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Civil and criminal procedure

Robert Jago

2009
LLB 2660004

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This subject guide was prepared for the University of London External System by:
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University of London External System

Robert Jago, MPhil (Cantab), Lecturer in Law, Department of Law, University of Surrey.

Acknowledgements
In addition to the author mentioned, thanks must be given to the following:
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Patrick Gallimore, LLM (London), Lecturer in Law, Department of Law, University of Surrey. This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide favourable or unfavourable please use the form at the end of this guide.

Publications Office The External System University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londonexternal.ac.uk Published by the University of London Press University of London 2009 Printed by Central Printing Service, University of London Design by Omnis Partners, Cumbernauld All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.

Civil and criminal procedure

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Contents
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Introduction Introduction to civil procedure Preliminary matters Commencement of proceedings and responding to a claim Case management, additional claims and interim applications Summary judgment and related matters Issues before trial At trial and beyond Introduction to criminal procedure Police and prosecutors Bail, mode of trial decisions, disclosure of evidence and funding of criminal litigation Summary trial and the magistrates court Trial on indictment and the Crown Court Sentencing Appeals Feedback to activities 5 13 29 45 65 85 101 129 155 169 189 205 223 251 275 293

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Chapter 1 Introduction

Contents
Introduction 11 12 13 14 Reading and resources Allocating your time The examination Abbreviations used in this subject guide 6 7 9 10 11

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Introduction
The procedural rules governing the civil and criminal process are of critical importance to the delivery of justice in the legal system. It is the rules of procedure in the civil process that allows the system to operate, from the point at which a client wishes to instruct a solicitor through to the conclusion of a case where costs are allocated. In the criminal justice process the procedure is there to protect the defendant from the power of the state and the rules of procedure are there to safeguard the rights of the defendant. These rules govern the disclosure of evidence and the trial process from admissibility of evidence through to the point of verdict. Once the trial is over an appeal may be launched or a sentence passed. These processes all work within a legal framework which contains a number of important and complex rules. These rules are all central concerns of this course.

Civil and criminal procedure 1 Introduction

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1.1

Reading and resources


Recommended texts
The most up-to-date and appropriate textbooks for this subject are:

Sime, S. A Practical Approach to Civil Procedure. (Oxford: Oxford University Press, 2008) eleventh edition [ISBN 9780199542536]. Please note a new edition of this book is due to be published in August 2009. and Sprack, J. A Practical Approach to Criminal Procedure. (Oxford: Oxford University Press, 2008) twelfth edition [ISBN 9780199535392]. Other suitable texts include: Ashworth, A. and M. Redmayne The criminal process (Oxford: Oxford University Press, 2005) third edition [ISBN 9780199273386]. Gearey, A., W. Morrison and R. Jago Politics of the common law (Abingdon: Routledge Cavendish, 2008) [ISBN 9780415481533]. Gerlis, S.M. and P. Loughlin Civil Procedure (Abingdon: Routledge Cavendish, 2004) second edition [ISBN 9781859417751]. Hungerford-Welch, P. Criminal procedure and sentencing (Abingdon: Routledge Cavendish, 2008) second edition [ISBN 9780415442923]. Jackson, J., M. Langer, and P. Tillers Crime, procedure and evidence in a comparative and international context: essays in honour of Professor Mirjan Damaka (Oxford: Hart, 2008) [ISBN 9781841136820]. Jolowicz, J.A. On civil procedure (Cambridge: Cambridge University Press, 2000) [ISBN 9780521584197]. McConville, M. and G. Wilson The handbook of the criminal justice process (Oxford: Oxford University Press, 2002) [ISBN 9780199253951]. Ormerod, D. and Lord Justice Hooper Blackstones criminal practice 2009 (Oxford: Oxford University Press, 2008) [ISBN 9780199553020]. Sanders, A. and R. Young Criminal justice (Oxford: Oxford University Press, 2006) third edition [ISBN 9780406971395]. Sime, S. and D. French Blackstones Civil Practice 2009 (Oxford: Oxford University Press, 2008) [ISBN 9780199549641]. Trechsel, S. and S. Summers Human rights in criminal proceedings (Oxford: Oxford University Press, 2006) [ISBN 9780199271207]. Zuckerman, A. Civil justice in crisis (Oxford: Oxford University Press/Clarendon, 1999) [ISBN 9780198298335]. Zuckerman, A. Zuckerman on civil procedure: principles of practice (London: Sweet and Maxwell, 2006) second edition [ISBN 9780421919105].

It is very important that you obtain the latest editions of any books that you use, whether textbooks or statute books. From now on, we will refer to these texts in an abbreviated form, using the authors name and paragraph references. For example: Sime 10.0710.12 or Sprack 15.615.25

Statute book
Under the Regulations you are allowed to take one authorised statute book into the examination room plus one Queens Printer copy (or one photocopy of a Queens Printer copy) of the Codes of Practice issued under Police and Criminal Evidence Act 1984 (see section 1.3.1 below). You will be provided with a copy of Blackstones Statutes on Criminal Justice and Sentencing (OUP). Information about the statute books and other materials that you are permitted to use in the examination is printed in the current Regulations, which you should refer to. Please note that you are allowed to underline or highlight text in these documents but you are not allowed to write notes or attach self-adhesive notelets, etc. on them. See also the Learning skills for law study guide for further guidance on these matters. The current Regulations for the LLB state: Students may underline and/or highlight passages with a coloured pen in the materials, but all other forms of personal annotation on statutes and other materials permitted to be taken into the examination room are strictly forbidden. Statute books are regularly updated: make sure you are using the latest edition.

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There is a rather limited collection of valuable monographs which deal with aspects of civil and criminal procedure. They will be referred to throughout this subject guide. You are not advised to purchase these specialised texts, but may find them useful and stimulating to refer to.

Journals
You may find it useful to refer regularly to journals that specialise in civil and criminal procedure. The two most useful journals are Civil Justice Quarterly and Criminal Law Review.

Online resources
As well as the University of London Online Library and Laws Virtual Learning Environment (VLE), there are a number of useful websites for students of civil and criminal procedure. For example:
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www.bailii.org [website of the British and Irish Legal Information Institute, containing statutes from 1998 and cases (HL, CA and High Court) from 1996] http://www.cjsonline.org [website of the Criminal Justice System for England and Wales] www.intute.ac.uk/socialsciences [Intute:Law provides guidance and access to legal information resources on the internet] http://www.justice.gov.uk/civil/procrules_fin [Ministry of Justice website containing the Civil Procedure Rules] http://www.justice.gov.uk/criminal/procrules_fin [Ministry of Justice website containing the Criminal Procedure Rules] www.parliament.uk [website of the Houses of Parliament which includes the text of House of Lords judgments within two hours of delivery and also Hansard] www.statutelaw.gov.uk [the UK statute law database, giving revised versions of primary legislation].

Civil and criminal procedure 1 Introduction

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1.2

Allocating your time


Civil and criminal procedure has a wide and diverse syllabus and adequate time must be set aside in order to master the details of the law. It is impossible to state with precision how much time you will need for studying Civil and criminal procedure because students learn at different speeds. Some topics on the syllabus will require considerably more time than others. For example, in civil procedure the law relating to the overriding objective and its application, although detailed and rather complex, should require considerably less of your time than the law relating to case management and costs. There will be similar unequal divisions in your study of the criminal procedure, which comprises over 50 per cent of the syllabus. The section on the issues at summary trial, for example, will take considerably less time to study than, possibly, trial on indictment and sentencing. Also, the law and procedure relating to sentencing is a large and complex subject and far more time will need to be devoted to it than, for example, the matter of how and when evidence is disclosed at criminal trial. You should set aside a specific amount of time each week to study this subject, increasing the amount in the six weeks before the examination. Remember, though, that individuals vary greatly in their needs; the time to stop studying is when you know the topic thoroughly and not until then. It is very important to plan your time carefully. Do not forget to leave time for revision every week and month, not just in the period before the examination. Revision must be a continuous process.

1.2.1 How to use the subject guide


The guide closely follows the syllabus and has much the same pattern as the textbooks. Chapters 2, 3, 4, 5, 6, 7 and 8 concern issues relevant to the study of civil procedure, including the overriding objective, case management, issues at trial and costs. Chapters 9, 10, 11, 12, 13, 14 and 15 look at the issues relevant to studying the criminal justice process from the point of entry to the system through to appeals and the opportunity for overturning a guilty verdict. You are advised to read the relevant chapter of this subject guide before reading the textbooks in order to get an overall view of the topic. Note, however, that this subject guide is not a substitute for the textbooks. When you have read both the subject guide and the textbooks, return to the subject guide in order to answer the Activity questions that have been set for you. Feedback to many of the Activities can be found at the back of the guide. Do as many of the Activities as you can: they will help you learn and help you remember!

1.2.2 Topics not included in the guide


Topics which are within the syllabus but which are rarely examined are omitted from the subject guide: these will become apparent as you work through the guide. We presume that you are familiar with the courts involved in the legal system, along with rules of precedent, etc, from your study of the English legal system in Common law reasoning and institutions.

1.2.3 The Human Rights Act 1998


As with other areas of English law, in civil and criminal procedure there is a growing body of case law which deals with the incorporation into English law of most of the European Convention on Human Rights and Fundamental Freedoms by virtue of the Human Rights Act 1998. Rather than forming a single chapter in this guide, the application of rights under the Act will be considered at relevant points throughout the subject guide.

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1.3

The examination

1.3.1 Format of the examination


Important: the information and advice given here is based on the examination structure used at the time this subject guide was written. However, the University may alter the format, style or requirements of an examination paper without notice. Because of this, you must check the instructions on the paper you actually sit. The examination lasts three hours and you will be required to answer four questions. Students are permitted to bring into the examination room the following specified documents: one Queens Printer copy (or one photocopy of a Queens Printer copy) of the Codes of Practice issued under Police and Criminal Evidence Act 1984 and one copy of Blackstones Statutes on Criminal Justice and Sentencing (OUP). Please note the rules about annotating these materials stated in 1.1 above and in the Regulations.

1.3.2 Examination technique


Examination papers in Civil and criminal procedure usually comprise both problem questions and essay questions. These two types of question obviously require very different techniques. In the case of problem questions, you need to be able to:
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identify the relevant area of law under discussion identify the relevant facts in the question apply both statute and case law to those facts. It is important to remember that of all the areas of law you study, civil and criminal procedure is probably the most rule-bound and so realistic conclusions can be reached from the facts presented. Try not to sit on the fence but to reach a reasoned conclusion based on authority. If you are asked to advise X, for example, you should make sure that you do so. In Civil and criminal procedure the case law is obviously important. When studying this subject you should make careful notes on each topic, including the most important cases, so that when it is time for revision you have a good set of notes on which to base that revision. This can be difficult as some of the case facts are very complicated. Dont worry if you do find this hard, but try to tease out what the relevant legal principle stemming from the case is. Be careful when taking notes that you are clear which particular case you are citing. All too frequently Examiners in this subject find that students have not mastered the case law to the point where they can cite the relevant cases. It is only by allocating sufficient time to careful note-taking throughout your course of study that you will be able to revise effectively and successfully. In most of civil and criminal procedure there are a whole host of detailed and comprehensive statutory provisions which must be interpreted and applied to examination questions. Rather than copying these provisions out, you should be able to briefly cite the relevant provision and then proceed to interpreting and applying the law. If you are answering essay questions, a different set of skills is required. The Examiners are looking for good critical answers to often difficult questions and issues. Only by being able to demonstrate a clear understanding of these issues, and the manner in which they are reflected in the law, will your answer attain higher marks. Good luck with your studies! Robert Jago.

For guidance on writing essays in exam conditions see also the Learning skills for law study guide.

Civil and criminal procedure 1 Introduction

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1.4

Abbreviations used in this subject guide


AJA CCA 1984 CCR CEA 1968 CEA 1972 CEA 1995 CJJA 1982 CJJA 1991 CLSA 1990 CPA CPR HL HRA IA 1986 LA 1980 PD SCA SoGA 1979 Access to Justice Act 1999 County Courts Act 1984 County Court Rules 1981 Civil Evidence Act 1968 Civil Evidence Act 1972 Civil Evidence Act 1995 Civil Jurisdiction and Judgments Act 1982 Civil Jurisdiction and Judgments Act 1991 Courts and Legal Services Act 1990 Civil Procedure Act 1997 Civil Procedure Rules 1998 House of Lords Human Rights Act 1998 Insolvency Act 1986 Limitation Act 1980 Civil Procedure Rules Practice Directions Supreme Court Act 1981 Sale of Goods Act 1979

The following abbreviations for journals cited are used in this guide. CLQ CLJ CLR CLP IJEP LQR LS MLR Civil Law Quarterly Cambridge Law Journal Criminal Law Review Current Legal Problems International Journal of Evidence and Proof Law and Quarterly Review Legal Studies Modern Law Review

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Notes

Chapter 2 Introduction to civil procedure

Contents
Introduction 21 22 23 24 25 The civil process at a glance Imagining civil justice Civil Procedure Rules The courts The overriding objective and human rights Reflect and review 14 15 18 19 22 24 28

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Introduction
Most people hope to avoid ever having to go to court. The experience as a form of dispute resolution is rarely a positive one. That said, just as we are all capable of close relationships, we are also capable of conflict. In the context of that conflict it is sometimes necessary to seek recourse to the justice system. For the majority of the time this will be the civil justice system. A hapless builder may continue to fail to fix the roof of the conservatory he has built; a clumsy hairdresser may have spilt ammonia on your expensive designer jacket, ruining it, and refuse to compensate you. Such events are often sources of annoyance, of nuisance and even the subject of television entertainment! The civil justice system may go some way to alleviating the irritation caused by such events. They can upset the order of our lives but their occurrence rarely does lasting damage to our soul. However the civil justice system does not just deal with hapless builders and clumsy hairdressers. It also deals with negligent doctors who amputate limbs in error and provides interim relief (where the law steps in with provisional assistance) for a wife who finds herself at the mercy of a bullying husband. These images serve to remind us of the wide-ranging nature of civil justice. With such a variety of disputes to resolve, the civil justice system has to be all things to all men. This is not an easy task and the civil justice process has to work on different terms to the criminal justice process, which involves the power of the state and its extreme forms of censure. Civil justice has to negotiate, resolve, arbitrate and mediate in a way not expected within the criminal justice process. In many ways the trial day in the civil justice system can be seen as a moment of failure, where all previous attempts to avoid the courtroom have failed. The criminal trial is often a magnificent symbol of state power punishing evil deeds but the civil trial is far more mundane. Since there is, in most instances, no performance to a jury, the advocacy is more detailed, more careful and more specific. The civil justice system is far more concerned with costs and outcomes than its criminal counterpart. As a result, much of the process is designed to avoid the trial rather than building up to it. That is why much of what you study in civil procedure will be concerned with trial avoidance rather than trial preparation.

Learning outcomes for this chapter


By the end of this chapter and the relevant readings you should be able to:
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secure an introductory understanding of the civil justice process and how civil procedure fits into that process imagine the impact that the civil justice system can have on individuals describe the purpose and scope of the Civil Procedure Rules comprehend the different courts used in the civil justice process evaluate the application of the overriding objective consider the impact of the Human Rights Act 1998 on civil justice.

