Civil Litigation

Claims, Sanctions and Allocation – Civil Litigation – SQE1 & SQE2 Exam

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Claims, Sanctions and Allocation
Claim form and particulars of claim
PCR Rule 1
• The overriding objective means that failure to comply:
o Will result in having to pay costs for causing delays
o May mean the judge orders you to obtain documents / do something by a
certain deadline, or otherwise be unable to rely on the document
• Court has the right to enforce compliance with rules, practice directions and orders
(CPR 1.1(f)) – practice directions are just as important as the rules themselves
• This makes the UK a fast-paced jurisdiction
Practice Direction – Pre-Action Conduct
• Purpose: Practice Direction – Pre-action Conduct (para 3) – ensure the parties have
exchanged sufficient information to:
o Understand each other’s position
o Make decisions about how to proceed
o Try to settle
o ADR
o Support efficient management of proceedings
o Reduce costs of resolution
• Consequences of non-compliance (Para 13-16 Pre-action Conduct)
o Where giving directions the court will take into account compliance with PD –
PAP (CPR 3.1(4))
o Judge may sanction the parties when giving directions about the
management of the claim (e.g. obliging party to complete pre-action protocol
at a later stage)
o Case will be stayed until I have completed pre-action protocol (para 15(b))
o Court could punish party by way of costs, as it must account for the conduct
of the parties, including compliance with PD- PAP (CPR 44.2(5)(a))
Professional Negligence Pre-action protocol
• Preliminary notice – letter to the defendant informing them of claimant, grievance +
outline of financial value + asking D to inform professional indemnity insurers
• PN to be acknowledged in writing within 21 days of receipt
• Letter of Claim
• Letter of Acknowledgement – within 21 days of receipt of Letter of Claim
• Letter of Response / Settlement – within 3 months
• If Letter of Response denies entirety of claim, C may commence court proceedings
• Otherwise, C and professional should commence negotiations, seeking to resolve the
matter within 6 months. If not resolved, extend or court proceedings.
© Liam Porritt 2020 2
Limitation periods
• 6 years from breach in contract
• 6 years from damage suffered in tort (actual date when a loss is suffered, regardless
of knowledge of this)
Procedure for issuing a claim form
• Which Court?
o Factors when considering which court (7A PD 2):
§ Jurisdiction
§ Value of the claim – if the value of the claim > £100,000, it may be
commenced in either the High Court or the County Court (7A PD 2.1),
if ≤ £100,000, must be commenced in County Court (unless personal
injury, in which case ≤ £50,000 (7A PD 2.2))
• Value of the claim disregards interest, costs, counterclaims,
contrib negligence, deduction of social security benefits (CPR
16.3(6)).
§ If there is a choice, consider complexity and public importance of the
case (CPR 7A PD 2.4).
o If HC, issue in QBD
• NB C may commence proceedings in the CC and apply to have the case transferred
to the HC under CPR 30
Claim forms
• If HC, Claim Form should state claim for over £100,000 per CPR 16.3(5)
• Number of claim forms taken to court = number of defendants + 1 for court + 1 for
us (+ fee)
• Issuing case = getting it stamped / sealed; filing = submitting a document to court;
serving = giving to defendant
o Claim form– Fee: £10,000
• When the court seals the claim, an issue number is given + the time starts running
for other deadlines (serving)
© Liam Porritt 2020 3
Timings
1. Protocols
2. Issue CF
3. Serve CF within 4 months of issuance (CPR 7.5(1)); 6 months if D out of jurisdiction
(CPR 7.5(2))
4. Serve PoC within 14 clear days of service of CF + within 4 months (6 months where
served out of jurisdiction) of CF issuance (CPR 7.4)
o NB – deemed date of service of CF = day 0!
