1: Pre-Action Steps

Overriding Objective
The court must seek to give effect to the OO when exercising power given to it by Rules (r 1.2)
Solicitors and their clients have a positive duty to help the court to further the OO (r 1.3).
The OO does not mean that a party to litigation owes a duty to another party.

The OO of CPR 1998 is to enable the court to deal with cases justly and at proportionate cost. This means (r 1.1):
 Ensuring parties are on equal footing
 Saving expense
 Deal with cases in ways which are proportionate
 To the amount of money involved
 To the importance of the case
 To the complexity of the issues
 The financial position of parties
 Ensuring cases are dealt with expeditiously and fairly
 Allotting an appropriate share of the court’s resources to each case,
bearing in mind the needs of other cases
 Enforcing compliance with rules, practice directions and orders
When setting a timetable for tasks prior to trial, court may allow a D w/o legal rep and low income more time
to complete tasks than claimant with legal representation.
Outline of a Civil Claim

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 Pre-action Steps

STEP
1) Check any professional The solicitor acting in civil proceedings must have regard to the follow rules of
conduct points professional conduct:

Duty of confidentiality:
6.3 SRA Code of Conduct 2019 – keep affairs of current and former clients
confidential unless disclosure permitted by law or client consents

Conflict of interest:
6.2 SRA Code of Conduct 2019 – do not act if there is a risk of a conflict of
interest or if there is a conflict

Money laundering:
Proceeds of Crime Act 2002. Must ensure adequate procedures are in place to
check new client’s identity.

Who the client is and authorisation to act:

If receives instructions from someone other than client, or by only one client on
behalf of others, should not proceed without checking all clients agree with
instructions given.

Solicitor’s duty as an officer of the court:

- Duty not to mislead the court or your clients (1.4 of the Code)
- Must disclose all relevant legal authorities to the court, even if not
favourable to case.
- Help court achieve the overriding objective (r.1.3).

Solicitor’s core duties:

The SRA Code of Conduct 2019 is based on certain mandatory principles.
1. Act in a way that upholds the constitutional principle of RoL and proper
administration of justice
2. Act in a way that upholds public trust and confidence in the solicitors’
profession and in legal services provided by authorised persons
3. Independence
4. Honesty
5. Integrity
6. Equality, diversity & inclusion
7. Clients’ best interests
2) Identify the client’s - What does the client want?
objectives - What realistically can be achieved?
3) Identify and locate, if
necessary, all potential
parties
4) Check the financial - Will the defendant be able to pay any judgment and costs?
viability of the - What assets are available?
defendant
5) Check jurisdiction - Any relevant contractual clauses?
- Are one or more parties outside the jurisdiction?
6) Assess limitation - Any relevant contractual clause?
periods
Basic rules: Limitation Act 1980

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 Types of claim Statutory limitation period
Contract 6 years (s5)
(excluding personal injury) as soon as breach of contract
occurs
Tort 6 years (s2)
(excluding personal injury and when the tort is committed
latent damage) when some damage occurs (for
negligence)
Latent damage (ONLY 6 years or 3 years from date of
NEGLIGENCE) knowledge (s14A)
In non-personal injury claim Long-stop limitation period of
based on negligence where the 15 years from date of alleged
damage is latent (NOT AWARE breach of duty (s14B)
OF IT) at the date when the
cause of action accrues
7) Discuss and agree Explore all options - See funding notes.
funding with the client
8) Collect and preserve - Where are relevant documents located?
evidence - Is pre-action disclosure required?
 Prospective C might need to see docs held by the potential D who is
unwilling to show them voluntarily
 Application for disclosure of docs prior to the start of proceedings is
permitted under s33 of the Senior Courts Act 1981 or s52 of the
County Courts Act 1984
- Is a preservation of evidence order required?
- What witnesses can proofs of evidence be taken from?
- Is an expert’s report needed?
- Are business’s accounts needed?
- Are photographs or a site visit needed?
Disclosure statement
An individual must sign: A party is under an obligation to disclose documents
that might adversely affect his own or support another party’s case.
 Essential that parties comply fully and honestly with requirements of
disclosure (r 31.10(5)).
 Has to sign statement:
o Setting out the extent of the search that has been made to locate the
documents;
o Certifying he understands the duty to disclose documents;
o Certifying to the best of his knowledge, he has carried out that duty.
 Contempt of court
o Proceedings may be brought under this against a person who makes
or causes to be made a false disclosure statement without honest
belief in its truth.
 Solicitor’s duties
o Practice Direction 31A states if the disclosing party has a legal
representative acting for him, the legal representative must endeavor
to ensure that the person making the disclosure statement
understands the duty of disclosure.
 Duty to advise his client as to the requirements.
 Confirm advice in writing
 Continuing disclosure obligation
o Continues until the proceedings are concluded.

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 11) Carry out the necessary
legal research
12) Do a case analysis i) Identified all potential causes of action
ii) For each element, identified all factual issues
iii) What is the likelihood of success?
iv) What further evidence is needed?
13) Write a letter of advice
to the client
summarizing analysis
and advising on options
14) Explore possible See ADR notes.
methods of ADR
15) Comply with any See pre-action protocol notes.
approved pre-action
protocol requirements
or the Practice Direction
16) Keep client informed
17) Should the client make a  Treated as ‘without prejudice except as to costs’
Part 36 offer?  Can be made before or during proceedings (r 36.7(1))
(settlement offer)  If offer rejected and party does not end up with a better deal, may suffer
severe financial penalties
 N.B. party can make offer to settle in whatever way they choose

Alternative Methods of Dispute Resolution

N.B. Check if there is a contractual ADR.

Arbitration

Adjudication operating outside normal court process, by which a 3rd party reaches a decision which is binding.
 Quicker, less formal, in private, more practical, confidential.
 However, certain remedies – like injunctions – not available

Negotiation

Should consider with the client whether it is possible to negotiate a settlement with the opponent.
 Voluntary and non-binding
 No independent third party
 Should be commenced as soon as possible.
o If attempts exhausted, should be kept under review and make appropriate attempts to resolve
the matter without issuing proceedings.

Alternative Dispute Resolution

Means of resolving dispute by using an independent third party to help the parties reach a solution.
 Different to litigation because:
 Third party cannot impose a solution
 It is voluntary.
 Either party can withdraw at any time before a solution is agreed.
 Confidential
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  ADR, litigation and offers of settlement can all happen in parallel
o Could start litigation process and then enter into ADR (threat of litigation still there)
o But then you would incur at least some of the costs of litigation
 Duty to CONSIDER ADR
 Pre-action protocol PD para 8: ADR must be considered, or regard will be had when awarding costs
 r1.4(2)(e): court may encourage parties to use an ADR procedure if court considers that appropriate
 Parties must also seriously consider ADR proposals made by the other side
 Rejecting ADR: May be reasonable to reject ADR proposal if strong case

Types of ADR
Mediation and Receive written statements from both parties, then will discuss with parties.
conciliation Will tell what they think about each party’s case on a without prejudice basis.
Med-arb The parties agree to attempt mediation first and if that fails to refer the matter to
arbitration.
Mini-trial A neutral third party sits as chairman of a tribunal and will hear/read cases with a
senior representative of each party
Expert appraisal Parties can refer all or part of their dispute to an expert. Opinion not binding, but can
influence approach to subsequent negotiations
Judicial appraisal A legal expert is asked to offer a preliminary view of the parties’ legal position-parties
can agree that the decision will be binding or not
Expert Halfway house between arbitration and ADR. An expert third party is asked to give a
determination binding opinion – binding in the sense that you can sue for breach of the contract if the
other party does not accept the expert’s decision. But it is not enforced as a court order
as expert does not have the powers of an arbitrator under the Arbitration Act 1996
Final offer Both sides make an offer of the terms on which they will settle to a third party and he
arbitration must choose one of the two offers and no other.
Early neutral Allows parties to instruct chosen neutral to make a preliminary assessment of the facts
evaluation at an early stage in dispute. Then makes recommendation, helps towards negotiation.
Ombudsman and Sought to resolve complaints without litigation.
similar schemes

