| 7.1 | Case management -- general:
|
| |
| 7.1.1 |
CPR requires the court to provide a high degree of case management.
Case management includes; identifying disputed issues at an early
stage; fixing timetables; dealing with as many aspects of the claim
as possible on the same occasion; controlling costs; disposing of proceedings summarily where appropriate; dealing with the
applications without a hearing where appropriate; and giving
directions to ensure that the trial of a claim proceeds quickly and
efficiently. The court will expect the parties to co-operate with
each other, and where appropriate, will encourage the parties to use
ADR or otherwise help them settle the case.
|
| 7.1.2 |
Parties and their legal representatives will be expected to do all
that they can to agree proposals for the management of the claim in
accordance with Rule 29.4 and paragraphs 4.6 to 4.8 of the Part 29
Practice Direction. There is provision in the Allocation
Questionnaire for proposing certain directions to be made, otherwise
parties may use form PF 50 for making the application (attaching to
it the draft form of order in form PF 52) and file it for the
Master's approval. If the Master approves the proposals s/he will
give directions accordingly.
|
|
| 7.2 | The Case Management Conference:
|
| |
| 7.2.1 |
Parties who are unable to agree proposals for the management of the
case, should notify the Court of the matters which they are unable to
agree.
|
| 7.2.2 |
Where;
| | |
| (1) |
the parties proposed directions are not approved, or
|
| (2) |
parties are unable to agree proposed directions, or
|
| (3) |
the Master wishes to make further directions,
|
| | |
the
Master will generally either consult the parties or direct that a
case management conference be held.
|
| 7.2.3 |
In relatively straightforward claims, the Court may give directions
without holding a case management conference.
|
| 7.2.4 |
Any party who considers that a case management conference should be
held before any directions are given should so state in his/her
Allocation Questionnaire, (or in a Part 8 claim should notify the
Master in writing), giving his/her reasons and supplying a realistic
time estimate for the case management conference, with a list of any
dates or times convenient to all parties, or most of them, in form PF
49.
|
| 7.2.5 |
Where a case management conference has been fixed, parties should
ensure that any other applications are listed or made at that
hearing. A party applying for directions at the case management
conference should use form PF 50 for making their application and
attach to it the draft order for directions (form PF 52).
|
| 7.2.6 |
Parties should consider whether a case summary would assist the
Master at the Case Management Conference in dealing with the issues
before him or her. Paragraph 5.7 of the Part 29 Practice Direction
sets out the provisions for preparation of a case summary.
|
| 7.2.7 |
It may be appropriate for the advocates instructed or expected to be
instructed to appear at the trial to attend any hearing at which case
management directions are likely to be given. In any event, the legal
representatives who attend the case management conference must be
familiar with the case and have sufficient authority to deal with any
issues which may arise. Where necessary, the court may order the
attendance of a party.
|
|
| 7.3 | Preliminary issues:
|
| |
| 7.3.1 |
Costs can sometimes be saved by identifying decisive issues, or
potentially decisive issues, and by the Court ordering that they be
tried first. The decision of one issue, although not necessarily
itself decisive of the claim as a whole, may enable the parties to
settle the remainder of the dispute. In such a case, the trial of a
preliminary issue may be appropriate.
|
| 7.3.2 |
At the allocation stage, at any case management conference and again
at any pre-trial review, the court will consider whether the trial of
a preliminary issue may be helpful. Where such an order is made, the
parties and the court should consider whether the costs of the issue
should be in the issue or in the claim as a whole.
|
| 7.3.3 |
Where there is an application for summary judgment, and issues of law
or construction may be determined in the respondent's favour, it
will usually be in the interests of the parties for such issues to be
determined conclusively, rather than that the application should
simply be dismissed.
|
|
| 7.4 | Trial timetable:
|
| |
| 7.4.1 |
To assist the court to set a trial timetable, a draft timetable
should be prepared by the claimant's advocate(s) after consulting
the other party's advocates. If there are differing views, those
differences should be clearly indicated in the timetable. The draft
timetable should be filed with the trial bundle.
|
| 7.4.2 |
The trial timetable will normally include times for giving evidence
(whether of fact or opinion) and for oral submissions during the trial.
|
| 7.4.3 |
The trial timetable may be fixed at the case management conference,
at any pre-trial review or at the beginning of the trial itself.
|
|
| 7.5 | Listing Questionnaire (Pre Trial Check List):
|
| |
| 7.5.1 |
The court will send out a Pre Trial Checklist (N170) to all parties
for completion, specifying the date by which it must be returned.
|
| 7.5.2 |
Paragraph 6.4 of the Costs Practice Directionpdp-43 requires an estimate of costs to be filed and served with the Pre Trial Checklist.
