Case management

An "Ask the Team" about the impact of a defendant company suffering financial difficulties or going into administration.

An "Ask the Team" about whether taped evidence obtained without a party's consent is admissible in civil proceedings.

An Independent Dispute Avoidance Panel (IDAP) has been set up to help avoid contractual disputes during the work to deliver the venues and infrastructure for the London 2012 Olympic and Paralympic Games. IDAP is made up of eleven construction professionals with experience in major projects. It will focus on finding pragmatic solutions to problems which may arise before they become disputes that could require lengthy resolution.Any disputes that are not resolved through the IDAP may be dealt with by a dedicated Adjudication Panel. If either party challenges an adjudicator's decision, the final tribunal is the Technology and Construction Court.Source: London 2012

The 44th Update to the Civil Procedure Rules introduce a number of changes to the CPR which come into force on 6 April 2007. This Practice note summarises the changes.

A party issues claim against two defendants, D1 & D2. D2 is an incorrect Defendant as it is a company which was incorporated after the cause of action, has never been a party to the dispute or has no involvement whatsoever. What action must D2 take or what options does D2 have? N.B.: One of the Direcotrs of D2 is also the Director of D1.

In JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411, the Court of Appeal considered issues including whether the court had jurisdiction to grant a debarring unless order directing the defendant to surrender to custody. Note: On 21 February 2013, the Supreme Court refused permission to appeal the decision in this case.

Lewison J considered an application by a non-party for access to documents in ABC v Y [2010] EWHC 3176 (Ch).

This drafting note accompanies the example of an application to restrict access to court documents under CPR 5.4C.

The Court of Appeal has held that it is implicit under the Civil Procedure Rules 1998 that a company can act without a legal representative.

On 5 November 2012, the Administrative Court will begin hearing High Court cases at the Bristol Civil Justice Centre.

The Court of Appeal has reaffirmed the importance of an advocate being aware of and bringing to the judge's attention all relevant authorities.

After a court fee of £245 has been paid in a claim which “exceeds £5,000 but does not exceed £15,000” but then eventually exceeds this amount, can the claimant simply pay an increased court fee? Would it matter if no developments have caused the claim to increase? Does it matter that protective proceedings were issued just before the claimant would be out of time? Are the courts likely to take a hard line due to the fact that quantum has not been property set out?

In Caterpillar Logistics Services (UK) Ltd v Huesca de Crean [2011] EWHC 3154, the court considered the claimant's conduct in securing several extensions of time for serving the particulars of claim.

The Commercial Court has released an amended checklist for the Commercial Court reforms, which replaces the one released in January 2008.

This note looks at the practice and procedure for amending a statement of case. It considers issues relating to late amendments, limitation, the addition or substitution of new parties, and also the filing, endorsement and service of amended statements of case.

Publication by the Office for Judicial Complaints of its 2008/09 annual report.

An update on Clyde & Co LLP and another v New Look Interiors of Marlow Limited and another [2009] EWHC 173 (QB), in which the court considered an appeal against a master's decision to grant leave for the claimants to amend their particulars of claim.

In Access Bank v Erastus Bankole Oladipo Akingbola and others [2012] EWHC 1124 (Comm), the court considered an application for civil proceedings to be held in private pending the conclusion of criminal proceedings against the defendant in Nigeria.

In Lloyds TSB Bank plc v Watts [2013] EWCA Civ 284, the Court of Appeal considered a renewed application for permission to appeal which was expressed in general terms and failed to particularise the various allegations against the judge at first instance.

Drafting note to accompany the application notice seeking to extend time for filing and service of the defence.

This is an example of an application under CPR 5.4C to restrict access to statements of case and other documents on the court file. The materials comprise an application notice accompanied by drafting notes, together with a draft order. PLC Dispute Resolution would like to thank Master Fontaine for her assistance with these illustrative documents.

An example of application to restrict access to court documents under CPR 5.4C. This document is only available in MS Word format. Click here to view it.

The Law Society's Money Laundering Task Force has updated the approved paragraphs for use in client care letters or terms of engagement. The approved wording may be adapted, for example, to include information about a firm's limit on acceptance of cash and its policy on sending funds to third parties. Solicitors are able to add wording warning clients that they will be charged additional costs for depositing funds directly into the firm's bank accounts without adhering to the proper procedures. The Law Society approved wording can be found at Anti-money laundering; draft paragraphs for client care letters or terms of engagement.  

Each month, PLC Dispute Resolution will feature a selection of Ask PLC Dispute queries, which focus on a particular subject area. This month's selection of questions focuses on the Jackson/civil litigation reforms, which will come into force on 1 April 2013.

An Ask the team article about the format of court documents.

A consideration of how companies can ascertain which business areas are most exposed to legal disputes and implement procedures to avoid or minimise that risk.

An update on the announcement of a consultation by the Bar Council on new terms of engagement on which barristers accept instructions from solicitors.

The Bar Council has published A Guide to Representing Yourself in Court to help litigants in person involved in civil proceedings.

The Bar Standards Board has approved proposals to regulate advocacy focused legal entities and allow barristers to conduct litigation.

A summary of PLC Construction's blog post on the costs of litigating large and complicated construction disputes.

An update on the delay in opening the Business Court.

I am on the record for a defendant sole trader. I am instructed to draft the defence and counterclaim and file that at the Court. Once that has been filed, the client wants his partner to represent him at the Court Hearing in order to keep his costs down. Is this possible and can I stay on the record at the same time to assist the client on the sidelines?

Please can you advise whether a Final Injunction Order obtained at a non-public hearing is a public document and therefore capable of being disclosed? The Claimant in this instance wishes to disclose a copy of the Final Injunction to a non-party (a journalist). Is there any rule which prevents it from doing this? Can it disclose the document without the consent of the Defendant?

What is the process for appointing a litigation friend in the County Court and, more specifically, is it possible for one claimant, in an action with multiple claimants, to be appointed as the litigation friend of one of the other claimants?

My question relates to non-party access to documents read from/referred to in open court. If a party refers to and reads from at length documents that emerged through disclosure, does a non-party who is, for instance, present in court have a right to request the referred/read from document? How does a non-party access the documents? Does he have to make a request? Or does he need the court's permission? Similarly, for written statements/witness statements referred to and read from at length in open court, does a non-party for instance present in court at the time have a right to access the referred to/read from document? If a non-party is allowed some access to the document, how does a non-party access the documents? Does he have to make a request? Or does he need the court's permission?

Is it possible for a solicitor from Northern Ireland to issue an application in an English court?

My client entered a defence to the claim. The claimants then amended their claim and we were late submitting the amended defence (mainly because we had not received court order although we had agreed date with Claimant). They have obtained default judgment. I did not think this was possible where a defence had actually been filed. The order stated that the Defendant had permission to file an amended defence by ... . It did not state any consequences if this did not happen, although of course we may need to apply for permission to rely on the defence. The Claimants did not make an application for an unless order as a result of our breach of a court order and it appears it was applied for under part 12. I have asked them for their authority to do this but they have ignored. Is there any guidance on this on PLC?

Can several small track claims (value under 5k) be grouped together to create a fast track claim so that the legal costs can be recovered?

We act for the defendant. The claimant failed to comply with an unless order to file the allocation questionnaire and the action was struck out. This happened a year ago but the court has not produced a final order. Can the defendant now seek his costs?

We are acting for claimants in a small claim against a firm of solicitors who are the defendants. The defendants’ conduct has been so bad as make us consider reporting them to the SRA for their rudeness and derogatory comments in open correspondance. Are we entitled to ask for our costs in a small claim because of their conduct?

This question is in the context of contractual dispute over services provided to an LLP (the potential defendant). The LLP claims that the services were provided by an individual and that is who the LLP has a contract with. The individual as plaintiff (who has an interest both as an individual and as Company X) claims the contract is between the LLP and Company X. Should it be decided by the court that the contract is between the LLP and the individual (so taking the LLP's interpretation as the correct one) the individual wants to at least in that circumstance be able to still claim as the individual. So should the plaintiff in commencing proceedings put both the individual and Company X as the plaintiffs? Further could you point me to guidance on commencing proceedings as alternate plaintiffs in in this context?

Can you make a Part 18 Request at any time?

If you have issued proceedings in one court, but you have not served on the defendant(s), can you transfer the proceedings to another court if there is one better placed to hear the dispute?

A recent decision shows the court exercising its case management powers under the Civil Procedure Rules 1998 at trial.

Note: this form is taken from Annex A to Civil Procedure Rules Practice Direction 59.  Click here to access the Word version of this form. Click here to access the pdf version of this form.  

Case management: which track? has been updated following the publication of two reports by the Department for Consitutional Affairs. One report is an evaluation of the Exeter small claims mediation scheme; the other examines litigants' experiences of, and satisfaction with, the small claims process.

An example of a completed allocation questionnaire N150. This document is only available in MS Word format. Click here to view it. IMPORTANT NOTE, the allocation questionnaire is replaced with the directions questionnaire for all claims in which a defence is received on or after 1 April 2013. For more information on completing the directions questionnaire see, Practice note, Case management: completing a directions questionnaire.

This practice note sets out the main points to consider when you are completing a directions questionnaire.

This is an example of the type of directions which typically can be sought and ordered at a first case management conference. This document is only available in MS Word format. Click here to view it. For information on the model and standard directions published by the Ministry of Justice, see Practice note, Case management: Multi-track Standard directions.

This is an example of a letter to a client explaining the purpose of and preparation required for the case management conference (CMC) in either the Technology and Construction Court or the Admiralty and Commercial Court. It must be adapted to the specific facts and circumstances, and should be read in conjunction with the integrated drafting notes and Practice note, The case management conference: what you need to know. For a letter explaining the CMC in the Queen's Bench and Chancery Divisions of the High Court, see Standard document, Case Management: letter explaining case management conference for QBD and Chancery cases.

This practice note is a short practical guide to litigating in the District Registries for the first time.

A brief guide to the practice and procedure for transferring proceedings.

A brief guide to the reasons for allocation, and matters which the court will take into account when allocating a claim to either the Multi-track, Fast track, or Small claims track, plus a guide to what those tracks mean.

An update on Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2008] EWHC 2802 (TCC), which concerned an application for enforcement of an adjudicator's decision.

An update on the the Civil Proceedings Fees (Amendment) Order 2009 (SI 2009/1498), which introduces changes to certain civil court fees with effect from 13 July 2009.

PLC Dispute Resolution has published a checklist which sets out some of the main time limits specified in the Civil Procedure Rules.

In Millharbour Management Ltd and others v Weston Homes Ltd and another [2011] EWHC 661 (TCC), the court considered the circumstances in which a party can effectively secure that it acts as a representative on behalf of other persons who are not parties to the proceedings under CPR 19.6.

In Walbrook Trustee (Jersey) Ltd & Ors v Fattal & Ors [2008] EWCA Civ 427, the Court of Appeal considered the exercise of case management powers in respect of Walbrook's Part 8 claim and Fattal's subsequent Part 7 claim. A stay of the Part 7 proceedings had been ordered, pending the determination of certain issues in the Part 8 proceedings. Permission had been refused for Fattal to make a Part 20 counterclaim (in the Part 8 proceedings) in respect of an issue it had raised in the Part 7 proceedings (the Sharet issue), as this would complicate or delay the Part 8 proceedings. Permission to appeal the decision on the Part 20 counterclaim was subsequently granted by Carnwath LJ, who was unaware of an order made at a CMC the previous month, with both parties' agreement, directing the determination of the Sharet issue at an imminent hearing slot originally allocated for the Part 8 trial.The Court of Appeal refused to interfere with the judge's case management decisions in circumstances where he had applied the correct principles. It would only do so where such decision was plainly wrong and outside the generous ambit of his discretion. However, there had been a change of circumstances of which Carnwath LJ had not been made aware. Although the application notice and skeleton argument were not misleading when they were lodged, the position had dramatically changed by the time the appeal came to be heard, with all parties aware by then that the significant Sharet issue wou

The Civil Courts (Amendment No 3) Order 2011 (SI 2011/2097) comes into force in stages between 12 September 2011 and 17 October 2011. The Order provides for the closure of 18 county courts and the establishment of a district registry of the High Court at Telford. 

The Civil Courts (Amendment) Order 2011 (SI 2011/1465) comes into force in stages between 4 July and 8 August 2011. The Order provides for the closure of 23 county courts. 