• Deemed Service – Which document has been served?
o CF only – 6.14 = deemed service is second business day after completion of
the relevant step (posting / sending)
o CF w/POC attached – 6.14
o POC only (+ all other documents, inc. Part 36 offer to settle, not CF) – 6.26 =
§ Same time provided it is on a business day before 4:30pm; if not, next
business day
§ Post / DX = second day after posting, provided that day is a business
day; if not, next business day after that day
o NB where period ≤ 5 days, weekend + bank holidays + Xmas day + Good
Friday do not count
5. File A/S (CPR 10.3) OR File and serve defence within 14 clear days of service of PoC
(CPR 15.4)
6. If A/S filed, serve defence within 28 clear days of service of PoC (CPR 15.4)
o NB parties may now agree 28-day additional period for filing of defence (CPR
15.5(1))
• Failure by D to serve defence in time:
o CPR 12(1) judgment in default = money claim decided by judge on paper, or
hearing for non-money claim with judgment on merits of case
§ C must show no acknowledgment of service OR defence filed by time
limit + no admission from D (CPR 12.3(c))
§ NB for JiD application question state the following:
• JiD means a judgment without trial as D has not filed defence /
AoS
• C must show…
• Go through timings, applying each to facts
• Conclude
o D may apply for setting aside of default judgment (CPR 13) if judgment
wrongly entered / D can show it had a real prospect of successfully defending
the claim
© Liam Porritt 2020 4
7. Notice of proposed allocation + sets deadlines for directions questionnaire, inc.
proposed directions, + Precedent H + R
a. Small claims < £10,000 (26.6(3))
b. Fast track £10,000-£25,000 (26.6(4))
c. Multi-track > £25,000 (26.6(6))
8. File and serve:
a. DQ
b. Precedent H – for claims < £50,000 only
9. Allocation (CPR 26.9)
Multi-track…
10. Fix date for CCMC
11. Precedent H – £50,000 ≤ claim < £10,000,000 = not later than 21 clear days before
CCMC (CPR 3.13(1)(b))
12. Disclosure report – filed and served no later than 14 clear days before CCMC (CPR
31.5(3))
13. Precedent R – no later than 7 clear days before CCMC (CPR 3.13(2))
14. Draft directions order (proposed directions) filed by no later than 7 days before
CCMC (CPR 29.4)
15. Case Management Conference – leading to directions order
16. Costs Management Conference (collectively CCMC) – leading to Cost Management
Order
17. Court gives:
a. Directions
b. Costs Management Order (CPR 3.15; 3E PD 7.3)
All…
18. Disclosure
19. Witness statements
20. Expert reports
21. Prep for trial
22. Trial
© Liam Porritt 2020 5
Sanctions
• Sanctions punish a party for failure to comply with a CPR, PD or Court Order
• Forms of sanction:
o Case management – striking out claim, or preventing a party from relying on
evidence
o Costs
o Interest on damages
Strike Out
• Deletion of written material from SoC
• Either:
o Following application
o At court’s initiatives
• Aimed at cases and issues that are weak in the way they are pleaded or otherwise an
abuse of process
o Distinct from CPR 24 summary judgment, aimed at cases weak on facts and
thus having no real prospect of success
• Grounds (CPR 3.4(2)):
o SoC discloses no reasonable grounds for bringing / defending claim
§ Not enough facts as to the claim to form legal argument
§ Bare denials
o Abuse of process
§ Designed to cause aggravation rather than justice
o Failure to comply with CPR, PD or Court Order
§ Late service / exchange of documents
§ Failing to attend court / to prepare for court hearing
§ More likely to extend time limits / require amendment of SoC
Inbuilt sanctions
• CPR 3.14 – failure to file a costs budget treated as only filing a costs budget of
applicable court fees
• CPR 32.10 – if witness statement not served within time specified, witness may not
be called at trial, subject to decision of the court
• CPR 35.13 – failure to disclose an expert report prevents party using report at trial
© Liam Porritt 2020 6
Orders by the court (CPR 3.1)
Court may make a number of different orders:
• Immediate sanction
• Make an order subject to a condition, e.g. payment of a sum of money to court
• Specifying the consequences of failing to comply with an order (unless order)
o Unless D files defence by Y, it will be struck out.