|
|
| 7.6 | Pre-trial review:
|
| |
| 7.6.1 |
Where the trial of a claim is estimated to last more than 10 days, or
where the circumstances require it, the Master may direct that a
pre-trial review ("PTR") should be held. The PTR may be
heard by a Master, but more usually is heard by a Judge.
|
| 7.6.2 |
Application should normally be made to the Queen's Bench Listing
Officer for the PTR to be heard by the trial judge (if known), and
the applicant should do all that he can to ensure that it is heard
between 4 and 8 weeks before the trial date, and in any event long
enough before the trial date to allow a realistic time in which to
complete any outstanding matters.
|
| 7.6.3 |
The PTR should be attended by the advocates who are to represent the
parties at the trial.
|
| 7.6.4 |
At least 7 days before the date fixed for the PTR, the applicant must
serve the other parties with a list of matters to be considered at
the PTR, and those other parties must serve their responses at least
2 days before the PTR. Account must be taken of the answers in any
listing questionnaires filed. Realistic proposals must be put forward
and if possible agreed as to the time likely to be required for each
stage of the trial and as to the order in which witnesses are to be
called.
|
| 7.6.5 |
The applicant should lodge a properly indexed bundle containing the
listing questionnaires (if directed to be filed) and the lists of
matters and the proposals, together with the results of discussions
between the parties, and any other relevant material, in the Queen's
Bench Listing Office, Room WG8, by no later than 10.30am on the day
before the day fixed for the hearing of the PTR. If the PTR is to
take place before a Master and he asks for the bundle in advance, it
should be lodged in the Masters' Support Unit, Room E14. Otherwise
it should be lodged at the hearing.
|
| 7.6.6 |
At the PTR, the court will review the parties' state of
preparation, deal with any outstanding matters, and give any
directions or further directions that may be necessary.
|
|
| 7.7 | Requests for further information:
|
| |
| 7.7.1 |
A party seeking further information or clarification under Part 18
should serve a written request on the party from whom the information
is sought before making an application to the court. Paragraph 1 of
the Part 18 Practice Direction deals with how the request should be
made, and paragraph 2 deals with the response. A statement of truth
should verify a response. Parties may use form PF 56 for a combined
request and reply, if they so wish.
|
| 7.7.2 |
If a party who has been asked to provide further information or
clarification objects or is unable to do so, s/he must notify the
party making the request in writing.
|
| 7.7.3 |
Where it is necessary to apply for an order for further information
or clarification the party making the application should set out in
or have attached to his/her application notice;
| | |
| (1) |
the text of the order sought specifying the matters on which further
information or clarification is sought, and
|
| (2) |
whether a request has been made and, if so, the result of that
request.
|
| | | Applicants may use form PF 57 for their application notice.
|
|
| 7.8 | Disclosure and Inspection of Documents:
|
| |
Disclosure
and inspection of documents involves two stages. First, disclosure
of the existence of documents and claiming privilege from inspection
for such documents as may attract privilege (e.g. those to which
‘legal advice' privilege applies); and secondly, offering
facilities to the opposing party for inspection of certain of those
documents.
| 7.8.1 |
Under Part 31, there is no longer any general duty to disclose
documents. Instead, a party is prevented from relying on any document
that s/he has not disclosed, and is required to give inspection of
any document to which s/he refers in his/her statement of case or in
any witness statement, etc.. The intention is that disclosure should
be proportionate to the value of the claim.
|
| 7.8.2 |
If an order for disclosure is made, unless the contrary is stated,
the Court will order standard disclosure, namely disclosure of only;
| | |
| (1) |
the documents on which a party relies,
|
| (2) |
the documents that adversely affect his/her own or another party's
case,
|
| (3) |
the documents that support another party's case, and
|
| (4) |
the documents required to be disclosed by a relevant practice
direction.
|
| | |
Parties
should give standard disclosure by completing form N265 and may list
the documents by category.
|
| 7.8.3 |
The court may either limit or dispense with disclosure (and the
parties may agree to do likewise). The court may also order
disclosure of specified documents or specified classes of documents.