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Civil and criminal procedure 2 Introduction to civil procedure

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2.1

The civil process at a glance


Essential reading
Sime, Chapter 1: Introduction. Jolowicz, J. Adversarial and Inquisitorial Models of Civil Procedure, International and Comparative Law Quarterly 52(2) 2003, p.281 As has already been suggested, the trial in the civil justice system is a sign of failure. This means that much emphasis is placed on what takes place before a trial in an attempt to resolve a dispute and at the same time to do justice between the parties. It is an old axiom, dating back to Magna Carta, that justice delayed is justice denied so there is often pressure placed on parties to deal with their disputes swiftly. Of course the complexity of the dispute may mean that a speedy resolution is not possible. With these matters in mind we begin our study of the civil justice system by laying a few foundations upon which a loftier construct may be built. We begin by reminding ourselves of those who are protagonists in this process: the lawyers. You will recall from your Common law reasoning and institutions course that the legal profession in the UK is split between solicitors and barristers. Solicitors in the civil process provide most of the legal services for their clients and they serve as a direct point of contact during a case. Barristers offer a referral service which may involve the drafting of more specialist advice or the provision of more particular advocacy. It is worth remembering that the lawyers (both solicitors and barristers) have an overall duty to the court. Solicitors are officers of the court and they must do their best for their clients but must never mislead or deceive the court in the process. Barristers are under similar obligations and must always assist the court in the administration of justice.

Activity 2.1
Conduct a web search for the term solicitor advocate in the UK. Why is the development of this profession an innovative development in the legal system? In the civil process events will begin with the initial instructions. This is where a first interview between solicitor and client takes place. It might be a member of the public has entered a solicitors office on the high street and the solicitor has asked them about the problem they face. During this initial interview the member of the public (who has now become a client) will be encouraged to provide an account of the problem in his or her own words. This will then enable the solicitor to decide whether to take on the clients case. This initial statement will also be used for the basis of the clients written statement if proceedings are issued. The solicitor will draw up the statement and it will be signed by the client. If the solicitor has decided to accept the case then a course of action agreed with the client will follow. Witness details will be explored and the solicitor will decide if an expert witness is required. All relevant documentation will be passed from the client to the solicitor and, if the problem is a continuing one, a continuing note of all relevant events will be kept by the client. At this early stage the solicitor will ascertain whether a claim is worth pursuing. Questions will be asked as to the defendants status because if they prove to be without sufficient resources then it will not be worth bringing a claim against them. Once this initial process has begun the solicitor will be expected to discuss the matter of payment with the client. The claim may be capable of receiving public funding and the options for this should be considered as soon as possible. If the case is to be privately funded then the solicitor will decide either to accept the case on a conditional fee arrangement (where the fee to be paid will depend on the outcome) or on a private and continuing retainer (where fees are paid if and when invoices are issued, regardless of the outcome of the action). It is worth remembering at this early stage that litigation can be very expensive! As a result solicitors have a duty to estimate to their clients what the fees for such an action could be. If the client loses the case then they will usually be expected to pay the other sides costs as well as their own. The arrangements for costs are considered later in this guide but for the moment solicitors should always proceed with caution, mindful of the potential costs involved. The solicitor is expected to keep the client continually informed of the progress of the case and to explain exactly what the nature of the solicitors authority is in relation to the dispute. What began as a straightforward inquiry as to the potential of a claim could become an advanced piece of litigation which has huge

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cost implications. The solicitor must advise the client of these developments if and when they occur. They must also encourage settlement, if and when possible, in line with the framework provided for by Part 36 of the Civil Procedure Rules. Part 36 is a crucial aspect of the framework devised to avoid trial and its operation is considered in more detail later in this guide. Although the member of the public wandering into the solicitors office is a common image of the beginnings of civil litigation, the reality can often be far more mundane. Many solicitors receive their instructions in written form from established clients. These clients may be used to the litigation process and so will know what materials they need to send in with their written instructions. This is not always the case, however, and solicitors may be required to make a request for further information before the claim can continue. A solicitor will, as a matter of course, owe a duty of confidentiality to his or her client. This means that a solicitor must not discuss any part of a clients case with anyone outside of the solicitors office without the clients permission. The documents and information possessed by the solicitor in connection with a clients case are protected by legal professional privilege. On some occasions when a solicitor is contacted by a potential client, the solicitor is already acting on behalf of the person that the potential client wishes to bring an action against. If this happens then the solicitor will usually act for only one party for fear of a conflict of interest. It may be that the parties, following full and frank disclosure, will decide to allow the solicitor to act for both of them. This is unusual and unlikely for fear of a conflict of interest. It was confirmed in Re a Firm of Solicitors [1992] QB 959 that if a solicitor is in possession of relevant confidential information they will be restrained from acting against a former client. If the case involves a firm who were previously retained by a client, partners and employees who may be in possession of the confidential information may be restrained from acting against the former client. This remains the case if they move to another solicitors firm.

Activity 2.2
Read Re a Firm of Solicitors [1992] QB 959 and consider the position where there are members of a firm who have never had possession of relevant confidential information with regards to a case. What is the conflict of interest situation here?

Activity 2.3
Read the case of Bolkian v KPMG [1999] 2 AC 222 and consider how a Chinese wall could offer some protection when there is a concern about information transition in these complex situations. Once the solicitor has taken instruction from the client he or she will then enter into correspondence with the other party to the dispute. A series of negotiations are then likely to take place prior to court proceedings being actioned. Sometimes the issuing of a solicitors letter will demonstrate that the client is taking the dispute seriously and this will prompt the other side to settle the dispute without recourse to the courts. In other cases a solicitors letter can inflame the dispute further. If the former is the case then pre-action correspondence will take place and this includes the providing of the full details of the claim and giving the other side the opportunity to reach terms before proceedings begin. If negotiations fail then either the case will be dropped or court proceedings will follow. If the case is dropped then no further action will be taken. A client may feel that they have pushed as far as they can without wishing to risk further cost and anxiety. If proceedings do begin then decisions will need to be taken about where the dispute should be heard. Usually the client (who now becomes the claimant) will have a completely free choice to either issue the claim in the High Court or in the county court. Usually the High Court will be the preserve of the most serious claims, where the stakes are at their highest.

Activity 2.4
Read Sime 1.231.35 and devise a flowchart to identify the main stages in the court proceedings.

Civil and criminal procedure 2 Introduction to civil procedure

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Summary
The civil justice system is charged with resolving an ever-more eclectic collection of disputes, ranging from a minor claim of breach of contract to a major claim involving medical negligence. Given the range of disputes that the civil system has to respond to, the process is necessarily a complex one. It may be multi-faceted, depending on the nature of the claim. That said, the initial process will largely follow a standard pattern of either personal or written instruction to a firm of solicitors. If specialist expertise is required to advise on a case then a barrister may be instructed by the solicitor. Lawyers owe a duty to the court and to their clients to advise at all times on matters of costs and the desire to settle if it is in the clients best interests to do so. Solicitors owe a duty of confidentiality to their clients and if a conflict of interest emerges they have a responsibility to resolve it in a legally defensible way. All relevant documentation is protected by legal professional privilege. If negotiations falter and a settlement cannot be reached then the trial process will begin. The proceedings require much preparatory work but once this process is complete then a dispute will, one way or another, be resolved.

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2.2

Imagining civil justice


When looking at the civil justice process at a glance it would appear that it is a series of events leading to an outcome which is either a client victory or a client loss. The reality for those in the clutches of the system is far more complex. At one level, civil procedure could be reduced to a list of rules for you to memorise and recount when prompted. But before that you need to gain a deeper understanding of why? Why is this process important and who has suffered from its workings? Activity 2.5 should provide you with some useful context.

Activity 2.5
Read Chapter 12 of The Politics of the Common Law (Routledge Cavendish, 2008) (available on the VLE). Consider the examples Gearey et al. use to allow us to imagine civil justice. Compile a 250 word summary of their view of civil justice with a view to placing the system into context. Who are the winners and losers in the way the system presently operates? No feedback provided.

Summary
No legal system operates in a vacuum and to understand the relevance of civil justice it becomes necessary to consider the system in its current context. From your reading you will have seen that the failings of the civil justice system are not a new phenomenon. Criticisms have been abundant since before the writings of Dickens, who highlighted many such failings. On a more contemporary note, you will have identified, for example, how the civil process has been used to distribute medical resources in a more just fashion or noted those minorities within society (such as gypsies) who appear to be left victims of the planning authorities. You will also have been introduced to the nature of alternative dispute resolution, which will be considered later in this guide. The aim is to avoid court proceedings at all costs and in some instances this in itself will prove a very costly exercise. Finally you will have returned to the view of Dickens and considered whether the present system is any more just than it was in his day. Reforms have taken place but victims remain.

Civil and criminal procedure 2 Introduction to civil procedure

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2.3

Civil Procedure Rules


Essential reading
Beier, J. The Woolf Report and Civil Procedure, Liverpool Law Review 19(1) 1997, p.67. This reading is available on the VLE. The civil process works within a legal framework. In the High Court and the Court of Appeal it is the Supreme Court Act 1981 (SCA) which governs the procedure. In the county courts it is the County Courts Act 1984 (CCA). These statutes are usually expressed in very wide terms which mean that the procedures for the court to function are usually set out in the rules of the court. There exists a Civil Procedure Rule Committee whose task it is (as authorised under s.2 Civil Procedure Act 1997) to outline the practice and procedure to be followed in the civil courts. The key rules this committee make are the Civil Procedure Rules (CPR). Section 1(3) of the Civil Procedure Act 1997 requires the rules to be simple in form and substance. These rules are divided into a number of parts which each contain a number of rules. Some of these rules are preserved from the Supreme Court as devised in 1965 and can be found in Schedule 1. Rules preserved from the county court as devised in 1981 can be found in Schedule 2 of the new CPR. Both are useful guides as to how certain rules have been interpreted by the courts in the past. However the creation of the CPR was meant to serve as a new procedural code under rule 1.1(1) CPR and so references to past practice is meant to be used sparingly. Many of these rules are supplemented by detailed practice directions which take into account any legislative changes.

Activity 2.6
Access www.opsi.gov.uk/acts.htm and click on 1997 and the Civil Procedure Act (web version). Then visit www.justice.gov.uk/civil/procrules_fin/index.htm and spend 510 minutes looking at each of the pages and seeing what a valuable resource they can be for students and practitioners of civil procedure. Make notes on what you find on these sites. No feedback provided. As well as statutory sources, the operation of the civil process has sometimes been informed by old rules and old case law (although this is to be discouraged as the CPR take on their own personality). There does exist a loophole in the CPR by virtue of s.76 CCA 1984 which states that if there is a case in the county court which is not provided for by existing rules then recourse to High Court practice is allowed. This has decreased in usefulness since the CPR were created in an attempt to stem this practice. The High Court is a successor to the common law courts and has therefore retained its inherent jurisdiction to control its procedure so as to avoid injustice.

Activity 2.7
Read Lord Diplocks dicta in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977 and compile a 50 word summary as to how this general inherent jurisdiction power works.

2.3.1 The overriding objective


The overriding objective of the CPR is outlined in Part 1, which states: These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. The application of the overriding objective will be considered later in this chapter but for current purposes it is important to realise that one of the key ways that this overriding objective is applied is in the use of active case management. Active case management is outlined by rule 1.4(1) of the CPR and its form is considered in rule 1.4(2). This suggests that the court should be: 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;

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d deciding the order in which issues are to be resolved;

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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 j dealing with as many aspects of the case as it can on the same occasion; dealing with the case without the parties needing to attend at court;

k making use of technology; l giving directions to ensure that the trial of a case proceeds quickly and efficiently.

Case management
Cases will be actively managed by judges throughout the process. This case management will begin at the allocation stage and will continue where the court gives directions on the evidence it is presented with. When the court compiles the order of cases for trial this will be done mindful of the injustice that may occur where there is delay. The court will control the time used at the trial itself as it takes the lead role in controlling the sequence of events. There is also the allotment of costs at the end of the trial, where the court will reduce costs which are out of proportion with the claim. As part of this process the court will also be encouraged to make sufficient use of technology. The use of the telephone (instead of requiring attendance at court, usually for witnesses but occasionally claimants and defendants) and video conferencing (as a way of examining witnesses who cannot attend the court) are two features of a system which recognises that the old processes, with their old and delaying polity, can no longer be defended in an age where technology makes communication so much more efficient. Examples of active judicial case management will be considered throughout this guide.

Precedent
When interpreting the CPR the standard rules of precedent apply. If the higher courts have ruled as to how a particular rule should operate then the lower courts must follow this decision. This means that the House of Lords is not bound by its previous decisions but the Court of Appeal is bound by the decisions of the House of Lords. It follows that the decisions of the High Court and county court are only persuasive. It would appear that, given the civil processs wish for consistency, the departure from precedent should only be exercised in extreme cases where a clear injustice would occur.

Activity 2.8
Read Sime 3.253.27 and provide a 50 word summary as to what types of authorities should not be cited unless they establish a new principle or extend the law. No feedback provided. When interpreting the CPR it has become clear that what court staff have advised parties to do cannot be relied upon subsequently by the parties. Solicitors should know what the process is and should not attempt to rely on court staff for this purpose. It is worth remembering that the CPR have been drafted to use plain English so that the rules are intelligible for lay people to use in the courts. This has meant that, although the overriding objective should guide civil court practice, it is not there as a separate course of action to trounce the clearly-worded provisions of the CPR. If the provision is clear and plainlyworded then it should be followed, even if reliance on the overriding objective would result in a more just outcome. This is confirmed in Vinos v Marks and Spencer plc [2001] 3 All ER 784. If there are no express provisions in the CPR to deal with a particular situation before the court, the court must use whichever interpretation would best give effect to the overriding objective. It is also important to remember that when interpreting the CPR a court must be mindful of its obligations under s.3 Human Rights Act 1998 which requires the court, as best it can, to interpret the provision in line with Convention rights. We shall consider this in more detail later in the chapter.

Civil and criminal procedure 2 Introduction to civil procedure

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Summary
The civil process is authorised to operate by the Civil Procedure Act 1997. This process operates using a collection of rules found in the Civil Procedure Rules 1998 as amended (CPR). These rules provide the detailed procedures for dealing with a case, from commencement of proceedings through to cost allotment at the end. The CPR requires that the court must, as its overriding objective, deal with cases justly. To this effect cases must be actively managed by the courts. The courts now make use of technology far more than they used to in an attempt to deal with cases more quickly. The overriding objective can be used to fill any gaps in interpreting the rules but it should not be used to trounce a rule which is clear in meaning just because the overriding objective would lead to what the courts saw to be a more just result.

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2.4

The courts
Essential reading
Sime, Chapter 2: The civil courts. You need to be familiar with the following courts for the purposes of the operation of civil procedure.

Magistrates courts
Unlike in criminal procedure, magistrates have a relatively limited jurisdiction over civil matters. Magistrates can be lay appointments and are supposed to represent as wide a cross-section of the community as possible. Magistrates are assisted by a clerk who advises on matters of law and procedure. While most of the work done by magistrates is criminal in nature, they do deal with some family law matters and make orders against those who have defaulted in the payment of local government taxes. Most of their work in the civil field is regulatory.

County courts
Most civil law matters at the initial stage will be dealt with by the county court. Most civil cases can be commenced in any county court but if it is to be defended the case is likely to be transferred to the court serving the district in which the defendant resides or carries on his or her business. Each court is presided over by a circuit judge. This is a professional lawyer with a 10 year Crown Court or county court qualification. Circuit judges sit in the Crown Court as well as the county court to give them a broad spectrum of judicial experience. County court trials are mainly conducted by circuit judges and by recorders. These recorders are part time judges. Each district will also have a district judge who must have seven years general qualification. District judges are usually charged with conducting most of the interim proceedings in the county court. They will also preside over small claim hearings. The staff who support these judges are civil servants. These staff members are usually involved in drawing up, issuing and serving court documents and maintaining court records. A discussion of the track system later in this guide will cover where the county court and the High Courts jurisdictions lie.

