Contents. Table of Statutes. Table of Secondary Legislation. Table of Cases. Pre-action Conduct of Litigation

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1 Contents Table of Statutes Table of Secondary Legislation Table of Cases Chapter 1: General Principles 1.1 Introduction Overview of civil litigation process 1.2 Introduction to the civil courts Court personnel 1.3 The sources of procedural law 1.4 The overriding objective 1.5 Alternative dispute resolution 1.6 Co-operation Failure to engage with a reasonable request for ADR 1.7 Distinction between the civil and criminal courts 1.8 The purpose and objectives of civil litigation 1.9 The scope of civil litigation 1.10 Reform Fundamental honesty and dismissal provision Increase in civil court fees 1.11 Summary Chapter 2: Pre-action Conduct of Litigation 2.1 Introduction 2.2 Financing litigation Retainer Conditional fee agreements Special provision for clinical negligence claims Damages-based agreements (DBAs) from 1 April Comparison of CFAs and DBAs Litigation funding agreements and the voluntary code of funding Qualified one-way costs shifting (QOCS) in personal injury claims Public funding Debt and contract cases Personal injury The statutory charge Exceptional funding Before the event insurance Sponsoring organisations Ban on referral fees Alternative business structures 2.3 Pre-action protocols and the Practice Direction on Pre-Action Conduct and protocols 2.4 Protocols relevant to personal injury claims 2.5 Example checklist for initial interview with client in personal injury claim 2.6 Low value personal injury protocol claims i

2 2.6.1 The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA Protocol) Fixed costs fees in RTA Protocol No doctrine of mistake in RTA portal Pre-Action Protocol for Low Value Personal Injury (Employers Liability and Public Liability) Claims (the EL/PL Protocol) Fixed costs/fees in EL/PL Protocol Claims which leave the protocol/portal Fixed costs after exiting portal 2.7 Pre-Action Protocol for Personal Injury Claims (the Personal Injury Protocol) Selection of experts under the Personal Injury Protocol 2.8 Compliance with the protocols when limitation approaches 2.9 Failure to comply with the pre-action protocols 2.10 Defendant s insurers and the Motor Insurers Bureau 2.11 Debt claims 2.12 Summary Chapter 3: Limitations 3.1 Introduction 3.2 Calculating limitation periods 3.3 Extending limitation 3.4 Summary Chapter 4: Issue and Service of Proceedings 4.1 Introduction 4.2 Jurisdiction/choice of court High Court or County Court? Location of court 4.3 Issue of proceedings Documents needed for issue Completion of N1 claim form Issuing proceedings through Money Claims Online Issuing proceedings through the Claim Production Centre and the County Court Business Centre Issuing proceedings under the low-value protocol 4.4 Scope of instructions 4.5 Service Service of claim form: introduction Service of particulars of claim Service of other documents Address for service of the claim form Documents to be served Methods of service Personal service Document exchange (DX) Electronic methods of service Deemed date of service claim forms Deemed date of service other documents 4.6 Alternative service 4.7 Extending the period of validity of proceedings 4.8 Summary of the usual steps for issuing/serving proceedings ii

3 4.8.1 Steps required for issue and service of the claim form Steps required for issue in and service by the County Court Steps required for issue in and service by the High Court Steps required by the CCMCC/(High) Court Steps required where the claimant is to serve the claim form 4.9 Summary Chapter 5: Defendant s Response 5.1 Introduction 5.2 Admissions Withdrawing an Admission 5.3 Defences 5.4 Counterclaims and set-offs 5.5 Acknowledgment of service 5.6 Agreed extensions 5.7 Responding to a claim issued through MCOL 5.8 Transfer 5.9 Summary Chapter 6: Default and Summary Judgments 6.1 Introduction 6.2 Time for entering default judgment 6.3 Entering default judgment 6.4 Types of default judgment 6.5 Setting aside default judgments 6.6 Stay of undefended cases 6.7 Summary judgment 6.8 Procedure on a summary judgment application 6.9 Possible orders 6.10 Summary Chapter 7: Statements of Case 7.1 Introduction 7.2 Particulars of claim Interest 7.3 Defence Contents of defence Approach to drafting a simple defence 7.4 Counterclaim 7.5 Reply to defence and/or defence to counterclaim 7.6 False statement of truth 7.7 Request for further information 7.8 Striking out statements of case 7.9 Summary iii