The Civil Justice Council has published its 2006 Annual Report. Among other items, the Report contains the results of a number of studies conducted by the Civil Justice Council Committees, most notably one on ADR and one on the rules on experts set out in CPR 35. On ADR, the Committee proposes to recommend that the Civil Procedure Rules Committee (CPRC) considers amending the allocation questionnaire. Currently, on the first page of the allocation questionnaire, under the heading "Settlement", parties are asked if they would like a one month stay to settle the claim, either by informal discussion, or ADR. The Committee has suggested that the parties also be asked if they would like to use the Court Service mediation services and, in the event that they do not wish to explore settlement, to state why they consider the claim to be unsuitable for ADR. The Committee has also proposed that the court should be able to take the replies to those questions into account when exercising its costs discretion. Following a request by the CPRC, the Experts' Committee has been reviewing CPR 35 as a fore-runner to the CPRC itself conducting a review. The present review is the first occasion on which CPR 35 has been reviewed since the CPR were introduced in 1999. Matters under review include the accreditation of experts, and the question of whether there may be inconsistencies in the way in which different courts direct the appointment of single joint experts. Click here to view the

The Civil Procedure (Amendment No 3) Rules 2010 (SI 2010/2577) have been made clarifying that applications for judicial review, or renewed applications for permission, can be heard by a Divisional Court where directed.

Amendments to the Civil Procedure Rules and court fee changes came into force on 1 October 2007.

Changes to the Civil Procedure Rules and Practice Directions are coming into force (mostly) on 1 October 2011.

The Civil Procedure Rules will be amended by The Civil Procedure (Amendment) Rules 2011 on 6 April 2011.

The Civil Proceedings Fees Order 2008 (SI 2008 No. 1053 (L.5)) will come into force on 1 May 2008. The Order revokes and consolidates The Civil Proceedings Fees Order 2004 and seven subsequent amendment orders.The order clarifies the fees payable in recovery of land claims in the county court, and applications under the 1985 and 2006 Companies Acts. Our quick guides to the fees payable in the High Court and the County Court respectively remain unchanged by the 2008 Order.Source: opsi

On 27 March 2013, the Civil Justice Council (CJC) announced that it has published a Guide to Bringing and Defending a Small Claim.

On 2 February 2010, the CJC published a set of generic court rules that could be used for any different model of collective proceedings that might be permitted by primary legislation.

In Tahira Ashraf v Devon County Council, Plymouth County Court, 30 August 2007, the County Court considered the question of whether the claimant had waived, or was estopped by forbearance, from relying on particular matters as a result of the statements made and steps taken in the course of the proceedings. The defendant had admitted liability in correspondence prior to proceedings being commenced. However, the defendant subsequently indicated in its defence that it resiled from its pre-action admission, which it was entitled to do without the court's permission. The various steps which the claimant then took in preparation for trial indicated clearly that she acknowledged that liability was in issue and she must therefore have accepted that the defendant had resiled from its pre-action admission. However, prior to the trial, the claimant sought to argue that there was a binding contract of compromise and/or that the defendant needed the court's permission to resile from its previous admission of liability. The District Judge held that the conduct of the claimant and her legal advisers amounted to approbation and reprobation. Alternatively, the claimant had waived its right to assert, or was estopped by forbearance from asserting, that there was a binding admission of liability. The case highlights that parties will not be permitted to "blow hot" on a settlement and "blow cold" on a fully contested trial, unless of course admissions and compromises made towards s

In Lansdowne House (St George's Hill) Ltd v Liberty Syndicate Management Ltd and another [2011] EWHC 332 (TCC), the claimant has been penalised on costs for failing to properly set out alleged defects at its property in a Scott Schedule, as ordered by the court.

Stakeholders in the life sciences industry are witnessing an increasing number of initiatives in the UK and across Europe to facilitate collective legal actions. There are a growing number of private sector entrants to the collective actions and third-party funding marketplace. The impact may increase the litigation risk in Europe, although it is important that this risk is not overstated. This article surveys key developments in collective actions and third-party funding at a European level and in a number of key European jurisdictions. It also discusses specific risks for the life sciences industry.

On 4 June 2008, the Council of Mortgage Lenders (CML) announced the range of steps lenders will be taking in response to the impact of the credit crunch on homeowners, following CML's commitment earlier in the year to review its voluntary arrangements, codes and other commitments on arrears management. The detailed proposals are set out in a letter to the Chancellor of the Exchequer. CML members (all of whom are first charge lenders regulated by the FSA and must comply with MCOB rules) have committed to four specific measures: - To analyse their existing arrears management policies and implement any changes identified as a result of the industry guidance being prepared by the CML. - To provide information to consumers on their own arrears management process to help borrowers understand what to expect and how they will be treated fairly. - To support the principle of a pre-action protocol for mortgage cases for use before court proceedings, providing an additional assurance that only appropriate cases go to court. - To inform borrowers in good time when they are coming out of initial deals into higher rates with increased monthly repayments, and encourage them to make contact if a financial problem is likely to arise. The Finance and Leasing Association is conducting a similar exercise in relation to the second charge secured lending market.

To manage risk today, corporate counsel need to consider how disputes may arise in future, and plan accordingly. One possible development is an increase in collective litigation against companies.

On 8 April 2010, the Financial Services Bill received Royal Assent but only after the removal of a number of  provisions, including those relating to collective redress.

An update on the collective redress measures included in the Financial Services Bill recently introduced to Parliament. Note: on 7 April 2010, Lord Myners, Financial Services Secretary to HM Treasury, announced that the Government will be removing certain provisions in the Financial Services Bill, including those on collective redress, to increase the likelihood of the Bill being passed before parliament is dissolved for the general election.

A flowchart setting out the issues to consider when deciding whether to commence proceedings in the High Court or county court.

A checklist highlighting important distinctions between the Commercial Court and the other divisions of the High Court.

In JSC BTA Bank v Mukhtar Ablyazov and others [2012] EWHC 3023 (Comm), Teare J sitting in the Commercial Court considered a last minute application from Mr Ablyazov for an order that the judge recuse himself before the trial. (free access) Note: On 28 November 2012, the Court of Appeal dismissed an appeal of this decision. See Legal update, Court of Appeal confirms judge was right to reject recusal application.

This article draws together opinions from leading practitioners on the trial implementation of the proposals of the Commercial Court Long Trials Working Party.

The trial period for the post-BCCI reforms (introduced in the Commercial Court following the report of the Long Trials Working Party) will come to an end at the end of November. (For discussion of the background to the pilot reforms, see Legal update, Commercial Court Long Trials Working Party: report and recommendations.) Amid suggestions that the reforms are failing to attract significant support from the legal profession, a member of the Working Party (Simon Davis of Clifford Chance) has recently emphasised the importance of practitioners relaying their views and feedback on the reforms. (Source: Legal Week.) Why not register your views on the PLC Dispute Resolution Commercial Court Reforms Forum, and join the growing debate? Our forum has already attracted comments and views from solicitors, in house counsel and the Bar. For example, and consistently with the anecdotal evidence that the reforms are being routinely ignored, an in-house counsel involved in complex Commercial Court litigation comments on our forum that "at no point during the proceedings to date has it been expressly suggested by any party or by the judge that the parties should be attempting to comply with [the reforms]". Is that your experience also? Let us know your views by posting on our forum. We will be communicating all feedback to the Working Party at the end of the trial period. You can post anonymously if you prefer. Just go to Commercial court reforms: have your say (also accessible vi

An update on guidance issued by the Commercial Court regarding lists of issues.

An update on the Commercial Court symposium presented by the Commercial Litigators' Forum, COMBAR and the LSLA on 26 January 2009.

A reminder that the second Commercial Court symposium is being held on Monday 26 January 2009.

A checklist showing the procedural stages for heavy applications in the Commercial Court as prescribed by section 5 of the Admiralty & Commercial Courts Guide and CPR Practice Direction 58.

An update summarising key points from the Commercial Litigation Association (CLAN) Conference held on 14 May 2013.

This spreadsheet is designed to help you calculate compound interest on a claim and is viewable in Excel.

A flowchart setting out the alternative options to consider before making a claim in the county court.

In Sans Souci Ltd v VRL Services Ltd (Jamaica) [2012] UKPC 6, the Privy Council considered how to construe the scope of an order made by the Court of Appeal of Jamaica remitting an award to the arbitrators.

The Ministry of Justice has launched a consultation on changes to fees and the fees structure in the High Court and the Court of Appeal Civil Division. The consultation closes on 7 February 2012 and a response is expected by 7 May 2012. (Free access)

An update on the consultation paper issued by the Solicitors Regulation Authority (SRA) seeking views on a new regulatory handbook.

The Ministry of Justice has published a consultation paper - Transforming Tribunals: Implementing part 1 of theTribunals, Courts and Enforcement Act 2007. The Tribunals Service was established in April 2006 with the aim of ensuring that tribunals are visibly independent of original decision makers, improving quality and efficiency and making it easier for users to understand the process of redress. This was followed by the passing of the Tribunals, Courts and Enforcement Act 2007 (the Act), which comes into force in stages on various dates between September 2007 and June 2008 (see Legal updates, The Tribunals, Courts and Enforcement Bill is published in House of Lords and Commencement of the Tribunals, Courts and Enforcement Act 2007). The consultation paper sets out proposals for the implementation of the Act, which include: Plans for the organisation of the first-tier and upper tribunals, into which most existing tribunals will be transferred.How the chambers within the new tribunals should be structured.The assignment of judges within and across the chambers.The role of non-legal members in the new structure.Consideration is also given to other areas where reforms are planned, such as in tax, land, property and housing appeals. It also explains the new regional management structure and plans for a network of multi-jurisdictional hearing centres. The paper is accompanied by a questionnaire. The closing date for responses is 22 February 2008.Source: Ministry of J

A new offence of corporate manslaughter will be introduced during 2007 under the Corporate Manslaughter and Corporate Homicide Bill 2006 (for further information, see Legal update, Corporate Manslaughter and Corporate Homicide Bill introduced into Parliament . For other things to watch out for in 2007 see Legal update, Things to watch out for in 2007.

The Costs Budgeting Direction amending new CPR 3.12 dated 1 April 2013 has been published on the Judiciary website.

An update on O'Beirne v Hudson [2010] EWCA Civ 52 and Drew v Whitbread [2010] EWCA Civ 53. The cases concern the interplay between costs discretion and the costs provisions applicable on one or more of the three procedural tracks.

A note considering costs management in litigation.

The final report on the costs management pilot scheme, which ran in the TCC and Mercantile Courts until 31 March 2013, has been published. 

PLC Dispute Resolution, in association with JurisProductions, has published the second of two podcasts on costs management. HHJ Simon Brown QC, Michael Mendelblat of Herbert Smith and a PLC editor discuss a number of issues about the costs management pilot scheme (which was extended to all Technology and Construction and mercantile courts from 1 October 2011), including potential problem areas, the likelihood of costs management achieving its objectives, possible future developments, and how to provide feedback.

In Webb Resolutions Ltd v JV Ltd [2013] EWHC 509 (TCC), the court considered the conduct of the party's counsel and solicitors in preparing and agreeing a draft order made by a judge at a case management conference. The court ordered the claimant to pay the costs unnecessarily incurred as a result of its conduct. (free access)

An introduction to PLC Dispute Resolution’s "Countdown to Jackson" campaign, with links to interviews with senior legal figures including the Honourable Mr Justice Ramsey, His Honour Judge Simon Brown QC, Nicholas Bacon QC and Professor Rachael Mulheron. (free access)

Practical Law Dispute Resolution's 2013 Birmingham roadshow event will be taking place on Friday 1 March 2013.  It will include presentations on damages based agreements and the nuts and bolts of the "big bang" reforms coming into force on 1 April 2013. (free access)

The Civil Procedure (Amendment No 2) Rules 2013 (SI 2013/515) and the 61st update Practice Directions amendments were published on 11 March 2013. The changes, which come into force on 1 April 2013, relate to the costs proportionality test, costs management, costs capping and the mediation service pilot scheme.

The President of the Queen's Bench Division and the Chancellor of the High Court have given notice of an important amendment to be made to the version of CPR 3.12(1) set out in The Civil Procedure (Amendment) Rules 2013 (SI 2013/262).