• Sanction will apply following breach of relevant CPR, PD or order imposing sanctions, unless court
orders otherwise (CPR 3.8(1))
o CPR 3.8(4) – parties can agree to an extension of time prior to sanction coming into force by
prior written agreement for a maximum of 28 days provided that it does not put at risk any
hearing date, unless the court orders otherwise
§ However, if parties wish to vary date for case management conference in multitrack case, application must be made to court (CPR 29.5(1)(a))
Relief from sanctions
• Party may apply for relief from sanctions under CPR 3.9 – the court will consider: all
the circumstances of the case so as to enable it to deal justly with the application,
including the needa) For litigation to be conducted efficiently and at a proportionate cost;
b) And to enforce compliance with rules, practice directions and orders
• Denton and others v TH White Ltd and another –
1. Identify and assess seriousness and significance of the breach (taking into
account future hearing dates and conduct of litigation)
a. If affecting these, will be serious, and move on to next stage
b. If does not affect these, will not be serious and ordinarily relief will be
granted, but should consider (2) + (3) for completeness
2. If breach serious or significant, consider why the default occurred
a. If beyond control, may be a good reason
b. Forgetfulness / failure to diarise = poor reason
3. Evaluate all the circumstances of the case
a. Consider 3.9(a) + (b) most importantly (see above), but also consider
wider circumstances including:
i. Overall conduct of the parties
ii. Promptness of application for relief
iii. Past / ongoing breaches
iv. Compliance with PDs + Orders
• APPLICATION questions –
o Relief from sanctions means the court making an order that any sanctions
due to failure to comply with a rule, PD or Court Order are disapplied.
o Must show…
o Conclusion
© Liam Porritt 2020 7
In-time applications
• If party realises will be unable to meet deadline prior to the passing of the deadline,
client may make an in-time application for the court to use power under CPR
3.1(2)(a) to extend or shorten time for compliance
Workflow
1. Has deadline passed?
2. If yes,
a. Application for relief from sanctions under CPR 3.9
b. Denton 3 stages, accounting for CPR 3.9(1)(a) + (b) at third stage
3. If no,
a. Application to extend the deadline under CPR 3.1(2)(a)
b. This will be granted if accords with overriding objective = reasonable, not
prohibited by CPR + does not disrupt conduct of litigation
In-time Sample
• WHAT? Party realises will be unable to meet deadline prior to the passing of the
deadline (5 days before deadline here), client may make an in-time application for
the court to use power under CPR 3.1(2)(a) to extend or shorten time for compliance
• WHAT DO WE NEED TO PROVE? Consider overriding objective under CPR 1 (NB ALL
APPLICATIONS = REFER TO CPR 1!!!) – prove that the extension of 2 weeks is
reasonable and will not cause disruption to the litigation
o Beyond our control
§ Leading counsel overseas in complex trial (uncontactable)
§ Expert witness – on holiday (3 weeks)
o Disproportionate if no costs
§ CPR 3.14 – default position if failure to file costs of only awarding
court fees is unreasonable, especially given amount of money
involved (CPR 1.1(2)(c)(i))
• CONCLUSION – will likely be granted, but may not grant full 14 days
o Normally: 21 days from Precedent H to CMC (CPR 3.13(1)(b))
o Court will not want to move CCMC
o Given our application would result in only 5 days between Precedent H and
CCMC, it is likely the court would give us a shorter extension, e.g. 7 days
o This would leave sufficient time (12 days) for filing Precedent R = more
reasonable for Defendant than 5 days
© Liam Porritt 2020 8
Out-of-time sample
• WHAT? Deadline has been missed for filing costs, in breach of CPR 3.14
• CONSEQUENCES OF BREACHING RULE – under CPR 3.14, client will only be able to
claim costs amounting to court fees
• Therefore, apply for sanctions under 3.9 CPR
• Apply Denton:
1. Significant and serious breach?
1 day late, has not interrupted hearing date; CCMC is 3 weeks later – time
for other party to prepare, only lost 24 hours
2. Reasons for breach?
Francis was ill. Does not specify illness, on the facts he was uncontactable
and thus suggesting it is serious. However, conversely as Ritchisons is a
very large institution, perhaps unreasonable to not have found someone
else who could be contacted.
