Pre-Action, Part 1, Standard & Burden of Proof
Overriding Objective
What is the overriding objective?
CPR has OO of enabling Court deal with cases justly and at proportionate cost — includes, so far as is practicable:
(a) ensuring parties are on equal footing;
(b) saving expense;
(c) dealing with cases in ways which are proportionate to—
(i) amount of money involved;
(ii) importance of case;
(iii) complexity of issues; and
(iv) financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting appropriate share of Court resources (considering need to allot resources to other cases); and
(f) enforcing compliance with rules/PDs/orders.
How should the court apply the overriding objective?
Court should apply OO any time it exercises power given to it by CPR and when it interprets any rule.
• Ensuring that parties are on equal footing does not permit Court to dictate which counsel may be used by specific party;
litigants have right to choose their representation.
• There is consideration of issue of bias where Judges/counsel are members of same chambers.
• Court is able to make adjustments if there is obvious imbalance (i.e., individual against large firm).
Examples:
• Judge may order that single expert give evidence rather than each party calling their own.
• Conference between Judge and parties is ordered at early stage to consider most appropriate way forward.
• Cross-examination can be limited by Judge.
What are the duties of the parties with regard to the overriding objective?
Parties are required to help Court further OO; failure could result in financial penalties.
Procedure
Who has the burden of proof?
C has burden of proof to prove claim and any losses they have suffered, even if to do so requires proving negative. If D relies on
defence (i.e., contributory negligence) then D would need to prove their defence.
What is the standard of proof?
GR: C must prove their case on BoP (save exceptions such as where statute requires BRD).
Case Management
What is the court’s duty to manage cases and what does active case management includes?
(a) encouraging parties to co-operate with each other;
(b) identifying issues at early stage;
(c) promptly deciding which issues need full investigation at trial and disposing summarily of others;
(d) deciding order in which issues are to be resolved;
(e) encouraging and facilitating parties to use ADR if Court considers it appropriate;
(f) helping parties to settle whole/part of case;
(g) fixing timetables/otherwise controlling progress of cases;
(h) considering whether likely benefits of taking particular step justify cost of taking it [proportionality];
(i) dealing with as many aspects of case as possible on same occasion;
(j) dealing with case w/o parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure trial of case proceeds quickly and efficiently.
Where do hearings have be undertaken?
Only allocation hearings, listing hearings, and interim applications, CMCs (<1h) can be conducted over phone. Unless: hearing
is application made w/o notice, parties are unrepresented, or 4+ parties wish to make representations at hearing.
Page 1
,Pre-Action
According to the Pre-Action Practice Direction, what steps should be undertaken before issuing a claim?
Where dispute is not resolved after parties followed PAP, they should review their respective positions: namely, consider papers/
evidence to see if proceedings can be avoided and at least seek to narrow issues in dispute before issuing proceedings.
Litigation should be last resort.
Where there is relevant PAP, parties should comply before commencing proceedings, where not, parties should exchange
sufficient correspondence and information to comply with PAPD P3 to: understand each other’s position; make decisions about
how to proceed; try to settle issues; consider ADR to aid settlement; support efficient management of proceedings; and reduce
costs of resolving dispute.
Steps to achieve compliance will usually include—
• C writing to D with concise details of claim. Letter should include basis on which claim is made, summary of facts, what C
wants from D (if money, how amount is calculated);
• D responding in reasonable time (14d in straightforward case and ≤3mo in very complex one) with confirmation whether claim
is accepted and, if not, reasons why, together with explanation as to which facts/issues are disputed and whether D is making
counterclaim (providing details); and
• C and D disclosing key documents relevant to issues in dispute.
What sanctions can the court impose in respect of non-compliance with the Pre-Action Practice Direction?
Non-compliance could be when party has not provided sufficient information to meet objectives in P3, not acted within directed
time/reasonable period, or unreasonably refused to use ADR/failed to respond to invitation to do so.
• Using PAPD as tactical device constitutes non-compliance, most likely dealt with by ordering that any disproportionate costs
will be unrecoverable.
• If proceedings are issued, Court may require evidence that ADR has been considered — ignoring such request could also lead
to Court ordering that party to pay additional court costs.