New and revised court forms, coming into force on 1 April 2013, have been released by the Ministry of Justice. The new standard directions for multi-track cases, also coming into force on 1 April 2013, have been published on the Justice website.

This note sets out the fees payable in the county court (including the Claim Production Centre and Money Claim Online) in relation to certain key stages in proceedings. For details of fees in the High Court, see Practice note, High Court fees: a quick guide. 

HMCTS has provided information about the county courts counter services pilot scheme, operating from 3 September 2012 until 29 March 2013.

An update on Kevythalli Design Ltd v Ice Associates Ltd [2009] EWHC 3676 (TCC), where the Technology and Construction Court considered an application to transfer proceedings from the County Court to the High Court and also considered the effect of a stay of execution granted by the Court of Appeal pending the hearing of an appeal.

An update on Upton McGougan Limited v Bellway Homes Limited and others [2009] EWHC 1449 (TCC), which considered an application to debar a party from relying upon an expert report that covered matters that had not been pleaded.

From 2 October 2006, persons not involved in litigation will be able to obtain copies of all statements of case on the court file, including defences, without having to obtain the court's permission. This shifts the burden of preventing disclosure to the parties (or others identified in statements of case).

An update on JSC BTA Bank v Ablyazov and others [2009] EWHC 3267 (Comm), which considered the court's approach to an application for the Commercial Court Guide standard freezing injunction to be varied and the court's power to correct a freezing order under the slip rule.

The Court Funds Office has launched an informal consultation on the draft Court Funds Rules 2011. The issues include making payments into court, investment of funds and payments out of court.

In West London Pipeline and Storage Ltd and Anor v Total UK Ltd and Ors [2008] EWHC 1296 (Comm), Total made a request for further information under CPR 18 to obtain disclosure of information relating to the insurance arrangements of a third party, TAV, from whom they were seeking a contribution. Total argued that disclosure of the insurance position was necessary and appropriate to determine whether continuing the litigation would serve a useful purpose.Steel J held that the court had no jurisdiction to require disclosure of TAV's insurance position under CPR 18 because the insurance documents could not be said to relate to any matter which was in dispute in the proceedings. Nor was it possible to construe CPR 18 more liberally, given that the accompanying practice direction requires that requests should be confined to matters which impact on the party's ability to prepare his own case or to understand the case he has to answer. Irwin J came to the opposite conclusion in Harcourt v Griffin and Ors [2007] EWHC 1500. Although both cases are first instance decisions, this case will come as a relief to defendants and their insurers as it will make it easier once again to refuse requests for disclosure of insurance details.

An update on Slack & Partners Ltd v Slack [2010] EWCA Civ 204, in which the Court of Appeal allowed the appellant to advance a different case on appeal.

The Court of Appeal has taken the opportunity to clarify when it will grant a private hearing or party anonymisation in Pink Floyd Music Ltd and another v EMI Records Ltd [2010] EWCA Civ 1429.

In Ablyazov v JSC BTA Bank [2011] EWCA Civ 1386, the Court of Appeal allowed an appeal enabling the claimant to proceed with a limited number of allegations of contempt of court arising out of compliance with a freezing order and other ancillary orders, without requiring it to abandon other allegations of contempt, and despite a degree of overlap between the allegations and future trials.

In Dunhill (a protected party by her litigation friend Paul Tasker) v Burgin [2012] EWCA Civ 397, the Court of Appeal considered the basis for setting aside a compromise agreement for lack of capacity. Note: The Supreme Court granted permission to appeal on 23 October 2012.

An update on Westbrook Resources Limited v Globe Metallurgical Inc [2009] EWCA Civ 310, in which the Court of Appeal flagged up some useful practice points on pleading and evidence issues.

An update on Zipher Limited v Markem Systems Limited and another [2009] EWCA Civ 44, which considered whether an undertaking had been given to the court.

In Collins v Gordon [2008] EWCA Civ 110, the Court of Appeal allowed the claimant's appeal against the judge's refusal to allow a trial date to be vacated. The judge had been wrong on the evidence before him, and the interests of justice required the trial to be fixed on a later date so that the claimant's counsel could attend, despite the obvious disadvantage of delaying the trial.The Court of Appeal is usually reluctant to interfere with a case management decision, so this is a rare example of the court finding that a judge was wrong in relation to a case management matter and reversing his decision.

In Khatib v Ramco International and others [2011] EWCA Civ 605, the Court of Appeal had to consider an appeal by a party refused relief from sanctions under CPR 3.9. The basis of the appeal was that the judge should have adopted a more formulaic approach to the factors which the court needed to consider set out in CPR 3.9.

In Sykes and another v Packham (t/a Bathroom Specialist) [2011] EWCA Civ 608, the Court of Appeal supported the County Court's robust claims management of a small construction dispute, which led it to determine the reasonable price for works performed.

On 12 December 2008, the Court of Appeal dismissed appeals by T-Mobile and O2 against a CAT judgment which refused to accept jurisdiction to hear appeals against Ofcom's decision on the conduct of spectrum auctions.

According to press reports, Mr Justice Ryder, sitting in the Court of Protection, has allowed "real time" reporting by the media of a case concerning an allegation of deprivation of liberty against a local authority in relation to a care home resident.

In Phaestos Ltd and another v Ho [2012] EWHC 1996 (TCC), Akenhead J considered applications by the claimants for an extension of time for disclosure and to amend their quantum claim.

In Fons HF v Corporal Ltd [2013] EWHC 1278 (Ch), the court considered whether to extend the time for filling witness statements in accordance with the overriding objective, as defined in the revised CPR provisions which took effect on 1 April 2013.

In Crystal Decisions (UK) Limited and others v Vedatech Corporation and Mani Subramanian [2007] EWHC 1062 (Ch), the claimants sought declarations on a default judgment application. The application, before Patten J, succeeded in part. The case contains a useful reminder of the genesis of the rules regarding when the court can grant declarations in circumstances in which it has not heard all of the evidence. The factors to consider are whether doing justice to the claimant requires the court to make a declaration and whether, on all of the available evidence, granting a declaration is justified.

We have previously reported (see Legal update, The Civil Procedure (Amendment) Rules 2008) on the 47th update amendments to the CPR. The associated amendments to the Practice Directions are now available on the MoJ website. As with the CPR amendments, the changes mostly come into effect on 1 October 2008. However the Practice Direction accompanying the new CPR Part 78 (European Orders for Payment (EOPs) and European Small Claims Procedure (ESCP)) comes into force on 12 December 2008 (with regard to EOPs) and 1 January 2009 (with regard to ESCP).

A Practice note on public access to court documents under CPR 5.4 was published by PLC Dispute Resolution on 31 January 2007 (see Practice note: case management: access to court documents by non-parties). PLC Dispute Resolution has now published a set of illustrative documents which provide practical guidance for practitioners in making an application under this rule. Click here to see the new materials (which comprise an application notice accompanied by drafting notes, together with a draft order). As highlighted in these new materials, although no formal guidance has been given as to whether such applications will be granted simply on the basis of the parties' preference to keep the proceedings confidential, it is more likely that the applicant will have to provide evidence as to why it is in the interests of justice for the default position of open access to be reversed. PLC Dispute Resolution would like to thank Master Fontaine for her assistance in preparing these documents.

Practitioners should take care when accessing the Civil Procedure Rules currently shown on the website of the Ministry of Justice.

The Civil Proceedings (Amendment No 2) Rules 2007 (SI 2007/3543) introduce minor changes to the CPR. Rules 1-2 (Citation, commencement etc), 9 (amending CPR 75) and 13 (transitional) will come into force on 31 March 2008. The remaining rules will come into force on 6 April 2008. Note in particular:The Civil Proceedings Fees (Amendment) (No. 2) Order 2007 introduced hearing fees, and the possibility of partial remission from court fees (see Legal update, Civil court fees to be changed from 1 October 2007). CPR 3.7 is now amended to include failure to pay hearing fees as a situation in which the court may impose the sanction of strike out, and to include reference to "full or part remission" of court fees (rule 3). Rule 3.7A (proceedings which continue on the counterclaim only) is amended to clarify the sanctions that will apply for non-payment of certain court fees (rule 4).Section 141 of the Tribunals, Courts and Enforcement Act 2007 amended section 31 of the Supreme Court Act 1981 so as to enable the High Court in judicial review proceedings to substitute its own decision for the decision of the original decision-maker in certain circumstances. Amendments to CPR 54.19 are introduced to reflect this (rule 7). Minor corrections are made to CPR 19 (Parties and group litigation) (rule 5). A helpful explanatory note is available on the OPSI website. In addition, the CPR Practice Directions are amended from various dates; note in particular the new table in PD52 (Appeal

Publication of annual report for 2008 by Civil Procedure Rule Committee.

A tracker outlining the progress of the Crime and Courts Bill 2012-13 (now the Crime and Courts Act 2013).

The Crime and Courts Bill 2012-13 has received Royal Assent and the text of the Crime and Courts Act 2013 has been published on legislation.gov.uk.

In Rossetti Marketing Limited and another v Diamond Sofa Company Limited [2012] EWCA Civ 1021, the Court of Appeal warned parties of the dangers of agreeing to the hearing of preliminary issues.

In Ford and another v Alexander [2012] EWCA Civ 1951, the Court of Appeal considered an application for permission to appeal on the grounds that, among other things, the district judge lacked jurisdiction to make the order being appealed.

In Mortgage Agency Services Number Four Ltd v Alomo Solicitors (a firm) [2011] EWHC B22 (Mercantile), a case within the Birmingham costs management pilot scheme, the court considered whether the defendant's conduct was such that the claimant should be entitled to indemnity costs under CPR 44.3.

The High Court has considered the approach the courts will take to applications under Civil Procedure Rule 5.4C(2) for access to court documents.

A checklist of some key points to bear in mind when dealing with the disclosure process in civil proceedings.

In a Part 8 claim issued at the end of Jan 2013 with the first CMC after 16 April 2013, what part of the Jackson reforms bite in such circumstances? There has not been any Notice of Proposed Allocation and therefore presumably no costs budgets need to be prepared. Do disclosure reports need to be filed and served (in part 8 claims) not less than 14 days before the CMC? To date there has merely been a Notice of Hearing (CMC) ordered by the Court.

I have served an amended defence on the Claimant in the matter. Do I have to file a certificate of service? I cannot see that the CPR refers to a certificate for defences.

We received an Order from the court stating that our matter was "adjourned generally with liberty to restore". There is no end date as to when this will expire. Ordinarily, there would be a trial date given or at least an expiry date. It has been almost one year now and we would like to have the proceedings restored. We wrote to court and the judge refused and advised us to make an application. I could not find anything in the CPR to suggest that we should have to do this. Is an adjournment considered the same as a stay for the purposes of the CPR? If it is different, the rules for having stays lifted (where we would have to apply using form N244 after 6 months of no action) should not apply.

We act for A who have issued a claim against B. B have filed their defence and brought a part 20 claim for an indemnity from C which happens to be wholly owned subsidiary of A. We also act for C. Do we need to file an acknowledgment of service in relation to the part 20 claim?

Do you have a draft of the new Form H that will come into effect once case management is rolled out generally from April next year?

Do you have a standard letter of advice to a client, explaining the cost implications and process of a claim that is likely to fall within the small claims bracket? These crop up every so often and a precedent would be most useful.

Do you have standard wording for giving an undertaking to exchange witness statements at a later date?

Can I just ask in relation to the following whether this means that we cannot include our address (as solicitors to the plaintiff) as opposed to the plaintiff's address, on the claim form? "The claimant's address must be that at which the claimant resides or carries on business, even if the claimant's address for service is that of his solicitor (PD 16, para 2.2). The address should be included below the heading "Claimant" on the front page of the claim form." Is it not clear. We cannot include our client's address on the claim form.

I need to file a pre-trial checklist in respect of a case that was allocated to the fast track prior to 1st April 2013. Do I need to do a costs budget with this or can I simply do a costs estimate as I would have done before?

My query was regarding multi-party litigation. In the practice note multiple joint claims are discussed and reference is made throughout to the claimant and the situation where there are joint claimants. My question is whether this equally applies to the situation where there is one claimant and multiple defendants? Also, I am unclear when the multiple joint claim procedure should be used and when a GLO should instead be applied for. As the court's permission is required for a GLO and not to start a joint claim, what would be the benefit of using a GLO?