3. Court evaluates the circumstances.
CPR 1.1 – overriding objective: justly treated + proportionate cost
The sanction appears to be disproportionate and and they applied for relief
ASAP. No previous breaches – only breached due to illness.
• Conclusion – likely yes.
© Liam Porritt 2020 9
Allocation
Allocation
• Case moves from factual stage to evidential stage
• Ensure mode of resolution of dispute proportionate to complexity and value of claim
Three tracks, depending primarily on value (excluding amounts not in dispute, interest,
costs + contrib), each having specific CPR:
1. Small claims track – < £10,000 – CPR 27
2. Fast track – £10,000-£25,000 – CPR 28
3. Multi-track – > £25,000 – CPR 29
Notice of proposed allocation
Following file of defence, officer of court considers criteria for allocation (CPR 26.8) and
preliminarily allocates track (notice of proposed allocation issued – CPR 26.3(1)):
• Nature of remedy
• Complexity
• Number of parties
• Degree of oral evidence
• Etc.
© Liam Porritt 2020 10
Directions questionnaire
• (Small claims track = standard directions apply – Appendix to PD 27 (N180))
• (Fast track = ditto – Appendix to PD 28 – N181)
• Multi-track directions can be tailored to the case from menu of model paragraphs
that can be included in directions – N181
• Directions questionnaire assists court in deciding whether proposed track is the
correct track + which directions the parties require
• Parties expected to cooperate in directions questionnaire
o Confirm whether have complied with pre-action protocols / PAC PD
o Request stay for ADR => legal representatives confirm in DQ that have
explained to client the need to consider settling
§ If all parties request => 1 month stay granted (CPR 26.4)
§ Court may stay at its discretion (CPR 26.4(2A))
§ Court may extend stay as appropriate (CPR 26.4(3))
o Confirm type of disclosure order sought
o Name witnesses and what you hope they will prove
o Name the filed(s) in which expert evidence is needed and name proposed
experts, if known, and estimate of costs
o Estimate of time for trial + which court, track and interim applications
(existing or planned)
• Parties should also attempt to agree on directions (timetable of steps the parties
have to take to prepare for trial) and file proposed directions by the date specified
on the notice of allocation at least 7 calendar days before CCMC
o … which will be at least 28 days after deemed service of notice of PA on
parties (CPR 26.3(6)b)(ii))
• Court has to agree and issue directions
Proposed directions – time limits on each of the following
• Stay for ADR? – usually 1 month per CPR 26.4, with notification to court if ADR to be
followed
• Disclosure and inspection
• Witnesses
• Experts
• Pre-trial steps + review
• Trial – may be trial window, with claimant applying for precise trial date
Allocation
• Case allocated by court per CPR 26.5
• Notice of allocation – CPR 26.9
• Further information may be required by court to decide on allocation or whether an
allocation hearing may be required (rare)
• Parties also here receive a copy of the other party’s directions questionnaire
© Liam Porritt 2020 11
Case (& Costs) Management Conference (multi-track only)
Disclosure report
• Filed not less than 14 clear days before CMC (CPR 31.5(3))
• Must:
o Briefly describe documents that exist / may exist relevant to matters in issue
o Describe where + with whom those documents are
o Describe how electronic documents are stored
o Estimate broad range of costs that could be involved in standard disclosure
o State which of directions in 31.5(7) + (8) are sought
CMC
• Hearing at which court determines future conduct of proceedings
• Can take place once case has been allocated, or later in the case to see how the case
is progressing
o Complex cases may have multiple CMCs
• CPR 29.3(2) – any representative attending the case must be familiar with the case
and have the authority to deal with issues that arise
Matters considered (29 PD 5.3)
• Is the claim clear + what is the claimant claiming by way of remedy? – are any
amendments to SoC required?