Option Description Pros Cons

Mediation  An independent third  Cheap in comparison to
party (mediator) litigation.
receives statements  Quick – less evidence to
from both parties and gather
searches for points of  Confidential – no
negotiation/agreement, requirement for the result
and attempts to to be publicised.
provide constructive  Flexible – for instance
solutions. parties can negotiate on
issues which the court
would not order on e.g.
ones which were not
pleaded.
 Useful to preserve lasting
business relationships –
normally more amicable
than adversarial litigation.
 Focus of the process is on
the interests of the parties
rather than their legal
rights alone so may be
more commercially
5
 Cost – though cheap in
comparison to litigation,
mediators, barristers
and rooms to hold
litigation can all be
expensive and the costs
will be wasted if the
mediation is
unsuccessful.
 Requires good faith – if
one party is not
genuinely interested in
settling it won’t work.
 Not binding – the
parties are able to walk
away from the
mediation at any time.
Could put agreement
into binding contract.
 Unlikely to achieve a
“legally correct”
solution - more likely a
 focused. “happy medium”.
 Not appropriate for
certain remedies e.g. if
an injunction is needed.
 May get no public
vindication
Med-Arb  Mediation, followed by  Risk of losing arbitration  Cost
arbitration if the may focus the parties’  Deliberations of
mediation is minds and make the arbitrators may be less
unsuccessful. parties take more intellectually robust
extensive steps to settle at than the equivalent
 Arbitration is where an the mediation stage where High Court judge.
independent third party they get a say in the
considers both sides of settlement terms.
the argument and  Can use same person for
makes a decision which mediator and arbitrator to
is binding on the save costs (but may not be
parties. possible for confidentiality
reasons)
 Confidential
 Decisive
 Quick
Final Offer  Both parties make an  Neither party can afford  Cost
Arbitration offer of the terms on to make an unrealistic  May be difficult to get
which they will settle, offer, because that will parties to agree to an
and the arbitrator mean that the neutral will “all or nothing”
chooses one and no choose the opponent’s proposal.
other solution. offer.  May be a lack of a level
 Decisive – if both parties playing field if the
agree to attempting this it parties are required to
guarantees a solution will settle on a final figure
be reached. in advance of disclosure
 Confidential or witness/expert
evidence.
Mini-Trial/  Each side instructs a  The representatives can  Parties can walk away
Structured representative who is approach objectively at any time.
Settlement not immediately settling the matter, as  Cost.
Procedure concerned with dispute opposed to leaving it to
but has authority to the parties themselves
reach a compromise. who often cannot remove
Representatives then emotion or bias from the
hear/read cases of dispute.
parties and then  Flexible – allows solutions
negotiate with help of to be achieved which may
neutral chairperson not form part of the
appointed by the pleadings.
parties.
Expert  An expert is selected  Useful for technically  Risk of an unfavourable
Determination who decides case. complex cases - the outcome against which
Parties agree to accept opinion of an expert in the there will usually be no
(does achieve a decision. If one does field might be preferable appeal may mean
final binding not, can sue for breach to that of a judge. parties are reluctant to
resolution) of contract. But expert  Quick – can agree the engage with this.
decision cannot be disputed points in advance  Cost – it will ordinarily

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 court enforced and and focus on them in
expert can be sued in determination
negligence (unlike  Cheap vs going to court.
arbitrator)  Decisive
 Expert can be any  Confidential
expert in the specified
field (not just lawyers).
Expert  The expert provides an  Useful for technically
Appraisal opinion which is not complex cases - the
binding on the parties opinion of an expert in the
but may influence field might be preferable
approach to to that of a judge.
subsequent
negotiations.
Early Neutral  The parties instruct a  Can provide an indication
Evaluation chosen neutral to make of which direction the
a preliminary view on case will go to at a final
the outcome of the trial and hence make
dispute. parties amenable to
negotiating.
 Allows parties to become
more realistic about their
legal position and
therefore facilitate a
resolution to a dispute.
 Less evidence than
litigation – written case
summaries and supporting
documents
 Quicker than trial
Judicial  A former judge or  Can provide an indication
Appraisal senior counsel provides of which direction the
a preliminary view on case will go at a final trial
the legal position after and hence make parties
hearing representations amenable to negotiating.
from both parties.  Allows parties to become
more realistic about their
legal position and
therefore facilitate a
resolution to a dispute.
 That a legal expert makes
the evaluation rather than
an individual selected by
the parties may make the
decision more
authoritative vs Early
Neutral Evaluation.
Ombudsman  An industry regulator  Outcome of the complaint
Schemes i.e. an ombudsman to the Ombudsman may
considers complaints be sufficient to dissuade a
and provides what party from litigating e.g. If
remedy is available an individual complains to
within his powers. the legal services
ombudsman, and obtains a
7
be necessary to pay the
expert’s fees to assess
the evidence and make
a ruling and solicitor’s
fees.
 May get no public
vindication
 Not binding, may be
ignored by the parties if
they disagree with the
opinion.
 Waste of time and costs
if appraisal is simply
ignored.
 Not binding, may be
ignored by the parties if
they disagree with the
opinion. But could put
agreement in contract.
 May not get public
vindication
 Premature assessment -
may not be good if
difficult points of
law/need to set a legal
precedent
 Waste of time and costs
if appraisal is simply
ignored.
 Not binding, may be
ignored by the parties if
they disagree with the
opinion.
 Waste of time and costs
if appraisal is simply
ignored.
 Only applicable where
an ombudsman who
deals with the types of
dispute in question
exists.

ADR versus litigation
Advantages
Confidential - Court proceedings are usually
conducted in open court, enabling the media etc.
to attend. Settlement by ADR does not have to
result in one party being publicly lauded as the
“loser”.
Cheap and Quick – ADR can facilitate a quick
resolution for comparatively small cost. Litigation
by contrast can take years to go through all of the
necessary procedural steps. The associated costs
can be incredibly burdensome. Also a greater
evidential burden for litigation.
Flexible – many types of ADR exist and the parties
can use the most appropriate depending on the
circumstances of their case.
Preserves the Relationship Between the Parties –
ADR tends to be more amicable and enable the
parties to achieve a non-confrontational
resolution, as opposed the adversarial nature of
litigation.
Enables a Decision Which Reflects the Commercial
Reality – the solution is not just focused on the
correct legal outcome. A court will not necessarily
order the most beneficial commercial outcome if it
is not legally permissible.
8
remedy, this may well
reduce the individual’s
desire to pursue court
proceedings.
Disadvantages
No public vindication – client may want their name
cleared in the public.
No obligation to resolve by ADR – if either party does
not like a proposed solution, they cannot be forced to
accept. Most ADR agreements allow any party to
withdraw at any stage before a solution has been
agreed. In litigation, you usually cannot withdraw
without paying the opponent’s costs.
Awards are not automatically enforceable – parties may
enter into a contract to ensure they abide by the
outcome of the ADR, however if a party does not comply
with this, it will be necessary to litigate to enforce the
contract. Court judgments are binding and enforceable
by winner automatically.
Risk of Settling without Knowledge of the Full Facts – if
ADR is entered into prior to witness statement exchange
or disclosure, there is a risk that the parties may resolve
the dispute without knowing all the facts, and this may
lead to an unjust decision.
ADR not appropriate where a remedy such as an
injunction is sought or if the party is seeking a ruling on
a novel/complex point of law which requires a new legal
precedent.
 Funding

Important to discuss costs with client

 SRA Code of Conduct 2019 para 8.7

o “clients receive the best possible information about how their matter will be priced and… about
the likely overall cost of the matter and any costs incurred”
 Explain how the solicitor’s fee will be calculated.
o e.g. who is going to do the work and the hourly charging rate of that person
 Advise on any foreseeable disbursements, e.g. court fees/barrister’s fee.
 Regularly update the client
 Explain the distinction between solicitor and client costs and costs that may be awarded between the
parties in litigation:
o If client loses, he will have to pay his own solicitor’s costs and generally his opponent’s costs-
r44.2(2)(a) CPR 1998
o If client wins case, he will still have to pay his own solicitors’ costs, but he will then normally
receive his costs from his opponent
 If costs recovered are less than costs paid, client has to bear the loss
 Always warn client of risk of not recovering any costs even if case won (e.g. opponent
going bankrupt)
 Potential steps in litigation and associated costs – may agree ceiling figure or review dates.
 Whether liability for costs may be covered by existing legal expenses insurance cover.
 Whether the likely outcome of the matter justifies the expense.
 Fixed fee only really when a specific step – vital that solicitor has all relevant information in order to set at
correct level, still obliged to do work if too low.