If a claim was worth 7,000 and was issued before 1 April 2013 but not allocated until after 1 April 2013 would the old rules in respect of allocation apply i.e./ be allocated to the Fast track or would the new rules apply and this matter be allocated to the Small Claim Track?

The ECJ has published orders dismissing applications by six legal and business representative bodies for leave to intervene in the appeal lodged by Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd.

In Phaestos Ltd and another v Ho and others [2012] EWHC 662 (TCC), the court considered whether to strike out or grant summary judgment to the claimants in respect of part of the defendant's counterclaim, and whether to grant security for costs where issues in the claim and counterclaim overlapped.

An update on Petroleo Brasilieiro SA v ENE Kos 1 Limited [2009] EWCA Civ 1127, which considered the effective date of a payment into court where payment was made by a cheque in a foreign currency.

This note provides guidance on filing and sending documents in litigation by e-mail, as detailed in CPR Practice Direction 5B: Electronic communication and filing of documents. It details what can and what cannot be sent or filed at court by e-mail.

A guide to the e-disclosure procedures in Practice Direction 31B, which apply to cases expected to be allocated to the multi-track commenced on or after 1 October 2010, or where the court orders. PLC Dispute Resolution is grateful to Vince Neicho of Allen & Overy, Tracey Stretton of Kroll Ontrack and Mark Surguy of Eversheds for the comments they have provided.

An update on the new Practice Direction (Electronic Working Pilot Scheme), which supplements CPR 5.5 and comes into force on 1 April 2009.

The Electronic Working Support Team at the Royal Courts of Justice has alerted us to some temporary issues with the Electronic Working System, and provided some guidance for users.

The Electronic Working Support Team at the Royal Courts of Justice has provided an update on the temporary technical issues recently experienced with the Electronic Working System. 

On 4 February 2011, the European Commission launched a public consulation, Towards a Coherent European Approach to collective redress.

Regulation 861/2007/EC of the European Parliament and of the Council establishing a European Small Claims Procedure (the Regulation) was published in the Official Journal on 11 July 2007. It substantially came into force on 1 January 2009. The Regulation contains a standardised procedure for cross-border civil and commercial claims of modest value (under EUR2,000) and is intended to facilitate access to justice by simplifying and speeding up lower value cross-border litigation and by reducing its cost. The Regulation applies to all EU member states, except Denmark. It is worth having a working knowledge of the Regulation. Even though many private practice lawyers may never deal with such a low-value claim as part of their main fee-earning practice, they may be asked to advise on one in a pro bono context or to provide guidance to clients or their in-house lawyers who may be dealing with such a claim themselves.

In Gilbart v Graham (A Firm) [2008] EWCA Civ , the Court of Appeal considered whether the first instance judge (the judge) had been correct, less than four weeks before trial, to refuse to vacate the trial date. It was held that the trial date should have been vacated, and the defendant's appeal was allowed. The parties had confirmed the trial date four weeks before the application to vacate. Shortly afterwards, the parties settled everything but one quantum issue. The defendant subsequently sought specific disclosure on that issue. A substantial amount of disclosure and a great deal of other preparation were outstanding as at the date of the application to vacate. The Court of Appeal agreed that trial dates should only be adjourned in exceptional circumstances. However, when exercising any discretionary case management powers, such as the power to adjourn (in CPR 3.1(2)(b)), the court had to apply the overriding objective. This was a "seven figure claim" which should have engaged the CPR 1(2) principle of proportionality. Quantum issues were complicated. The case was "far from ready for trial". Disclosure issues remained outstanding, and the "fault was indisputably that of the claimant". It was held that the judge should not just have asked himself whether disclosure could take place in time. If it could, he should have applied CPR 1(1) and asked himself whether a fair trial was possible. Had the judge done so, "he could only have come to the conclusion that an ad

Two of PLC Dispute Resolution editors attended the City of London Law Society feedback seminar on the Commercial Court reforms which took place at Freshfields on 2 December 2008. The panel included three judges, a barrister and a number of City law firm partners. There was lively discussion on various aspects of the reforms from both the panel and members of the audience.Some of the more interesting comments are summarised below.

Click here to access the Word version of this form. Click here to access the pdf version of this form.

Click here to access the Word version of this form. Click here to access the pdf version of this form.

In Harbour Castle Ltd v David Wilson Homes Ltd [2012] EWCA Civ 573, the Court of Appeal considered whether a document served by the claimant in purported compliance with an unless order was "new particulars of claim" within the meaning of that order. (Free access)

The High Court has granted a worldwide freezing order which extends beyond the terms in the standard form published in the Commercial Court’s guide and Civil Procedure Rules Practice Direction 25.

HM Court Service have announced that a full pilot project for the integrated filing and issue of documents electronically with the Commercial Court (known as phase two of Commercial Court IT) will not now go ahead until 2009, which will mean that an electronic filing scheme for all users is now unlikely to happen until 2010. It had been envisaged that the phase two pilot scheme would commence in 2008. The delay is apparently due to the need to ensure consistency across the courts and save cost. For more information about the Commercial Court IT Project, see Report of the Commercial Court and Admiralty Court 2005-2006.

An update on Shah v Ul-Haq and others [2009] EWCA Civ 542, in which the Court of Appeal considered whether it was possible to strike out a genuine claim, under CPR 3.4(2) or otherwise, on the ground that the claimants had assisted another party' in bringing a false claim.

A dispute concerning the charity trusteeship and governance of two Sikh places of worship was non-justiciable, the Court of Appeal has held . (Kharia and others v Shergill and others [2012] EWCA Civ 983.)

An update on the publication of the Government's reponse to the Civil Justice Council's report "Improving access to justice through collective actions".

Following the recommendations of the Hargreaves review, the government has announced that it will be introducing a new small-claims service for intellectual property cases in the Patents County Court.

In Various Claimants v News Group Newspapers Ltd and another [2012] EWHC 397 (Ch), the High Court has considered whether various court documents constitute statements of case and whether they should be disclosed to a non-party under CPR 5.4C.

In Royds LLP v Pine [2012] EWCA Civ 1734, the Court of Appeal provided guidance on PD 52B.7.2 and the appropriate procedure for determining a request to reconsider an application for permission to appeal in circumstances where the appellant cannot, for reasons of disability, attend a hearing of the application, or afford legal representation.

On 11 March 2013, the Master of the Rolls, Lord Dyson, issued Practice Guidance on the terminology to be used for litigants in person. 

The judiciary of England and Wales has published a guide for self-represented litigants making applications to the Interim Applications Court of the Queen's Bench Division of the High Court.

In First Subsea Ltd v Balltec Ltd [2013] EWHC 1033 (Pat), the court considered issues including whether the inclusion, in an agreed trial bundle, of a witness statment given in separate proceedings, obviated the need for a hearsay notice. (free access)

The Chancellor of the High Court has addressed certain key points in relation to a compromise of equalisation claims in Capita Atl Pension Trustees Limited v Zurkinskas [2010] EWHC 3365 (Ch).

An update on Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2009] EWHC 781, a case considering whether an issue identified by the claimant was suitable for preliminary determination in accordance with the court's case management powers in CPR 3.1(2)(i).

The High Court has granted an interim injunction and anonymity order to the claimant for breach of privacy and harassment in relation to the distribution of her photographs by BitTorrent users. (AMP v Persons Unknown [2011] EWHC 3454 (TCC), 20 December 2011.)  

On 1 July 2009, the High Court refused an application to adjourn a hearing on a jurisdictional challenge to a damages action brought against participants in the synthetic rubber cartel.

On 3 May 2013, the High Court refused an application by MasterCard to stay a damages action brought by Wm Morrison Supermarkets plc pending the ECJ ruling on a pending appeal (Wm Morrison Supermarkets Plc v MasterCard Inc [2013] EWHC 1071 (Comm)).

On 14 January 2013, the High Court published a ruling that stayed an action brought by the Secretary of State for Health against Servier Laboratories and others.

In Powel Entertainment v Ryder and others [2011] EWHC 2957 (Ch), the High Court considered whether it could grant an order to stay proceedings brought by several companies pending payment of costs in earlier unsuccessful proceedings that had been brought by the 100% shareholder in those companies.

An update on the publication of HMCS' business plan for 2010/11. NB. The HMCS' Annual Report for 2009/10 was published on 16 July 2010. 

HM Courts and Tribunals Service has published its annual report and accounts for the period 2011-12. 

The criteria for joinder of a party to proceedings (CPR 19.2(2)) were considered by Floyd J in Daiichi Sankyo Company Limited v Comptroller General of Patents [2010] EWHC 2898 (Pat).

If a claim form was served by email, how do I calculate when we will need to file an acknowledgment of service by?

I want to make a contempt of court application. Is there a standard form or a pracice direction which sets out the rules for making such applications?

How do I make an application under CPR 3.5(2)?

What can be done to progress a claim in circumstances where someone is physically incapable of defending it? Can the court appoint someone?

A note explaining how non-solicitors can instruct a barrister directly under the Licensed Access and Public Access schemes.

I have a case which was issued in the Mercantile Court back in 2010. We agreed directions with the other party and in 2012 filed with the court our case management information sheet. We then proceeded with the case as per the agreed directions. Because we agreed directions we did not need a CMC back in 2010. We now have the first CMC coming up and obviously PD51G now exists. The PD suggests at para 1.1(3) that it is at the first CMC that a costs budget should be filed. This does not seem to take into account scenarios like ours where the first CMC has been vacated because it was unnecessary. Reading the PD as a whole and looking in particular at 3.3 (and the reference it contains to filing the budget at the same time as the case management information sheet) it seems that despite para 1.1 this case does not fall within the pilot. I am however also mindful of para 1.3. Do you agree that we don't need to file the budget? I know that under 1.4 the court may make a costs management order anyway.

I have been asked to research ways of preventing a party from disposing of or trasferring their assets from their ownership. The practice note Freezing injunctions: an overview has been very helpful, but I would like to know whether there are any other mechanisms, other than freezing injunctions, which would achieve the same aim?

If one serves a hearsay notice late (outside the CPR time limits), what would one then be required to do?

I am trying to ascertain whether, under CPR, if a defendant in a claim issues a Part 20 claim against his co-defendant, he becomes a co-claimiant with the original claimiant?

If a provision in the Commercial Court guide conflicts with a provision in the CPR which takes precedence?

I have been dealing with other side solicitors in relation to a money claim that have nto responded to my correspondence thoroughout the course of our dealing. They are still on record for acting for the Defendant in the matter. My question is whether this breaches any Solicitor Code of Conduct rules and if so, do I have any potential recourse in the matter?

We have recently been instructed by a client regarding a Part 8 Claim where he is the Defendant. The Claim is for an Order for sale of property. I note that his witness evidence has to be filed at the same time as the acknowledgement of service unless the parties agree to an extension. If the parties do not agree, is there a way of seeking an extension from the court?

This note tracks the implementation of each of Lord Justice Jackson's recommendations for reform of civil litigation costs (including those not formally presented as recommendations). The note links to a separate note dealing with recommendations for specific types of litigation.

In Sullivan v Bristol Film Studios Ltd [2012] EWCA Civ 570, the Court of Appeal considered an appeal against a decision to strike out a claim brought by a litigant in person for infringement of copyright and other rights through publication of a video on Youtube for a three-day period. On the assumption that the claim had a real prospect of success, the court considered in particular the judge's conclusion that to allow the claim to continue when it had the potential for the recovery of so little money was a disproportionate use of the court's resources. Note: The Supreme Court refused permission to appeal the decision in this case on 11 March 2013.

In the Companies Court, does a pre-trial checklist need to be completed? Under points 3.23 and 3.24 of the Chancery Guide, the Claimant has to circulate a list of matters to be considered at the PTR to the other parties and file a PTR bundle at court. Does the Claimant have to follow these steps even where there are no mention of them in the directions (but a PTR is being held)?

The European Court of Justice has upheld a decision of the General Court of the EU that in-house lawyers cannot represent their companies before the EU courts.

The inherent common law jurisdiction of the court to assist adults who are vulnerable but do not lack mental capacity subsists as a safety net and has not been superseded by the Mental Capacity Act 2005 and its Code of Practice. (DL v A Local Authority and others [2012] EWCA Civ 253.)

This note considers the court's powers to award or disallow interest as a reward and a sanction in relation to: Offers to settle under Part 36. Non-compliance with a pre-action protocol. Delays in commencing a detailed assessment hearing.