High Court
The High Court, Crown Court and Court of Appeal together comprise the Supreme Court Judicature of England and Wales. They will be renamed the Senior Courts of England and Wales when the House of Lords, in its judicial function, becomes the Supreme Court. This is to avoid confusion. The main offices of the High Court are located at the Royal Courts of Justice. There are also district registries of the High Court which serve the districts of county courts. All claims involving disputes in London must be served in the Royal Courts of Justice. If the claim is based on a dispute outside of London then the proceedings may be commenced in the Royal Courts of Justice or the appropriate district registry. This will be a matter of claimant choice. There are three Divisions within the High Court. The Queens Bench Division (QBD) deals with all judicial review, admiralty and commercial matters. The Chancery Division (ChD) deals with all cases concerning property and probate. The Family Division (FamD) deals with all matrimonial matters. Trials in the High Court are conducted by justices of the High Court, who are also known as puisne judges, and by deputy judges. They must have 10 years standing within the legal profession. If there are interim applications then in London these will be dealt with by masters of the High Court (for the majority of civil business this is the procedural judge) but in the district registries these are dealt with by district judges.

Specialist courts
Court of Appeal (Civil Division) The basic civil appeals structure is contained in the Access to Justice Act 1999 and the Appellate Jurisdiction Acts 1876 and 1887. Usually an appeal to the Court of Appeal (Civil Division) will be from the High Court. Generally permission to appeal (granted by the High Court or Court of Appeal under rule 52.3(1)(a) CPR will be required. The basic test for granting permission is whether the appeal has a real prospect of success. If the prospect of successful appeal is fanciful then permission will not be granted. Appeals against costs and the process of case management are generally discouraged.

These are applications for temporary orders, particularly in family law, which are only good until they are varied by another interim order or the issues are finally decided following trial.

Civil and criminal procedure 2 Introduction to civil procedure


House of Lords The highest court in the land is the House of Lords (soon to become the Supreme Court under the Constitutional Reform Act 2005). The House of Lords can be appealed to from the Court of Appeal (Civil Division) under s.1 of the House of Lords (Administration of Justice (Appeals)) Act 1934. Appeal to the House of Lords is subject to a restriction: the matter must be one which is of public importance and therefore should be considered by the House of Lords. If a decision from the High Court is to be appealed to the House of Lords, this is governed by ss.1215 of the Administration of Justice Act 1969. European Court of Justice Since the passing of the European Communities Act 1972 it has been possible for any English court to request a preliminary ruling on a point of European Community law. This can be a civil law matter and the reference takes place under s.234 of the EC Treaty. All courts have discretion to make this referral if they are the last point of appeal. European Court of Human Rights Since 2000, when the Human Rights Act 1998 came into force, all courts are under an obligation under s.2 to take into account the jurisprudence of the European Court of Human Rights in Strasbourg. However, if an individual feels that the domestic courts have failed to protect a right within the Convention he or she retains the right to petition to Strasbourg.

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Activity 2.9
Read 2.382.43 of Sime and write a single sentence which summarizes the function of the following specialist courts.
u u u u u

Technology and Construction Court Commercial Court Admiralty Court Companies Court Patents Court

Decide where the following cases would be most likely to be heard. a A claimant alleges that he suffered two arm amputations on a ship as a result of a crew members negligence. b A company director wishes to hear details of his disqualification from the company. c A claimant alleges their contract for the carriage of goods by sea was frustrated by events outside his control. d A defendant architect is due to appear in court for a case where his designs and advice led to the collapse of a new building. e A designer in possession of a registered design wishes to assert his right over that design before it is revoked.

Summary
Given the complexity and range of cases covered by the civil process it is not surprising that there are a wide range of courts to resolve this array of disputes. The two major courts for most civil matters will be the county court and the High Court, with their jurisdiction being determined by the potential cost and complexity involved in the case.

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2.5

The overriding objective and human rights


Essential reading

Sime, Chapter 3: Overriding objective and human rights.

2.5.1 The overriding objective


You will recall that the overriding objective requires the court to do justice (rule 1.1 CPR). With this in mind it seems that it would not be just to shut the door to a claim which was technically in breach of the rules. This was confirmed in Chilton v Surrey County Council (1999) LTL 24/6/99 where it was stated that the nature of the real claim would be dealt with rather than what was originally asked for. Likewise in Cala Homes (South) Ltd v Colchester District Council (1999) The Times, 15 October 1999 a claim was resolved that had been commenced in the wrong office. Justice dictates that procedural breaches of this kind are unlikely to result in a rejection of the claim outright. The concept of equality of arms is a theme often associated with the disclosure of evidence in criminal proceedings. In civil proceedings it could be said to manifest itself in the concept of equal footing. However the civil process does not require parties to have access to the same quality of representation. While equal footing maybe desirable, it is not in the power of the court to dismiss cases where one party has instructed representation which is far more expensive than the other side. This would be impossible to supervise and implement and so is not seen as part of the process of dealing with cases justly (see Maltez v Lewis (1999) The Times, 4 May 1999 and McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775). It is desirable, as part of the overriding objective, that cases are dealt with expeditiously and fairly which then saves overall expense. This principle has been used to reject a request for the court to order separate trials so that a claim could be determined once long term hospitalisation had been completed. It was felt by the court in Adan v Securicor Custodial Services Ltd [2005] PIQR P79 that such a move would have exposed the defendants insurers to an uncertain liability for an indefinite period. This was viewed as oppressive and undesirable. When it comes to the striking out of claims on the basis of saving expense, the authorities appear to adopt a less consistent tone (see Re Hoicrest Ltd [2000] 1 WLR 414 and Re Osea Road Camp Sites Ltd [2005] 1 WLR 760). Given that resources are so highly prized in the civil process it is little wonder that the courts have been keen to ensure there is a careful allotting of an appropriate share of the courts resources. This has sometimes led to an appeal against an interim order being refused (see Stephenson (SBJ) Ltd v Mandy (1999) The Times, 21 July 1999). Even the Court of Appeal have used something of a guillotine method to decide that spending more than an hour sorting through court papers was a waste of court time and so dismissed an appeal (see Adoko v Jemal (1999) The Times, 8 July 1999). As the courts wish to deal with cases in a just manner it would appear from the authority that co-operation within the process is highly prized. Any attempt to take advantage of your opponents error is seen by the court and can have an impact on the outcome of the case as a whole (see Chilton v Surrey County Council (1999) LTL 24/6/99). In King v Telegraph Group Ltd [2005] 1 WLR 2282 deliberately provocative language was used which went against the spirit of co-operation and the solicitors were criticised as a result. This spirit of co-operation was also breached in Hertsmere Primary Care Trust v Administrators of Balasubramaniums Estate [2005] 3 All ER 274 when one party failed to point out the other partys obvious error in a Part 36 offer. Judges will now take a dim view of parties wishing to seek a tactical advantage because the duty to the court is to deliver justice in as clear and even-handed manner as possible.

Equality of arms is the idea that the defence should never be placed at a substantial disadvantage to the prosecution in terms of its ability to present its case.

Civil and criminal procedure 2 Introduction to civil procedure

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2.5.2 Human rights and civil procedure


Like other areas of law that you have studied, the Human Rights Act 1998 has had an effect on civil procedure. The 1998 Act brought into effect the European Convention on Human Rights and within the civil process there are three rights which are of particular importance (see below). If a party seeks to rely on a provision or right or seeks any remedy available under the Human Rights Act 1998 then this must be stated in their statement of claim with precise details of why they believe there has been an infringement of their Convention rights. The first of these provisions having a direct impact on civil procedure is Article 6 and the right to a fair hearing. This is guaranteed under Article 6(1) of the Convention. This right has four facets to it for these purposes: fair hearing, equality of arms, all relevant evidence considered and reasons should be given for a court decision.

Activity 2.10
Read Sime 3.413.44 and compile two sentences which summarise each of these facets of Article 6, with reference to the accompanying cases.

Fair hearing: R (on the application of Pelling) v Bow County Court [2001] UKHRR 165. Equality of arms: R v Secretary of State for the Home Department ex p Quaquah [2000] HRLR 325. Minimum delay: EDC v UK [1998] BCC 370. Duty to give reasons: English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409. Article 8 and the respect for privacy and family life is also a key Convention right for civil procedure. This is a qualified right and so allows the court to depart from it in some instances. The case law on this Article suggests that often a balance is required between the right to a fair trial in Article 6 and the right to privacy and family life in Article 8. It would seem that Article 8 overrides Article 6 when it concerns children but it is the other way round when it involves adults. There is a concern that covertly shot video footage in personal injury claims which often involves an invasion of an individuals privacy will be shown, but only to a limited extent (see Rall v Hume [2001] 3 All ER). Thus 20 minutes worth of video footage may be shown, rather than several hours of it. The effect of this Convention right has been limited by the House of Lords in Wainwright v Home Office [2004] 2 AC 406. The final article of relevance here is Article 10 and freedom of expression. The relevance here appears two-fold. Firstly it is raised where someone asserts their right to freedom of expression and the other party says that their reputation needs protecting. Secondly it is used where a newspaper is restrained from publishing articles that invade the claimants privacy. The claimant raises the right to privacy under Article 8 whereas the newspaper raises its own Article 10 right. Here a balance will be struck and the case law suggests that each case will turn on its own facts (see Cream Holdings v Banerjee [2005] 1 AC 253 and Douglas v Hello! Ltd [2002] QB 967).

Activity 2.11
Read Sime 3.563.66 and produce a 200 word summary of the Procedural Aspects on Raising Human Rights Points. Once you have done this, decide which of the following scenarios would be the most likely to lead to a declaration of incompatibility. a A piece of legislation claims that once a child is taken into local authority care the parents rights are automatically extinguished and the local authority assumes all rights over the child for the purposes of that childs future. b A piece of legislation remains silent on what happens to parental rights once a child is taken into local authority care.

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Summary
Critical to your understanding of how the civil process works will be the understanding of how the overriding objective has worked in practice, its interplay with the Human Rights Act 1998 and the growing jurisprudence of that legislation within the context of civil justice. Dealing with cases justly will necessitate a balancing of competing interests. Whilst principle must govern, it would appear the courts are also pragmatic when the prospect of injustice emerges.

Activity 2.12
Read the following articles.

Schmidt, F. A critical analysis of recent developments in German law on civil procedure, Civil Justice Quarterly 28(2) 2009, p.273 Meggit, G. and F. Aslam, Civil justice reform in Hong Kong: a critical appraisal, Civil Justice Quarterly 28(1) 2009, p.111

Write a 250 word summary of the recent developments in German law on civil procedure and civil justice reform in Hong Kong. As this is a comprehension exercise no feedback is given.

Conclusion
Throughout this introduction to civil procedure it has been necessary to understand why civil justice is relevant, what courts it is administered in and what principles guide its operation. A combination of all three will serve as a useful guide as you begin to grapple with the complex web of rules which allow the system to function. Remember, though, the rules mean nothing if the overall aim is unclear.

Sample examination questions


Question 1 Critically evaluate the significance of the overriding objective on the conduct of civil litigation. Question 2 The variety of cases that might be labelled civil litigation has ensured that no single set of rules and procedures can provide an efficient system of justice for all litigants. Discuss.

Advice on answering the questions


Question 1 The overriding objective is a key feature of the reformed civil process under the Civil Procedure Rules (CPR). As rule 1.2 CPR states, the court must give effect to the overriding objective when exercising any power or interpreting any rule. That means that the whole of the rest of the CPR must be read subject to the aims of the overriding objective. However, it would be dangerous to overstate how much impact this will have. There are many discretions set out in the CPR (for example the discretion to exclude evidence under rule 32). It is worth noting that these discretions are, in most cases, triggered by the code of rules under the CPR and these rules are clear in their meaning (however much rule 1.2(b) may influence their interpretation). However, rule 1 does not simply state the overriding objective, it also places both parties and the court itself under further obligations. Parties are under a duty to help the court and the court has a duty of active case management. In effect this means that (in contrast to the rule systems pre-dating the CPR) the court must ensure that the case runs according to the wishes of the court as a neutral party to proceedings. The duty of active case management, therefore, allows the court to control the litigation timetable efficiently (rule 1.4 (f), (g), (i)(l)) and to determine issues to be litigated (rule 1.4(d)). These duties, combined with powers elsewhere in the CPR, allow the court to ensure, so far as it is able, that litigation does not become the exclusive preserve of the wealthy. However, the overriding objective might be subject to criticism in that it does not offer clear guidance as to which objective is the most important to be achieved. Although dealing with cases justly is the core objective, aspects of the overriding objective are given equal weight.

Civil and criminal procedure 2 Introduction to civil procedure


Question 2 It is certainly true that civil litigation could encompass quite a range of cases, from pseudo-criminal cases like Anti-Social Behaviour Order hearings and actions under the Protection from Harassment Act 1997 on the one hand, to chancery and commercial proceedings on the other. However, it is not true to say that the Civil Procedure Rules (CPR) have sought to promote a one size fits all model for civil justice. First of all, the CPR sit alongside a group of other sets of rules governing other types of litigation. For example, the Family Proceedings Rules govern the conduct of cases concerning children, matrimonial property and other family law areas. Equally, whatever the harmony of the CPR, cases are heard in different courts of different levels of importance. Equally (and somewhat confusingly), the CPR itself makes allowance for differing cases. This is done particularly by using pre-action protocols that provide particular guidance (and set particular expectations) for different types of cause of action (e.g. medical negligence, landlord and tenant claims, etc). The protocols provide guidance that is specific to the conduct of the particular type of litigation and, by doing so, saves time and complexity at court. At the same time, civil procedure provides for cases of different complexities and values to be dealt with on different tracks; these cases are then subject to different sets of standard rules and directions. A good answer to this question would therefore identify that the rules accommodate a certain quantity of diversity. The question assumes that efficiency cannot be achieved in this way. In absolute terms this may be true if efficiency is associated with standardisation and inflexibility. However, arguably, what the CPR have achieved is a considerable degree of consistency within a framework that permits particular approaches in particular cases. Arguably this focus on specific cases provides a different and more just concept of efficiency.

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on Need to revise first Need to study again

I can secure an introductory understanding of the civil justice process and how civil procedure fits into that process. I can imagine the impact that the civil justice system can have on individuals. I can describe the purpose and scope of the Civil Procedure Rules. I can comprehend the different courts used in the civil justice process. I can evaluate the application of the overriding objective. I can consider the impact of the Human Rights Act 1998 on civil justice.

If you ticked need to revise first, which sections of the chapter are you going to revise? Must revise 2.1 2.2 2.3 2.4 2.5 The civil process at a glance Imagining civil justice Civil Procedure Rules The courts Overriding objective and human rights Revision done

Chapter 3 Preliminary matters

Contents
Introduction 31 32 33 34 Funding litigation Pre-action protocols Alternative dispute resolution Limitation Reflect and review 30 31 35 37 39 43

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Introduction
We have already indicated that much of the work in civil procedure is geared towards a settlement of a dispute that has arisen, as opposed to a straightforward move to trial. The cost of litigation is expensive and, in response to the concerns raised about the financial cost of justice, there are now much clearer guidelines on how civil litigation is funded. To mitigate the potentially large costs of litigation the process has developed a series of preaction protocols which help structure the response to the claim in a way that can utilise alternative forms of dispute resolution. Another method of limiting costs is the limitation period. Although limitation periods could be seen as a way of limiting access to justice, it is argued that they are necessary to ensure the swift resolution of alleged claims and to encourage disputes to be resolved without having to rely on evidence that could become lost or antiquated as a result of indefinite time limits. Parties are therefore encouraged to deal with claims promptly so as to avoid later injustice.

