| C | Particulars of Claim, Defence and Reply |
| C1 |
Form, content, serving and filing |
| C1.1 |
| (a) |
Particulars of claim, the defence and any reply must be set out in
separate consecutively numbered paragraphs and be as brief and
concise as possible.
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| (b) |
If it is necessary for the proper understanding of the statement of
case to include substantial parts of a lengthy document the
passages in question should be set out in a schedule rather than in
the body of the case.
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| (c) |
The document must be signed by the individual person or persons
who drafted it, not, in the case of a solicitor, in the name of the
firm alone.
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| C1.2 |
| (b) |
The requirements of PD 16 Paragraph 8.4 -- 9.1 (which relate to claims based
upon oral agreements, agreements by conduct and Consumer
Credit Agreements and to reliance upon evidence of certain
matters under the Civil Evidence Act 1968Acts) should be treated as
applying to the defence and reply as well as to the particulars of
claim.
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| (c) |
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(i) |
full and specific details must be given of any allegation of
fraud, dishonesty, malice or illegality; and
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(ii) |
where an inference of fraud or dishonesty is alleged, the facts
on the basis of which the inference is alleged must be fully set
out.
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| (d) |
Any legislative provision upon which an allegation is based must
be clearly identified and the basis of its application explained.
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| (e) |
Any provision of The Human Rights Act 1998 (including the
Convention) on which a party relies in support of its case must be
clearly identified and the basis of its application explained.
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| (f) |
Any principle of foreign law or foreign legislative provision upon
which a party's case is based must be clearly identified and the
basis of its application explained.
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| (g) |
It is important that if a defendant or Part 20 defendant wishes to
advance by way of defence or defence to counterclaim a positive
case on causation or quantification of damages, full details of that
case should be included in the defence or Part 20 defence at the
outset or, if not then available, as early as possible thereafter.
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| C1.3 |
| (a) |
PD 16 Paragraph 7.3 relating to a claim based upon a written agreement
should be treated as also applying to the defence, unless the claim
and the defence are based on the same agreement.
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| (b) |
In most cases attaching documents to or serving documents with a
statement of case does not promote the efficient conduct of the
proceedings and should be avoided.
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| (c) |
If documents are to be served at the same time as a statement of
case they should normally be served separately from rather than
attached to the statement of case.
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| (d) |
Only those documents which are obviously of critical importance
and necessary for a proper understanding of the statement of case
should be attached to or served with it. The statement of case must
itself refer to the fact that documents are attached to or served with
it.
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| (e) |
An expert's report should not be attached to the statement of case
and should not be filed with the statement of case at the Registry.
A party must obtain permission from the court in order to adduce
expert evidence at trial and therefore any party which serves an
expert's report without obtaining such permission does so at his
own risk as to costs.
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| (f) |
Notwithstanding PD 16 Paragraph 7.3(1), a true copy of the complete written
agreement may be made available at any hearing unless the court
orders otherwise.
Adapted versions of the practice forms of defence and counterclaim have
been approved for use in the Commercial Court. Copies of these practice
forms are included at the end of this Guide.
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Summaries | |
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| C1.4 |
If a statement of case exceeds 25 pages (excluding schedules), a
summary, not exceeding 4 pages, must also be filed and served. The
summary should cross-refer to the paragraph numbering of the full
statement of case. The summary is to be included in the case
management bundle: section D7.2(ii).
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Length |
| C1.5 |
Parties serving statements of case should bear in mind that the court will
take into account the length of the document served when considering
any application by another party for further time within which to
respond.
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Statement of truth |
| C1.6 |
Particulars of claim, a defence and any reply must be verified by a
statement of truth: rule 22.1. So too must any amendment, unless the
court otherwise orders: rule 22.1(2); see also section C5.4.
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| C1.7 |
The required form of statement of truth is as follows:
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| (i) |
for particulars of claim, as set out in PD 7 Paragraph 7.2 or PD 16 Paragraph 3.4;
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| (iii) |
for a reply the statement of truth should follow the form for the
particulars of claim, but substituting the word "reply" for the words
"particulars of claim" (see PD 22 Paragraph 2.1).
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| C1.8 |
A party may apply to the court for permission that a statement of truth be
signed by a person other than one of those required by rule 22.1(6).
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| C1.9 |
If insurers are conducting proceedings on behalf of many claimants or
defendants a statement of truth may be signed by a senior person
responsible for the case at a lead insurer, but
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| (z) |
the person signing must specify the capacity in which he signs;
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| (ii) |
the statement of truth must be a statement that the lead insurer
believes that the facts stated in the document are true; and
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| (iii) |
the court may order that a statement of truth also be signed by one
or more of the parties.
See
PD 22 Paragraph 3.6B
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| C1.10 |
A statement of case remains effective (although it may not be relied on
as evidence) even where it is not verified by a statement of truth, unless
it is struck out: PD 22 Paragraphs 4.1-4.3.