Funding Options
Insurance Must always check first to see if the client has the benefit existing.

Before event insurance (BEI) May still consider CFA and DBAs if have it
Whether client’s liability or another party’s costs is covered by existing.
- May be purchased with household or motor insurance policies.

After event insurance (AEI)

Whether specially purchased insurance should now be obtained. (Discuss this with client before
entering into CFA/DBA).
- Provides cover for the other side’s costs and the client’s own disbursements in the event of
losing the case.
- Premium payable depends on strength of the case and the level of cover required.
Can purchase AEI even if not funding through CFA/DBA
Conditional What is it? s 58(2)(a) of the Courts and Legal Services Act 1990 (CLSA)
fee An agreement under which the solicitor receives no payment or less than
arrangement normal payment, if the case is lost, but receives normal, or higher than
Contingency normal, payment if the client wins.
fee – only Requirements 1. Any civil litigation matter EXCEPT family proceedings
pay if 2. Must be in writing
successful 3. Success fee is a stated percentage increase on the hourly charging
rate which cannot exceed 100% of solicitor’s normal charges: CFA
May Order 2013, reg 3.
considered  Complexity (more complex = higher fee)
and used  Client’s prospects on liability (low = higher fee)
throughout  Time to come to trial (long wait = higher fee)
all stages of A solicitor must  If they win… and opponent ordered to pay costs, this does not include
9
 litigation explain to the success fee or insurance premiums (client needs to be aware of this)
client They also must pay disbursements regardless if they win…
Cannot mix  If they lose… no/less than normal own fees but will have to pay
DBS and CFA opponent’s fees including disbursements. Client also has to fund own
disbursements during course of litigation.
Damages What is it? s 58AA(3)(a) of the CLSA
based If client recovers damages, the solicitor’s fee is an agreed percentage of
agreement those damages. (N.B. if win, client could recover costs in addition to
Contingency damages)
fee – only (No hourly rate)
pay if Requirements 1. Writing
successful s58AA(4) 2. Must not provide for a payment above a prescribed amount or for a
payment above an amount calculated by prescribed manner i.e. fees
Typically, capped at 50% of damages (includes VAT and Counsel fees but
only a excludes other disbursements (these are additional payments))
claimant can 3. Comply with other requirements as to terms and conditions as are
recover prescribed
damages. 4. Must be made after the person providing services under the
agreement has provided prescribed information.
Third party If member of trade union or professional organization, may be possible to arrange for them to
funding be responsible for payment.
Public o Solicitor must from outset consider whether client is eligible.
funding o May receive legal aid for civil litigation from the Legal Aid Agency.
 Usually not to those that could be financed by a CPA.
 Claims in negligence for personal injury, death or damage to property are excluded.
 Neither is funding available for matters arising in carrying out of business.
o Only offered if merits test is satisfied.
o May have to make a contribution from his disposable capital or income towards costs.
o Statutory charge: Where recovers money as a result of proceedings, may have to repay
some/all of legal costs.

Court does not choose parties’ funding arrangements and so cannot make an order that someone receive legal
aid.

10
 Pre-action Protocols

Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take
before commencing proceedings for particular types of civil claims.
 Important aspect of the CPR 1998.
o Vital to check to see whether any approved protocol applies to a client’s case.
 Professional Negligence Protocol
 There is also the Practice Direction on Pre-action Conduct and Protocols which contains
general guidance that should be followed in all cases unless any part of an approved
protocol otherwise applies.

Practice Direction on Pre-action Conduct and Protocols

Aims
 Initiate and increase pre-action contact between the parties;
 Encourage better and earlier exchange of information;
 Encourage better pre-action investigation by both sides;
 Put the parties in a position where they may be able to settle cases fairly and early without litigation;
 Enable proceedings to run to the court’s timetable and efficiently, if litigation does become necessary.
1) Litigation as last resort Para 8: Parties should consider whether negotiations or some other form of
ADR (alternative dispute resolution) might enable them to settle their
dispute – litigation = last resort
2) Exchanged sufficient info The Practice Direction, para 3(a) – (f), before commencing proceedings the
court expects parties to have exchanged sufficient info in order to:
a) Understand each other’s position;
b) Make decisions about how to proceed;
c) Try to settle the issues without proceedings;
d) Consider a form of ADR to assist with settlement;
e) Support the efficient management of these proceedings;
f) Reduce the costs of resolving the dispute.
3) Steps to be taken: Para 6:
Letter before claim a. The claimant in writing to the defendant with concise details of the
claim
b. The defendant responding within a reasonable time (14 days, no
more than 3 months if complex); and
c. The parties disclosing key documents relevant to the issue in
dispute.
4) Reasonable and Para 4: Only reasonable and proportionate steps should be taken by the
proportionate steps parties to identify, narrow and resolve the legal, factual and/or expert issues

5) Where dispute not resolved Para 9: If followed Practice Directions, parties should review respective
Take stock positions to see if they can settle
Para 12: must at least try to narrow issues in dispute before commencing
proceedings
6) Evidence Para 7: The Parties should be aware that the court must give permission
before expert evidence can be relied upon (CPR 35.4(1)). Therefore, litigants
should be cautious about obtaining expert evidence at the pre-action stage.
7) Proceeding to litigation The court will expect parties to have complied with the Practice Direction
and provide evidence for doing so: para 11.
Party may be sanctioned for failing to do so.
Sanctions for non-compliance
 Para 15: court may order proceedings be stayed and compel parties to
comply and/or apply sanctions
11
  Para 16: costs
 The party at fault pay some or all of his opponent’s costs
 Depriving a claimant at fault of all or some of interest he may be
subsequently awarded; or
 Requiring a defendant who is at fault to pay interest on some or
all of any damages.

Practice Negligence Pre-Action Protocol

Aims
 Understand and properly identify the issues in dispute in the proposed claim and share information and
relevant documents
 Make informed decisions as to whether and how to proceed
 Try to settle the dispute without proceedings or reduce the issues in dispute
 Avoid unnecessary expense and keep down the costs of resolving the dispute
 Support the efficient management of proceedings where court proceedings cannot be avoided
Preliminary notice Para 5: As soon as the claimant decides there is a reasonable chance that he will bring a
claim against a professional, the claimant is encouraged to notify the professional in
writing.
 ”The identity of the claimant and any other parties. 5.2
 “A brief outline of the claimant's grievance5.2
 “If possible, a general indication of the financial value of the potential claim” 5.2
 ask the professional to inform, if any, his professional indemnity insurers
immediately. 5.3
be acknowledged in writing within 21 days of receipt. 5.4
Letter of Claim Para 6: As soon as the claimant decides there are grounds for a claim against the
professional, the claimant should write a detailed Letter of Claim to the professional.