Essential reading
You will need to read the following complete chapters, which are quite short.

Sime, Chapters 47.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u u

critically explore the different ways that civil litigation is funded display a sound knowledge of how pre-action protocols work in a number of areas of civil procedure explain what the alternative forms of dispute resolution are and when they may be effectively utilised evaluate the current rules concerning the limitation defence and how limitation periods operate in the civil process.

Civil and criminal procedure 3 Preliminary matters

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3.1

Funding litigation
Essential reading

Sime, Chapter 4: Funding litigation. Kritzer, H. Fee regimes and the cost of civil justice, Civil Justice Quarterly 28(3) 2009, p.344 As well as being expensive to launch, civil litigation can also be expensive to conclude. Due to the potential costs involved, solicitors are under a professional duty to advise their clients on the likely cost of bringing matters to court and what will happen in the event that the claimant loses. It is a general rule of thumb that if a claimant loses they will have to pay their own costs and those of the other side (rule 44.3(2) CPR). Similarly, if a claimant wins then the losing defendant will have to pay the costs of the claimant. Given that much of these costs will actually be the cost of paying lawyers fees it is no wonder that lawyers are expected to warn and explain to their clients how much any litigation is likely to cost. The usual practice is for lawyers to seek payment on account as the case proceeds. If the client has paid in instalments, he or she is not likely to be quite so surprised when they are confronted by a very large bill at the end of the case. Before costs can be incurred, a potential litigant is often concerned about whether a lawyer will actually take on a case. If funds are tight then lawyers may not be willing to take on the case without receiving a payment on account, however small. If the lawyer refuses to take on the case then the claimant will have to seek external funds to pay for their case or abandon their claim.

3.1.1 Duty to advise clients on funding


The Solicitors Costs Information and Client Care Code 1999 outlines the duties of a solicitor to discuss with their client how, when and by what means the client will be securing funding for their litigation. Having explained the position of how cases are funded in the event of either a win or a loss, solicitors should ensure their clients understand their options for funding. Whilst a breach of these rules will not render an action illegal (Garbutt v Edwards [2006] 1 WLR 2907), they may mitigate any losses incurred by the client at a later date. The following options should be considered.
u u u u

Will the client be eligible for help under the Community Legal Service? Should a conditional fee arrangement be considered as an option? Are the clients costs already covered by insurance? Will the clients liability for their own costs be covered by an employer or a trade union or other organisation of which the client is a member? Will pre-purchased insurance cover the other partys costs or will after-the-event insurance cover them?

3.1.2 Traditional retainer


Historically a client would be expected to pay a solicitor for their costs of conducting a case at an agreed hourly rate. Arrangements were often notoriously lax and the client simply relied upon the solicitor to charge a reasonable rate. If billing was irregular then a client could expect a large bill at the end of the case. Rule 15 of the Solicitors Practice Rules 1990 does require a client care letter to be sent to a client which confirms who is dealing with their case and confirms any cost estimate. This is only an estimate but it should be a ballpark figure which will inform the client of what sort of monies are anticipated for the claim to be resolved. A scale of charges is used to estimate what fees are likely. These scales will be used in accordance with who actually does the work on the case. The time of senior solicitors is clearly more expensive than junior solicitors and the scales reflect that. The fees also reflect regional variations. It is usually the case that a high profile city firm will charge higher rates than a low profile small town firm. The client care letter should include details of this hourly rate. Clients will also have to pay for photocopying and any other fees incurred by the solicitors during the course of the litigation. If the client understands and

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agrees with the contents of the client care letter they should sign it and return it to the solicitor. It is commonplace for those with motor or home insurance to pay a premium which includes legal expenses insurance. This is often referred to as before-the-event insurance. The insurers will cover all costs in relation to a claim in this instance but will require the clients lawyers to confirm that the case is a meritorious one and whether continued litigation can be justified. There is an additional form of insurance available called after-the-event (ATE) insurance which is, as the title suggests, taken out to cover the other sides costs. Given the certainty of claim (it is taken out after the event) clearly the availability of this form of insurance is limited and the premiums can be very expensive.

3.1.4 Champerty and maintenance


Sometimes a client simply has not funds to pay for a claim. If a solicitor believes that such a claim has merit and there are no sources of funding available then they may decide to defer any payment for the work done and only claim a fee if the litigation is successful (no win, no fee). Any such claim is perilous because the solicitor may find they ultimately receive no monies at all if the claim fails. That said, this practice is common in the US where often an additional advantage is sought by the lawyer if they win. This is usually in the form of a share of the damages. Historically in England and Wales these agreements were treated as crimes or torts but since the Criminal Law Act 1967 they are only contracts which are illegal and therefore contrary to public policy. This is because they savour of champerty and maintenance.

Activity 3.1
Read the case of Giles v Thompson [1994] 1 AC 142 and in 50 words explain what is meant by savour of champerty and maintenance.

3.1.5 Conditional fee agreements


Legal Aid for civil litigation was replaced by the Community Legal Service in 2000, introduced by the Access to Justice Act 1999. With this change came a reduction in the amount of money available for the resolution of civil disputes. To counter this, and to avoid an increase in champerty and maintenance, parties are to be encouraged by their solicitors to take out a conditional fee agreement (CFA). Under a CFA a solicitor may agree that their client will only be liable to pay their own costs if the claim is successful. If it is successful then the solicitor will be able to claim their usual rate plus a success fee, which is a percentage uplift of the final costs awarded. This success fee cannot be more than 100 per cent of the solicitors usual fees. Depending on the insurance obtained, the other sides costs may still be payable by the client. Conditional fee agreements were authorised by s.58 Courts and Legal Services Act 1990 (CLSA) and since 1998 it has been possible to use them in all types of civil litigation other than matrimonial cases. The case of Hodgson v Imperial Tobacco [1998] 1 WLR 1056 confirms that such arrangements cannot be attacked for maintenance and champerty. A CFA must be in writing, must relate to a civil case (other than a matrimonial matter) and the success fee cannot be for more than 100 per cent of the fees due. This does leave the matter of the costs for the other side. An after-the-event insurance policy may be available for the other sides costs only and, along with any disbursements, this may be the only costs that a client incurs. Once this has been agreed then the solicitors must notify their opponents that they are acting under a CFA. Upon award the unsuccessful party will be expected to pay part of the uplift fee which refers to the risks of litigation. If there have been delays in payment of fees or expenses then these cannot be recovered by the successful party.

Disbursements are the sums paid by the firm during the course of litigation. These may include experts fees and photocopying costs.

Civil and criminal procedure 3 Preliminary matters

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3.1.6 Community Legal Service


Since 2000 the public funding of litigation has been administered by the Legal Services Commission. The funding for civil cases is provided by the Community Legal Service. The courts have no power to provide litigants with such funding. Given that resources are finite, public funds will only be used to support claims that most need assistance. There are differing levels of service available under the Community Legal Service and they depend on the needs of the individual case. The levels are:
u u u u u u u

legal help help at court legal representation help with mediation general family help specific directions excluded categories.

Activity 3.2
Read Sime 4.234.29 and place up to ten words under each heading to confirm what each of these levels of service mean. No feedback provided. The Community Legal Service operates to offer financial support to those people who cannot afford to litigate. This requires means testing set at a very low level and realistically only the very poor are given full assistance. There are some limits here and cases brought under the Children Act 1989 are not subject to any form of financial eligibility. Those who are better off than the very poor, but are still not considered to be sufficiently able to fund litigation, will be able to pay contributions towards the cost of the legal services, usually by a one-off payment or by instalments. The criteria for such limited funding are extensive. A Funding Code was produced by the Legal Services Commission under s.8 Access to Justice Act 1999. This code considers alternative means of funding or an alternative means of redress. If an application is premature, another level of service is appropriate or if the request for funding is unreasonable then funding maybe refused. If the case is trivial and allocated to the small claims track then this is likely to defeat a claim for funding. If a CFA is suitable then funding may be refused and if the prospects of the case are unclear then public funding is unlikely. The Funding Code uses a series of categories to determine the potential success rate of a case. If the case has an 80 per cent chance of success this is deemed as very good. If it has a less than 50 per cent chance of success then this is deemed poor. Cost benefit grounds can prevent access to funding. This means that funding may be refused if the benefit to be gained does not justify the level of costs likely to be incurred. The only time this is unlikely to be refused is if there is a wider public interest or if it is of overwhelming importance to the client. Overwhelming importance is likely to include an action will affect the life, liberty, physical safety or housing of the applicant. Guidelines on the merits of cases for the purposes of obtaining funding are usually devised by barristers and can be found in Annexe E of the Code of Conduct of the Bar of England and Wales. Under s.10(7) Access to Justice Act 1999 any money recovered in a publicly-funded claim will automatically become the subject of an unwanted charge (statutory charge) in favour of the state. This means the state will be able to reimburse itself for any costs it has incurred. This liability only applies once the total costs incurred by the publicly-funded client have been adjusted to reflect a deduction of contributions paid by the publicly-funded client and any costs by the other side. The statutory charge will be for the balance. The solicitor will have a duty to advise their publicly-funded client of the effects of the statutory charge. This arrangement means that any costs or damages recovered by a publicly-funded party are subject to the first charge in favour of the Legal Services Commission and so only the publicly-funded solicitor can give a valid discharge for the amount paid.

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Sometimes funding, once granted by the Community Legal Service, will be revoked or discharged.

u u

Revocation can happen if there is misconduct on the part of the publicly-funded client. Discharge is usually where the client has died or the work has been completed. If funding is revoked then the client is treated as if they never received public funding. All costs to the Legal Services Commission would then be recoverable. If a client receives public funding then they are, like their solicitor, obliged to comply with the Access to Justice Act 1999. All parties are under a continuing duty to inform the Commission of any change in circumstances which may affect previous entitlements. If a litigant is publiclyfunded they are generally protected from having to pay the costs of the other side if they are unsuccessful.

Summary
Funding litigation is a tricky issue. Society demands that access to justice should not be formally dependant on access to funds but substantively this is often the case. Solicitors have a raft of duties that are owed to clients to ensure they are aware of the pitfalls of litigation so that litigation is not entered into lightly. There are a number of ways for clients to fund their litigation. One such way is via public funding but the criteria for this sort of funding is heavily restricted and subject to particularly exacting criteria. Once secured, public funding can be revoked.

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3.2

Pre-action protocols
Essential reading

Sime, Chapter 5: Pre-action protocols. In accordance with the overall commitment of the civil process to resolving disputes before a trial, it is normal practice in nearly every case for the claimant to enter into correspondence with the defendant to give them a chance to negotiate a compromise to the dispute. If successful, such a compromise will save both parties time and money and will save the court the inconvenience of formally resolving the dispute. There are exceptions to this general rule. If a limitation period is about to expire or an injunction is sought then preaction correspondence is actually unwise. For most cases the court will expect the parties to make clear the allegations and answers to a claim and to co-operate with all pre-action investigations. From a clear understanding of all the issues, clear settlements can emerge which may result in a trial being avoided. The tools by which these negotiations are framed are called pre-action protocols. In order to secure some form of consistency in approach, the Department of Constitutional Affairs (now the Ministry of Justice) published nine pre-action protocols which cover a wide range of civil litigation areas. These protocols are: personal injury, clinical negligence, disease and illness, rent arrears, housing disrepair, construction and engineering, professional negligence, defamation and judicial review cases. The court will expect parties to conform to the relevant pre-action protocol. Any departure from its practices will require justification before the court. Some cases are not covered by a pre-action protocol, for example commercial claims and contractual claims. If there is no protocol then the court will expect the parties, in accordance with the overriding objective, to act reasonably in the exchange of documents and information. Parties will be expected to do all they can to avoid the start of proceedings.

Activity 3.3
Read Sime 5.065.15 and provide 100 word summaries of the professional negligence and personal injury pre-action protocols.

3.2.1 Experts
Expert testimony is clearly important in some civil disputes. The instruction of these experts can vary according to the different protocols. Often parties will wish to instruct an expert who will best support their case. Sometimes a protocol will demand a joint instruction of an expert. This involves an expert being agreed on by the parties. There is also the opportunity for joint selection of an expert. Here a claimant will give the other party a list of the names of experts who they think are suitable to instruct. Within 14 days the defendant can indicate any objections to any of these experts. If no objection is forthcoming then a mutually acceptable expert will be instructed. If all experts are rejected then the defendant will have to appoint their own experts. If this rejection of the experts is deemed unreasonable by the court then the defendant may face increased costs. Sometimes a potential claimant will consult a solicitor very close to the end of the limitation period. In such instances the solicitor will have to give the defendant as much notice as is practicable. A stay of proceedings may be requested pending completion of the steps required for any protocol. Alternatively the courts may be asked to extend the time available for the protocol to be actioned.

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3.2.2 Failure to comply


Sometimes both parties fail to comply with the requirements of a protocol. Sometimes this will be defensible and the courts will see this. On other occasions the failure to comply will not be defensible and if there has been a failure due to deliberate flouting then a claimant may be justified to commence proceedings without following a pre-action protocol. The parties may find themselves subject to penalties at a later stage in the court process if they fail to comply with a protocol. If commencement of proceedings has resulted from a failure to comply with a protocol when it would not have done if the protocol had been followed then costs may be incurred as a result (see Practice Direction Protocols, paragraph 2.3, quoted in Sime 5.22). The courts will not be interested in minor infringements but will be concerned with major breaches.

3.2.3 Motor accidents


Under s.145 Road Traffic Act 1988 all drivers are required to obtain compulsory insurance against liability in respect of death or bodily injury of any person, or in respect of damage to property caused by the use of a vehicle on a road. As long as the claimant gives notice to the defendants insurer within seven days then the insurer is obliged to satisfy any judgment awarded. Compulsory insurance will not assist if the motorist fails to stop at the scene of the accident or the motorist is not insured. In these circumstances the Motor Insurers Bureau (MIB) provides compensation to be payable to the claimant. Two agreements are in place with the MIB. Firstly the Motor Insurers Bureau (Compensation of Victims of Untraced Drivers) Agreement 2003 applies to cases where someone is killed or injured by an untraceable motorist. There is a three year limitation period on the application for this form of compensation. Under the Motor Insurers Bureau (Compensation of Drivers) Agreement 1999 a prescribed form must be followed. If the form is followed then the MIB will pay the amount in full.

3.2.4 Pre-action Part 36 offers


If, upon receipt of the pre-action letter of claim, the proposed defendant sees that there is merit in the claim then they should be encouraged by their solicitor to make an offer to settle. Offers to settle can be by telephone, face to face meeting, electronically or by letter. An offer made (usually by letter) which states that it is to be treated without prejudice save as to costs is also known as a Part 36 offer. It can be referred to on the question of costs. A Part 36 offer must be made in writing and, if accepted, it takes effect in accordance with the terms of the Part 36 offer. If the Part 36 offer is not accepted then, if the judgment does not exceed the amount of the offer, the claimant will be responsible for both sides costs from the expiry of the relevant period. The moral of this story is that claimants should think very carefully about rejecting a Part 36 offer as, if they win on liability but costs are more than the offer, then they, the claimant, become liable for all costs. Proposed claimants can also make Part 36 offers. These are usually in the form of I would settle for X. If these are rejected then the court may award costs with enhanced rates of interest.

Summary
In accordance with the commitment to the swift resolution of disputes, pre-action protocols are used to guide the exchange of information and evidence prior to proceedings being commenced. If these protocols are not followed then there may be cost implications later in court proceedings. There are special rules in place for motor accidents involving uninsured or untraceable drivers. Part 36 offers will be encouraged as a further commitment to early settlement.

