non-compliance w/ pre-action protocols before + • CPR 10.3 File acknowledgement of service = 14 clear days after POC *after CF & POC served together /
after separate POC served • 4) CPR 3.9 Application for relief from sanctions
during proceedings Denton
• CPR 15.4 File defence = 14 days after POC / If acknowledged service, file defence = 28 clear days after POC
PROFESSIONAL NEGLIGENCE PRE-ACTION PROTOCOL - When considering relief from sanctions, test =
• Applies to claims against professionals, not construction/healthcare providers EXTENDING TIME 1) Seriousness / significance of breach, e.g. 45 mins ≠ serious, repeat offenders = ↑ serious
• Para 5.4 If reasonable chance of bringing claim against potential D, send Preliminary Notice = must be • CPR 15.5 Parties may agree to extend time to serve defence by up to 28 clear days from service of CF § If no, grant relief
acknowledged within 21 days o Notify court in writing 2) If yes, legitimate reason for breach, e.g. overworked ≠ count
• Para 6.1 Once claimant decides grounds, sends open Letter of Claim • If needs ↑ time, apply for interim application to extend time § If yes, grant relief
• Para 8.2 Potential D has 3 months to investigate claim, then sends: 3) If no, evaluate all circumstances of case to ensure case dealt w/ justly, w/ particular weight to
JUDGMENT IN DEFAULT
o Open Letter of Response w/ reasoned answers to allegations +/ CPR 3.9(1) requirements
• Judgment w/o trial in default of D responding to proceedings
o W/o prejudice Letter of Settlement § (a) For litigation to be conducted efficiently + at proportionate cost +
• 1) CPR 12.3 (On day 15), apply promptly for judgment in default = claimant is successful
• Para 9.4 If offers to settle / admits part, parties negotiate up to 6 months from Letter of Acknowledgement § (b) Enforce compliance w/ rules/PDs/orders
• 2) Setting aside judgment in default – § If none apply, likely to impose sanctions / “despite breach, minor + doesn’t imperil CMC/trial date”
• Para 14.3 If ≠ agree, claimant gives written notice = 14 days before issuing proceedings o CPR 13.2 Mandatory: Court must set aside if –
§ AoS/defence = served within time limit / COST MANAGEMENT
CHOICE OF COURT *Trick Qs: Diff to allocation to track. County court can also deal w/ fast-track + multi-track
§ Claim admitted claim before JID / COSTS BUDGET
• County Court < £100k *Despite complex, commence in CC then transfer
§ D applied for summary judgment / strike out before JID • Costs budget: Estimate of reasonable + proportionate costs that party intends to incur during proceedings
• High Court – If > £100k = choice
o CPR 13.3(1) Discretionary: Court may set aside if – o Tactical: High budget scares opponent into mediation/low budget makes other’s seem unreasonable
o 7A PD 2.4 *if high value, but no difficulties = County Court
§ D has real prospect of defeating claim / • Precedent H: Costs budget for incurred + future costs
§ Financial value > £100k *Disregard possible counterclaims
§ Good reason to set aside, e.g. length + reasons for D’s delay o May lead to Costs Management Order (CMO) + early settlement
§ ≠ Incl. ££ not in dispute/interest/contributory negligence
• Precedent R: Budget discussion report = agreed figures for each phase + summary of grounds of dispute
§ Complex: Debt claims = simple OTHER STATEMENTS OF CASE
o May lead to early settlement
§ Public interest: Debt claims ≠ likely to affect 3rd parties • CPR 20.4 Counterclaim (w/ defence), right to withhold debt b/c claimant owes other ££
o Queen’s Bench (contract, tort) / Chancery Division (if linked w/ type of claim it deals w/ e.g. IP, land) • CPR 15.8 Optional Reply to Defence = filed + served w/ DQ **