Is a bundle required for an allocation hearing? We act for the Claimant and the Defendant has asked us for a bundle in advance of the Allocation Hearing. The Notice of Hearing only sets out the date/location of the hearing and a time allotment of 20 mins.

I have read that the Costs Management Pilot Scheme is to be extended to all multitrack cases from April 2013. However, although I can find commentary on this I cannot find the original source and wonder if you can help?

Are you keeping track of the proposed rule changes to the small claims limit? I have seen that it is proposed to increase the small claims limit to £15,000, and possibly in due course to £25,000. These are levels of claim which will be significant to clients of firms like ours. I would find it helpful to know/be kept up-to-date with the proposed developments and rule changes. In particular: (a) When will the small claims limit be increased? (b) Will there be any other changes to the procedural rules applicable to claims allocated to the small claims track? (c) Will the present small claims costs rules apply unchanged?

My question relates to the landlord and tenant act and discontinuance of a tenant's application for renewal of a business tenancy. Is there a difference between discontinuance and withdrawal of an application? My understanding it is that there is a difference, i.e. a tenant can discontinue an application unilaterally, whereas a landlord must withdraw an application following the consent of the tenant. If this is incorrect and the terms are synonymous with each other please let me know. Alternatively, if there is a material distinction I would be grateful to have any authority and the effects of this distinction.

CPR 26.3(1A): When a defendant files a defence, the court will service a notice on each party ... etc ... Question - Are you aware of a time limit within which the court must do this?

Jackson LJ has delivered the thirteenth lecture on the implementation of the civil litigation costs reforms. The lecture considers how technology may be used to aid his reforms.

Jackson LJ has responded to the Ministry of Justice's consultation, Solving disputes in the County Courts (March 2011). (Free access).

On 14 January 2010, Lord Justice Jackson's final report following his review of civil litigation costs was published. This legal update highlights the main recommendations. A more detailed summary will be published by the end of January 2010.

The Civil Procedure Rule Committee (CPRC) has provided an update on the expected publication date of the Statutory Instrument and making document implementing the civil justice reforms arising out of the Jackson reports.

PLC Dispute Resolution will be publishing a variety of new content aimed at preparing subscribers for, and guiding them through the Jackson/civil litigation reforms which will come into force in April 2013. 

This feature article looks at the Jackson reforms and what they will mean for parties to commercial litigation in England and Wales.

A collection of materials offering guidance on the Jackson/civil litigation reforms, which came into force on 1 April 2013. 

This table sets out the provisions of the CPR and practice directions that are affected by transitional provisions and exceptions as part of the Jackson/civil litigation reforms.

An update on Research in Motion UK Ltd v Visto Corporation [2008] EWHC 3026 (Pat) in which the court considered whether the parties, in patent proceedings, should be required to provide costs estimates.

An update on Marstons PLC v Charman and others [2009] EWCA Civ 719, which concerned an appeal against a case management decision.

What a company can do to challenge the decisions of public bodies.

The High Court has held that a non-party to judicial review proceedings can have access to an acknowledgment of service and detailed grounds for contesting the claim, as well as the claim form under Civil Procedure Rule 5.4C.

The Judiciary has submitted a response to the Ministry of Justice's consultation, Solving disputes in the county courts.

The High Court has considered jurisdiction in multinational patent entitlement and breach of confidence claims.

A flowchart setting out the key stages in a summary trial (as set out in rule 37(3) of the Criminal Procedure Rules 2011). Note: this note is in the process of being updated to reflect changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Court of Appeal has held that a claimant did not have to pay the defendant’s costs incurred between the expiry of the relevant offer period and acceptance of the Part 36 offer, in a departure from the normal costs order under Civil Procedure Rule 36.10(5)(b).

The Ministry of Justice has launched a new web page designed to keep practitioners informed of developments on implementation of the Jackson LJ reforms which are due to be implemented in April 2013.

The Civil Procedure Rules (CPR) were amended from 2 October 2006 to enable members of the public not involved in litigation to obtain copies of all statements of case on the court file in civil proceedings, including defences, without having to obtain the court's permission (rule 5.4C). However the Law Society has taken action to challenge those changes. It obtained an interim injunction on Friday 29 September preventing HM Court Service from making documents available under this new rule in relation to statements of case filed before 2 October 2006 and has subsequently initiated judicial review proceedings against the Department for Constitutional Affairs.

The Law Society has issued an update in relation to various aspects of the Jackson/civil litigation reforms.

On 19 April 2012, the Law Society published a practice note on litigants in person.

An Evaluation of the pilot of docketing files at Leeds County Court and Registry has been published.

Legal proceedings are often perceived as costly, time consuming and generally a distraction from core business. Consequently, companies with viable claims forego the chance of recovering damages rather than engaging in litigation or arbitration. Claims are rarely viewed positively. But should this be the case?

The Court of Appeal has held that, in considering whether an amendment to a statement of case after expiry of the relevant limitation period adds or substitutes a "new claim", the court must look at the totality of the documents served rather than at the claim form in isolation.

This note considers the particular issues associated with litigants in person. It defines a "litigant in person", also known as an unrepresented party, a self-represented party or a self-represented litigant. It examines what a litigant in person is entitled to do, the kind of assistance available to litigants in person, what is required of solicitors acting for the opposing party, the court’s approach to litigants in person and the costs recoverable by a litigant in person.

An update for litigators and dispute resolution lawyers, highlighting the main impact of the Solicitors Regulation Authority Code of Conduct 2011 that comes into force on 6 October 2011, replacing the Solicitors' Code of Conduct 2007. (Free access).

The Commercial Court has published the final report by its long trials working party.

Lord Dyson MR has warned litigants that 1 April 2013 heralds a tough new approach to relief from sanctions for non-compliance with the Civil Procedure Rules. (free acces)

A note on the bail procedure in the magistrates' courts. It covers the bail application procedure and the statutory exceptions to the right to bail.

This note covers the key stages in a trial in the magistrates' court. It includes an overview of the plea before venue procedure, mode of trial procedure for either-way offences and also covers committal proceedings and case management.

This note covers sentencing and appeals from the magistrates' court. It also deals with the current sentencing guidelines and sentencing options.

This two-part article identifies the challenges facing companies as they attempt to manage disclosure exercises dealing predominantly with electronic material and provides practical guidance for in-house counsel in preparing for and overseeing the electronic disclosure process.

An update on interactive guidance for users of the Mercantile Courts, including a "walk through" guide incorporating links to relevant materials.

The Ministry of Justice website now contains the updated Civil Procedure Rules (CPR). The Department for Constitutional Affairs website, which contained the updated CPR up to 9 May 2007, will continue to exist, but only for archive purposes and may not be updated.

The Ministry of Justice has decided to temporarily allow the courts of England and Wales to return to the old system of selecting interpreters and translators by the National Register of Public Service Interpreters.

The Ministry of Justice has published a consultation on reforming Her Majesty's Courts Service (HMCS) and the Tribunals Service, together with an impact assessment.

The Ministry of Justice has published a consultation on proposals to amend the Conduct of Authorised Persons Rules 2007, together with an impact assessment.

An update on ED and F Man Commodity Advisers Ltd and anor v Fluxo-Cane Overseas Ltd and ors [2008] EWHC 1997 (Comm).

In Pfizer Health AB and another v Schwarz Pharma AG and others [2010] EWHC 3236 (Pat), the High Court had to consider an application by a third party for permission to obtain copies of documents from the court file.

Note: this form is for use in cases where the defence was received before 1 April 2013. In cases where the defence is received on or after this date, the correct form to use is N180 (Directions questionnaire). Click here to access the Word version of this form. Click here to access the pdf version of this form.

Click here to access the Word version of this form. Click here to access the pdf version of this form.

Note that this form is for use in cases where the defence was received before 1 April 2013. In cases where the defence is received on or after this date, the correct form to use is N181 (Directions questionnaire). Click here to access the Word version of this form. Click here to access the pdf version of this form.

Click here to access the Word version of this form. Click here to access the pdf version of this form.

Note: this form is for use in cases where the defence is received on or after 1 April 2013. For cases where the defence was received before this date, the correct form to use is either N150 (Allocation questionnaire) or N151 (Allocation questionnaire (amount to be decided by the court)). Click here to access the Word version of this form. Click here to access the pdf version of this form.

Click here to access the Word version of this form. Click here to access the pdf version of this form.

Click here to access a Word version of this form. Click here to access a pdf version of this form. A further version of the form that has been annotated with basic guidance on how it should be completed is available by clicking here.

This is a transcript from Bailii of the judgment. Natas Group Ltd v Styles & Wood Ltd [2012] EWHC 526 (TCC) (07 March 2012).

Neath Port Talbot County Borough Council v Currie & Brown Project Management Ltd and another [2008] EWHC 1508 (TCC). This is a transcript of the case from Bailii.

New versions of the allocation questionnaire (forms N150 and N151) were published on 1 April. The section dealing with settlement has been expanded in each case. The new versions emphasise the requirement of trying to settle the claim before a hearing, and require legal representatives to confirm that they have explained to their client the need to try to settle, the options available, and the possible costs consequences of their decision. The forms further require parties to indicate whether they wish the court to order a one month stay or to assist in arranging a mediation. If a party considers that it would not be appropriate to try to settle the case at that stage, reasons must be given. There are also a number of other minor amendments, including a new section H asking whether the fee for filing the allocation questionnaire is attached The amendments were not mentioned in the 46th update to the CPR, but we understand that they will be addressed retrospectively in the 47th update. The new versions of the form are available on the HMCS website. We understand that there is a possibility that some courts will continue to send out hard copies of the unamended versions. If this occurs, it may be worth contacting the court for advice about how to proceed. PLC Dispute Resolution is amending its materials to reflect these changes.

Her Majesty's Court Service has announced plans for a new Business Court on Fetter Lane, London. The Business Court will bring together the specialist jurisdictions of the High Court dealing with business disputes. It will incorporate work carried out by the Chancery Division, Commercial Court and Technology and Construction Court, and deal with all business related disputes including patent issues, trademark disputes, technical construction cases, admiralty cases and international contract disputes. The new court is needed because existing facilities are no longer suitable for the volume of work the court handles. The new building will provide 29 courtrooms, 12 hearing rooms and 44 public consultation rooms, making it the biggest dedicated business court in the world. The new courthouse, to be called The Rolls Building, is expected to be operational in 2010.

With effect from Monday 12 December 2011, the Chancery Division is introducing a new procedure for parties seeking an order in the interim applications court. The aim is to improve the efficiency of drawing orders.

PLC Public Sector and Isabel Evans have published a new practice note and standard document dealing with local authority rights of audience.

Isabel Evans, PLC Dispute Resolution and PLC Public Sector have produced two new flowcharts on: Allocation procedure. Pre-action procedure in the High Court and county court. (Free access)

An update on the publication of new practice guidance on McKenzie Friends.

New interpreter services are being rolled out in courts in England and Wales. Courts will now be provided with interpreters and translators through a single agency.

PLC Dispute Resolution has published two new documents dealing with recovering a trade debt: Recovering a trade debt: quick guide is a quick guide to recovering a modest, straightforward trade debt. Recovering a trade debt: toolkit is an overview of key maintained PLC content that may assist a party looking to recover this sort of debt. ( Free access)

PLC Dispute Resolution has published a new practice note, Payments into and out of court and some accompanying standard documents. The practice note explains the timing and procedure for such payments, including the documentation required and links to the correct forms. The note also discusses interest and dealing with payments in foreign currency. The standard documents which accompany it are: Payment into court: completed Form 100 Payment into court: completed N242/Notice of payment into court (under order - Part 37) Payment into court: completed N242A/Notice of payment into court (in settlement - Part 36) Payment out of court: completed Form 200

PLC Dispute Resolution has published a new Practice note, Children and litigation. The note summarises the law and procedural rules that apply where one or more parties to a dispute is under the age of 18.

PLC Dispute Resolution has published a new Practice note, Case management: transfer of proceedings, which is a brief guide to the practice and procedure for transferring proceedings. The areas covered include transfer between the county courts, transfer within the High Court, transfer from a county court to the High Court (and vice versa), specialist cases (Divisions and specialist courts), and transfer for enforcement purposes.