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3.3

Alternative dispute resolution


Essential reading
Sime, Chapter 6: Alternative dispute resolution. Brunsdon-Tully, M. There is an A in ADR but does anyone know what it means any more?, Civil Justice Quarterly 28(2) 2009, p.218 As much of this chapter is interested in pre-action activity, it is not surprising that some mention should be made here of the different forms of alternative dispute resolution (ADR). Most ADR procedures can be accessed using a commercial dispute resolution service. As litigation is seen as a last resort, ADR is usually recommended. That said, the courts also recognise that ADR does not work if it is not agreed to by all parties. Parties ignore the call to ADR at their peril because the courts will impose a cost sanction on parties who refuse ADR unreasonably. If a remedy is required which only a court can provide then the use of ADR is not really an option. Here the context of the complaint will be key as it will be necessary to assess what outcome the claimant requires.

Activity 3.4
Read Sime 6.036.08 and make a list of the five most important advantages and disadvantages of the use of ADR.

3.3.1 Which type of ADR ?


There are many different forms of ADR. To help you understand which type of ADR suits which dispute, the following activity may be useful.

Activity 3.5
Read Sime 6.09 and consider which form of ADR would you recommend for the following problems. a Your neighbour refuses to cut down his high hedge. b You are a contractor carpenter and the builder you have carried out some work for is refusing to pay, arguing they cannot afford your charges. c You are considering a claim against a commercial damp proofer but want to check whether the damp is due to their defective building work or because of your failure to clear your gutters. d You have had your refuse bin stolen and the local authority will only replace it for a fee. e You are trying to sue a carriage company for failing to deliver your goods to an overseas location. In your agreement it states that you will seek arbitration to make a claim against the company.

3.3.2 The cost of ADR


Although ADR is often espoused as a cost-cutting measure it can still be an expensive process. This will tend to depend on the nature of the dispute. If you are using community mediation, for example, then this is usually free with only participant expenses being paid. Commercial arbitration can be very expensive. The registration fee alone can be as much as 2,500. These fees are understandable as you are asking arbitrators (who are often qualified lawyers) to adjudicate on complex matters whilst considering particularly detailed documentation in the process. Time spent by the arbitrator is usually recouped at some stage via the fees paid.

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Activity 3.6
Read Sime 6.136.83 and compile a 50 word summary of the key issues for the process of each of the following.
u u u u u u u

Arbitration. Adjudication in construction disputes. Mediation and conciliation. Early neutral evaluation. Expert determination. Grievance and complaints procedures. Ombudsman.

3.3.3 Refusal to use ADR


As has already been suggested, much emphasis is placed upon individuals using ADR in an attempt to avoid the need for going to trial (see Cowl v Plymouth City Council (2001) The Times, 8 January 2002). Pre-action protocols dictate that, to avoid the court, ADR must be considered. Once proceedings have commenced then the court has to, in accordance with the overriding objective, deal with cases justly by encouraging the use of ADR. If one party adopts an unreasonable attitude towards ADR, either refusing to engage in any discussion of avoiding court proceedings or being clearly obdurate in the actual ADR process, the case law suggests that to withdraw from mediation shortly before trial may have cost implications for the party who has withdrawn (Leicester Circuits Ltd v Coates Industries plc [2003] EWCA Civ 333). Alternatively in Dunnett v Railtrack plc [2002] 1 WLR 2434 it was seen that the promotion of ADR should not be at any cost and the financial circumstances need to be considered alongside use of the court as a forum for the resolution of disputes. If the ADR will cost a lot more than the court or is more than was originally offered to settle the dispute then it needs to be clear why ADR would be a better process to adopt. If unreasonable refusal is alleged then the burden will be on the unsuccessful party to disallow a successful partys costs for unreasonably refusing to use ADR. The factors to be considered here will include the nature and complexity of the dispute, the merits of the case, the extent to which ADR was attempted and the costs and delays involved in using ADR procedures. Each case will depend on its own facts. There is no presumption against those who refuse ADR. If a party loses a case at trial but made a Part 36 offer before trial which is more generous than the award at trial then they will usually be awarded their costs from the point of the offer expiring.

Summary
Alternative dispute resolution procedures cover a very wide range of procedures in response to a wide range of types of dispute. From arbitration through to mediation the purpose and relevance of each procedure will largely depend on the nature of the dispute. There is an expectation that parties will endeavour to use ADR and that only when this has failed will they ask the court to resolve the dispute. Failure to engage in ADR could have cost implications but this is not a presumption against those who do not use ADR. The context of each case will be considered before such penalties are applied.

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3.4

Limitation
Essential reading
Sime, Chapter 7: Limitation. Brown, S. Limitation: still something of a lottery?, Journal of Personal Injury Law 2 2008, p.176 The last of our preliminary issues involves a discussion of limitation periods. It has long been a feature of the civil justice system that limitations would be imposed on the commencing of proceedings. The reason for this is well-documented in civil cases but is nicely summarised by Lord Griffiths in Donovan v Gwentoys Ltd [1990] 1 WLR 472 when he said: The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim, that is a claim with which he never expected to have to deal. The major concerns about bringing a claim so long after the alleged events occurred is that evidence which may have been crucial may be unavailable as it has been lost. It is also regarded as contrary to public policy to keep people perpetually at risk. Limitation works as a procedural defence. The court will not apply this limitation defence of its own volition. The defendant must raise it as a defence to a claim and apply to have a claim struck out on the basis that there is an abuse of process. The only consequence of a limitation period is that the cause of action remains but it cannot be enforced.

3.4.1 Limitation periods


These are generally laid down by the Limitation Act 1980 as amended (LA 1980). Other statutory provisions also provide for limitation periods in certain types of civil action.

Activity 3.7
Read Sime 7.04 and consider what limitation period would be most likely to apply to the following cases. a Your spouse is killed in an industrial action at work and you want to make a claim for compensation. b You are claiming that a public authority has breached your human right to privacy under Article 8 of the European Convention on Human Rights. c You want to bring an action against a local newspaper which alleges that you are a corrupt business person. d You are a private landlord and you want to secure unpaid rent from your tenant. e You had an unnecessary limb amputation performed by a doctor who mistakenly thought that you had gangrene. Clearly this wide range of varying limitation periods can cause problems of categorisation. Some actions have no limitations periods at all (such as fraudulent breach of trust) whereas others have a very tight limitation period of three months (unfair dismissal under Employment Rights Act 1996). It is interesting that personal injuries or fatal accident cases involving an invasion of bodily integrity have a three year limitation period whereas cases involving a violation of property (recovery of land) have a 12 year limitation period. Clearly we wish personal injury cases to be resolved as quickly as possible but does that mean that land recovery should be able to be stale for longer than a personal injury case? The rationale is that you may find it more difficult to recover land than demonstrate personal injury and it is worth remembering why the limitation periods are in place: to avoid keeping people perpetually at risk of civil suit. No such limitations are in place in criminal proceedings. Categorisation problems do occur in trust and equity claims (Nelson v Rye [1996] 1 WLR 1378) and also in personal injury cases (Letang v Cooper [1965] 1 QB 232 and Stubbings v Webb [1993] 2 AC 498). The well known case of Factortame is relevant here as a claim for damages for infringement of a European Communtiy right amounts to a breach of a statutory duty and so is subject to a six year limitation period (R v Secretary of State for Transport, ex parte Factortame Ltd (No 7) [2007] 1 WLR 942).

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3.4.2 Accrual of the cause of action


The limitation period will run from accrual, which is effectively when all the necessary elements for the cause of action are in existence. This can mean that, if the claimant is attempting to recover land then the point at which the adverse possession begins is the moment from which time will run. When a contract has been breached then time will run from the point at which breach takes place. When the claim concerns a breach of an implied term then the period will run from when delivery of the goods takes place. If claim is as to title of the goods then time will run from the date of the contract when title was due to pass. In tort claims the time will run from the date when the damage is sustained. In personal injury cases time will either run from the date the cause of action accrued or, if later, the claimants date of knowledge.

Activity 3.8
Read the cases of Ali v Courtaulds Textiles Ltd (1999) The Times, 28 May 1999 and Copeland v Smith [2000] 1 WLR 1371 and read s.14(1) Limitation Act 1980. Explain in 100 words how the term date of knowledge has been construed by the courts in case law. No feedback provided.

3.4.3 Calculating the limitation period


Time will run from the day after the day on which the cause of action arose. This is because parts of a day are generally ignored. If the claim involves a child then time will not run until the child has reached his or her eighteenth birthday (s.28 LA 1980). Cases involving someone of unsound mind as a result of an accident are not subject to the limitation until they have recovered. If a claim is based on fraud then the period begins when the claimant discovers the fraud or could reasonably be expected to have discovered it (s.32(1)(a) LA 1980). If a fact has been deliberately concealed then time will not run until that concealment has been discovered (s.32(1)(b) LA 1980). If a claim is based around the consequences of a mistake then it will not run until the mistake is or could have reasonably been discovered (s.32(1)(1) LA 1980). There are special statutory provisions in place to deal with the problem of actions based around latent damage which would otherwise be time-barred (s.14A Latent Damage Act 1986).

3.4.4 Discretionary extension of limitation periods


In certain types of civil action there does exist a discretionary power to extend the limitation periods. In judicial review proceedings the three month time limit can be extended if there is a good reason to do so. In defamation cases the usual one year limitation period can be extended if it appears to the court that it is equitable for the action to proceed (s.5 Defamation Act 1996).

Activity 3.9
Read s.33 LA 1980 and the case of Thompson v Brown [1981] 1 WLR 744. Then explain, in 100 words how s.33 works in practice, with reference to Lord Diplocks judgment in Thompson v Brown.

Summary
Limitation periods operate to prevent stale claims being brought against defendants and to prevent people from being kept perpetually at risk of a civil action against them. There are different statutory provisions to apply to different types of civil actions but the court will be able to extend the limitation period in certain types of cases if it appears just and reasonable in the circumstances to do so. Personal injury claims would appear to raise the most important procedural issues here due to the tight limitation period of three years and the fact that the law has had to be more flexible when it comes to latent damage.

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Sample examination questions


Question 1 Critically evaluate the extent to which reforms in the last decade have enhanced access to civil justice for persons of limited means. Question 2 Callum and Bernadette were injured in a car accident in December 1997. Callum was 12 (he was born in March 1985). Bernadette was 19 and was put into a coma by the injuries she suffered. At the time, the accident was assumed to be Bernadettes fault. However, in August 2000 a TV programme revealed that the make of car Bernadette had been driving had been produced with a defect that made it suddenly veer out of control in a rare number of cases. Callums parents sought details of the manufacture of the car from the manufacturer, Donka Cars Ltd. Donka refused to provide any such details until May 2004. Callum brought an action for damages for personal injury against Donka Cars Ltd in April 2007. Bernadettes representatives have still not brought an action as she remains in a coma. Advise Donka Cars Ltd.

Advice on answering the questions


Question 1 The question invites not only identification of recent reforms that have increased access to justice but, in inviting critical evaluation, opens the possibility that an answer will consider whether such reforms go far enough or whether they go too far. While the question is quite broad and could permit of a number of areas of analysis, a good answer would focus chiefly on the funding of litigation, changes in civil procedure and the increased use of alternative dispute resolution (ADR). All of these areas have been the subject of reforms in the last decade under the Community Legal Service Act 2000 and the Civil Procedure Rules 1998. Critical analysis of changes in the funding of litigation would point out that the old Legal Aid system has been replaced by the Community Legal Service and by conditional fee arrangements, which are intended to reduce the costs of litigation. Payment for litigation under the latter system does not come from the winning litigant but from the losing one as part of costs awards. Both systems, however, might be criticised as maintaining disincentives to litigate. Parties may not feel that they have a sufficiently good case with which to proceed. On the other hand, strong critical analysis could argue that unlimited access to the courts is not an unqualified social good. Potential litigants should have an arguable case before they proceed and systems that place some costs risks on a potential litigant will focus that litigants mind on the strength of the case to be pursued. At the same time, changes under the Civil Procedure Rules have ensured that parties do not fritter away resources on litigation. Pre-action protocols are intended to provide information quickly and efficiently and therefore to reduce the expense and time (which is generally also likely to cause expense) of trial. Equally, active case management, exercised under the provisions of the overriding objective, ensures that the court uses its powers to ensure that cases are dealt with in a way that is proportionate to both the issues and the financial position of the parties (rule 1.2(c) CPR) and keeps parties on an equal footing (rule 1.2(e)). This latter provision is important in ensuring that wealthier parties cannot necessarily increase the costs in a case in the hope of pricing less well off parties out of litigation. Further, the duties of active case management include the duty to encourage parties to engage in ADR. ADR is widely thought of as a means of saving costs by offering less formal (and therefore less expensive) solutions. Clearly, where ADR procedures work, this cost saving is likely. However, ADR does generally entail the absence of a power to impose solutions in the way a court can impose a solution at trial. This means that if a party is not interested in an ADR solution, expense could have been wasted and the parties still have to resort to the expense of litigation. Overall, the reformed system of civil procedure could not be said so much to have reduced the costs of litigation as to have equipped litigants with devices to simplify (and therefore reduce the cost of) litigation or, at least, to ensure that such costs are less likely to spiral.

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Question 2 This question concerns limitation of actions.

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As Callum has brought an action, the question is whether his action is time-barred. Note that if he has brought an action which is time-barred, the action is not automatically struck out; rather the limitation point must be raised in Donkas defence (PD 16, paragraph 13.1). Under s.11(4) of the Limitation Act 1980, the time period for limitation runs from the date of accrual of the cause of action or from the date of knowledge, whichever is later. The date of knowledge is specified under s.14. Section 14(1)(b) specifies that the claimant must know that injury was attributable to a negligent act or omission and s.14(1)(c) specifies that the identity of the defendant is a fact that must be known in order for the date of knowledge to be set. Although Bernadette was suspected as a defendant, the reference in the 1980 Act is to the defendant against whom an action is brought. As the defects in the car were unknown until the TV programme revealed this fact in August 2000, the court will have regard to what the claimants might reasonably have been expected to know before then under s.14(3) as interpreted in Adams v Bracknell Forest Borough Council [2005] 1 AC 76. This will depend on whether it was reasonable to expect the claimants (or Callums parents) to suspect the car rather than Bernadettes driving. It is possible, therefore, that the date of knowledge will not arise until the claimants knew, or could have known, of Donkas potential responsibility. It might also be argued that the basis of any cause of action (the defects in the car) was concealed and therefore the limitation period would not start until the concealment had been discovered (arguably 2000 when the TV documentary exposes the fact) (s.32(1)(b) Limitation Act 1980). This operates in a similar way to s.14 but would require proof of active and deliberate concealment according to Brocklesbury v Armitage [2002] 1 WLR 598. It might be possible to argue that the concealment has not in fact been discovered until Donka revealed the truth about the car in May 2004 (in which case Callum is in time to bring his action). However, it seems more likely that the court would consider Callum to have been on notice of the problems from 2000 and therefore the limitation period will have expired in August 2003. This is particularly so because a party could obtain evidence using pre-action protocols and, if such a route was unfruitful, could commence litigation to obtain discovery of the required information. Callum was a minor at the time of the accident and so the three year limitation period under s.11 Limitation Act 1980 would not apply until he reached his eighteenth year in March 2003 (s.28). The Latent Damage Act 1986 would not apply because it is not the damage (i.e. the injury for which compensation is being sought) which is latent but the cause of action. Bernadette is still able to commence an action for the injuries she has suffered. The three year limitation period would not start until she had recovered enough to be able to instruct lawyers (s.28 Limitation Act 1980).