In deciding whether to make any such order for specific disclosure,
the court will want to be satisfied that the disclosure is necessary,
that the cost of disclosure will not outweigh the benefits of
disclosure and that a party's ability to continue the litigation
would not be impaired by any such order.
|
| 7.8.4 |
The court will therefore seek to ensure that any specific disclosure
ordered is appropriate to the particular case, taking into account
the financial position of the parties, the importance of the case and
the complexity of the issues.
|
| 7.8.5 |
If specific disclosure is sought, a separate application for specific
disclosure should be made in accordance with Part 23; it is not a
matter that would be routinely dealt with at the CMC. The parties
should give careful thought to ways of limiting the burdens of such
disclosure, whether by giving disclosure in stages, by dispensing
with the need to produce copies of the same document, by requiring
disclosure of documents sufficient merely for a limited purpose, or
otherwise. They should also consider whether the need for disclosure
could be reduced or eliminated by a request for further information.
|
| 7.8.6 |
A party who has the right to inspect a document should give written
notice of his/her wish to inspect to the party disclosing the
document. That party must permit inspection not more than 7 days
after receipt of the notice.
|
|
| 7.9 | Experts and Assessors:
|
| |
| 7.9.1 |
The parties in a claim must bear in mind that under Part 35 no party
may call an expert or put in evidence an expert's report without
the court's express permission, and the court is under a duty to
restrict such evidence to what is reasonably required.
|
| 7.9.2 |
The duty of an expert called to give evidence is to assist the court.
This duty overrides any obligation to the party instructing him or by
whom s/he is being paid (see the Part 35 Practice Direction). In
fulfilment of this duty, an expert must for instance make it clear if
a particular question or issue falls outside his/her expertise or if
s/he considers that insufficient information is available on which to
express an opinion.
|
| 7.9.3 |
Before the Master gives permission, s/he must be told the field of
expertise of the expert on whose evidence a party wishes to rely and
where practicable the identity of the expert. Even then, s/he may,
before giving permission, impose a limit on the extent to which the
cost of such evidence may be recovered from the other parties in the
claim.
|
| 7.9.4 |
Parties should always consider whether a single expert could be
appointed in a particular claim or to deal with a particular issue.
Before giving permission for the parties to call separate experts,
the Master will always consider whether a single joint expert ought
to be used, whether in relation to the issues as a whole or to a
particular issue.
|
| 7.9.5 |
In many cases it is possible for the question of expert evidence or
one or more of the areas of expert evidence to be dealt with by a
single expert. Single experts are, for example, often appropriate to
deal with questions of quantum in cases where primary issues are as
to liability. Likewise, where expert evidence is required in order to
acquaint the court with matters of expert fact, as opposed to
opinion, a single expert will usually be appropriate. There remain,
however, a body of cases where liability will turn upon expert opinion evidence and where it will be appropriate for the parties to
instruct their own experts. For example, in cases where the issue for determination is as to whether a party acted in accordance with
proper professional standards, it will often be of value to the court
to hear the opinions of more than one expert as to the proper
standard in order that the court becomes acquainted with a range of
views existing upon the question and in order that the evidence can
be tested in cross-examination.
|
| 7.9.6 |
It will not be a sufficient ground for objecting to an order for a
single joint expert that the parties have already chosen their own experts. An order for a single joint expert does not prevent a party
from having his/her own expert to advise him, though that is likely
to be at his/her own cost, regardless of the outcome.
|
| 7.9.7 |
When the use of a single joint expert is being considered, the Master
will expect the parties to co-operate in agreeing terms of reference for and instructions to the expert. In most cases, such terms of reference/instructions will include a statement of what the expert is
asked to do, will identify any documents that s/he will be asked to
consider and will specify any assumptions that s/he is asked to make.
|
| 7.9.8 |
The court will generally also order that experts in the same field
confer on a ‘without prejudice' basis, and then report in writing
to the parties and the court on the extent of any agreement, giving
reasons at least in summary for any continuing disagreement. A
direction to ‘confer' gives the experts the choice of discussing
the matter by telephone or in any other convenient way, as an
alternative to attending an actual meeting. Any material change of
view of an expert should be communicated in writing to the other
parties through their legal representatives, and when appropriate, to
the court.
|
| 7.9.9 |
Written questions may be put to an expert within 28 days after
service of his/her report, but must only be for purposes of
clarification of the expert's report e.g. when the other party does
not understand it. Questions going beyond this can only be put with
the agreement of the parties or the Master's permission. The
procedure of putting written questions to experts is not intended to
interfere with the procedure for an exchange of professional opinion
in discussions between experts or to inhibit that exchange of
professional opinion. If questions that are oppressive in number or
content are put without permission for any purpose other than
clarification of the expert's report, the court is likely to
disallow the questions and make an appropriate order for costs against the party putting them. (See paragraph 4.3 of the Part 35
Practice Direction with respect to payment of an expert's fees for
answering questions under Rule 35.6.)