• What disclosure of documents is necessary?
• What factual evidence is required? – witness evidence
• What expert evidence is required? – arrangements around giving or clarification of
questions by experts following their reports
• Can any issues within the claim be narrowed down at this stage?
• How should the case be tried? – trial of preliminary issues prior to further issues
just?
Following C(C)MC, court will make order for directions
© Liam Porritt 2020 12
Costs management
• NB Costs management decisions are bound up with case management (CPR 3.17)
• CPR 3.12-19 + 3E PD
• Why are costs important?
o SRA CCS 1.13 – clients must be given appropriate information at beginning
and throughout as to likely costs
o Overriding Objective – litigation should be conducted at proportionate cost,
and amount recoverable will only be that proportionate to the value of the
case
• What are costs?
o Legal costs from time solicitor first consulted until termination of retainer
• Litigants may be able to recover some of the costs from opponent – CPR 44 for rules
governing this
Aims of costs management
• Further overriding objective of dealing with cases justly and at proportionate cost
(CPR 1.1)
• To achieve transparency of costs for the parties – costs of party + opponent
• Achieve economy and efficiency in civil litigation system
Exemptions from costs management
• CPR 3.12 – costs management rules apply only to multi-track
Exemptions
• Claims issued on or after 22nd April 2014 with value ≥ £10,000,000
• Claims commenced after 6th April 2016 made by person under 18
• Claims that are the subject of fixed costs or scale costs or where the court otherwise
orders
• Court has the power to apply the cost management rules to any claim that it deems
fit
© Liam Porritt 2020 13
Parties prepare, file and exchange costs – Precedent H (Annex A & B 3E PD)
• CPR 3.13(1) – unless court orders otherwise parties file Precedent H
• Deadline for filing and exchange (CPR 3.13(1))
a) If value < £50,000, should be filed with directions questionnaire
b) If £50,000 ≤ value < £10,000,000, should be filed 21 days before CMC
• What should it include? – Glossary to CPR – ‘estimate of reasonable and
proportionate costs […] which a party intends to incur in proceedings’
o Court at this stage will only decide on estimated costs, but all costs including
those already incurred should be included in Precedent H
o Assumptions – set out assumptions, such as certain type of disclosure /
number of witnesses, on which costs are based
o Space for contingencies
• Statement of truth
• If stated value < £50,000 or budgeted costs ≤ £25,000, only page 1 need be
completed
• Otherwise, pages 2-5 must be completed
Parties prepare, file and exchange budget discussion reports – Precedent R (Annex C 3E
PD)
• CPR 13.3(2) – if costs budgets have been exchanged, all parties must file budget
discussion report
o No later than 7 days before first CMC
• Sets out figures that are agreed, and those that are not agreed, with brief summary
of why any costs not agreed
• Thus sets out an effective agenda for CMC
CCMC, with court making revisions + approving costs budgets – Costs Management Order
(CMO)
• CPR 3.15 – following Precedents H & R
• CPR 3.15(2) – court to make CMO unless satisfied litigation can be conducted
without such an order
o Only where all budgets agreed by both parties
• CPR 3E PD 7.3 – Court considers total figures, amends total figures as fit, and
approves them if they are within range that is reasonable and proportionate, which
are likely to be recoverable form the opponent
o However, rules in CPR 44 govern actual recovery
• If court does not approve budget, these costs are unlikely to be recoverable from
opponent
• In general parties only able to recover amount of costs approved in CMO
© Liam Porritt 2020 14
Parties can revise costs budgets
• Where significant developments in litigation, should revise costs + seek approval
from opponent
• If unable to agree, seek approval from courts, as…
• Courts following trial are unlikely to depart from existing approved costs budget
(CPR 3.18)
Failure to file a budget
• CPR 3.14 – Unless court orders otherwise, the party is treated as filing a budget
comprising only the applicable court fee (upheld in Mitchell)
Costs capping orders
• CPR 3.19 – courts may order that the amount of any costs recoverable be capped

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