Letter of Para 7: The Letter of Claim should be acknowledged in writing within 21 days of receipt.
Acknowledgement Three months from the date of the letter of acknowledgement to investigate and
/ respond.
Investigations Para 8.3: if the professional cannot respond in time, the claimant should “agree to any
reasonable requests for an extension of the three month period”.
Letter of Response Para 9: As soon as the professional has completed his investigations, the professional
and Letter of should send to the claimant:
Settlement (a) a Letter of Response, or
(b) a Letter of Settlement; or
(c) both.
Documents Para 10: This protocol is intended to encourage the early exchange of relevant
information, so that issues in dispute can be clarified or resolved.
Claimant should provide key documents with the Letter of Claim and (at any time) any
other documents reasonably requested by the professional
Experts Para 11: The parties should cooperate when making decisions on appropriate expert
specialisms. Only permitted if express permission of court.
ADR Para 12: Court proceedings should be a last resort. The parties should consider whether
some form of alternative dispute resolution procedure might enable them to settle their
dispute without commencing court proceedings.
Stocktake Para 13: Where the procedure set out in this protocol has not resolved the dispute
between the parties, they should undertake a further review of their respective
positions.
Court Proceedings Para 14: Unless it is necessary (for example, to obtain protection against the expiry of a
relevant limitation period) the claimant should not start court proceedings until:
(a) the Letter of Response denies the claim in its entirety and there is no Letter of

12
 Settlement; or
(b) the end of the negotiation period
Statute for Breach of Contract
Sale of Goods Act 1979
When a consumer – own use
Usually when you purchase pre-packaged goods
Act implies terms into a contract for sale of goods where the seller sells in the course of a business
Case of a sale to a business, implied terms can be excluded but only to extent that the exclusion is reasonable

SECTION 13
1 – where there is a sale of goods by description, implied term that the goods will correspond with the description

SECTION 14
2 there is an implied term that the goods supplied will be of satisfactory quality.
(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable
person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all
the other relevant circumstances.
(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among
others) are in appropriate cases aspects of the quality of goods— (a) fitness for all the purposes for which goods
of the kind in question are commonly supplied, (b) appearance and finish, (c) freedom from minor defects, (d)
safety, and (e) durability
(3) Where the buyer, expressly or by implication, makes known—
(a) to the seller, or
(b) where the purchase price or part of it is payable by instalments and the goods were previously sold by a
credit-broker to the seller, to that credit-broker,
any particular purpose for which the goods are being bought, there is an implied that the goods supplied under
the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are
commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable
for him to rely, on the skill or judgment of the seller or credit-broker.

Supply of Goods and Services Act 1982

Usually by a business when purchasing bespoke services/goods to be used for FURTHER business
e.g. buying plywood for boating making
ALWAYS when service

SECTION 4 - IMPLIED TERM ABOUT QUALITY OR FITNESS

(1) Except as provided by this section and section 5 below and subject to the provisions of any other enactment,
there is no implied condition or warranty about the quality or fitness for any particular purpose of goods
(2) Where, under such a contract, the transferor transfers the property in goods in the course of a business, there
is an implied condition that the goods supplied under the contract are of satisfactory quality.
(2A) goods are of satisfactory quality if they meet the standard that a reasonable person would regard as
satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant
circumstances.

SECTION 13 – IMPLIED TERM ABOUT CARE AND SKILL

(1) where the supplier is acting in the course of a business, there is an implied term that the supplier will carry
out the service with reasonable care and skill

13
 Damages

 Contract: Place the injured party in the position they would have been in if the contract had been
performed properly.
o Hadley v Baxendale – can only recover loss which is within the reasonable contemplation of the
parties at the time they made the contract.
 i.e. damages must not be too remote
o Generally, damages for injured feelings or mental distress are not recoverable.
 Exception if contract was to provide enjoyment.
o What is within the reasonable contemplation of the parties depends on their knowledge
o If there are special circumstances, the person breaching the contract must have known of them,
otherwise the loss will be too remote
 Breach of SGA implied terms
o Reject the goods; and/or claim damages
 Damages = sum to enable him to buy goods equivalent to what should have been
supplied under the contract
 Rejection not possible, damages = sum to compensate for the loss suffered

 Tort: Place the injured party in the position he would have been if damage had not occurred.
o Compensatory in nature – direct and consequential loss, providing rules on remoteness not
broken – reasonable, foreseeable consequence of the tort.

 Duty to Mitigate Loss

o Reduction in damages if claimant has failed to mitigate loss.
o Claimant must take reasonable steps to mitigate their loss.
o Defendant must raise this in pre-action correspondence and state in defence.
o Burden of proof on Defendant.

 Debt: Type of contract claim.

o Instead of damages, claim a sum which the defendant promised to pay under contract.

 Quantum: When determined amount client is claiming (quantum), need to think about evidence you
have to prove loss.

14
 Case Analysis

Cause of Action: Breach of Contract

ELEMENTS TO FACTS TO ESTABLISH AVAILABLE EVIDENCE EVIDENCE TO OBTAIN

ESTABLISH
There was an oral or written contract  We have a copy of  Copies of any
between C and D to [WHAT CONTRACT the written previous contracts
CONTRACT WAS FOR, DATES, AND DETAILS] contract [DATED]  Anything to
EXISTS  There is a establish previous
telephone course of dealings
memorandum  Letters, emails,
proving it phone logs [CHECK
 Witness FACTS]
statements
Sale of Goods Act 1979  SGA  Witness statements
s14(2): satisfactory quality  SGSA  Notes of
s14(2A): regarded satisfactory by a  Express terms correspondence
reasonable person  Witness
s14(2B): state and condition and fitness statements  Unlikely to be
for purpose for which it is likely to be disputed
IMPLIED/ used
EXPRESS S14(3): reasonably fit for purpose
TERM
Supply of Goods and Services Act 1982
s4: goods transferred in course of
business will be of satisfactory quality
and reasonably fit for purpose
s13: service supplied will be of
reasonable care and skill
Describe how any of the terms above  Examples of the  Witness statements
were breached. Be specific and apply items themselves  Expert reports
the facts as much as possible [NAME]  CCTV installation
BREACH  Any photographs  Photographs
of them  Statements from
 Expert evidence consumers
[NAME]  Example of process
 Internal reports
[BY]
 Quality control
person
 Witness
statements
Briefly explain and clearly state how the  Accounts drawn up  Receipts/purchase
above breach caused the loss proof
 Order cancellations
“That the breach described above  Loss of bargain
CAUSING LOSS caused a loss of [AMOUNT] because  Letters, emails,
there was a need to [ACTION] and we telephone
lost out on large profits as [MISSED  Accounts from
OUT]/and we will now have to [SORT external
OUT]”

15
 AMOUNT OF “The amount of loss and damage, N/A  Accounts drawn up
LOSS AND namely [WHAT] costing [PRICE]”
DAMAGE
Always think about total estimated
loss: how much more money
they’ve paid in comparison to what
they have paid
Say that the loss was within the  Telephone
reasonable contemplation of both conversation/term
parties at the time the contract was of contract
made and that the loss was a probable specifying that the
consequence of the breach. sale of [ITEMS]
REMOTENESS must coincide with
Knowledge of any special [EVENT]
circumstances.

Damages should be awarded as per

Hadley v Baxendale (naturally flowing
from the breach)

Loss of reputation too remote.

 May be proof of
Client needs to prove they mitigated negotiation on
MITIGATION costs. costs
 Quotes from other
companies

16
 Cause of Action: Negligence

ELEMENTS TO FACTS TO ESTABLISH AVAILABLE EVIDENCE EVIDENCE TO OBTAIN

ESTABLISH
That there was a duty of care owed,  Usually available
either an established one (doctor / from
DUTY OF CARE patient, solicitor / client) or through documentary
the Caparo Test (harm reasonably evidence
foreseeable, proximate relationship,
fair, just and reasonable)
 Consider eye-  Anything that indicates
Must show that the person breached witnesses that D knew or ought
the duty that they owed. Apply to the  Correspondence to have known that C
facts and state what must be shown. between C and D believed that they
BREACH OF may mention were not in breach
DUTY relevant  CCTV/video of
information [EVENTS]
 Witness  Expert evidence
statements
Must show that the D’s breach of duty  C’s statement  Consider if C can
caused loss to your client, C that they did credibly show they
[ACTION] in would not have done
CAUSATION “By [ACTION], the client suffered reliance on D’s [ACTION] if they had
financial loss and/or personal injury” report/statement not relied on D’s
report/statement
 Consider if there are
any eye witnesses
C has suffered loss of a type which was  C will state that  Get expert evidence to
reasonably foreseeable by the D. the loss suffered confirm the loss
DAMAGE AND Explain the type of loss and how it is was reasonable claimed
LOSS related (state that it was foreseeable foreseeable
that this type of loss would be incurred
due to [ACTION]).
MITIGATION C mitigated their loss`  May be in witness  Evidence of steps taken
statement that indicate this

17
 2: Letter of Advice and Letter Before Claim
Pre-Action Correspondence

When the solicitor is satisfied that the client has a valid claim, he should:

(1) Advise the client (LETTER OF ADVICE); and

(2) Obtain instructions to send a letter to the prospective defendant setting out full details of the claim
(LETTER BEFORE CLAIM).