|
| 7.9.10 |
An expert may file with the court a written request for directions to
assist him in carrying out his/her function as an expert. The expert should guard against accidentally informing the court about, or about
matters connected with, communications or potential communications between the parties that are without prejudice or privileged. The expert may properly be asked to be privy to the content of these communications because s/he has been asked to assist the party
instructing him to evaluate them.
|
| 7.9.11 |
Under Rule 35.15 the court may appoint an assessor to assist it in
relation to any matter in which the assessor has skill and
experience. The report of the assessor is made available to the
parties. The remuneration of the assessor is decided by the court and
forms part of the costs of the proceedings.
|
|
| 7.10 | Evidence:
|
| |
| 7.10.1 |
Evidence is dealt with in the CPR in Parts 32 and 34.
|
| 7.10.2 |
The most common form of written evidence is a witness statement. The
Part 32 Practice Direction at paragraphs 17, 18 and 19 contains
information about the heading, body (what it must contain) and format
of a witness statement. The witness must sign a statement of truth to
verify the witness statement; the wording of the statement of truth
is set out in paragraph 20.2 of the Practice Direction.
|
| 7.10.3 |
A witness statement may be used as evidence in support of an interim
application and, where it has been served on any other party to a
claim, it may be relied on as a statement of the oral evidence of the
witness at the trial. Part 33 contains provisions relating to the use
of hearsay evidence in a witness statement.
|
| 7.10.4 |
In addition to the information and provisions for making a witness
statement mentioned in paragraph 7.10.2, the following matters should
be borne in mind;
| | |
| (1) |
a witness statement must contain the truth, the whole truth and
nothing but the truth on the issues it covers,
|
| (2) |
those issues should consist only of the issues on which the party
serving the witness statement wishes that witness to give evidence in
chief and should not include commentary on the trial bundle or other
matters which [may arise during the trial or]
may have arisen during the proceedings,
|
| (3) |
a witness statement should be as concise as the circumstances allow,
inadmissible or irrelevant material should not be included,
|
| (4) |
the cost of preparation of an over-elaborate witness statement may
not be allowed,
|
| (5) |
Rule 32.14 states that proceedings for contempt of court may be
brought against a person ifs/he makes, or causes to be made, a false
statement in a document verified by a statement of truth without an
honest belief in its truth,
|
| (6) |
if a party discovers that a witness statement, which they have
served, is incorrect they must inform the other parties immediately.
|
|
| 7.10.5 |
Evidence may also be given by affidavit but unless an affidavit is
specifically required either in compliance with a court order, a Rule
or Practice Direction, or an enactment, the party putting forward the
affidavit may not recover from another party the cost of making an
affidavit unless the court so orders.
|
| 7.10.6 |
The Part 32 Practice Direction at paragraphs 3 to 6 contains
information about the heading, body, jurat (the sworn statement which
authenticates the affidavit) and the format of an affidavit. The
court will normally give directions as to whether a witness statement
or, where appropriate, an affidavit is to be filed.
|
| 7.10.7 |
A statement of case, which has been verified by a statement of truth,
and an application notice containing facts which have been verified
by a statement of truth may also stand as evidence other than at the trial.
|
| 7.10.8 |
Evidence by deposition is dealt with in Part 34. A party may apply to
a Master for an order for a person to be examined before a hearing
takes place (Rule 34.8). Evidence obtained on an examination under
that Rule is referred to as a deposition. The Master may order the
person to be examined before either a Judge, an examiner of the court
or such other person as the court appoints. The Part 34 Practice
Direction at paragraph 4 sets out in detail how the examination
should take place.
|
| 7.10.9 |
Provisions relating to applications for evidence by deposition to be
taken either;
| | |
| | |
are
set out in detail in the Part 34 Practice Direction at paragraphs 5
and 6.
|
| 7.10.10 |
The procedure for issuing a witness summons is also dealt with in
Part 34 and the Practice Direction. A witness summons may require a
witness to;
| | |
| (1) |
attend court, or
|
| (2) |
produce documents to the court, or
|
| (3) |
both,
|
| | |
on
either a date fixed for the hearing or another date as the court may
direct (but see also Rule 31.17 which may be used when there are
areas of contention).
| | 7.10.11 |
The court may also issue a witness summons in aid of a court or
tribunal which does not have the power to issue a witness summons in
relation to the proceedings before it (and see the Part 34 Practice
Direction at paragraphs 1, 2 and 3).
|
| 7.10.12 |
To issue a witness summons, two copies should be filed in the Action
Department, Room E07 for sealing; one copy will be retained on the
court file.
|
| 7.10.13 |
A witness summons must be served at least 7 days before the date upon
which the witness is required to attend. If this is not possible for
any reason, an order must be sought from a Master that a witness
summons is binding although it will be served less than 7 days before
the date when the witness is required to attend. A Master will
usually be prepared to deal with this in Practice, without notice.