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on I can critically explore the different ways that civil litigation is funded. I can display a sound knowledge of how pre-action protocols work in a number of areas of civil procedure. I can explain what the alternative forms of dispute resolution are and when they may be effectively utilised. I can evaluate the current rules concerning the limitation defence and how limitation periods operate in the civil process. Need to revise first Need to study again

If you ticked need to revise first, which sections of the chapter are you going to revise? Must revise 3.1 3.2 3.3 3.4 Funding litigation Pre-action protocols Alternative dispute resolution Limitation Revision done

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Notes

Chapter 4 Commencement of proceedings and responding to a claim

Contents
Introduction 41 42 43 44 45 46 Issuing and serving proceedings Renewal of process Service outside the jurisdiction Responding to a claim Default judgment Statements of case Reflect and review 46 47 50 52 56 58 60 64

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Introduction
When all else fails the claimant may decide to proceed with a case against the defendant. ADR may not have worked and the claimant may still believe that the court is the only effective forum for resolution of the dispute. Commencing proceedings can be a costly exercise and is subject to particular requirements in terms of form and substance. Proceedings need to be issued and served and there is a renewal process which is available, within limits, when the limitation period has lapsed. Sometimes service will need to take place outside of the jurisdiction and the rules concerning this process can be quite complex. Once a claim has been issued the defendant can either respond or a default judgment can be entered where a defendant fails to defend a claim. If the claim is defended then a statement of case will follow and will need to be presented in a particular form before the court.

Essential reading

Sime, Chapters 813.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
u u u

display a sound knowledge of how proceedings are issued, served and renewed critically explore how service takes place outside of the jurisdiction explain what happens when a defendant to a claim responds and when he or she fails to respond critically consider how statements of case are compiled and presented.

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4.1

Issuing and serving proceedings


Essential reading
Sime, Chapter 8: Issuing and serving proceedings. The standard practice for commencing civil proceedings is a claim form. For this purpose a form N1 is required. Once this form has been issued the court will seal the form with its official seal. This is an important step because it stops time running for the purposes of the limitation period and starts time running for service. A claim form must usually be served within four months of it being issued. It will be the responsibility of the claimants solicitor to prepare the claim form N1 before issue. The form N1 is a standard form suitable for most claims. The claim form will set out the names and addresses of the respective parties. It will also provide a concise statement of the nature of the claim with a reference to the remedy sought. Finally it will contain a statement of value where the claim has some monetary value. This statement of value will provide a figure for the amount sought. This is particularly important in actions for debt. If damages are being sought then the amount should be mentioned for track allocation purposes but if the amount cannot yet be stated, this must be clearly stated on the form. Sometimes, especially if the case is to be heard in the High Court, the form must be endorsed with a statement as to the starting point of the claim. This is called a jurisdictional endorsement.

See http://www.justclaim.co.uk/ index.php?page=n1

Activity 4.1
Read the sample claim form at Sime, Figure 8.2 and explain: a the value of the claim b what sort of business the claimant is involved in c under what heading the statement I am duly authorised by the Claimant to sign this statement appears.

4.1.1 Particulars of claim and the issuing of the claim


Particulars of claim is the term used to describe the formal written statement which sets out the nature of the claimants case, together with the remedy or relief sought from the defendant. It can either appear within the claim form or as a separate document. If it is separate it must be served with the claim form or within 14 days after service of the form. Once completed this form will be copied so that the solicitor has a record and there are sufficient copies for the court and the defendant. The forms for the court and the defendant are then sent to the court office, with a prescribed fee, and a covering letter asking for the claim to be issued. Often solicitors will attend the court personally to ensure the claim is registered efficiently. It is important to remember that issuing a claim is not the same as bringing a claim for limitation purposes. The court issues the claim when it seals it. The court will allocate a claim number to the case and then a notice of issue form is sent to the claimants solicitor which provides a record of all court identifying information about the claim. It is possible for most claims of up to 100,000 to be issued electronically using a scheme called Money Claim Online. These claims are issued by a central office at Northampton County Court by sending the court service an online claim form and paying the fee electronically. The particulars of claim must be included on the online claim form and must be restricted in length. This is a very useful process for simple claims. Service will then be effected by the court and this is presumed to have happened on the fifth calendar day after issue. Defendants can then respond electronically or in hard copy. If no electronic or hard copy response is received then judgment can be entered in default by filing an electronic request.

4.1.2 Service
Essential reading

Zuckerman, A. New provisions for service: a great improvement threatened by discretion, Civil Justice Quarterly 28(1) 2009, p.1

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Service on a defendant in England and Wales must take place within four months of the date of issue. This means that a claim form is strictly valid for four months and one day. If the defendant is served outside of the jurisdiction then this becomes six months from the point the form is issued. The term service means serving the other side with documents. The term filing means providing the court with documents. Service will usually take place at the defendants last known address but the rules depend on the status of the defendant. On 1 October 2008 the 47th update of the CPR substituted rule 6 with a new rule 6. This happened after the 2008 edition of Sime was published so the rule numbers given in the textbook may be out of date. Go to www.justice.gov.uk/civil/procrules_fin/ to see the CPR with all the latest updates incorporated.

Activity 4.2
Read Table 8.1 in Sime and answer the following. a Where would you serve a defendant who was the proprietor of his or her business? b Where would you serve a company? c Where would you serve an individual? For the purposes of service it is possible for a claim form to be served to the defendants solicitors if they are authorised to accept service (rule 6.13(2) CPR). The last known address is often the place for service to be actioned. This has led to a number of cases deciding where the last known address is. It has been held that a house owned by another but occasionally used by the defendant when he visited England was not the defendants last known address (Chellaram v Chellaram (No 2) [2002] 3 All ER 17). This is last known to the claimant rather than the defendant and the defendant may have moved on since (Collier v Williams [2006] 1 WLR 1945). If the defendant is abroad at the time of service it will still be deemed to have been effective (City and County Properties Ltd v Kamali [2007] 1 WLR 1219). Service will involve the delivery of documents to the defendant. These documents will include the completed claim form N1, the particulars of claim (which may follow) and a response pack. This response pack will include acknowledgement of service, admission, defence and counterclaim. This service is available in a variety of forms and will depend on the action being sought. The methods of service are outlined in rule 6.3(1) CPR. They include personal service, post, leaving the documents at the address for service, document exchange (DX) and electronic methods of service. Personal service Personal service is effected when documents are left with the defendant. Once mention has been made of the nature of the documents then an unco-operative defendant will still have been served if documents are left near him or her. Personal service to a company requires a person within a senior position to be served (PD 6, paragraph 6.2). Personal service on partners sued in the name of the partnership will be effected by leaving the claim form with a person or partner who has control of the company. Postal service Under rule 6.3(1)(b) CPR it is clear that any postal delivery method that involves next day delivery (such as first class post) will be permitted. If slower post is used then postal service will not have taken place. It is possible to leave documents at an address though the letter box or leave them at a reception desk. The DX system can also be used. This is a system used by solicitors and barristers for the exchange of documents. Documents sent this way will usually be received the next business day. Electronic methods Service can also take place using electronic methods. This is usually by fax or email. For this to be acceptable the defendant or his or her representatives must have made it clear, in writing, that this is an acceptable method of service. If acceptance is obtained then service through these methods will be deemed acceptable and no hard copy need follow. Sometimes a contract will contain a term providing that proceedings can be served in a particular way and sometimes, if there is mutual agreement, an ad hoc agreement on service will be effective (Kenneth Allsion Ltd v AE Limehouse Ltd [1992] 2 AC 105 as affirmed in Cranfield v Bridgegrove Ltd [2003] 1 WLR 2441). Service will generally be undertaken by the court but there are some exceptions. These usually apply to cases for the Commercial Court rather than for general litigation.

Civil and criminal procedure 4 Commencement of proceedings and responding to a claim


If, upon enquiry, it becomes clear that service cannot take place within the jurisdiction, then service outside the jurisdiction will have to be attempted. As long as one of the prescribed methods of service have been followed then rule 6.14 CPR deems documents to have been served on the day stated. If an actual date of receipt can be demonstrated this will rebut the deemed date of receipt but for the most part these deemed dates will be followed.

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Activity 4.3
Read Table 8.2 in Sime and identify when the following methods of service will have been deemed to be valid. a Document exchange (DX). b Fax. c Personal service before 5pm on a business day.

4.1.3 Variants of service


If service is deemed irregular because a party has started a claim on the wrong form or has relied on the wrong statutory provision they are likely to be granted permission to make good their mistake. If it becomes clear that the claimant has missed the period of validity then rule 7.6 CPR will be applied and the claimant will try to rectify their late or defective service. These are usually rejected. There is one clear exception here an order can be made which dispenses with service under rule 6.16 CPR if there are exceptional circumstances. Service will sometimes not be possible using one of the methods outlined. It may be very difficult to find the defendant and he or she may be deliberately evading service. The claimant can ask the court to allow service by an alternative method, but this can only work prospectively. This means that the claimant must seek permission to use an alternative method in the future. They cannot use an alternative method to correct previously irregular service. To apply for alternative service there must be written evidence which states the reason why alternative service is sought and what steps have been taken to secure service thus far. These alternatives could include a newspaper advertisement or service to another address which the defendant may frequent (Abbey National plc v Frost [1999] 1 WLR 1080). According to Godwin v Swindon Borough Council [2002] 1 WLR 997 an application for an order dispensing with service can be made after the event. Service can be dispensed with under rule 6.16 CPR. In Home Office v Dorgan [2003] 11 WLR 2441 dispensation was sought after a fax was sent at 4.03pm on the final day of service. Dispensation can also be requested, in exceptional circumstances, where some of the relevant documents are missing (for example an original English claim form where the German translation was issued in Phillips v Symes (No 3) [2008] 1 WLR 180).

4.1.4 Filing
Service is where documents are served on the defendant. Filing is where documents are filed at court. Most important documents which are used in litigation will need to be filed at court. The court maintains its own copies of files. Files have to be delivered and this will have been deemed to have taken place even if the court is closed and they are placed in the courts letter box. Filing is possible electronically but only where a fee is not payable.

Summary
Once a claim form has been completed it must be served on the defendant. Service can take many forms but must be actioned within prescribed time limits to be valid. Depending on the method of service a deemed date of delivery will be specified. Variants to this process are possible but only in exceptional circumstances. The court will require its own copies of a case file and this is termed filing at court.

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4.2

Renewal of process
Essential reading

Sime, Chapter 9: Renewal of process. Once a claim has been issued a period of validity begins, normally lasting for four months, during which time service can take place. The claimant is entitled to use the full limitation and the full validity period, although it may not be wise to do so. The result is that a defendant may be advised of a claim some significant time after the limitation period has come to an end. At the point of service the defendant is now on formal notification that legal proceedings have been actioned. An extension may be granted to extend the validity period although this will be rare. The court will usually be reminded that it is contrary to public policy to allow what are called stale claims to proceed. This was confirmed by Megaw J in Heaven v Road and Rail Wagons Ltd [1965] 2 QB 355 at 366: it is unfair to defendants, and it makes the administration of justice more uncertain, if litigation is delayed so that witnesses die or cannot be traced; or memories fade; and defendants are entitled to know definitely, at the expiry of some defined time, whether or not they are to be pursued in the courts.

4.2.1 Period of validity and the power to renew


The rules outlining the validity period are contained in rule 7.5 CPR. They confirm that once a claim has been issued it must be served on the defendant and this service must be within four months after the date of issue. This period will be six months from the date of issue if service is to take place outside of the jurisdiction. This means that a claim form served on the day it is issued will then not include that day for calculating the period of validity. This means that a claim form issued in England and Wales on 5 January would still be valid on 5 May but would have expired on 6 May. Under rule 7.6 CPR it is possible for the claimant to apply for an order to extend the validity period. This must usually be done during the validity period. If they apply after this period then the court will only make such an order if the court has been unable to serve the defendant or the claimant has taken all reasonable steps to serve the claim form but has been unsuccessful. Any request to extend must be supported by evidence. If an extension is granted then the defendant can only object after the claim has been issued. If this objection is successful, then the order granting the extension will be set aside.

Activity 4.4
Read the case of Hashtroodi v Hancock [2004] 1 WLR 3206 and clarify the guiding principles for renewal of process during the period of validity. Understandably it is even more difficult to obtain an extension once the validity period has passed, as it should have been sought at an earlier stage. The criteria under which the court will grant an extension after the validity period has passed are prescribed in rule 7.6(3) CPR. This is most likely to be used successfully in cases where the claimant (for good reasons) believed that the court was effecting service and then discovered that it was not (see Amerada Hess v Rome (2000) The Times, 15 March 2000). If claims are made in respect of cargo then special rules apply under the Hague-Visby Rules, Article III, rule 6 and there is no power to extend the validity period. If claims are being made to multiple defendants then all defendants must be served during the period of validity. If proceedings have been stayed, then the validity period will continue to run while no proceedings on the claim can take place. As extensions are sought because the defendant has not been served it is necessary for these to be made without notice to the defendant. They are usually made without an oral hearing. All evidence must be disclosed by the claimant. The claimant must also provide evidence of why and how service has been sought within the validity period. The claimant must also state how long he or she requires for the extension and why this extension is required for that duration. Defendants can appeal to have the order set aside but can only do so once they have acknowledged service. If the defendant has attempted to evade service the fact this time period has been extended is not likely to entice them to reappear.

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Summary
Once the claim has been issued a period of validity begins during which service must take place. This period of validity can be extended during the validity period or after the validity period has been concluded but the court will need compelling evidence to do so, since public policy has always tried to defeat what it terms stale claims.

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4.3

Service outside the jurisdiction


Essential reading
Sime, Chapter 10: Service outside the jurisdiction. Service will normally take place in this jurisdiction (that is, in England and Wales). At common law it was usually the case that service could only take place against a defendant while he or she was in England or Wales. The Common Law Procedure Act 1852 did create a discretionary power to allow proceedings against a defendant outside the jurisdiction. This power is now governed by rule 6.30 CPR and is often referred to as the common law rules.

4.3.1 Statutory rules


Since s.2 Civil Jurisdiction and Judgments Act 1982 (CJJA) was introduced this gave effect to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters Act 1968. This is often referred to as the Brussels Convention and it laid down a general rule that a defendant who was domiciled in a contracting state must be sued in the courts of that state. The contracting states to the Brussels Convention were the Member States of the EU. This convention has since received a titular change so that it is now known as the Jurisdiction Regulation. As of 1 July 2007 the Regulation covers:
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Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK. A parallel Convention known as the Lugano Convention also exists which covers Iceland, Norway and Switzerland. The UK is also treated as separate parts (England, Scotland, Wales and Northern Ireland) and a separate Modified Convention, set out in Schedule 4 of the CJJA 1982 as substituted by SI 2001/3929, Schedule 2, allocates jurisdiction between the courts of each part. The key is to locate where the defendant is and then to check which regulation or convention applies. If the defendant is domiciled in the EU then the general rule is that they must be sued in the country where they are domiciled. If a claim could be brought in the courts of more than one country then, to avoid possible inconsistency in approach, the English court has a power to stay its proceedings or to grant injunctions to restrain foreign proceedings. Most courts in countries within the Jurisdiction Regulation will adopt the same approach of staying or restraining.