PLC Dispute Resolution has published a new Practice note, Issuing a claim (Part 7) written in association with Allen & Overy LLP. It provides a practical guide to preparing and issuing a Part 7 claim form. It also includes a reminder of issues to consider before issuing proceedings and highlights the differences in procedure in the various divisions of the High Court.

A new version of the Queen's Bench Guide has been made available on the Court Service website. It is dated January 2007. The last edition was dated May 2000. There are a number of minor updating amendments to the previous edition, for example, the new guide has updated terminology and administrative material such as room numbers and telephone numbers. More substantial changes include: The guide now takes account of the European Service and Judgments Regulations. Section 2.2 Inspection and copies of documents reflects the October 2006 changes to CPR 5.4. Section 6.12 Offers to settle and payments into and out of court has been redrafted to reflect the new CPR 36 and 37 which come into force on 6 April 2007. Section 7.13 Interim remedies has been expanded. Section 7.14 Interlocutory Orders is a new section which covers orders made by masters, orders made by a high court judge and civil restraint orders. Appeals (now section 11) has been expanded to clarify routes of appeal, the effect of refusal of permission to appeal, applications for permission to the Court of Appeal and the procedure and documents for an application for permission to appeal and the appeal if permission is obtained. The guide refers to new parts of the CPR such as CPR 69,70, 71, 72, 73 and 74 governing enforcement (some of these were previously RSC Orders in Schedule 1 to the CPR). An appendix to the guide now also links to the latest court fees. Source: Her Majesty's Courts Service website

In Home Office v Tariq [2011] UKSC 35 the Supreme Court considered the use of closed material procedures in the employment tribunal. 

In Iran Tehran Computer Consultants Group Ltd (trading as FMCC and ITCCG) v Fujitsu Services Ltd [2012] EWCA Civ 871, the Court of Appeal considered an application for permission to appeal and, in particular, whether there was a particular limitation on the jurisdiction granted by CPR 3.4(4).

In Orange Personal Communications Services Limited v Hoare Lea (a firm) [2008] EWHC 223 (TCC), the court dismissed Hoare Lea's application for a stay of proceedings even though there had been a failure by Orange to follow the Pre-Action Protocol for Construction and Engineering Disputes before serving the claim. The judge revisited the considerations relevant to the exercise of a stay when a protocol has not been complied with and followed the usual practice of imposing cost sanctions on the non-complying party, but limited that sanction to part of the costs of the application itself. The case also illustrates how the TCC adopts a pragmatic approach to case management.

Click here to access the HMCTS Word version of this form.

Honorary silk is awarded to lawyers who have made a major contribution to the law of England and Wales outside practice in the courts. The Ministry of Justice is inviting both the legal sector and the wider public to nominate individuals who may then be recommended to Her Majesty for appointment as honorary silk in early 2009. Nomination forms should be sent to the Ministry of Justice by Friday 7 November 2008. For more details, click here.

The High Court has held that an independent expert must be allowed to access a party’s databases on the basis that the party had failed to comply fully with a Norwich Pharmacal order.

Website of the Official Solicitor of England and Wales.

I am defending a grossly exaggarated claim. It is worth around £500. Had it been framed correctly then it would have been allocated to the small claims track, but it has instead been valued at over £25,000. My client denies liability, but if the claim had been properly framed it would probably have settled, given the costs of defending it. We have done a lot of work on it. We have just been served with a Part 36 offer to settle at £750. The claimant's solicitors costs are over £10,000. If we go to trial and lose, what is the risk that my client will have very substantial costs awarded against it? Will the Court take into account that this was a grossly exaggerated claim, and, had it been properly allocated to the small claims track, then the small claims track costs regime would have applied?

Once a judgement has been set aside, can one start a fresh claim against the debtor?

A drafting note to accompany the example draft order for an extension of time for filing and service of the defence.

In JSC BTA Bank v Granton Trade Ltd and others [2012] EWCA Civ 564, the Court of Appeal considered the approach to be taken where the court has been misled into granting relief from sanctions under an unless order.

A legal update on Carillion JM Ltd v PHI Group Ltd [2010] EWHC 496 (TCC), in which the court considered the defendant's application, shortly before the trial, to amend its defence by, among other things, joining a Part 20 defendant.

The Patents County Court has ordered that a trade mark and passing off dispute between the owner of a chain of British comedy clubs and the producer of an American television series involving the use of the GLEE trade mark dispute be transferred to the High Court. (Comic Enterprises Ltd v Twentieth Century Fox Film Corp [2012] EWPCC 13, 22 March 2012.)

This document is only available in MS Word format. Click here to view it.

This is an example of a completed Form 200 for payment out of court. This document is only available in MS Word format. Click here to view it.

Click here to access the pdf version of this form.

Click here to access the pdf version of this form.

Click here to access the HMCTS Word version of this form.

Click here to see the Word version of this form. Click here to access the pdf version of this form.

Click here to access the Word version of this form. Click here to access the pdf version of this form.

Click here to access the pdf version of this form.

Click here to access the Word version of this form. Click here to access the pdf version of this form.

PLC Dispute Resolution's "Ask the Team" feature was launched in November 2008, and is a year old this month.

PLC Dispute Resolution has updated its practice notes and documents to reflect the 44th amendment to the CPR which came into force on 6 April 2007.

Practical Law Dispute Resolution's 2013 Birmingham roadshow event will be taking place on Friday 1 March 2013.  It will include presentations on damages based agreements and the nuts and bolts of the "big bang" reforms coming into force on 1 April 2013.

In the case of Prescott v Dunwoody Marketing Limited [2007] EWCA Civ 461, Lawrence Collins LJ expressed the view that the power under CPR 19.2 in relation to joinder and substitution exists after judgment as well as before.CPR 19.2(4) provides that the court may order a new party to be substituted for an existing one if the existing party's interest has passed to the new party, and it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings.It was held under the former RSC Ord. 15 that substitution could be effected after judgment. In this case Lawrence Collins LJ noted that it had been doubted whether there is a similar power in relation to joinder under CPR 19.2, because the power is in relation to "matters in dispute in the proceedings" and there are no such matters following judgment (Kooltrade Ltd v XTS Ltd, unreported, December 10, 2001). In this case an order substituting a party was made after the first instance judgment had been given. As the applicant did not apply for the order to be set aside, the question whether the order could be made after judgment did not arise on this appeal. However having considered C Inc v L [2001] 2 Lloyd's Rep 459 and The Selby Paradigm [2004] EWHC 1804 (Admlty) Lawrence Collins LJ expressed the view that the power under CPR 19.2 in relation to joinder and substitution exists after judgment as well as before.

Publication of the updated Practice note, Electronic Working Scheme: filing and managing proceedings.

The Solicitors' Code of Conduct came into force on 1 July 2007 (see Legal update, New Solicitors' Code of Conduct). PLC Dispute Resolution has updated the following practice notes to reflect the changes: Preparing effective witness statements Pre-action considerations Disclosure: an overview Disclosure: who must give disclosure and what is the disclosure obligation? For further information about the Solicitors' Code of Conduct, see the following practice notes: Solicitors' Code of Conduct 2007 Solicitors' Code of Conduct: Rule 11 - Litigation and Advocacy Informing the client about costs: at outset of retainer and beyond

In Nikitin v Richards Butler LLP and others [2007] EWHC 173 (QB), the court dealt with applications for a Norwich Pharmacal order and an order for pre-action disclosure under CPR 31.16. The court refused to grant a Norwich Pharmacal order as the applicants had failed to establish that such an order satisfied the criteria of "necessity" as set out in Mitsui & Co Ltd v Nexen Petroleum UK Ltd. An order for pre-action disclosure was also refused as the applicants had not demonstrated that this was "desirable" for any of the reasons in CPR 31.16(3)(d).While this decision does not make new law, it is a helpful consideration of the relationship between disclosure under the CPR and the remedy of a Norwich Pharmacal order. The disclosure and inspection of the parties' documents is a familiar procedural stage in litigation. As Langley J stated, this is the "starting point". CPR 31.16 provides for disclosure before proceedings have been commenced in exceptional circumstances. The "third and last port of call" is Norwich Pharmacal relief which is restricted in its application.There was considerable overlap in these applications in the Queen's Bench Division and a previous application made in the Commercial Court. (See Legal Update, Illegally obtained evidence may be admissible in application for equitable remedy.) The court was critical of this duplication; good case management requires that one court should have an overview of all matters relating to the proceedings.

This note provides an overview of the pre-action protocol for possession claims based on rent arrears predominantly dealt with in the county court.

A checklist of practical points to bear in mind when preparing bundles for interim hearings.

The Court of Appeal has held that it will only grant a private hearing or party anonymisation if it is satisfied that it is necessary for the proper administration of justice.

The Court of Appeal has confirmed that it is possible to claim privilege in respect of a document which is requested under Civil Procedure Rule 31.14.

Procedure, time limits and documents to be filed for most non-specialist appeals are considered in this practice note.  This note is based on the rules in force until 30 September 2012. It is not maintained beyond that point. Please refer to the following Practice notes for the rules in force from 1 October 2012: Appeals: procedure and documentation: overview. Appeals in the county courts and the High Court: the old and new regimes compared. Appeals to the Court of Appeal: the old and new regimes compared.

In El-Farargy v El Farargy and ors [2007] EWCA Civ 1149 the Court of Appeal (applying the well-established "fair minded observer" test) allowed an appeal against a judge's refusal to recuse himself on the grounds of bias. The basis of the application was a series of inappropriate comments and "jokes" made by the judge during the course of a pre-trial review Apart from the unusual facts of the case (which the Court of Appeal described as "singularly unsatisfactory, unfortunate and embarrassing"), the main interest of the judgment lies in the procedural guidance contained in paragraph 32 of Ward LJ's judgment. He noted that the procedure for applying for a recusal is "concerning" because it involves an application to the judge in question, and it is "invidious for a judge to sit in judgment on his own conduct". Ward LJ suggested that the following procedure should be adopted: First, if circumstances permit, an informal approach should be made to the judge (for example by letter) making the complaint and inviting recusal. While judges should not yield to frivolous objections, a judge can nevertheless "with honour totally deny the complaint but still pass the case to a colleague". If the judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, "hard though it is to sit in judgment of one's colleague, for where the appearance of justice is at stake, it is better that justice be done independ

In a new monthly column, A practical view from the Bar, James Bickford Smith of Littleton Chambers will be distilling practical guidance for civil litigation practitioners from recent court decisions. James will also provide an insight into dealing with issues arising out of the application of the Civil Procedure Rules which have been encountered in practice and before the courts. James Bickford Smith is a barrister at Littleton Chambers specialising in commercial and employment law.

An update on G & G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), in which the court considered whether to make an order under CPR 5.4C(4).

The Department for Constitutional Affairs has published a consultation paper on Case track limits and the claims process for personal injury claims. The courts' powers to allocate defended claims to a particular track are set out in CPR 26. For more information about allocation and the current scope of the three tracks, see Practice note, Case management: which track?This consultation paper:Recommends that the fast track limit should be raised to £25,000 for all types of claim.Considers the arguments for and against raising the small claims track limit in personal injury cases and housing disrepair claims respectively, but concludes that the current levels should remain.Proposes that the small claims limit for all other cases should remain at £5,000.In each case, there is the opportunity to disagree with the government's conclusions, setting out reasons why and stating what you consider to be a more appropriate level. The paper also seeks views on whether intellectual property litigation could be dealt with in a more efficient and cost effective way.The consultation will close on 13 July 2007, and a paper summarising the responses will be published in September 2007.

In Ewing v London Borough of Camden [2013] EWHC 961 (Admin), the court considered whether the defendant local authority had standing to make submissions in relation to the application of a vexatious litigant (under section 42(3) of the Senior Courts Act 1981) for permission to commence proceedings against it. 

The DCA has confirmed that the Law Society's application for an injunction preventing the retrospective application of CPR 5.4C and its application for permission to bring judicial review proceedings have been listed for a full hearing on 28-29 November 2006.

The Queen's Speech was delivered on 9 May 2012 and set out the government's policies and proposed legislative programme for the forthcoming parliamentary session. The legislative programme includes the Crime and Courts Bill and the Justice and Security Bill, which introduce changes to the civil and criminal justice systems. (Free access)

The Court of Appeal has considered whether the successful party could recover the element of a premium (for an after the event insurance policy taken out for the appeal hearing) that provided cover for the costs of the first instance hearing.