|
| 7.10.14 |
A witness summons will be served by the court unless the party on
whose behalf it is issued indicates in writing that s/he wishes to
serve it himself. If time is a critical factor, it may be preferable
for the party to serve the witness summons. For the method of
service see the notes to Part 34 at paragraph 34.6.1.
|
| 7.10.15 |
At the time of service of the witness summons the witness must be
offered “Conduct money” to defray his or her expenses of coming
to, staying at, and returning from the place of the trial. Thus,
where the court is to serve, the party on whose behalf it is issued
must deposit the amount of conduct money in the court office. For
the relevant amounts see the note at Part 34 paragraph 34.7.1.
|
|
| 7.11 | Hearings:
|
| |
| |
Hearings
generally
| | |
Hearings
in public/private
| | 7.11.1 |
All hearings are in principle open to the public, even though in
practice most of the hearings until the trial itself will be attended
only by the parties and their representatives. However, in an
appropriate case the court may decide to hold a hearing in private.
Rule 39.2 lists the circumstances where it may be appropriate to hold
a hearing in private. In addition, paragraph 1.5 of the Part 39
Practice Direction sets out certain types of hearings which may be
listed in private.
|
| 7.11.2 |
The court also has the power under section 11 of the Contempt of
Court Act 1981 to make an order forbidding publication of any details
that might identify one or more of the parties. Such orders are
granted only in exceptional cases.
|
| 7.11.3 |
References in the CPR and Practice Directions to hearings being in
public or private do not restrict any existing rights of audience or
confer any new rights of audience in respect of applications or proceedings which under the rules previously in force would have been
heard in court or chambers respectively. Advocates (and judges) do
not wear robes at interim hearings before High Court Judges. Robes
are worn for trials and certain other proceedings such as preliminary
issues, committals etc. It is not intended that the new routes of appeal should restrict the advocate's right of audience, in that, a solicitor who appeared in a county court matter which is the subject
of an appeal to a High Court Judge would normally be allowed to
appear at the appeal hearing.
| | |
Conduct
of the parties
|
| 7.11.4 |
Parties are reminded that they are expected to act with courtesy and
respect for the other parties present and for the proceedings of the
court. Punctuality is particularly important; being late for hearings
is unfair to the other parties and other court users, as well as
being discourteous to them and to the court.
| | |
Preparation
for hearings
|
| 7.11.5 |
To ensure court time is used efficiently there must be adequate
preparation prior to the hearing. This includes the preparation and
exchange of skeleton arguments, the compilation of bundles of
documents and the giving of realistic time estimates. Where estimates
prove inaccurate, a hearing may have to be adjourned to a later date,
and the party responsible for the adjournment is likely to be ordered
to pay the costs thrown away.
|
| 7.11.6 |
The parties should use their best endeavours to agree beforehand the
issues, or main issues between them, and must co-operate with the
court and each other to enable the court to deal with claims justly;
parties may expect to be penalised for failing to do so.
|
| 7.11.7 |
A bundle of documents must be compiled for the court's use at the trial, and also for hearings before the Interim Applications Judge or
a Master where the documents to be referred to total 25 pages or
more. The party lodging a trial or hearing bundle should supply
identical bundles to all parties and for the use of witnesses. The
efficient preparation of bundles is very important. Where bundles
have been properly prepared, the claim will be easier to understand
and present, and time and costs are likely to be saved. Where
documents are copied unnecessarily or bundled incompetently, the costs may be disallowed. Paragraph 3 of the Part 39 Practice
Direction sets out in full the requirements for compiling bundles of
documents for hearings or trial.
|
| 7.11.8 |
The trial bundle must be filed not more than 7 and not less than 3
days before the start of the trial. Bundles for a Master's hearing
should be brought to the hearing unless it is
likely to assist the Master to read the bundle in advance in which
case it should be lodged with the Masters' Support Unit or the
Master directly 1-3 days in advance. The contents of the trial bundle should be agreed where possible, and it should be made clear
whether in addition, they are agreeing that the documents in the
bundle are authentic even if not previously disclosed and are
evidence of the facts stated in them even if a notice under the Civil
Evidence Act 1995 has not been served. If the trial/hearing bundles
are extensive and either party wishes the judge to read certain
documents in advance of the hearing, a reading list should be
provided.
|
| 7.11.9 |
Lists of authorities for use at trial or at substantial hearings
before a Judge should be provided to the usher by 9.00am on the first
day of the hearing. For other applications before a Judge, or
applications before a Master, copies of the authorities should be
included in the bundle or in a separate bundle.