Letter of Advice

SEE PRECEDENT

Letter Before Claim

SEE PRECEDENT

NB: If claimant fails to send letter before claim prior to issuing proceedings, then it is accordingly in breach of
para 6(a) of the Practice Direction, Pre-Action Protocol

 If the claim is of a type that is governed by a pre-action approved protocol, the letter should contain all
the information required by the protocol.
o Note that in the case of professional negligence, a preliminary notice of claim should be sent first,
and the letter communicating the claim is known as the ‘letter of claim’

Letter Before Claim under Practice Direction on Pre-action Conduct

Dear
[Heading]
Letter before Claim
Introduction
[‘We act for [full names] of [full address]’]
[‘Our instructions are to recover a debt/damages . . .’]

The facts
[Set out the material background facts, eg relevant contract details.]

Legal basis of claim

[State relevant law such as misrepresentation, breach of contractual term(s), negligence,
negligent misstatement, and give brief details.]

Factual basis of claim

[Set out material facts in chronological order, establishing the legal claim, eg the breach of
contractual terms or tortious duty.]

Liability/Responsibility
[‘We have advised our clients that your actions on [date] were in breach of clause 3 of the contract and/or
negligent and that they are entitled to be compensated by you.’]

Debt/Damages/Compensation
[Set out details of amount(s) claimed, including any interest due on a debt under a contractual
term.]

18
Documents enclosed
[‘The following documents are relied on by our client in support of the claim and copies are enclosed’ (list
relevant documents and state what issue each supports, eg receipts in respect of damages
claimed).]

Your documents
[Ask for any relevant documents – list the documents required and explain why they are
relevant.]

Alternative Dispute Resolution proposal

[Set out any proposal for ADR that your client wishes to make at this stage, including the
method(s) of ADR proposed.]

Practice Direction: Pre-action Conduct

[Enclose copy, if appropriate, and refer to para 16.]

Acknowledgement and response deadline

[‘Please acknowledge safe receipt of this letter promptly and provide a full response by no later than [give a
specific date usually 14 days after receipt but up to three months in a complex case]’ .]

Court proceedings
[Threat of court proceedings with associated claim for interest and costs if no
acknowledgement or full response within [14] days.]

Copy of this letter

[‘A copy of this letter is enclosed and we suggest that you forward it to your insurers/solicitors immediately. ’]

Ending

Letter of Claim under Professional Negligence Pre-action Protocol

Dear
[Heading]
Letter of Claim
Introduction
[Refer to preliminary notice and any subsequent correspondence.]
[Confirm full name and address of client.]
[‘Our instructions are that you negligently . . . and our client is entitled to damages accordingly. ’]

The facts
[Set out the material background facts, eg details of the professional services.]

Legal basis of claim

[State the allegations against the professional. As a matter of law, explain what has he done
wrong/what has he failed to do.]

Factual basis of claim

[Set out material facts in chronological order, establishing the legal claim.]
[Confirm whether or not an expert has been appointed. If so, provide the identity and

19
discipline of the expert, together with the date on which the expert was appointed.]

Liability/Responsibility
[Explain how the negligence has caused the loss claimed.]

Damages/Compensation
[Give an estimate of the financial loss suffered by the client and state how it is calculated. If
details of the financial loss cannot be supplied, explain why and state when you will be in a
position to provide the details. If the client is seeking some form of non-financial redress, this
should be made clear.]

Documents enclosed
[‘The following documents are relied on by our client in support of the claim and copies are enclosed ’ (list
relevant documents and state what issue each supports, eg receipts in respect of damages
claimed).]

Your documents
[Ask for any relevant documents – list the documents required and explain why they are
relevant.]

Alternative Dispute Resolution

[Set out any proposal for ADR that your client wishes to make at this stage, including the
method(s) of ADR proposed.]

Acknowledgement deadline
[‘Please acknowledge safe receipt of this letter promptly and by no later than [give a specific date 21 days
after receipt]. ’]

Response deadline
[‘Please provide a full response within 3 months of the date of your acknowledgement letter or let us know
within that period how much longer you need to provide a full response and why.’]

Court proceedings
[Threat of court proceedings with associated claim for interest and costs if no
acknowledgement (within 21 days) or full response within (3 months or otherwise as stated or
agreed).]

Copy of this letter

[‘A copy of this letter is enclosed and we suggest that you forward it to your insurers immediately.’]

Ending

20
 3: Statements of Case, Service of Documents, and Judgment in Default
Commencing Proceedings

Choice of Court

In some cases, the client will have a choice as to the court in which to start proceeding.

What court? Value of claim

High Court  PD 7A, para 2.1: If the value of the claim is more than
£100,000, can opt to start here
 PD 7A, para 2.4: having regard to… value of claim and/or
complexity of facts, legal issues, remedies or procedures
and/or the importance of the outcome.

Division:
Likely to be the Queen’s Bench Division:
 Queen’s Bench Division:
 Claims for breach of contract or tort.
 Chancery Division:
 Commercial claims e.g. trusts, claims about land,
landlord and tenant disputes, contentious probate,
intellectual property, if seeking an equitable remedy
such as specific performance.
 Family Division
County Court Unlimited jurisdiction to hear all tort and contract cases
 If value less than £100,000, must start here
 If more than £100,000, can choose here or High Court

1 Is the value for more than the £100k threshold set out in PD 7A para 2.1?
a. No → County Court
b. Yes → Choose County Court or High Court.

2 PD 7A para 2.4 says you should consider whether the claim ought to be dealt with by a High Court judge
due to:
a. Financial value (is it well over 100k or only just?);
b. The complexity (are expert witnesses required?); and/or
c. The importance to the public.

21

A party who wishes to start proceedings must complete a claim form in the prescribed way: PD 7A 3.1,
which should be handed in or sent to the appropriate court office.
Proceedings are commenced when the court ‘issues’ the claim form by sealing it with the court seal.
Court details
Fee account number
Claim number and issue
date
Claimant(s) names and
address(es) including
postcode
(Claimant under 18
normally represented by a
litigation friend)
Defendant(s) names and
address(es) including
postcode
Brief details of claim
Value: the amount
claimed/interest
22
Issuing Proceedings
Claim Form
Form N1.
SEE PRECEDENT
Drafting the Claim Form Checklist
Which court, division and district?
Look at the question
This is the firm’s reference number for court fees paid electronically.
Leave blank
We will not have these details if the claim is not yet issued.
PD 16, para 2:
Look at the question for Claimant’s address.
 Not solicitors’ address even if they are represented.
 Must include post code: PD 16 2.4 – cannot serve until given (PD 16 2.5)
but will still be issued
 Number the names where there are multiple claimants.
 Individual: Mr John Smith
 Sole Traders: Mr John Smith trading as Smith Shoes
 Partnerships: XYZ (A firm) (or if it is a limited liability partnership, LLP)
o i.e. the Name of the partnership - PD 7A, para 5A.3
 Company: Majestic Ltd/PLC
o There is no need to include the party’s company number
o Can be registered office or place of business – where accept post.
PD 16, para 2:
As above for the Claimant.
Must include the remedy and cause of action.
o The claim form should contain:
 CPR 16.2(1)(a): a concise statement of the nature of the claim
 CPR 16.2(1)(b): the remedy sought.
 If the claim is for breach of contract, include the date of the
contract, brief details of the terms, value and terms breached.
 E.g. “the Claimant claims damages arising out of the
Defendant’s breach of contract on 8th August 2016”.
 Unspecified claims: (not know what damages court will award)
 If claim issued in the County Court, whether or not the claimant
expects to recover: r16.3(2)
 Not more than £10,000; or
 More than £10,000, but not more than £25,000; or
 More than £25,000; or
 That the claimant cannot say how much.
 If claim issued in the High Court and claiming £100,000+ state: PD 7A,
para 3.6
 E.g. “The Claimant wishes to claim the issue in the High Court
 because they expect to recover more than £100,000”
 r16.3(6) – Claimant should disregard that Court will make an award of
interest so do not write interest for unspecified
o Claimant must disregard and the possibility that the Court may
make an award of interest because discretion of the court.
Therefore, only refer to s69 CCA or s35A SCA in PoC