A quick guide to recovering a modest trade debt where both parties are businesses within the jurisdiction and there is likely to be no substantial dispute of fact or evidence.

In Persimmon Homes Ltd v Woodford Land Ltd [2011] EWHC 3109 (Ch), the court considered the construction of dispute resolution provisions in an agreement to determine what issues could be referred to expert determination.

In Phaestos Ltd and another v Ho and others [2012] EWHC 1375 (TCC), the court considered two related applications arising out of a consent order requiring the claimants to provide further information as to their case.

In The Bank of Tokyo-Mitsubishi UFJ Ltd and KBC Bank NV Limited v Bashan Gida Sanayi Ve Pazarlama AS and others [2008] EWHC 659 (Ch), one of the defendants, A, applied to strike out the claimant banks' (B) claims against him under CPR 3.4(2) and/or for summary judgment on all claims against him under CPR 24.2. One of the grounds relied on by A was that it would be "oppressive and unfair to require [him] to defend the claims". In support of this he focused on the substantial inequality of arms between B and himself. He had had to fund the proceedings so far by borrowing, and doubted he would be able to fund a full defence, whereas B had relatively unlimited resources. A submitted, therefore, that the overriding objective required the court to apply a more stringent test in considering whether under CPR 3.4(2) there were reasonable grounds for bringing the claim, or whether B, under CPR 24.2 could show a real prospect of succeeding on the claim. Briggs J rejected this argument. CPR 24.2(a)(i) imposed a reality test to distinguish between the realistic and hopeless cases and the hurdle under CPR 3.4(2) was similar. The overriding objective was achieved through these provisions of the CPR by ensuring "unreal, fanciful or hopeless cases (or defences) are dealt with without the effort and expense of a trial...". On the facts of the case, A's applications under both provisions failed. Whilst the court was sympathetic towards individuals drawn into long and complex litiga

In JSC BTA Bank v Shalabayev and another [2011] EWHC 2915 (Ch), the High Court considered the defendants' application for relief from sanctions, under CPR 3.9(1), for their failure to comply with an unless order that required them to provide particulars of their claims to legal professional privilege over certain documents.

The High Court has considered questions of res judicata, privity and abuse of process in circumstances where neither of the parties to the proceedings had been parties to the earlier proceedings in which the issue in question had been determined.

A reminder of the 55th update to the Civil Procedure Rules, most of which comes into force on 6 April 2011 (Civil Procedure (Amendment) Rules 2011 (SI 2011/88) and Practice direction amendments).

A reminder update on the Civil Procedure (Amendment No 2) Rules 2009 (SI 2009/3390) and the Civil Procedure (Amendment) Rules 2010 (SI 2010/621) (the 51st and 52nd updates to the CPR), which come into force mainly in April 2010.

County court money claims will need to be issued in the County Court Money Claims Centre, with effect from 19 March 2012. (Free access).

PLC Dispute Resolution is in contact with the Ministry of Justice to help resolve reported issues with the recently published Excel version of Precedent H.

A short practical guide to making and responding to Requests for Further Information in litigation under CPR 18.

An update on JSC BTA Bank v Mukhtar Ablyazov and others [2010] EWHC 90 (Comm), in which the court considered a challenge to a "lawyers' eyes only" order. 

PLC Dispute Resolution has published a revised version of the practice note on telephone hearings based on the amended Practice Direction 23, which appears in the 44th update to the Civil Procedure Rules and which will come into force on 6 April 2007.The amendment extends the pilot scheme for telephone hearings to all county courts and district registries which have telephone conference facilities. The amendment to PD 23 consists of a completely redrafted PD 23.6 to replace the old PD 23.6 on telephone hearings. In addition, PD 23C (on the pilot scheme for telephone hearings) is now omitted from the Civil Procedure Rules. The effect of these amendments is to streamline the rules on telephone hearings, and to get rid of all references to the pilot scheme.

In K/S Victoria Street (A Danish Partnership) v House of Fraser (Stores Management) Ltd and others [2011] EWHC 3179 (Ch), the High Court considered the scope of CPR 3.1(7).

In Shetty v Al Rushaid Petroleum Investment Company and others [2011] EWHC 1460 (Ch), the High Court considered issues of joinder and whether to permit additional claims against defendants resident out of the jurisdiction.   

Secretary of State for Communities and Local Government v Bovale Ltd and another [2009] EWCA Civ 171. This is a transcript of the case from Bailii.

Rule 15.8 provides that a reply to defence is to be served and filed at the same time as the allocation questionnaire. It doesn't look like the rule is going to be amended from April to take into account the fact that the allocation questionnaire is to be abolished and replaced with a directions questionnaire. This means that, for cases where a defence is received on or after 1 April, there will not be a clear deadline for serving/filing the reply. Our view is that this should probably be done at the same time as filing the new directions questionnaire. Do you agree?

This spreadsheet is designed to help you calculate the interest on a claim, and is viewable in Excel.

A solicitor does not have a duty to obtain medical evidence of a client's mental capacity solely because the client is elderly. (Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 (QB).)

Solicitors Practice Rules 1990 as stated by the Law Society.This document is in pdf format and may take some time to download.

This Practice note provides an overview of the Solicitors' Code of Conduct 2007, which came into force on 1 July 2007 and applies to all solicitors practising in England and Wales. The Code replaced the rules of professional conduct contained in the Solicitors Practice Rules 1990 with effect from 1 July 2007. Note: The Solicitors Regulation Authority (SRA) Handbook, which is fully in force from 6 October 2011, replaces the Solicitors' Code of Conduct 2007. PLC has published the following Practice notes on the SRA handbook: SRA Handbook 2011 and Code of Conduct. SRA Handbook 2011 and Code of Conduct: issues for property lawyers. SRA Handbook: ten top things for in-house lawyers to think about.  

In Natas Group Ltd v Styles & Wood Ltd [2012] EWHC 526 (TCC), Akenhead J commented that solicitors working under a CFA and seeking to use limited resources were still professionally bound to provide the necessary resources to conduct a case efficiently and fairly.

The Solicitors' Code of Conduct 2007 and all other existing Solicitors Regulation Authority (SRA) rules have been rewritten and reformatted into a new SRA Handbook. The date for implementation of the Handbook is currently scheduled to be 6 October 2011. This Practice note highlights the ten key points that in-house lawyers need to consider in advance of its introduction.

The Solicitors Regulation Authority (SRA) has published a schedule of revisions to the SRA Handbook 2011, which have been approved by the Legal Services Board (LSB).  

The High Court has held that a non-party should not be allowed to obtain a copy of a statement of case under Civil Procedure Rule 5.4C.

Statements of case and other documents must be verified by a statement of truth. This note covers the practical issues relating to statements of truth, such as who should sign them and the form of wording involved.

In Barnes v Black Horse Ltd [2012] EWHC 1950 (QB), the High Court analysed the factors relevant to a stay of proceedings, pending an appeal to the Supreme Court in proceedings raising parallel issues. (Free access).

In Curtis and another v Lockheed Martin UK Holdings Limited [2008] EWHC 260, the court refused the defendant's application to stay the determination of some of the issues in the action pending proceedings in Italy. The judge applied established Court of Appeal guidance regarding the exercise of the court's discretion to stay under its inherent jurisdiction pending other proceedings, which emphasised that there must be a very strong reason for a stay and the benefits of a stay must clearly outweigh any disadvantage to the claimant. The burden on the defendant is, however, not greater than would arise on an application on the grounds of forum non conveniens.

Flowchart setting out how the structured approach operates in the magistrates' court under both the old and new sentencing guidelines. Note: this note is in the process of being updated to reflect changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

This note sets out the fees payable in the Supreme Court in relation to certain key stages in proceedings.   For details of fees payable in the High Court, see Practice note, High Court fees: a quick guide. For details of fees payable in the county court, see Practice note, County court fees: a quick guide.

Akenhead J has indicated that the Technology and Construction Court (TCC) will begin work on a revised TCC Guide in autumn 2013, aiming for publication in early 2014.

An update on one aspect of the Technology and Construction Court's judgment in Balfour Beatty Construction Northern Limited v Modus Corovest (Blackpool) Limited [2008] EWHC 3029 (TCC), where Coulson J commented on the relationship between alternative dispute resolution (ADR) and litigation.

An update on Vitpol Building Service v Samen [2008] EWHC 2283 (TCC), which considered the jurisdiction of the TCC to determine whether a dispute can be referred to adjudication.

An update on Forrester Ketley and Co v David Brent [2008] EWHC 3150 (Ch), which considered the test for permission to apply to court where a party is subject to a civil restraint order.

On 2 April 2013, the 7th edition of the Chancery Guide was published.

An update on the new Practice Directions and amendments to existing Practice Directions introduced by the 53rd amendment to the CPR. The changes will come into force fully on 1 October 2010.

An update on the Civil Procedure (Amendment No 3) Rules 2008 (SI 2008/3327) and 49th update to the CPR.

The Civil Procedure Rules have been amended by the Civil Procedure (Amendment) Rules 2008 (SI 2008/2178). The amendments, which mostly come into force on 1 October 2008, are the following: A new Part 6 (Service of documents) and consequential amendments to other rules to reflect this. Note that PLC Dispute Resolution will be publishing a note on the changes to the rules on service shortly.Amendments to various rules to provide for applications for orders in respect of pro bono representation under section 194 of the Legal Services Act 2007. Amendments to CPR 36.9 and 36.15 to provide for the recovery of lump sum payments under the Social Security (Recovery of Benefits) Act 1997 where an offer to settle is made under Part 36. Amendment to CPR 52.3(4A) to enable the Court of Appeal to order that a decision made without a hearing in family proceedings can be reconsidered at a hearing.Amendment to CPR 56 to provide for applications under section 214 of the Housing Act 2004 (tenancy deposit schemes). Amendment to CPR 65 to remove provisions relating to drinking banning orders as the relevant provisions of Violent Crime Reduction Act 2006 have not been implemented. A new Part 78 containing rules about European orders for payment (EOPs) under Regulation (EC) No 1896/2006 of the European Parliament and rules about the European small claims procedure (ESCP) under Regulation (EC) No 861/2007 of the European Parliament. Also consequential amendments to other rules to reflec

The Civil Procedure (Amendment) Rules 2011 (SI 2011/88 (L.1) come into force on 6 April 2011. (free access).

The Civil Proceedings Fees (Amendment) Order 2013 (SI 2013/734) came into force on 1 April 2013.

In Zipher Limited v Markem Systems Limited and anor [2008] EWHC 1379 (Pat), the High Court held that an undertaking which Zipher had given to the court in earlier proceedings, under which it agreed to narrow the claims of its patent if it was successful, precluded it from amending the patent to widen the claims. This was the case even though the undertaking had never been incorporated into a court order.The decision is a useful reminder of the effect of an unconditional undertaking given to court. Basically, the party who gives such an undertaking will be bound by it unless and until it is discharged. It makes no difference whether it was recorded in a court order, whether the other party accepted the undertaking or whether the court's decision was made on a different basis from that set out in the undertaking. This decision has been overturned on appeal, see Legal update, Court of Appeal guidance on undertakings to court.

The High Court and County Courts Jurisdiction (Amendment) Order 2008 (SI 2008/2934) has been published.

Introduction of a six month Mediation Service Pilot Scheme in the County Court Money Claims Centre from 1 October 2012 to 31 March 2013. Note: the Mediation Service Pilot Scheme in PD 51H will be replaced by the Second Mediation Service Pilot Scheme in PD 51I, to take effect on 1 April 2013 and to run until 30 September 2013 (see Legal update, Countdown to Jackson: 61st update to CPR and practice directions published).

On 2 April 2013, the Solicitors Regulation Authority published the 7th version of the SRA Handbook 2011.

There are a number of developments to watch out for in 2007, including:

An update on a training programme for the judiciary.

An update on NATL Amusements (UK) Ltd and others v White City (Shepherds Bush) Ltd Partnership and another [2009] EWHC 2524, in which the Technology and Construction Court (TCC) considered the rules for transferring proceedings to the TCC.