|
| 7.11.10 |
For trial and most hearings before a Judge, and substantial hearings
before a Master, a chronology, a list of the persons involved and a
list of the issues should be prepared and filed with the skeleton
argument. A chronology should be non-contentious and agreed with the
other parties if possible. If there is a material dispute about any
event stated in the chronology, that should be stated.
|
| 7.11.11 |
Skeleton arguments should be prepared, filed and served;
| | |
| (1) |
for trials, not less than 2 days before the trial in the Listing
Office, and
|
| (2) |
for substantial applications or appeals, not later than 1 day before
the hearing in the Listing Office and, where the Master has requested
papers in advance of the hearing, in the Masters' Support Unit Room
E16 or directly with the Master. Parties
should avoid handing skeleton arguments to the other party at the
door of the court even for less substantial hearings, so that each
party has time to consider the other party's case.
|
|
| 7.11.12 |
A skeleton argument should;
| | |
| (1) |
concisely summarise the party's submissions in relation to each of
the issues,
|
| (2) |
cite the main authorities relied on, which may be attached,
|
| (3) |
contain a reading list and an estimate of the time it will take the
Judge to read,
|
| (4) |
be as brief as the issues allow and not normally be longer than 20
pages of double-spaced A4 paper,
|
| (5) |
be divided into numbered paragraphs and paged consecutively,
|
| (6) |
avoid formality and use understandable abbreviations, and
|
| (7) |
identify any core documents, which it would be helpful to read
beforehand.
|
|
| 7.11.13 |
Where a party decides not to call a witness whose witness statement
has been served, to give oral evidence at trial, prompt notice of
this decision should be given to all other parties. The party should
also indicate whether s/he proposes to put, or seek to put, the
witness statement in as hearsay evidence. Ifs/he does not, any other
party may do so.
| | |
Recording
of proceedings
|
| 7.11.14 |
At any hearing, including the trial, any oral evidence, the judgment
or decision (including reasons) and any summing up to a jury will be
recorded. At hearings before Masters, it is not normally practicable
to record anything other than oral evidence and any judgment, but
these will be recorded. If a party wishes the whole proceedings to be
recorded that party should inform the Master at the start of the
hearing. A party to the proceedings may obtain a transcript of the proceedings on payment of the appropriate charge, from the Courts
Recording and Transcription Unit, Room WB14. A person who is not a
party to the proceedings may not obtain a transcript of a hearing
which took place in private without the permission of the court.
|
| 7.11.15 |
No person or party may use unofficial recording equipment at a
hearing without the permission of the court; to do so constitutes a
contempt of court.
|
|
| 7.12 | Applications:
|
| |
| 7.12.1 |
Applications for court orders are governed by Part 23 and the Part 23
Practice Direction. Rule 23.6 and paragraph 2 of the Part 23 Practice
Direction set out the matters an application notice must include. The
Part 23 Practice Direction states that form N244 may be used,
however, parties may prefer to use form PF244 which is available for
use in the Royal Courts of Justice only. To make an application the applicant must file an application notice unless a Rule or Practice
Direction permits otherwise or the court dispenses with the
requirement for an application notice. Except in cases of extreme
urgency, or where giving notice might frustrate the order (as with a search order), an application notice must be served on every party
unless a Rule or Practice Direction or a court order dispenses with
service (see paragraph 7.12.3 below). A Master will not normally make
an order on the basis of correspondence alone.
|
| 7.12.2 |
Applications for remedies which a Master has jurisdiction to grant
should ordinarily be made to a Master. The Part 2 Practice Direction
(Allocation of cases to levels of Judiciary) contains information
about the types of applications which may be dealt with by Masters
and Judges. An application notice for hearing by;
| | |
| (1) |
a Judge should be issued in the Queen's Bench Listing Office, Room
WG8, and
|
| (2) |
a Master should be issued in the Masters' Support Unit, Room E16,
|
| | |
and
wherever possible should be accompanied by a draft in double spacing
of the order sought.
|
| 7.12.3 |
The following are examples of applications which may be heard by a
Master where service of the application notice is not required;
| | |
|
| 7.12.4 |
Paragraph 3 of the Part 23 Practice Direction states in addition that
an application may be made without serving an application notice;
| | |
| (1) |
where there is exceptional urgency,
|
| (2) |
where the overriding objective is best furthered by doing so,
|
| (3) |
by consent of all parties, and
|
| (4) |
where a date for a hearing has been fixed and a party wishes to make
an application at that hearing but does not have sufficient time to
serve an application notice.
|
| | |
With
the court's permission an application may also be made without
serving an application notice where secrecy is essential.