Where there has been non-compliance with PAPD, Court may order that:
• parties are relieved of obligation to comply/further comply with PAPD/other PAPs; or
• proceedings are stayed while particular steps are taken to comply with PAPD/other PAPs; or
• sanctions are applied.
• Court will consider effect of non-compliance when deciding whether to impose sanctions:
• an order that party at fault pays costs of proceedings/part of costs of other party/parties;
• an order that party at fault pay those costs on indemnity basis;
• if party at fault is C who has been awarded monetary sum, order depriving C of interest for specified period a/o awarding
interest at lower rate;
• if party at fault is D, and C has been awarded sum of money, order increasing interest on that sum for specified period (<10%
above base rate).
• Court also has discretion to amend order of costs dependant on parties’ conduct.
Does the Pre-Action Practice Direction alter limitation?
PAPD does not alter statutory limitation periods.
Page 2
, Limitation: Accrual of Causes of Action & Limitation Periods
Limitation Periods — Limitation Act 1980
Tort 6y from date cause of action accrued (date when damage is recognised).
Contract 6y from date cause of action accrued (date of breach).
Contribution Claims 2y from date cause of action accrued (date of judgment/date of payment due under settlement).
Personal Injury 3y from date of breach or from knowledge of injury flowing from breach (if later).
Fatal Accident 3y from date of death or from knowledge of death (if later).
Enforcement of Judgments 6y from date when judgment becomes enforceable (enforcement ≠ within remit of limitation period).
Latent Damages 6y from breach occurring or 3y from C gaining knowledge (if later and within 15y of breach).
Raising Limitation
As a Defendant, how do you raise the issue of limitation?
Limitation would customarily be raised within pleadings of Defence.
• Alternately, could make application for strike out and summary judgment (must be in accordance with PD3A; done as soon as
possible) or could make application for preliminary hearing.
Altering Limitation
What are the test for knowledge and seriousness with respect of personal injury and fatal accident claims?
Date of knowledge is date when C first had knowledge of following facts:
(1) that injury in question was significant; and
(2) that injury was attributable in whole/part to alleged act or omission; and
(3) identity of D; and
(4) if alleged that act/omission was by person ≠ D, their identity and facts supporting bringing action against D;
• Knowledge that acts/omissions did/not, legally, involve negligence, nuisance or breach of duty ≠ relevant.
Person’s knowledge includes what he might reasonably have been expected to acquire from facts observable or ascertainable
by him +/- help of medical/appropriate expert advice, which is reasonably sought;
• Person shall not be fixed with knowledge of fact ascertainable only with help of expert so long as he has taken all reasonable
steps to obtain (and, where appropriate, to act on) that advice.
An injury is significant if relevant person would reasonably have considered it sufficiently serious to justify instituting
proceedings for damages against D who did not dispute liability and was able to satisfy judgment.
Is it possible to extend the limitation period?
If it appears to Court that it would be equitable to allow action to proceed having regard to degree to which provisions of
ss.11/12 prejudice C and any decision of Court would prejudice D.
• Court may direct that provisions shall not apply to action/to any specified cause of action (only PI/FA claims).
Court shall have regard to all circumstances of case and in particular to:
(1) Length of, and reasons for, delay on part of C;
(2) Extent to which, having regard to delay, evidence adduced/likely to be adduced by C/D is/likely to be less cogent than if
action had been brought within time allowed;
(3) Conduct of D after cause of action arose, including extent (if any) to which he responded to requests reasonably made by C
for information/inspection for purpose of ascertaining facts relevant to C’s cause of action;
(4) Duration of any disability of C arising after date of accrual of cause of action;
(5) Extent to which C acted promptly and reasonably once he knew whether act/omission of D to which injury was attributable,
might be capable at that time of giving rise to action for damages;
(6) Steps taken by C to obtain medical/legal/other expert advice and nature of any such advice.
How does the issue of fraud alter the limitation period?
When D has committed fraud it is possible to extend limitation period until C has discovered fraud.
How are children and those with disabilities treated under the Limitation Act?
Children and those with mental/physical abnormalities are classified as being under disability and in such circumstances, LP ≠
commence until individual gains majority.