4.3.2 Service and submission of foreign defendants


According to common law rules a foreign defendant will be amenable to the jurisdiction of the courts in England and Wales if process is served upon them whilst they are in this jurisdiction. For example a process was served on a foreign defendant while they were visiting this country to attend the Ascot Races (Maharanee Seethadevi Gaekwar of Baroda v Wildenstein [1972] 2 QB 283). This is no longer the situation for cases which are governed by the Jurisdiction Regulation. It is possible for a claim form to be marked Not to be served out of jurisdiction. Here it will usually be the case that the intention is to effect service on the defendant during a temporary visit or to secure the defendants agreement to service within the jurisdiction. When this is done, the period of validity is four months rather than the six months that is the general rule for service outside of the jurisdiction. It is possible for a defendant to submit to the jurisdiction of the courts of this country. It may be that there is some advantage in litigating in England and the defendant can agree to English proceedings being served at a solicitors office in England. It may also be the case that service takes place outside the jurisdiction using a domestic claim form and the defendant does not object to the defects in service. If the defendant does not explicitly submit to the jurisdiction (that is, if there is no express submission), then submission to the jurisdiction will be implied from the defendants conduct. If the defendant is refusing to submit he or she must acknowledge service within 14 days, disputing the jurisdiction of the court. If the defendant does not contest the jurisdiction but either instructs a solicitor to accept service or contests the merits of any case then this will be deemed submission.

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4.3.3 Cases outside the general rules


There are special rules in place for some types of actions. The justification for these special rules is often that, as they affect rights which are granted in rem, they should be heard in the court which is best placed to apply the laws regarding those rights. Under the common law rules there are special rules for the following.
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Land disputes. If a claim is founded on a dispute as to title or possession of land it must be brought in the courts of the country where the land is situated (British South Africa Co v Companhia de Mocambique [1893] AC602). Intellectual property. If a claim is founded on the validity or infringement of foreign copyrights, trade marks and patents then they must be brought in the country where they are registered (Tyburn Productions Ltd v Conan Doyle [1991] Ch 75). Divorce, nullity and judicial separation. Under s.5(2) Domicile and Matrimonial Proceedings Act 1973 the courts in England have jurisdiction over proceedings for divorce, nullity and judicial separation if either of the parties to the marriage, at the time proceedings are commenced, is domiciled in England or has been habitually resident in England for the previous year. Service abroad can take place for other family proceedings although a translation must be provided if the respondent does not understand English. Insolvency proceedings. Service outside the jurisdiction of any document in proceedings under the Insolvency Act 1986 or the Insolvency Rules 1986 is governed by Insolvency Rules 1986 (SI 1986/1925) rule 12.12. This means that insolvency proceedings are for the most part outside the scope of the Jurisdiction Regulation. The Jurisdiction Regulation Article 22 allocates exclusive jurisdiction regardless of the domicile of the parties. Under Article 25 the courts of that contracting state are required to declare that they have no jurisdiction. This applies in the following five types of case.

An action in rem may include an action against a ship or other property. It is contrasted with an action in personam which is brought against a legal person.

Land. Jurisdiction lies wherever the property is situated. (Article 22(1))

2 Companies and associations. Whenever there is a legal challenge to the validity of the constitution, nullity or dissolution of a company or association then this action must be brought in the country where the relevant body has its seat. Its seat is where the company or association was incorporated or formed or where its central organisation is managed and controlled. (Article 22(2)) 3 Public registers. If there is a dispute as to an entry in a public register then the courts of the state where the register is kept must be used. (Article 22(3)) 4 Intellectual property. As with the common law rules, the courts of the state where the intellectual property was registered will have exclusive jurisdiction. (Article 22(4)) 5 Enforcement of judgments. Where a judgment is to be enforced then the courts of the state with this task will have exclusive jurisdiction. (Article 22(5))

4.3.4 Jurisdiction under the Jurisdiction Regulation


Article 293 of the EC Treaty gives effect to the Jurisdiction Regulation. The aim of this Regulation is to determine the international jurisdiction of the courts of the Member States, to facilitate recognition and to introduce a simple procedure for securing the international enforcement of judgments. The main rule of the Jurisdiction Regulation is that a claim must be brought in the courts of the country where the defendant is domiciled. There are exceptions to this rule. Where the Jurisdiction Regulation applies to a defendant who is outside the jurisdiction then English proceedings may be issued and served without permission of the court. Clearly it is possible for the courts of more than one country to have jurisdiction over such a case. There are provisions to decline jurisdiction or stay subsequent claims (as discussed in 4.3.1 above). Questions of interpretation of the Jurisdiction Regulation may be referred to the European Court of Justice (ECJ). The ECJ has often referred to the Jurisdiction Regulation having a community meaning. Uncovering this meaning has proved a tricky task.

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The scope of the Jurisdiction Regulation is governed by Article 1, where it states that it applies to civil and commercial proceedings whatever the nature of the court. There are some exclusions which are considered by Sime at 10.31. The general rule that jurisdiction will be based on where the defendant is domiciled does need elaboration. Domicile is defined under ss.4146 CJJA 1982. It states that domicile is where a defendant is resident in the UK and the nature of their residence means that they have a substantial connection with the UK. To acquire a greater understanding of substantial connection see Cherney v Deripsaka [2007] 2 All ER (Comm) 785. Although Article 2 of the Jurisdiction Regulation does lay down the general rule concerning domicile, the claimant often has the choice of suing in another country. Under Article 3 persons who are domiciled in one Member State can be sued in the courts of another Member State if certain rules are followed. The basic rule seems to be that under rule 6.19 CPR the courts of England and Wales will have jurisdiction to hear and determine a claim if:

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the case falls within Articles 524 of the Jurisdiction Regulation there are no other proceedings pending on the same case in another Member State the defendant is domiciled in a Member State. This final requirement will be dispensed with where exclusive jurisdiction has been fixed or the requirement has been modified so that any party can be domiciled in a Member State.

Activity 4.5
Read Sime 10.3910.72 and write a 350 word summary which explains how service works under the Jurisdiction Regulation for contractual claims, maintenance claims, tort claims, branches, agencies and establishment disputes, trusts claims and salvage and freight disputes.

4.3.5 Additional matters under the Jurisdiction Regulation


The Jurisdiction Regulation has particular provisions for co-defendants (Article 6(1)). Counterclaims and additional claims under Part 20 are also dealt with in Articles 6(2) and 6(3). The rule of lis pendens exists under Article 27. This rule means that if the same cause of action between the same parties has already been brought in courts of other Member States then the first court where the action was brought (seised) will take priority and all subsequent courts will decline jurisdiction in its favour. This procedure is used to avoid parallel proceedings and the confusion that would follow. Article 28 deals with related actions (which is different to Article 27 which deals with the same actions). Under Article 28 the subsequent court to the first seised may stay the proceedings depending on how far it is felt the hearing would result in irreconcilable judgments. Interim relief can be granted under this scheme (s.25(1) CJJA 1982). Where proceedings are served outside of the jurisdiction then service may be effected without the permission of the court under rule 6.326.34 CPR. The claim form will contain a statement of grounds as to why the claimant is serving the form outside the jurisdiction. A statement that no parallel proceedings are running at the same time must also be made.

Lis pendens (Latin) = suit pending. It means that another action referring to the property concerned is in existence.

4.3.6 Assumed jurisdiction


If service is to be effected outside of the Jurisdiction Regulation and the Brussels and Lugano Conventions then permission must be obtained from the English court before service is permitted. The grounds for granting permission are found in rule 6.36 CPR. If this permission is not obtained then the claim form will be stamped with a not for service out of the jurisdiction note. The rules governing the courts view on applications for permission in these special cases are found in Seanconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438 as amended by rule 6.37. If granted, service will be without notice and the court may decide to refuse service outside of jurisdiction on the basis of what is termed forum non conveniens. This means the court has a general discretion (even if grounds are met and the application for permission has been followed) to refuse service outside jurisdiction where the court has identified the forum in which the case can be most suitably tried in the interests of all the parties and for the ends of justice. (See Spillada Maritime Corporation v Cansulex Ltd [1987] AC 460 for details of how this discretion can work. See also Sime 10.9910.101 and 10.11110.118 for more information.)

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4.3.7 Service abroad and judgment in default


The general rule for service abroad is that it must be effected in accordance with the law of the country where it is sought to effect service. In practice this can be done informally by the client under local law or through diplomatic channels. The Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters (1965) provides that each contracting state (there are 52 contracting states) has designated a central authority to receive and transmit requests for service from other contracting states. Here a claim form may be issued using this central authority (this is the diplomatic channel). The Hague Convention gives way to the Service Regulation within the EU which covers all EU Member States except for Denmark. Under the Service Regulation claimants will need to file the claim and translations at the Foreign Process Department in the Member States. They will pass the documents to the corresponding Foreign Process Department, which will then serve the documents on the defendants. This should take no more than a month. Once a claim is received within the EU a defendant has 21 days to acknowledge service or file a defence. If the defendant acknowledges service first then he or she has a total of 35 days from the date of service in which to file a defence. If the defendant is outside of the EU then he or she will have even longer. This time is usually set in the practice direction and will depend on the remoteness of the jurisdiction where service is sought. In cases of assumed jurisdiction, judgment in default will proceed as long as the enhanced period for response has lapsed. Where service has been effected outside the jurisdiction, without permission under the Jurisdiction Regulation, then judgment in default can only be entered under application via Part 12 CPR. Where service was effected under the Service Regulation, default judgment cannot be entered until it is clear that service took place.

4.3.8 Injunction to restrain foreign proceedings


It is rare but possible for an English court to grant an injunction which restrains the institution or continuance of foreign proceedings. This only happens where it is in the interests of justice to do so. See Socit Nationale Industrielle Arospatiale v Lee Kui Jak [1987] AC 871 to see how such injunctions may be granted.

Self assessment questions


State briefly what jurisdictions are covered by: 1 2 3 the Brussels Convention on Jurisdiction the Lugano Convention the Modified Convention set out in Schedule 4 of the CJJA 1982.

Summary
Service outside of the jurisdiction gives rise to a complex web of rules which are followed according to which jurisdiction applies. Much of this web has been simplified by the rules for service under the Jurisdiction Regulation but complexities remain when service is to be effected outside of the EU. It is best to remember that within the EU the Jurisdiction Regulation applies and outside of the EU rule 6.36 CPR applies, but only with the permission of the court. If service takes place outside the jurisdiction then the response time allowed is longer. If no response is forthcoming then judgment in default can be entered as long as permission to serve was sought. If it was not sought under the Jurisdiction Regulation then permission to enter the judgment in default must be granted.

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4.4

Responding to a claim
Essential reading
Sime, Chapter 11: Responding to a claim. Once a defendant have been served notice of proceedings against them they must, if they decide to contest the case, fill in an acknowledgement of service and/or file a defence. The defence to a claim becomes part of the case management system. The court will send the parties an allocation questionnaire so that a judge can allocate the case to a case management track and then give directions as to how the case should be conducted in the future. If a defendant does nothing then it is likely that a default judgment (see section 4.5 below) will be entered against them. It may be that the defendant does not have any answer to the claim but wishes to secure more time to pay. It may also be the case that the defendant disputes the jurisdiction of the court. In all of these cases the defendant will be responding to a claim whether actively or passively.

4.4.1 Time limitations and purpose of acknowledgement


Once the particulars of a claim have been served the defendant has 14 days to:
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file or serve an admission (rule 10.3(1) CPR) file a defence, which may be combined with a counterclaim (rule 14.2(1)) file an acknowledgement of service (rule 15.4). This means that the defendant need not take immediate action if the particulars of claim to a claim form are to follow. However if the particulars of claim do arrive with the claim form then they must act swiftly. If a defendant is filing an admission then they should fill in the correct admission form in the response pack and admit the claim. The forms do permit the defendant to admit part or all of the claim. If they admit the whole claim then they are advised to pay within 14 days. This will limit their liability for the claimants costs. If they choose to leave it for a longer period they can apply to pay in instalments. To request this option, they will have to disclose significant financial and personal circumstances; the claimant will then consider the offer. If accepted then a judgment will be entered for payment by instalments. If rejected the court will decide the rate and period of payment. If a defendant is filing a defence then he or she should fill in the correct form in the response pack which can include notification of a counterclaim. If defendants so choose, they may draft a defence using ordinary paper. This is usually undertaken by solicitors who like to set out the case with full facts. The form in the response pack may not be large enough to accommodate this detail and so normal paper is used. If a defendant is acknowledging service then this is usually because they are not yet able to file a defence during the 14 day period or they are going to dispute the courts jurisdiction. If they acknowledge service they are then, under rule 15.4(1)(b) CPR, given a further 14 days for filing a defence. A form is available in the response pack for acknowledgement of service and once this has been filed the court must notify the claimant in writing. This will usually be done by sending a copy of the form to the claimants solicitor. It is possible for the parties to agree to extend the time for serving a defence but any agreement can only be for a further 28 days (rule 15.5(1) CPR). The court must be notified of this agreement in writing. This restricted period enables the court to maintain a hold on the litigation and to fulfil its case management obligations under the overriding objective.

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4.4.2 Disputing service or the courts jurisdiction


The defendant may decide to dispute service or the courts jurisdiction. They do this by completing the acknowledgement of service form. They then buy themselves a further 14 days within which they must issue an application notice seeking an order which will declare that the court has no jurisdiction over the case or should not exercise any jurisdiction it may have. This 14 day period can be extended at the courts discretion. If the defendant is successful it may be that the claim is set aside or proceedings are stayed. If unsuccessful, the defendant will be given 14 days from the date of the hearing to file a second acknowledgement after which the claim will proceed in the usual way.

4.4.3 Transfer
There exist automatic transfer provisions so that defended claims can be transferred to the defendants home court. If a case has been allocated to the wrong court then the court may order a transfer to the correct court. This will usually be decided on the basis of the financial value of the claim, the simplicity or complexity of the case facts and whether it would be more convenient to try the case in a different court.

Activity 4.6
Read Sime 11.1711.20 and explain, in a 50 word summary, what the rules of transfer are for specialist claims. No feedback provided.

Summary
The usual process (which may differ for specialist claims) is that a defendant must actively respond to a claim by acknowledging service or filing a defence which may include details of a counterclaim. This response must be done within 14 days of service of the particulars of claim. An acknowledgement of service will extend the period for responding to 28 days and these periods can be further extended by a court order in exceptional circumstances. Proceedings can be transferred to a more appropriate court if the circumstances demand such an action. A passive response (that is, no response to the claim at all) may result in a default judgment being entered by the claimant.

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4.5

Default judgment
Essential reading
Sime, Chapter 12: Default judgment. Once the period for responding to a claim has passed and the defendant has failed to defend a claim then a judgment in default may be entered. This produces a judgment in favour of the claimant without holding a trial. The process exists to prevent unnecessary expenditure of time, money and court resources in protracted claims which are, after all, undefended. Much civil litigation is debt recovery and once service has been effective this will usually either prompt payment by the defendant or the defendant may simply choose to ignore the claim. When this latter event takes place and the response period has lapsed, the claimant may then think about entering a summary judgment. This process is quite straightforward and simply involves the claimant returning a request form to the court asking for judgment to be entered. A member of the administrative team at the court will then action this and a judgment will be entered. This judgment will then bind the defendant and can be enforced in the usual way. The result is the same as it would be if the defendant had lost at a contested trial.

4.5.1 When and how?


An ordinary non-specialist claim (Part 7 CPR) which has been served with the particulars of claim will provide the defendant 14 days in which to respond. If this time lapses with no response then the claimant can seek default judgment. If the defendant has acknowledged service but has then failed to file a defence, 28 days must pass from service of the particulars of claim before a default judgment can be entered. In specialist claims the time limit is 14 days. The claimant should enter judgment shortly after filing has expired and within six months of the period during which a defence could have been filed. Some cases are excluded from the rules for default judgment. These include Part 8 claims, which are particular types of proceedings specified by statute. These would include childrens settlements where proceedings have not been commenced. Some Part 7 claims will be excluded (although this is not the norm) and the types of claims that will be excluded are found in rule 12.2 CPR and PD 12. They include arbitration proceedings and this exclusion acts as a bar to obtaining default judgment. It is also possible that some steps taken by the defendant will prevent the claimant from entering judgment in default. These steps are set out in rule 12.3(3) CPR.