Following a recent consultation, from November 2008, there will be a new two-tier tribunal system. The reforms are intended to simplify and improve the tribunals services. The two-tier tribunal system will be introduced following the majority approval to the proposals set out in the consultation paper. These reforms are intended to simplify the judicial framework for tribunals, harmonise the appeals process and generally improve the tribunal service for users.Apart from changes necessary to bring Part 1 of the Tribunals, Courts and Enforcement Act 2007 into effect, it is envisaged that existing rules for each tribunal will continue to apply, but new rules may be introduced in future (including in relation to costs). In particular, a new "Tribunal Procedure Committee" has been given responsibility for harmonising and improving the various existing procedural rules for tribunals affected by the reforms. It intends to undertake its first consultation in November 2008.The Employment Tribunal and the Employment Appeal Tribunal will stand as a distinct pillar within the new organisation and are unaffected by these proposals.It is also worth noting that the Lord Chancellor intends to use his powers to prescribe that appeals from an upper tribunal to the Court of Appeal will only be permitted in cases of general importance or for other compelling reasons.Source: Tribunals Service

On 1 May 2007, we reported on Director of Public Prosecutions v P [2007] All ER (D) 246 (Apr), see Legal update, Treatment of draft judgments before handing down. This concerned the extent to which it is permissible to circulate draft judgments before handing down. That law report did not contain any background to the decision. However, a more detailed judgment is now available: [2007] EWHC 1144 (Admin). A draft judgment had made available to the parties. The DPP subsequently informed the court that there had been a serious breach of the confidentiality provisions of PD 40 E. He said that the draft judgment had been circulated to CPS solicitors and employees, including the Policy Directorate and also to the Home Office and HM Court Service. It became apparent from the terms of his apology that he considered that only circulation to the Home Office and HM Court Service had been inappropriate, not circulation within the CPS. Accordingly Smith LJ consulted other senior members of the judiciary, who shared her view that PD 40 E was intended to permit draft judgments to be disclosed only to the lawyers directly involved with the case and their clients: the rules had been relaxed in 2005 to allow solicitors to take clients' instructions on consequential matters such as appeals. Where the solicitor responsible for the case was handling it under supervision, it was appropriate for the supervising lawyer to see the draft judgment, but dissemination should stop there. Smith

Three draft statutory instruments have been published to bring in a new, more cohesive, two-tier tribunal system and implement Part 1 of the Tribunals, Courts and Enforcement Act 2007 (see Transforming Tribunals - Government Response). They are: The Transfer of Tribunal Functions Order 2008 (transferring specified tribunals, and their members, into the new system). The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 (providing that, where a matter is before the Upper Tribunal on an appeal from a decision of the First-tier tribunal, permission to then appeal to the Court of Appeal will only be granted in an important or compelling case). The First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (determining the number of members who will decide matters). These statutory instruments will come into force on 3 November 2008, subject to parliamentary approval. The draft instruments will transfer only a limited number of the tribunals affected by the reforms, including the Mental Health Review Tribunal and Child Support Commissioner. The transfer of all affected tribunals is expected by April 2009; including the Pensions Regulator Tribunal and Financial Services and Markets Tribunal (see Legal update, Ministry of Justice confirms plans for the Pensions Regulator Tribunal to be in the new upper tribunal). The relevant procedural rules will also be reformed, see Legal update, Consultations on tribunal procedural rules.The Employment

Subject to parliamentary approval, the new First-tier and Upper Tribunals will come into operation on 3 November 2008. The senior president of tribunals, Sir Robert Carnwath, has published a review of the progress towards implementing the tribunal reforms from the judicial perspective. The senior president's review sets the scene for the next few months of the implementation process and provides a provisional indication of the way in which he intends to exercise his functions on some important aspects of the reforms. He intends to publish a further review paper in the Autumn.Source: www.judiciary.gov.uk

This is an example of an "unless" order. It must be adapted to the specific facts and circumstances, and should be read in conjunction with the integrated drafting notes.

In Marcan Shipping (London) Limited v Kefalas and anor [2007] EWCA Civ 463, the Court of Appeal considered the effect of unless orders. The judgment contains a useful analysis of the authorities on unless orders and a reminder that the sanction prescribed by the order takes effect automatically, unless an application for relief is made and granted.

This practice note sets out the circumstances in which the parties may agree to vary the time specified by the Civil Procedure Rules (CPR) or the court for a person to do any act, and when the court's permission is required. It also summarises the procedure for seeking the court's permission in the various divisions of the High Court.

In Ewing v News International Ltd and others [2010] EWCA Civ 942, the Court of Appeal provided guidance on the approach that courts should take when considering applications by vexatious litigants for leave to bring proceedings, under section 42(3) of the Senior Courts Act 1981.

In Standard Bank plc v Via Mat International Ltd and another [2013] EWCA Civ 490, the Court of Appeal considered an appeal from the decision of the lower court to summarily dismiss the claim against the defendant companies.

I am acting for a defendant who did not receive service of a claim, resulting in judgment being entered in default. I am appling to set aside judgment. Another issue arises; the claim was issued against a publication owned by my client rather than my client. I am expecting the Court will make an Order granting the Claimant permission to amend the party at the same time as considering my client's application (there is no limitation issue). My question is how I head proceedings, using the incorrect name or the correct name of my client, who acknowledges that the claimant's dispute relates to it?

A complaint has been made to the Financial Ombudsman Service and so the Court has Ordered by consent that the claim be stayed pending notification of the FOS decision and that either party has permission to apply to lift the stay and seek further directions. We have now applied using form N244 to lift the stay but I want to know under which part of the CPR the application is made? CPR Part 3 only refers to the powers of the Court to impose a stay (not the parties to apply to lift it). Is it also necessary to ask for leave to proceed in the claim, or can you just apply for the stay to be lifted and for further directions as the Court sees fit?

Multiplex Constructions (UK) Ltd (Multiplex) and Cleveland Bridge UK Ltd (CBUK) & Anor [2008] EWHC 2220 (TCC) Another chapter in the long running litigation in the Technology and Construction Court (TCC) between Multiplex and CBUK closed this week, with Mr Justice Jackson handing down judgment requiring CBUK to pay Multiplex £6.1 million and 20% of Multiplex's costs, which are estimated to be in excess of £9 million since June 2006. The dispute does not decide new law, but reinforces the TCC's robust approach to case management and provides guidance on dealing with witness evidence that mixes fact and opinion. PLC Construction thanks Lucy Garrett, junior counsel for CBUK, for her contribution to this update. Note added 24.02.10: the Court of Appeal has allowed appeals on three of the grounds it was asked to consider (see Legal update, Appeals allowed in Multiplex v Cleveland Bridge).

We have a case which is running under the "old" rules (i.e. before the Jackson reforms came into force). The first CMC has been scheduled and I should be grateful for guidance as to what is required from the parties in advance of the CMC.

Do you have any plans to publish new materials regarding the Jackson/civil litigation reforms coming into force in April 2013? Will your current materials be updated in time for the April changes?

I wondered whether you would be able to assist with the following situation. We are in the course of litigation and the claimants previously applied for an unless order as the Defendants (when acting in person) failed to file their list of documents. When instructed, due to the limited time available to compile the list, we made an application to court for an extension of time. The Court have confirmed that there will be a hearing of our application and that we have relief from sanction until the hearing (the date in the unless order has now passed, however our application was dealt with prior to this date). I have reviewed the CPR with respect to the authority for relief from sanction following an application until a hearing, however I am unable to find this point and wondered whether you would be able to assist with the authority for this?

What are the court fees on a part 20 Claim against a new party with the value to be assessed?

Do you need the consent of both parties to have a private hearing? What are the grounds for the court allowing hearings to be heard in private? How do you notify the court that you wish the hearing to be heard in private? I have read CPR 39 and its PD but I can't seem to find any direction as to whether you need consent from both parties and how you apply to the court for your case to be heard in private, aside from making representations to the Judge, as per PD 39 paragraph 1.4?

I note that the amendments to CPR 3.8 and 3.9 will not apply to applications for relief from sanctions made before 1 April 2013. I cannot find any rule in the CPR which supports this. Are you aware what rule supports this?

Our opponent consistently refers to the existence and substance of without prejudice discussions in open correspondence. Is there anything we can threaten them with to prevent them from doing this?

I am seeking a declaration that restrictive covenants in an old conveyance are not enforceable and I am going to issue a claim under part 8 imminently. I understand the normal procedure is to to have a CMC at the first hearing, however I want to get the Court to consider the substantive application as soon as possible as there is a degree of urgency due to financial implications for my client. What can I do to expedite matters and bring the substantive hearing forward?

In Drury v BBC and another [2007] All ER (D) 205 (May), the Court of Appeal attempted to clarify that the mere fact that a judge has made a finding against a party on a previous occasion, even if he had been critical of that party, does not found a later objection to the judge sitting in another matter. However, it went on to say that where there is any room for doubt as to whether the a judge should hear a case, that doubt should be resolved in favour of recusal. In the case, the claimant brought libel proceedings against the defendants. The second defendant appealed against a decision granting the claimant a retrospective extension of time for service of the claim form on the second defendant. Before the appeal was heard, the claimant applied for the recusal of one of the proposed judges, on the ground that he had refused permission to appeal another matter in which the claimant had acted as a McKenzie friend, and made criticisms of the claimant. The Court of Appeal said that it was entirely appropriate to reject the application for recusal. The issues in the case did not depend upon any view as to the claimant's credibility, nor on any issues underlying the litigation. An independent observer would not consider that the judge could not or would not apply an objective mind to the case. That said, the Court of Appeal noted that another judge was available to hear the case and it considered that for the avoidance of doubt or any possible later objection by the cla

I have a diary note for 1st October that allocation questionnaires are to be abolished then: however we have not been able to ascertain any more than that this has been proposed. It doesn't seem to be part of the forthcoming Civil Procedure {Amendment No.2) Rules 2012. Is it going ahead, and if it is, will it happen on 1st October or some other date?

When will the hearing fee in multi-track cases become payable?

You state that usually an application for transfer of a case occurs around allocation. When is the earliest time a defendant can apply to the court to transfer a case from a regional registry of the High Court to the Royal Courts of Justice? I assume that the normal procedure for making an application applies (e.g. CPR 23)?

An update on Richard Buxton (Solicitors) v Huw Llewelyn Paul Mills-Owens and the Law Society (Intervener) [2010] EWCA Civ 122, which considered whether solicitors could terminate their retainer because they had been instructed to advance points which they considered to be unarguable and whether they were entitled to recover their profit costs.

My client has withheld payment of security service invoices because of a car theft that happened during the security firm's duty. The invoices are assigned and now the invoice discounting company has brought proceedings against our client which have reached allocation stage and they are bringing an application for summary judgment imminently. My question is therefore whether CPR Part 20 can be used by our client whereby they join the security company into proceedings with an additional claim for negligence? Essentially, can our client set off damages from a negligence claim against the security company in the unpaid invoices case? It may or may not be relevant that it appears the 3 unpaid invoices relate to sites different to that where the vehicle theft occured - that site's invoice appears to have been paid.

I note that Judge Simon Brown QC is the designated mercantile judge sitting in Birmingham and has been involved in the cost budgeting pilot since 2009. He has drawn up a CMC form which he proposes sending out after 1 April, do you know where I can find a copy of the said form?

In Allen v London Borough of Lambeth [2008] EWCA Civ 966, the Court of Appeal granted an application for permission for a second appeal. Such permission is granted rarely. The issue for appeal was whether five sets of possession proceedings by Lambeth against Mr Allen, which all failed, amounted to harassment under the Protection from Harassment Act 1997 so that Mr Allen had a civil claim against Lambeth under section 2 of the Act. Mr Allen's claim was struck out under CPR 3.4(2)(a) at first instance on the basis that there was no reasonable cause of action and this was upheld on appeal. On the application for permission to further appeal, Rimer LJ considered that the novelty of the claim provided a compelling reason why the Court should entertain a second appeal.

Which civil litigation cases will typically be allocated to multi-track?

Do you know if Form N181 (Directions Questionnaire) will be sent to the parties by the court, like the Allocation Questionnaire used to be?

With respect to a claim allocated to the small claims track, do the provisions regarding costs under CPR 27.14 also apply on appeal?

Risk is inherent in litigation and a crucial part of the lawyer’s job is properly to quantify and, to the extent possible, manage that risk. Witness evidence is often perceived as an element that the legal team can do little or nothing to control. However, witness training can significantly improve performance, and therefore reduce an element of litigation risk.

Mr Justice Ramsey has confirmed that the £2 million limit, above which automatic costs management does not apply in the Chancery Division, TCC and Mercantile Court, is under review. (free access)