4 Chapter 8: Parties 8.1 Introduction 8.2 Children and protected parties 8.3 Partnerships 8.4 Sole traders 8.5 Companies 8.6 Joinder 8.7 Summary Chapter 9: Interim Applications 9.1 Introduction 9.2 Duty to apply early 9.3 Applications without notice 9.4 Applications on notice 9.5 Where to make the application 9.6 Disposal without a hearing 9.7 Hearing by telephone 9.8 Orders made on the court s own initiative 9.9 Evidence in support 9.10 General powers regarding interim relief and orders 9.11 Interim payments: procedure 9.12 Grounds for obtaining an interim payment 9.13 Amount to be ordered 9.14 Non-disclosure 9.15 Summary Chapter 10: Case Management 10.1 Introduction 10.2 Provisional allocation and directions questionnaires 10.3 Failing to file a directions questionnaire 10.4 Track allocation Low-value protocols 10.5 Case management directions 10.6 Stay for settlement 10.7 Non-compliance with directions: sanctions 10.8 Summary Chapter 11: Small Claims Track 11.1 Introduction 11.2 Restrictions on complicated procedures 11.3 Standard directions in the small claims track Automatic referral to mediation 11.4 Special directions 11.5 Determination without a hearing 11.6 Hearing 11.7 Costs in the small claims track 11.8 Appeals and re-hearings 11.9 Summary iv

5 Chapter 12: Fast Track Chapter 13: Multi-track Chapter 14: Disclosure 12.1 Introduction 12.2 Allocation to the fast track 12.3 Directions 12.4 Time limits set out in the rules 12.5 Experts in fast track claims 12.6 Pre-trial checklists (listing questionnaires) 12.7 Varying the timetable 12.8 Fast track costs Summary assessment Fixed costs/fees in low value personal injury claims 12.9 Summary 13.1 Introduction 13.2 Directions on allocation 13.3 Case management conferences 13.4 Attendance at case management conferences 13.5 Issues to be dealt with at case management conferences 13.6 Case summary 13.7 Fixing the date for trial 13.8 Pre-trial checklists (listing questionnaires) 13.9 Pre-trial review Variation of case management timetable Summary 14.1 Introduction 14.2 Stage when disclosure takes place 14.3 Standard disclosure Continuing duty of disclosure 14.4 Documents covered 14.5 Duty to search 14.6 Agreement to limit disclosure 14.7 Multi-track (except personal injury) disclosure requirements Disclosure of electronic documents 14.8 Privilege 14.9 Inspection Specific disclosure Documents referred to in statements of case etc Summary v

6 Chapter 15: Witness and Expert Evidence 15.1 Introduction 15.2 Experts 15.3 Expert directions 15.4 Joint instruction of experts 15.5 Written questions to experts 15.6 Without prejudice discussion and joint statement 15.7 Concurrent expert evidence 15.8 Form of experts reports 15.9 Witness statements Directions for the exchange of witness statements Witness summaries Use of statements in court Witness summons Summary Chapter 16: Part 36 Offers 16.1 Introduction 16.2 Form and content of a Part 36 offer (r36.5) 16.3 The relevant period for acceptance of a Part 36 offer 16.4 Withdrawal of or changes to a Part 36 offer (rr36.9 and 36.10) Withdrawal of a Part 36 offer or making a less advantageous offer generally Making a more advantageous offer Withdrawing or changing a Part 36 offer before the expiry of the relevant period (r36.10) 16.5 Acceptance of a Part 36 offer (r36.11) 16.6 Consequences of acceptance of a Part 36 offer (rr36.13 and 36.14) 16.7 What happens if the Part 36 offer is not accepted? (rr36.16 and 36.17) Defendant s offer Claimant s offer Factors to consider in relation to unjust Split trials and Part 36 offers Communication of a Part 36 offer to a judge in a split trial Acceptance of a Part 36 offer in split trial case Cases where offeror s costs limited to court fees 16.8 When the Part 36 costs rules do not apply 16.9 Part 36 offers in the RTA Protocol and EL/PL Protocol Deduction of benefits Summary vi

7 Chapter 17: Trial and Appeal Chapter 18: Costs 17.1 Introduction 17.2 Preparing for trial 17.3 Pre-trial checklists/questionnaires and hearing fee 17.4 Setting the trial date 17.5 Trial 17.6 Judgment and appeal Impact of the Criminal Justice and Courts Act Summary 18.1 Introduction 18.2 No/very limited costs recoverable (small claims track) 18.3 Summary assessment of costs (fast track) 18.4 Detailed assessment (multi-track) 18.5 Bases of assessment 18.6 Procedure on a detailed assessment 18.7 Fixed costs 18.8 Wasted costs orders 18.9 Summary Chapter 19: Matters Arising After Judgment 19.1 Introduction 19.2 Order to obtain information 19.3 Control 19.4 Attachment of earnings 19.5 Third party debt orders 19.6 Charging orders 19.7 Bankruptcy/insolvency 19.8 Non-money judgments 19.9 Interest on money judgments Registration of judgments Stay of execution Summary Answers to Self-assessment Questions Appendix Index vii

8 2015 Copyright CILEx Law School Limited All materials included in this CLS publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of CILEx Law School Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. CILEx Law School Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. Published in 2015 by: CILEx Law School Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB British Library Cataloguing in Publication Data A catalogue record for this manual is available from the British Library. ISBN

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