|
| 7.12.5 |
Where an application is heard in the absence of
one or more of the parties, it is the duty of the party attending to
disclose fully all matters relevant to the application, even those
matters adverse to the applicant. Failure to do so may result in the
order being set aside. In addition any party who has not had notice
of a hearing may apply to have the order set aside within 7 days of
service of the order made at the hearing.
|
| 7.12.6 |
Where notice of an application is to be given, the application notice should be served as soon as practicable after issue and, if there is
to be a hearing, at least 3 clear days before the hearing date,
unless the CPR provides a longer period or for permission for shorter
service is obtained from a Master. Where there is insufficient time
to serve an application notice, informal notice of the application
should be given unless the circumstances of the application require
secrecy.
|
| 7.12.7 |
The court may deal with an application without a hearing if;
| | |
| (1) |
the parties agree the terms of the order sought,
|
| (2) |
the parties agree that the application should be dealt with without a
hearing, or
|
| (3) |
the court does not consider that a hearing would be appropriate.
|
| | 7.12.8 |
The court may deal with an application or part of an application by
telephone where it is convenient to do so or in matters of extreme
urgency. Applications where there are a number of contested issues or
where the hearing is likely to take longer than 45 minutes are not
usually suitable for telephone hearings. The hearings most
appropriate for a telephone hearing are Case Management Conferences
and short applications for, e.g. extensions of time. See paragraph 6
of the Part 23 Practice Direction for the procedure to be followed.
| | |
Urgent
applications
|
| 7.12.9 |
Applications of extreme urgency may be made out of hours and will be
dealt with by the duty judge. An explanation will be required as to
why it was not made or could not be made during normal court hours.
|
| 7.12.10 |
Initial contact should be made through the Security Office on 020
7947 6260 who will require the applicant's phone number. The clerk
to the duty judge will then contact the applicant and will require
the following information;
| | |
| (1) |
the name of the party on whose behalf the application is to be made,
|
| (2) |
the name and status of the person making the application,
|
| (3) |
the nature of the application,
|
| (4) |
the degree of urgency, and
|
| (5) |
the contact telephone number(s).
|
|
| 7.12.11 |
The duty judge will indicate to his/her clerk ifs/he thinks it
appropriate for the application to be dealt with by telephone or in
court. The clerk will inform the applicant and make the necessary
arrangements. Where the duty judge decides to deal with the
application by telephone, and the facility is available, it is likely
that the judge will require a draft order to be faxed to him. An
application for an injunction will be dealt with by telephone only
where counsel or solicitors represent the applicant.
|
| 7.12.12 |
It is not normally possible to seal an order out of hours. The judge
is likely to order the applicant to file the application notice and
evidence in support on the same or next working day, together with
two copies of the order for sealing.
|
|
| 7.13 | Interim remedies:
|
| |
| 7.13.1 |
Interim remedies which the court may grant are listed in Rule 25.1.
An order for an interim remedy may be made at any time including
before proceedings are started and after judgment has been given.
Some of the most commonly sought remedies are injunctions, many of
which are heard by the Interim Applications Judge.
|
| 7.13.2 |
Where a Claim has been started, an application on notice for an
injunction should be filed in the Listing Office, Room WG8 for a
hearing to be listed. If the application is to be made without giving
notice to the other parties in the first instance, the Application Notice stamped with the appropriate fee should be brought to the
Interim Applications Court, Court 37, together with the evidence in
support, a skeleton argument (where appropriate) and two copies of
the Order sought. Applications without notice are heard in Court 37
at 10.00am and 2.00pm, and at such other times as the urgency of the
application dictates.
|
| 7.13.3 |
Where an injunction is granted without the other party being present
it will normally be for a limited period; a return date 1 to 2 weeks
ahead. If the injunction order contains an undertaking to issue a
Claim Form, this should be issued before the Application Notice for
the return date is filed in Room WG8 prior to service.
|
| 7.13.4 |
The Part 25 (Interim Injunctions) Practice Direction at paragraph 4
deals fully with making urgent applications and those without notice,
and paragraphs 6, 7 and 8 deal specifically with search orders and
freezing injunctions, examples of which are annexed to the Practice
Direction.
|
| 7.13.5 |
Certain applications may be heard in private if the judge thinks it
appropriate to do so (Rule 39.2(3)). An application to go into
private should be made at the outset of the hearing. Certain
applications for search orders and freezing injunctions might be
appropriate for hearing in private.
|
| 7.13.6 |
Applications for interim payments are heard by a Master. The application notice should be filed in the Masters' Support Unit,
Room E14. The requirements for obtaining an order for an interim
payment are fully dealt with in the Part 25 (Interim Payments)
Practice Direction.