 Specified Claims: A debt claim ONLY

 State the exact sum sought + calculate the total interest payable:
r16.2(1)(cc)
o E.g. “The claim is for a specified sum of £63,450 plus accrued
interest of £1995.30 and compensation of £100”
Preferred County Court High Court – Not applicable
Hearing Centre County Court – county court local to the parties
Defendant’s name and Put in the Defendant’s solicitor’s address if he is represented.
address for service Plus any further available info such as:
including postcode  DX number
 Telephone number
 Fax number
 The other side’s reference
Court fee The fee payable on issue of the claim form by claimant, based on the value of
the claim must be stated.
1 See EX50 Extract. Below
Solicitor’s costs  If the claim is unspecified and more work to come (very likely) put:
o To be assessed
o If more work to come
 If the claim is specified put:
o Amount of fixed costs payable under Part 45 of the CPR 1998. Below

Human Rights Act 1998 Check “No”

Particulars of claim The details of the claim must be set out either in the claim form itself or in a
separate document that is served either with the claim form or within 14 days of
service of the claim form.
Most likely “to follow”.
Statement of truth Can be signed by the Claimant or the qualified solicitor.
CPR requires that claim form is verified by statement of truth: CPR, part 22.
 If signed by the Claimant who is an individual, with POC to follow:
 “I believe The Claimant believes that the facts stated in these
particulars of claim this claim form are true. I am duly
authorised by the claimant to sign this statement”.
 If signed by a Claimant on behalf of a company, with POC to follow:
 “I believe The Claimant believes that the facts stated in these
particulars of claim this claim form are true. I am duly
authorised by the claimant to sign this statement”.
 If signed by the solicitor, with POC to follow: PD 22, para 3.7 – client’s
belief not the solicitor’s
 “I believe The Claimant believes that the facts stated in these
particulars of claim this claim form are true. I am duly
authorised by the claimant to sign this statement”.

23
 Claimant’s or claimant’s
legal representative’s
address
Put in the Claimant’s solicitors address if he is represented.
Plus any further available info such as:
 DX number
 Telephone number
 Fax number
The other side’s reference.

Court fees EX50

Unspecified claim example to work out

1. Amount claimed: Greater than 150,000.00 but not more than 200,000.00
2. Court fee: Greater than 7500.00, but no more than 10,000.00

Fixed courts: Part 45 CPR

Legal Representative’s Costs:

24
 Drafting Statements of Case

Statements of case are the formal documents in which the parties set out their respective cases.

Frequently, will only include the claim form, separate particulars of claim, and the defence (inc. counter claim).
Sometimes, a claimant may wish to serve a reply to defence, or a defendant may wish to make his own claim
against claimant by way of counter claim.

Referring to law, witnesses, and attaching documents

PD 16, para 13.3: In relation to particulars of particulars of claim or defence, a party may:
 Refer in his statement of case to any point of law on which his claim/defence is based
 Give in his statement of case the name of any witness he proposes to call
 Attach or serve a copy of any document which he considers necessary to claim/defence
Law  As a general rule, no need to state the law.
 Material facts should establish the relevant legal basis for a claim or
defence.
Witnesses  A party can state the name of any witness he proposes to call.
 If a particular witness proves a particular fact.
 Little advantage to this i.e. do not include witnesses
Expert reports  Only if court has given permission for the party to rely on it: pre-action
protocol
 C1.4(e) of Commercial Court Guide – should not be attached to statements
of case or filed with them
 Include material facts from expert reports but do not refer to the report
itself or person who wrote the report

Drafting Particulars of Claim

SEE PRECEDENT

r 16.4(1) states that it must include:

 A concise statement of the facts on which the claimant relies (should state all facts necessary for the
purpose of showing that he has a complete cause of action)
 If the claimant is seeking interest, a statement to that effect and the details set out
PD 16 goes into detail about what must, and may be, included.

Template for Particulars of Claim

Formalities  Should be divided into numbered paragraphs: PD 5A, para 2.2
 So far as possible each paragraph or sub-paragraph should contain no more than one
allegation: QBD Guide, para 6.7.4(3)
 The facts and other matters alleged should be set out as far as reasonably possible in
chronological order: QBD Guide, para 6.7.4(4)
 Where particulars are given of an allegation (such as breach or loss and damage), the

25
 allegation should be stated first and followed by each particular listed in separate numbered
sub-paragraphs: QBD Guide, para 6.7.4(6)
 Have all numbers, including dates, expressed as figures: PD 5A, para 2.2(6)
Content
Structure TITLE OF PROCEEDINGS
 Name of court
 Claim number
 Full names of the parties
 “PARTICULARS OF CLAIM”
Breach of contract (more likely) SEE PRECEDENT
 Who are the parties

 Details of the contract

 When was it entered?
 What was it for?
 How much was it for?

 Where a claim is based upon a written agreement, a copy of the contract or documents
constituting the agreement should be attached: PD 16, para 7.3(1)
 Where a claim is based upon an oral agreement, set out the contractual words used and state
by whom, to whom, when and where they were spoken: PD 16, para 7.4

 Terms
 Express
 Implied
 Purported performance
Allege the breach before ‘Particulars of Breach’ heading e.g. ‘In breach of the implied/express
terms of the Contract…’
 Explain the breach
 “Particulars of breach”
 Explain the consequences (no heading)
Allege the loss and damage before heading e.g. ‘By reason of the Defendant’s breaches of the
Contract the Claimant has suffered damage and loss.’
 What was the loss?
 “Particulars for loss and damage”
N.B. should also attach any documents necessary to the claim (PD16, para 13.3.3)
Negligence
1 Who are the parties?
2 What is the duty of care?
3 The factual basis (event/accident)
 When?
 What happened?
4 Negligence/Breach of duty
5 Causation
6 Loss
N.B. should also attach any documents necessary to the claim (PD16, para 13.3.3)
Misrepresentation
1 Who are the parties?

2 Details of the contract:

a. When was it entered into?
b. What was it for?
c. MUST ATTACH A COPY (PD3, para 7.3)
d. If the contract was oral:

26
 i. State the contractual words used
ii. By whom.
iii. To whom.
iv. When.
v. Where they were spoken.
3 What was the representation?
4 Allege that the defendant intended to induce the claimant by the representation into the
contract
5 Allege that the representation was false
6 The representation therefore amounted to a misrepresentation, entitling the Claimant to
rescind the contract (if rescinded)
7 Loss
a. Any payments made.
b. Rescission? – Revocation
N.B. should also attach any documents necessary to the claim (PD16, para 13.3.3)
Interest  Where the claimant is seeking interest: Rule 16.4(2) (only for specified debt claims)
o Must state whether he is seeking interest under contract terms or Act or some
other basis
 How is the claimant seeking interest?
 Pursuant to a particular clause in a contract?
 If nothing in contract, may be possible to claim under the Late Payment of
Commercial Debts (Interest) Act 1998
o if commercial debt recovery claim (cannot use if defendant a consumer, must
be contract between 2 companies)
 e.g. does it arise from the supply of goods and services?
o 8% pa over base rate
 In all other cases, the court has a discretion to award interest:
o s 35A of the Senior Courts Act 1981 (SCA 1981) in respect of High Court cases
 at such rates and for such periods as courts sees fit
o s 69 of the County Courts Act 1984 (CCA 1984) in respect of County Court cases.
o The current rate of interest payable under either statute is 8% pa in non-
commercial cases
o generally, 1% pa over base rate in commercial cases
 Specified claims: Rule 16.4 – ONLY DEBT CLAIMS
o Must state the percentage rate of interest.
o The date from which it is calculated (i.e. the date of the cause of action).
o The date to which it is calculated (i.e. date of issue).
o The total amount of interest claimed at the date of the calculation.
o The daily rate of interest.