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Service |
| C1.11 |
All statements of case are served by the parties, not by the
court: PD 58 Paragraph 9.
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Filing |
| C1.12 |
The statements of case filed with the court form part of the permanent
record of the court.
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| C2 |
Serving and filing particulars of claim |
| C2.1 |
Subject to any contrary order of the court and unless particulars of claim
are contained in or accompany the claim form |
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| (i) |
the period for serving particulars of claim is 28 days after filing an
acknowledgment of service: rule 58.5(1)(c);
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| (ii) |
the parties may agree extensions of the period for serving the
particulars of claim. However, any such agreement must be
evidenced in writing and notified to the court, addressed to the
Case Management Unit: PD 58 Paragraph 7.1;
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| (iii) |
any notification of an agreed extension exceeding 6 weeks, or
which when taken together with preceding extensions exceeds 6
weeks in total, must be accompanied by a brief statement of the
reasons for the extension.
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| C2.2 |
The court may make an order overriding any agreement by the parties
varying a time limit: PD 58 Paragraph 7.2.
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| C2.3 |
The claimant must serve the particulars of claim on all other parties. A
copy of the claim form will be filed at the Registry on issue. If the
claimant serves particulars of claim separately from the claim form he
must file a copy within 7 days of service together with a certificate of
service: rule 7.4(3).
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| C3 |
Serving and filing a defence |
| C3.1 |
The defendant must serve the defence on all other parties and must at the
same time file a copy with the court.
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| C3.2 |
| (a) |
If the defendant files an acknowledgment of service which
indicates an intention to defend the period for serving and filing a
defence is 28 days after service of the particulars of claim, subject
to the provisions of rule 15.4(2). (See also Appendix 15 for cases
where the claim form has been served out of the jurisdiction).
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| (b) |
The defendant and the claimant may agree that the period for
serving and filing a defence shall be extended by up to 28 days:
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rule 15.5(1). |
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| C3.3 |
The general power to agree variations to time limits contained in rule
2.11 and PD 58 Paragraph 7.1 enables parties to agree extensions of the period for
serving and filing a defence that exceed 28 days. The length of extension
must in all cases be specified. Any such agreement must be evidenced in
writing and comply with the requirements of section C2.1.
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| C3.4 |
| (a) |
Where an extension is agreed the defendant must, in accordance
with rule 15.5(2), notify the court in writing; the notification
should be addressed to the Case Management Unit.
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| (b) |
Any notification of an agreed extension exceeding 6 weeks, or
which when taken together with preceding extensions exceeds 6
weeks in total, must be accompanied by a brief statement (agreed
by the claimant and the defendant) of the reasons for the extension.
The reasons will be brought to the attention of the Judge in Charge
of the Commercial List.
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| C3.5 |
The claimant must notify the Case Management Unit by letter when all
defendants who intend to serve a defence have done so. This information
is material to the fixing of the case management conference (see section
D3.1).
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| C4 |
Serving and filing a reply |
| C4.1 |
Subject to section C4.3, the period for serving and filing a reply is 21
days after service of the defence: rule 58.10(1).
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| C4.2 |
| (a) |
A reply must be filed at the same time as it is served: rule15.8(b);
rule 15.8(a) does not apply in proceedings in the Commercial List.
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| (b) |
The reply should be served before case management information
sheets are provided to the court (see section D8.5). In the normal
case, this will allow the parties to consider any reply before
completing the case management information sheet, and allow
time for the preparation of the case memorandum and the list of
issues each of which is required for the case management
conference (see sections D4-D7).
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| C4.3 |
In some cases, more than 21 days may be needed for the preparation,
service and filing of a reply. In such cases an application should be made
on paper for an extension of time and for a postponement of the case
management conference. The procedure to be followed when making an
application on paper is set out in section F4.
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| C4.4 |
Any reply must be served by the claimant on all other parties:
rule 58.10(1).
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| C5 |
Amendment |
| C5.1 |
| (a) |
Amendments to a statement of case must show the original text,
unless the court orders otherwise: PD 58 Paragraph 8.
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| (b) |
Amendments may be shown by using footnotes or marginal notes,
provided they identify precisely where and when an amendment
has been made.
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| (c) |
Unless the court so orders, there is no need to show amendments
by colour-coding.
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| (d) |
If there have been extensive amendments it may be desirable to
prepare a fresh copy of the statement of case. However, a copy of
the statement of case showing where and when amendments have
been made must also be made available.
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| C5.2 |
All amendments to any statement of case must be verified by a statement
of truth unless the court orders otherwise: rule 22.1(2).
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| C5.3 |
Questions of amendment, and consequential amendment, should
wherever possible be dealt with by consent. A party should consent to a
proposed amendment unless he has substantial grounds for objecting to
it.
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| C5.4 |
Late amendments should be avoided and may be disallowed.
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