Specialist claims include Admiralty proceedings, arbitration proceeding, possession claims and contentious probate proceedings.

Activity 4.7
Read Sime 12.1312.19 and compile a 150 word summary to explain how default judgment can be entered.

4.5.2 Final judgment and judgment for an amount to be decided


The first and best judgment obtainable in a money claim is final judgment, where the defendant will be required to pay a set amount of money, usually within 14 days. This is a relatively quick and straightforward way for the claimant to recover moneys owed. In these cases liquidated demands may have been made which means rent must be paid or a loan must be settled. Cases where damages need to be decided by the court can include an assessment by the courts of the value of goods or how much interest is to be awarded. This second form of judgment is often referred to as an interlocutory judgment where liability has been established but the amounts of money involved and how it is to be paid has yet to be decided. In these cases unliquidated damages are for sums not yet decided. These require judicial judgment and usually apply to personal injury cases or for the unsatisfactory quality of goods sold. These judgments will usually be delivered at a disposal hearing where the amounts payable will be decided. The threshold is 5,000 and if less than this is sought then the case will be allocated to the small claims track for resolution. If it is for more than 5,000 then the court will still decide at the disposal hearing but the ordinary rules on costs will apply. In cases involving damages the hearing is usually listed before masters and district judges. That said, the court can direct which court will deal with the case.

Liquidated demands are claims such as the price of goods or services, for rent or for the repayment of a loan or bank overdraft.

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4.5.3 Setting aside default judgments


Under rules 13.2 and 13.3 CPR it is possible for the court to set aside or vary a judgment in default. The court may decide to do this of their own volition or an application may be made by the defendant for the judgment to be set aside. Under rule 13.2 there are limited cases where the court must set aside a default judgment. These are usually where there has been some procedural error which means the judgment should never have been entered. (See Credit Agricole Indosuez v Unicof Ltd (2003) LTL 4.2.03). Under rule 13.3 the court may set aside the default judgment if there is a particular reason for doing so or it appears the defendant has a real prospect of successfully defending the claim. These principles are considered in Thorn plc v MacDonald [1999] CPLR 660. Requiring a defendant to show a defence with a real prospect of success has been held not to infringe Article 6(1) of the European Convention on Human Rights (see Akram v Adam [2005] 1 WLR 2762). Where service was effected outside of the jurisdiction then the court does have the discretion to relieve the defendant from the effect of a default judgment in specified circumstances (see annex to PD 6B). If the court decides to set aside a default judgment then it may do so on terms. These terms might include the claimants costs to date or a specified sum has to be paid into court before the final amount is determined.

Summary
Once the period for responding to a claim has come to an end a judgment in default may be entered. The rules for entering a default judgment differ according to the type of claim involved. Questions concerning quantum of damages will be resolved by the courts as allocated. A default judgment will be set aside if it was entered incorrectly. A default judgment may be set aside if there is a good reason or a strong prospect of the defendant successfully defending the claim. Conditions can be attached to the setting aside of a default judgment.

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4.6

Statements of case
Essential reading
Sime, Chapter 13: Statements of case. The early stage of civil proceedings which have been commenced by ordinary claim form will be dominated by the exchange of statement of case by the claimant and, possibly, by the defendant. These are formal documents which will then be used in litigation so that it is clear what each party has said about the case. These statements of case have three functions. 1 They inform the party on the other side of the case that will have to be met.

2 They define the issues which need to be decided. 3 They provide the judge who is dealing with the case with a concise statement of what the case is about.

4.6.1 Statement of case


Statement of case is defined by the CPR to include the following documents. a The claim form. b Particulars of claim (where this document is not included in a claim form). c Defence. d Counterclaim. e Additional claims under Part 20. f Reply to defence.

g Any further information given in relation to the above.

Activity 4.8
Read Sime 13.0513.35 and provide 20 words for each of (a), (b), (c), (d) and (f) to explain what the key features of each are for the purposes of recording this detail for the statement of case.

4.6.2 Subsequent statements


Statements of case after the defence or counterclaim are very rare. They are termed rejoinders with a surrejoinder and a rebutter following. The court can order a claim to continue without any further statements of case. This may be useful in cases which involve points of law which do not raise issues of fact. Once the defence has been filed the case management process will be triggered. This sees the court intervene and send out track allocation questionnaires. The court may also make case management directions. These are considered in Chapter 5. When using statements of case at trial it is clear that the statement can be used to define the issues in a claim. When doing this a party is quite within his or her rights to not prove matters which could be relevant to the other side but are not contained within that partys own statement of case. In fact it would not be proper for a judge to give judgment relying on issues which are not in the statement of case. That said, the courts have, on occasion, taken a relaxed view about any defects in the statements of case (see Lipkin Gorman v Karpnale Ltd [1989] 1 WLR 1340). In recent years, though, the courts have stressed the importance of a properly stated case and defence for trial (see Hockaday v South West Durham Health Authority [1994] PIQR P275). Given the growing importance of the written statement in civil proceedings, where it is now preferred over oral testimony, the accuracy and completeness of such statements would appear more important than ever. Some amendments can be made at trial but we will see in Chapter 5 that these are subject to strict limits.

Civil and criminal procedure 4 Commencement of proceedings and responding to a claim

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Summary
Statements of case are an important feature of the civil trial process as this documentation will identify the issues to be considered and will be the focus for case management and the trial itself. The substance of these statements will vary according to each claim but the form will follow a certain sequence. This will enable the court to proceed with a collection of written documents which have been obtained with consistency and in accordance with the CPR. Too much rigidity may deny the court the opportunity to proceed to deal with cases justly. Too much flexibility and the courts time will be wasted working out what type of document is required and in what form. The CPR ensures a balance is aimed for and in most cases achieved.

Conclusion
This chapter has involved a consideration of how proceedings are issued and served within this jurisdiction. Renewal of process is possible in exceptional circumstances. Service can take place outside of the jurisdiction but this usually involves following some very complex rules, depending on whether service is within the EU or outside it. Once served, the defendant can acknowledge service or file a defence and/or a counterclaim. If they fail to respond then the claimant can apply to enter a judgment in default. Much of the documentation at this stage contains the statements of case. These are crucial for the civil process because of its reliance on written documents.

Sample examination questions


Question 1 Take the date for the purposes of this question to be 29 April. On 1 January, Milo filed claims against:
u

Niall, the sole owner of a shop, Staples and Such, under which name he traded. The shop supplied Milo with office supplies and the claim relates to defective products. Olive, his accountant, and her firm, the Stenson Partnership, in respective of her negligent work.

Knowing that an action was about to be commenced, Niall closed Staples and Such and sold the business and its trading name to Quentin, who opened a shop under the same name at a different address. Niall then left the country. The claim form was sent to the new address by second class post on 13 April. On 28 April, Quentin returns the letter including the claim form to Milo with a note stating that he has only just taken over the business. Milo has just learnt that Niall will return to the country on 3 May. It is not possible to serve upon him until he returns. The claim against Olivia is taken in person to the offices of the Stenson Partnership on 19 April. No partners are available so the claim form is left with the receptionist. Advise Milo. Question 2 Robert, a car dealer, issues two claims, one against Sylvia and the other against Tom. Both are properly served, sent by first class post on Tuesday 14 April. Against Sylvia, Robert claims 12,500 plus interest at 8% per day from the date of the claim, this being the amount Sylvia promised to pay for the car she bought from Robert. Against Tom, Robert claims 14,000, being the profit Robert has lost on other cars sales as a result of Toms negligence. The particulars of claim allege that Tom carried out work at Roberts car dealership negligently and so caused it to shut for a week. The 14,000 is based on the projected number of car sales that were lost during the week minus the amounts saved (in expenses such as lighting and staff costs, etc.). Sylvia does not respond to the claim. Tom files an acknowledgment of service on 20 April but has taken no further action. On Thursday, 7 May, Robert obtains a default judgment against both Sylvia and Tom and is awarded 12,500 and 14,000 respectively plus the interest amount in each case. Sylvia was away on a two month tour of South America when the claim was served and has only just returned (it is currently Monday, 14 May). She denies that she was liable to pay for the car as it was so defective that she was entitled to (and did in fact) reject the car. She alleges that she is therefore not obliged to pay any amount at all. Tom does not admit that he was negligent but has only just been able to consult his lawyer. He also argues that the amount Robert is claiming is an exaggeration of his actual loss. Advise Robert.

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Advice on answering the questions


Question 1 This answer covers a number of issues, although note that the bulk of them apply to Niall and his business. A well-constructed answer will not duplicate the main points in respect of the claim against Olive. Note also that there is a deemed date to the question. This is to help you focus on the various time periods and limits that apply in litigation. Remember, in such cases, to look at what is about to happen and advise on that as much as what has happened already. The first point to note is that there is a four month time period in which the claim needs to be served (rule 7.5 CPR). This means that service must be affected by 1 May. Clearly the question is set at a point that invites consideration of the rules relating to renewal of process. However, in each case it is necessary to determine whether there has been valid service within the period of validity. Although the shop has a name of its own, Niall is the owner and so service must be upon him it is him who is being sued. An attempt has been made to deliver the claim by post and so, under rule 6.3(1)(b), must be made by next day delivery. This would mean that service in this case would be irregular but could be validated under rule 3.10. However, there is also the issue of the address to which the claim form has been posted. Under rule 6.9, service against the proprietor of a business must be at the place of business or the last known place of business or the last known residence of the proprietor. Unfortunately, this is not the case here simply sending the letter to the current location of the trading name is not the same. The various rules relating to service at the last known address would not apply here. That would be the address at which Niall had conducted the business. Therefore service cannot be deemed under rule 6.14 and there has been no service on Niall at this point. Service against Olivia is also defective. There was an attempt at personal service. When this is the case, it is necessary (under rule 6.5(3)(b)) to leave the claim form with a partner or person having control or management of the partnership business. The receptionist is not going to be such a person. Where service is defective, there are a number of further steps that might be taken. It will be necessary for the irregular service to be remedied under rule 3.10. Milo would have to show that all reasonable steps have been taken to remedy the failures (Nanglegyan v Royal Free Hampstead NHS Trust [2002] 1 WLR 1043). However if the period of validity has passed (and it will in two days time), then the court will require an application under rule 7.6. As it is not stated that Milo has done anything to remedy service in this situation, it is unlikely that an application under rule 3.10 would succeed. In Nialls case, the claim form has been returned and so another attempt at service could be made. Alternative service under rule 6.15 is not possible as service has been attempted. Alternative service is only possible if the evasion of service (or other difficulty) prevents service at all, rather than causing defective service. For this reason it is also not possible for alternative service to be ordered retrospectively (Elmes v Hygrade Food Products plc [2001] EWCA Civ 121). It will not be ordered if one of the usual methods of service would achieve the effect or if service could be achieved with an extension of time under rule 7.6 (Paragon Group Ltd v Burnell [1991] Ch 498). The court could make an order dispensing with service under rule 6.16 where service has been defective in a minor way (Godwin v Swindon Borough Council [2002] 1 WLR 997). This order will be made after defective service. The effect is that the claim may continue despite the irregularity of service. It may be that an application could be made on this basis in respect of both claims. The difficulty is that, in Nialls case, rather than a minor irregularity there has been a failure to effect service on Niall at all. It is submitted that even Nialls attempts at evasion will not overcome problems with service of this scale. Again the sorts of situations in which the courts have dispensed with service involved minor defects in claims that did get served properly under rule 6.3. This is not the case in Olivias case either. It is worth noting, however, that it is not certain that the court would not dispense with service in either case; it is just unlikely. In the case of Niall, the claim form could possibly be served on him after he has returned. However, this will be outside of the four month period of validity for service in the jurisdiction. If service were to be achieved outside the jurisdiction, the period of validity would be six months. However, to serve upon him when he does return, the period of validity will have to be extended under rule 7.6. The application will have to be made within the period (that is, by 1 May) under rule 7.6(2)(a).

Civil and criminal procedure 4 Commencement of proceedings and responding to a claim


Question 2 This question concerns default judgments. There is no suggestion in this case that service was defective, although you should note that a question about default judgment and defective service is quite possible (the failure of a party to issue a defence to a claim will often be the result of the claim not having been properly served on them). Service has been effected by post. The deemed date of service will be 16 April (being the second day after postage) under rule 6.14 CPR. Once service has been deemed, the time limit for acknowledging and responding to the claim begins. A party receiving a claim form may admit the claim (rule 10.3), file an acknowledgement of service (rule 15.4) or file a defence (rule 14.2) within 14 days of that date. Tom did file an acknowledgment within time but this gives him 14 days to issue a defence (rule 15.4(1)(b)), which expired on 4 May. Therefore a default judgment was permissible, in principle, against both parties. The claim against Sylvia is for a liquidated sum, as it is the price to be paid under the contract. This means that the court could enter final judgment so long as Robert has followed the correct procedure. The court may make an order for a specified sum under rule 12.5. There seems little doubt that this includes a liquidated sum like the price to be paid under a contract. Therefore the default judgment seems valid. Sylvia could, however, seek to have the judgment set aside under rule 13. On the facts of the question as presented, Sylvia would not have a basis for alleging that the judgment must be set aside under rule 13.2. Instead she would have to convince the court to exercise its discretion under rule 13.3 on the grounds that she has a real prospect of successfully defending the claim or where there is some other good reason why the defendant should be allowed to defend the claim. As Sylvia has raised a defence the first of these criteria might be established. However the court would in fact look at the validity of the defence and Sylvia would need to provide some evidence to support her defence (in other words the court will not simply accept her assertion that she does have a defence). The court could impose costs against Sylvia or other conditions upon setting aside the default judgment under rule 3.1(3). In Toms case it could be argued that the court did not have the power to enter a default judgment (see Sime, 12.22) because the amount was not liquidated. However, rule 12.5 makes reference to a specified sum rather than a liquidated sum. An unliquidated sum is one that requires the courts to exercise judgment but this might fall within the meaning of specified if, at the point of the default judgment, the claimant has specified a particular amount of damages. It is therefore not yet clear whether the court has a power to enter a default judgment in respect of a specified unliquidated sum. If the court had no power to do so, Tom could appeal the grant of the order. Technically he would not seek an order that the default judgment be set aside on the ground that judgment had been wrongly entered (rule 13.2) because this rule only applies under specified circumstances.

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter? Ready to move on = I am satisfied that I have sufficient understanding of the principles outlined in this chapter to enable me to go on to the next chapter. Need to revise first = There are one or two areas I am unsure about and need to revise before I go on to the next chapter. Need to study again = I found many or all of the principles outlined in this chapter very difficult and need to go over them again before I move on. Tick a box for each topic. Ready to move on I can display a sound knowledge of how proceedings are issued, served and renewed. I can critically explore how service takes place outside of the jurisdiction. I can explain what happens when a defendant to a claim responds and when he or she fails to respond. I can critically consider how the statements of case are compiled and presented. Need to revise first Need to study again

If you ticked need to revise first, which sections of the chapter are you going to revise? Must revise 4.1 4.2 4.3 4.4 4.5 4.6 Issuing and serving proceedings Renewal of process Service outside the jurisdiction Responding to a claim Default judgment Statements of case Revision done