( Amount Claimed∨Debt x Rate of Interest (%) )

Daily Rate=
365
Round up daily rate and then multiply by no. of days debt is outstanding up to the date of issue of
Claim Form. State that debt continues to accrue at a daily rate of…
 Unspecified claims:
o “The Claimant claims interest on damages awarded under [s35A OF THE SENIOR
COURTS ACT 1981/CLAUSE X OF THE CONTRACT] at such rates and for such periods
as the Court sees fit”.
Ending
Claimant  AND THE CLAIMANT CLAIMS
Claims o Damages under paragraph X above.
o Interest under paragraph Y above.
 Dated and legal representative

27
 Signed  Statements of case drafted by a legal representative as a member or an employee of firm
should be signed in the name of the firm: PD 5A, para 2.1
Statement  Must be verified by a statement of truth, the form of which is as follows: ‘[I believe] [the
of truth claimant believes] that the facts stated in these particulars of claim are true.’ PD 16, para 3.4
 Failure to verify by a statement of truth: Rule 22.2
o Court may strike out and any party may apply for court to strike
o Statement remains effective unless struck out, but party may not rely on
statement as evidence of any of the matters set out in it
 Solicitor or client can sign statement of truth – trainee cannot sign.
 If client, put their occupation/job.
Address for  Must contain the claimant’s address for service: PD 16, para 3.8(4)
service  To the Court and the Defendant.

Drafting the Defence

SEE PRECEDENT
Template for defence
Formalities  Should be divided into numbered paragraphs: PD 5A, para 2.2(5)
 So far as possible each paragraph or sub-paragraph should contain no more than one
allegation: QBD Guide, para 6.7.4(3)
 The facts and other matters alleged should be set out as far as reasonably possible in
chronological order: QBD Guide, para 6.7.4(4)
 Where particulars are given of an allegation (such as breach or loss and damage), the
allegation should be stated first and followed by each particular listed in separate
numbered sub-paragraphs: QBD Guide, para 6.7.4(6)
 Have all numbers, including dates, expressed as figures: PD 5A, para 2.2(6)
 Where particulars of claim use definitions, continue with these

Contents
Structure  Name of court
 Claim number
 Full names of the parties
 “DEFENCE”
 Must state (a) which of the allegations in the particulars of claim are denied; (b) which
allegations are not admitted nor denied [because of lack of knowledge]; and (c) which
allegations are admitted: Rule 16.5(1)

 Deal with each allegation in the Particulars of Claim individually.

 Where particulars are given of an allegation (such as breach or loss and damage),
the allegation should be stated first and followed by each particular listed in
separate numbered sub-paragraphs: QBD Guide, para 6.7.4(6)
 Where particulars of claim make allegations on a point-by-point basis, answer
each and every point: QBD Guide, para 6.7.4(5)

 With each paragraph, note whether you will:

1. Deny the allegation:
 You may be able to deny some Paragraphs in their entirety:
 E.g. “Paragraph 2 is denied. [Follow with an explanation as to why].
 However, with some you may only be able to admit or deny certain
allegations within the Paragraph.
 e.g. “Paragraph 6 is admitted, save that…”
 You must give an explanation for the denial.
28
  Must state for each allegation denied (a) the reasons for doing so; and (b) if
putting forward a different version of events from that given by the claimant,
must state that version: Rule 16.5(2)

2. Neither admit or deny the allegation :

 If the allegation is outside of the defendant’s knowledge he will not be
able to admit it or deny it.
 E.g. “As to paragraph 11, the Defendant has no knowledge of [x]
and therefore is not in a position to admit or deny this. The
claimant is put to proof on this point”.
3. Admit the allegation:
 For matters which are not in dispute e.g. the details of the Claimant and
Defendant at the outset of the Particulars of Claim.
 “Paragraph 1 is admitted”.

Deal with EVERY allegation; if you do not deal with an allegation you will be taken to have
admitted it (CPR 16.5(5)).
Inappropriate admission could mean unable to argue valid defence.
Failing to admit matters could result in penalisation for costs claimant had to incur to prove
points.
Causation and mitigation of loss
 Often will allege that claimant caused loss – if known, D should assert how.
 May be appropriate for D to allege that the claimant failed to mitigate their own loss –
details of the allegation should be given.
E.g. why head of damage is unreasonable and assertion as to what would be reasonable.
Limitation period
 Give details of the expiry of any relevant limitation period relied on: PD 16, para 13.1
Defendant’s date of birth
 Must contain the defendant’s date of birth if defendant is an individual unless already
stated in an acknowledgment of service: PD 16, para 10.7
Ending
Signed  Statements of case drafted by a legal representative as a member or an employee of a firm
should be signed in the name of the firm: PD 5A, para 2.1
Statement of  Must be verified by a statement of truth, the form of which is as follows: ‘[I believe] [the
Truth defendant believes] that the facts stated in this defence are true.’: PD 16, para 3.4
 Failure to verify by a statement of truth: Rule 22.2
o Court may strike out and any party may apply for court to strike
o Statement remains effective unless struck out, but party may not rely on statement
as evidence of any of the matters set out in it
Defendant’s  Must contain the defendant’s address for service if no acknowledgment of service filed:
service Rule 16.5(8)
address  To the Claimant and the Court.

Reply to the defence

A claimant may wish to file a reply to the defence but is under no obligation to do so.
 Should do so if need to allege facts in answer to the defence that were not included in particulars of
claim.
 By r 16.7(1), a claimant who does not file a reply to the defence is not taken to admit the matters raised
in the defence.
 In practice, replies to defences are most common where the defendant has made a counterclaim.
29
 o Then a claimant must file a defence to the counterclaim to prevent default judgment being
entered against him, and will usually incorporate a reply to the defence as well.
 IF COUNTER CLAIM, THEN CLAIMANT MUST REPLY and must do so within 14 days

Additional Proceedings: Counter Claim

CPR Part 20 deals with additional claims that may be brought in proceedings: inc. Counter claims

Procedure
NB: Claimant must reply
r 20.4  If a defendant wishes to make a counter claim, he should file particulars of
counterclaim with his defence.
 This should form one document, with the counterclaim following the defence.
 Do not need court’s permission if counter claim filed with defence.
 Claimant must file defence to counterclaim within usual 14-day period.
 If needs more time, should request an extension of up to 28 days in addition to
the initial 14-day period.
Service
r 20.8  If did not need permission in order to make the additional claim, then:
 In the case of counterclaim, he must serve it on every other party when he
serves his defence;
 Except for claims for contributions or indemnities from another party, he must
serve the additional claim on the new party within 14 days.

Drafting a Counter Claim

SEE PRECEDENT
Template for Counter Claim
Contents
Defence and counterclaim normally form 1 document, counterclaim following the defence: PD 20, para 6.1
 Name of court
 Claim number
 Full names of the parties: Claimants and defendants in original claim should always be referred to as
such in title to the proceedings, even if they subsequently acquire additional procedural status PD 20,
para 7.3
 “DEFENCE AND COUNTERCLAIM”
 Then subdivided into two sections, by centred headings of “DEFENCE” and “COUNTERCLAIM” –
paragraph numbering continues PD 20, para 6.1
Defence  The defence should be drafted as above.
Counterclaim  The Civil Procedure Rules apply generally to a counterclaim and it should be
drafted as if it were a claim: PD 20, para 3.

30
  The counterclaim drafted as a claim as above.
 Can cross-refer to facts in PoC and in Defence but must be clear
Ending
Defendant  AND the Defendant counterclaims:
counterclaims o Value under paragraph X above;
o Interest under paragraph 12 above.
 Dated and legal representative
Signed  Statements of case drafted by a legal representative as a member or an
employee of a firm should be signed in the name of the firm: PD 5A, para 2.1
Statement of Truth  Must be verified by a statement of truth: ‘[I believe] [the defendant believes]
that the facts stated in this defence are true.’: PD 16, para 3.4
 Failure to verify by a statement of truth: Rule 22.2
Defendant’s service  Defendant’s address for service if no acknowledgment of service filed: Rule
address 16.5(8)
 Usually law firm
 To the Claimant and the Court.
Defendant Responding to Proceedings

 The first step that a defendant must take in civil litigation is when they are served with the particulars
of claim, otherwise the claimant will be able to ‘win by default’.