Page 3
, The Part 7 Procedure & The Part 8 Procedure
Part 7 or Part 8?
Part 8 procedure might be used where C seeks court decision on question that is unlikely to involve substantial dispute of fact
or where Part 8 proceedings are required or where there may be settlement in proceedings involving protected party and
approval of Court must be sought (in some circumstances CPR forbids Part 8 proceedings).
• Part 8 claims relate to single issue and unlike Part 7, any witness evidence must be served with CF and D does not need to file
defence. Part 8 claims are treated as being allocated to M-T.
Commencing Proceedings
When calculating where to issue proceedings should costs be borne in mind?
No; for purposes of where to start proceedings costs are disregarded.
What does PD7A advise regarding the commencement of proceedings?
Claim must be issued in HC/CC if enactment requires and should be issued in HC if facts/legal issues are particularly complex/
claim is of general public importance.
• Claim for damages for breach of contract may not be started in HC unless value of claim is >£100,000.
• PI claim must not be started in HC unless value of claim is ≥£50,000.
How should you issue proceedings against a partnership?
Any claim would be subject to PD7A; it should be brought against partnership that existed at time of breach.
How can two Claimants bring a single claim?
GR: if CA starts proceedings then CB must be party UCOO (if CB consents it can be joint claim via single CF).
• If CB refuses to be joint-C with CA they must be joined as co-D UCOO.
Claim Form Requirements
What must a claim form contain?
CF should have following details:
• concise statement of nature of claim;
• specific remedy sought by C;
• where C makes money claim, there should be statement of value sought (if C’s claim is for specified sum, there should be
statement of interest accrued on that sum);
• address at which parties reside/carry on business;
• full name and title of each individual/legal business name of any commercial party.
• If PoC are not contained in/not served with CF, C must state on CF that PoC will follow.
• If C/D is claiming in representative capacity, CF must state what that capacity is.
Court may grant any remedy to which C is entitled even if that remedy is not specified in CF (CF/PoC must be verified by SoT).
What should not be in a claim form?
• When stating value of claim and calculating how much they expect to recover, C must disregard any possibility that Court
may make finding of CN/may make costs award.
What is the availability of interest for damages?
If interest awarded under S.35A SCA/s.69 CCA, rate of/period for which interest is payable is at Court’s discretion (default rate
for statutory awards is 8% under Judgments Act 1838).
• In PI claims, interest “shall be included” unless Court is satisfied there are special reasons but Court could refuse to award
interest if satisfied there are “special reasons”. In non-PI claims, interest “may be included”.
• If proceedings for debt are served on D award of simple interest is mandatory in this situation.
If you wish to claim against two Defendants can you use one claim form?
Yes; possible to use CF to start all claims that can be conveniently disposed of in same proceedings. Any number of Cs/Ds
may be joined as parties.
• If there are significantly different facts between 2 claims it may be more appropriate to bring separate claims (particularly if
they are likely to be brought on different tracks as this could lead to greater delay for lesser claim, or conversely inappropriate
allocation given inadequate court resources).
Page 4
,Particulars of Claim Requirements
What must a particulars of claim contain?
PoC should have following details:
(1) concise statement of facts on which C relies;
(2) if C seeks interest, statement to that effect and details (whether he does so under terms of contract/enactment/other basis
(if so, which); if claim is for specified sum, state percentage at which interest is claimed, dates between which it is claimed,
total interest claimed, and daily rate);
(3) if C seeks aggravated/exemplary damages, statement to that effect and his grounds;
(4) if C seeks provisional damages, statement to that effect and his grounds; and
(5) such other matters as may be set out in PD.
Where C is particularising losses they must serve schedule of details of past and future expenses and also evidence of medical
practitioner.
Can you include previous convictions in particulars of claim?
Yes; provided conviction is relevant then it may be included.
• It is presumed that D committed offences unless D rebuts on BoP that they did not commit offences.
• Party relying upon conviction must include in PoC statement to that effect and detail: type of conviction, finding or
adjudication and its date, court which made conviction, finding or adjudication, and issue to which it relates.
Part 8 Claims
What should the claim form contain in Part 8 Proceedings?