|
|
| 7.14 | Interlocutory Orders:
|
| |
| |
Orders made by the Masters
| 7.14.1 |
In the majority of cases Orders by Masters in the Queen's Bench
Division are drawn up by one of the parties, who must then arrange to
have this sealed by the Judgment & Orders Section (Room E17) and
effect service on all other parties. In a limited number of
circumstances, e.g. where an order is made of the court's own
initiative, the court will draw up, seal and serve an order.
|
| 7.14.2 |
Where an application notice has been issued, and there has been a
hearing, the Master will endorse the order in handwriting upon the
original application notice. (If the original is not at the
hearing, the party drawing up the order will have to ask the Master's
permission to treat a photocopy as an original). If the parties have
provided a draft order, will endorse this, with or without amendment.
The application notice would then be endorsed “Order in the form
initialled”. If the hearing is one where there is no application
notice, for example a Case Management Conference, then the Master
will endorse the order on any Notice of the hearing sent by the
court, or will use a draft order provided by one of the parties to
endorse the order.
|
| 7.14.3 |
The Master will usually direct which party should be responsible for
drawing up the Order. In the absence of such direction, this will be
the party who issued the application to which the order relates, or
the Claimant where the order was made in a case management
conference. The Master will also direct a date by which the order
should be drawn up, sealed and served. If no date is specified, the
order must be served within 14 days of the date it was made.
|
| 7.14.4 |
The party responsible for drawing up the order should lodge with the
Judgments & Orders Section:
| | |
| (i) |
The application notice (or other document) endorsed by the Master;
| | (ii) |
Clean copies for sealing, one for each party and one for the court
file;
| | (iii) |
Evidence of payment of the court fee
|
|
| 7.14.5 |
That party should serve the sealed order upon each other party to
the action by the date specified. If not sealed and served by that
date, a party will have to obtain the court's permission to file
the order out of time, which should be sought from the Practice
Master.
|
| 7.14.6 |
If an order is made without a hearing, then the party making the
application must also draw up, file and serve the order in accordance
with the procedure set out below.
| | |
Orders
made by a High Court Judge
|
| 7.14.7 |
Order made by a Judge on an interim application will, where the
parties have legal representation, generally be drawn up in the same
way as orders made by the Masters. However, the court will draw, seal
and serve orders on behalf of litigants in person, and also orders
made in appeal proceedings.
|
|
| 7.15 | Civil Restraint Orders:
|
| |
| 7.15.1 |
The power of the court to make civil restraint order (”CROs”) is
governed by CPR 3.11, however the practice directionpdp-03to Part 3 (Civil
Restraint Orders) sets out the procedure in detail.
|
| 7.15.2 |
There are 3 types of CRO – limited civil restraint order, extended civil restraint order and general civil restraint order.
|
| 7.15.3 |
For a limited CRO (“LCRO”) to be made, 2 or more findings that a
litigant's application is totally without merit must first have
been made. An LCRO may by made by a Judge of any court which includes
a Master and District Judge. An LCRO restrains the litigant from
making any further application in the proceedings in which the LCRO
is made and usually remains in effect for the duration of those proceedings.
|
| 7.15.4 |
An extended CRO (“ECRO”) may be made where a litigant has
persistently issued claims or made applications which are totally
without merit. An ECRO may be made (i) in respect of any court when
made by a Judge of the Court of Appeal, (ii) in the High Court or any
county court when made by a Judge of the High Court and (iii) in any
county court when made by a Designated Civil Judge or his appointed
deputy.
|
| 7.15.5 |
An ECRO restrains the litigant from making any further applications
involving or relating to or touching or leading to the proceedings in
which the ECRO is made and will be made for a specified period not
exceeding 2 years.
|
| 7.15.6 |
A general CRO (“GCRO”) may be made where, despite the existence
of an ECRO, a litigant persists in issuing claims and making
applications which are totally without merit.
|
| 7.15.7 |
A GCRO restrains the litigant from issuing any claim or making any
application (i) in any court when made by a Judge of the Court of
Appeal, (ii) in the High Court or any county court when made by a
Judge of the High Court and (iii) in any county court when made by a
Designated Civil Judge or his appointed deputy.
|
| 7.15.8 |
The CRO's provide for the litigant to seek in writing the
court's permission to issue any claim or make any application which
is restrained by the CRO. Both the CRO's and the practice direction
set out in detail how such application is to be made and the
consequences of failing to do so.
|
| 7.15.9 |
An application for a CRO may be made by another party in accordance
with the provisions of Part 23, or may be made by the court of its
own volition.
|
|