Where C uses Part 8 procedure CF must state:
• that Part 8 applies;
• question which C wants Court to decide/remedy which C seeks and legal basis for claim to that remedy;
• if claim is being made under enactment, what that enactment is;
• if C/D is claiming in representative capacity, what that capacity is;
• CF and PoC must be verified by SoT.
Part 8 claims mean that other parts of CPR are not engaged:
• D is not required to file defence to Part 8 claim and .˙. time limits for service of PoC do not apply, hence, any time limits from
CPR which prevent parties from taking step before defence is filed do not apply and no obligation to serve on D form for
defending claim.
• C may not obtain judgment by request on admission.
How should the Defendant respond to Part 8 claims?
Part 20 (counterclaims/additional claims) applies but that party cannot make Part 20 claim w/o Court permission.
What is the necessary procedure required to seek the court’s approval of the settlement?
In settling Part 8 claim it will be necessary to submit to Court for approval:
• Terms of settlement for payment of damages;
• That D admits liability;
• Details as to C's personal circumstances (i.e., age and occupation);
• LF’s approval of proposed settlement;
• C’s medical reports;
• Details of circumstances of accident;
• Schedule of past expenses;
• If injuries are serious/facts are complicated, counsel’s opinion, as to merits of settlement.
Parties may attach draft consent order to terms of settlement to assist Court.
Who can be a litigation friend and when can they be appointed?
GR: children/those under disability need LF in order to take any step in proceedings except in issuing/serving CF.
• Court may order removing requirements if it does not appear to Court that LF is needed (if party = protected party under
Mental Capacity Act 2005 then Court could not make such order).
The following persons can be LFs w/o Court order:
(1) Deputy appointed by CoP;
(2) Person who can fairly/competently conduct proceedings for child, has no adverse interest to child (witnessing accident ≠
adverse inference), undertakes to pay costs which child may be ordered to pay (re: proceedings).
Page 5
, Service
How can a Claim Form be served?
Where CF is served within jurisdiction, C must complete step below in relation to particular method of service chosen, before
12.00 midnight on calendar day 4mo after date of issue of CF:
When considering service of CF it might be helpful to take following steps:
(1) Is personal service mandatory? — if so then apply, if not;
(2) Are solicitors instructed to accept service? — if so then apply, if not;
(3) Is address given for D? — if so then apply, if not apply r.6.9
Method of Service Step Required
Posting/leaving with/delivering to/collection by service
1st class post/DX/service providing next business day delivery
provider
Delivery of document to/leaving it at relevant place Delivering to/leaving document at relevant place
Personal service Completing relevant step required by r.6.5(3)
Fax Completing transmission of fax
Other electronic method Sending e-mail/other electronic transmission
CF served in UK in accordance with Part 6 is deemed served on 2nd business day after completion of relevant step
Nature of Defendant to be Served Place of Service
Individual Usual/last known residence
Usual/last known residence of individual; or principal/last
Individual being sued in name of business
known place of business
Usual/last known residence of individual; or principal/last
Individual being sued in business name of partnership
known place of business of partnership
Principal office of partnership/any place of business within
Limited liability partnership
jurisdiction which has real connection with claim
Principal office of corporation/any place within jurisdiction
Corporation (≠ company) incorporated in England and Wales where corporation carries on its activities and which has real
connection with claim
Principal office of company/place of business within
Company registered in England and Wales
jurisdiction which has real connection with claim
Document (≠ CF) served within UK in accordance with CPR/PD is deemed served on day shown in following table:
Method of Service Deemed Date of Service
2nd day after it was posted/left with/delivered to/collected by
1st class post (or other service which provides for delivery on
relevant service provider provided that day is business day (if
next business day)
not, next business day).
2nd day after it was left with/delivered to/collected by relevant
Document exchange service provider provided that day is business day (if not, next
business day).
If it is delivered to/left at permitted address on business day
Delivery of document to/leaving it at relevant place
before 16.30, on that day (if not, next business day).
If transmission completed on business day before 16.30, on
Fax
that day (if not, next business day).
If e-mail/other electronic transmission is sent on business day
Other electronic method
before 16.30, on that day (if not, next business day).
If document served personally before 16.30 on business day,
Personal service
on that day (if not, next business day).
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