A defendant served with particulars of claim will have 4 options:

1. Admit the claim
2. File an acknowledgement of service
3. File a defence
4. Do nothing

OPTION 2 OPTION 3 OPTION 4

File an acknowledgment of service. File a defence Do nothing.
Part 10 CPR Part 15 CPR
If he is unable to file a defence in time
If the CF is marked In all other cases: If the time to file the
“PoC to follow”: Within 14 days of Within 14 days of deemed acknowledgment of service
Form N1C – awaits deemed service of service of the Particulars of and defence expires,
PoC the Claim Form. Claim claimant can apply for
Form N9 – response default judgment.
Within 14 days of pack (CPR 15.4(1)(a)) Acknowledgement of
deemed service of the service: (CPR 10.2 and 10.3)
PoC. (CPR 10.3(1)(b)). Defence: (CPR 12.3(1))
(CPR 10.3(1)(a))

THEN = Default judgment

PART 12
File the defence within If the time to file the
28 days of deemed defence expires, the
service of the claimant can apply
Particulars of Claim. for default judgment.
(CPR 12.3(2))
(CPR 15.4(1)(b))

Extending the time limit to file a defence

31
 The time for filing a defence may be extended by agreement between the parties for a period of
up to 28 days. Must give the court written notice of the agreement: r15.5.
Any further extension can only be granted by the courts.
 If claimant has complied with pre-action protocol, extension will be short and granted at
defendant’s expense.
 If claimant has not complied, likely to grant significant extension.
 If claimant has unreasonably refused to grant voluntary extension and/or opposed
defendant’s application to court, the court may well order claimant to pay defendant’s
costs in seeking extension.

CPR2.8 – “Clear Days” Rule

 In calculating the number of days to do an act specified by the rules, you do not include:
o The day on which the period begins, (so would be 15th day after… e.g. for default
judgment) and
o If end of the period is defined by reference to an event (e.g. a hearing), day of that
event.
 “Clear Days” = business days.

Default Judgment
r 12.3 If the defendant fails to respond to service of the particulars of claim by either:
 Failing to file an Acknowledgment of Service
 Failing to file a Defence
 Relevant time for doing either expires
The claimant will be entitled to apply for default judgment against the Defendant

Procedure Filing a request using the relevant form.

Claimant must satisfy the court that:
 Particulars of claim have been served on D
 D has not acknowledged service or filed defence and relevant period
expired
 D has not satisfied the claim
 D has not admitted liability for the full amount

Co-defendants The claimant may enter DJ against one or more of the co-defendants while
proceeding with his claim against the other defendants, provided they can be
dealt with separately.

Applications to Set Aside a Default Judgment

N.B. Application to set aside default judgment is treated as an application for “relief from sanctions” other than
where the judgment has been wrongly entered.
Grounds
Mandatory  r 13.2: the court is obliged to set aside a default judgment that was wrongly entered
before the defendant’s deadline for filing an acknowledgment of service or a defence
expired.
Interim costs
 The judgment will have been incorrectly entered so claimant will likely have to pay the
Defendant’s costs of the application.
Discretionary  r 13.3(1) gives the court powers to set aside or vary a judgment where:
 The defendant has a real prospect of successfully defending the claim; or
 It appears that the court that there is some other good reason why: the judgment

32
 should be set aside OR the defendant should be able to defend the claim.

 The court will take account of the promptness of the defendant’s application to set aside
o This is because the overriding objective expressly recognises the importance of
ensuring that cases are dealt with expeditiously and fairly.
 Not a condition that must be satisfied before court can grant relief -
other factors could carry sufficient weight.
 But a marked failure to make application promptly is enough for court to
justify refusal though.
o Tideland v Westminster City Council [2015] EWHC 2719 (TCC): with reasonable
speed

Examples (good reason why)

 Akram v Adam [2004] EWCA Civ 1601: D successfully got the judgment set aside
because he did not receive the proceedings following a move to a new address.
 The defendant is on holiday at the time they receive the proceedings.

 Test was in Denton v TH White Ltd [2014] EWCA Civ 906:

 The first stage is to identify and assess the seriousness or significance of the
relevant failure.
 Second stage is to consider why the failure or default occurred.
 The third stage is to evaluate ‘all the circumstances of the case, so as to enable
[the court] to deal justly with the application’.
Interim costs
“Real prospect of successfully  The Defendant will have to pay the Claimant’s
defending the claim” ground costs.
 Although the defendant has succeeded in the
application, the reason the judgment was obtained
in the first place is because the defendant failed to
respond in time.
“Some other good reason why”  Neither party pays as neither is at fault I.e. “costs in
ground the case”.
 The application was properly brought but there is a
“good reason” why judgment should not be entered.
Application If the court does not set aside the default judgment, the Defendant will have to pay the
dismissed Claimant’s costs of the application.
Conditional  Court can make a conditional order if the application was made very late
order  I.e. the court grants the application on the condition that the defendant pays into court
the amount of the claim or such amount as he can reasonably afford.
 The court will normally order the defendant to pay the claimant’s costs.

33
 Service

Service of the CLAIM FORM

Once a claim is issued by the courts, it must be served on the other parties if the claimant is to pursue the claim.

The claim form is normally served by court. But r6.4(1) provides that the court will not affect service where:
 A rule or practice direction provides the claimant must; or
 Claimant notifies court that claimant wants to serve it; or
 The courts orders or directs otherwise.

Methods of Service
The follow methods are permitted by r6.3 of the CPR
Personal service  r6.5(3)(a): served personally by leaving it with that individual. Handing the claim
form whilst individual is in jurisdiction.
 r6.5(3)(b) if company, leaving it with person who holds senior position such as
director, chief executive, etc.
 r6.5(3)(c): if partnership, by leaving it with partner or with person who has
control/management of partnership.
s 1139(1) CA 2006: if limited company, can be left at or posted to registered
office. May use second class post, but not recommend.
First class post Must be for the next working day.

s 1139(1) CA 2006: if limited company, can be left at or posted to registered office.

May even use second class post, but not recommend.
Document exchange PD 6A, para 2.1: if party has given DX box number as its address for service, and no
(DX) indication in writing that they are unwilling to accept service by DX, then can be used to
serve.
Leaving form at Delivered by hand.
specified place
Fax or other Party to be served/solicitor must have previously indicated in writing to the party
electronic serving that they are willing to accept electronic service and the electronic
communication identification: PD 6A, para 4.

PD 6A, para 4.2: Requires party who wishes to serve claim form by email or other
electronic method (but not fax), to clarify with the intended recipient whether there
are any limitations to recipient’s agreement to accept service.
Any other method If you have been informed in writing that the defendant’s solicitor is
authorised authorised/nominated to accept service of proceedings, send the Claim Form to them.
MUST DO IF ASKED

Who Should be Served

Claimant may authorise
Any solicitor authorised to accept service. Rule 6.7:
 If a defendant has given in writing the business address of a solicitor as an address at which the
defendant may be served with the claim form or
 If a solicitor acting for the defendant has notified the claimant in writing that the solicitor is instructed
by the defendant to accept service of the claim form on behalf

= it must be served at the business address of that solicitor

Where/who to serve the claim form if the defendant has not given an address for service (CPR 6.9)

34
  The claimant must serve the defendant with the claim form by one of the permitted methods, unless
any special provision concerning service of the claim form applies (R 6.11 for any contractually agreed
method of service)
 Under r 6.15(2), the court has power to order that an alternate method of service already taken is good
service.

Where to Serve
Where/who to serve claim form if the defendant has not given an address for service (CPR 6.9)
Type of Defendant Place of Service
Individual Usual or last known residence.
Individual being sued in the name of a business Usual or last known residence of the
individual/principal or last known place of business.
Individual being sued in the business name of a Usual or last known residence of the
partnership individual/principal or last known place of business of
partnership
LLP Principal office of the partnership; or any place of
business within the jurisdiction which has a real
connection with the claim.
Corporation (other than a company) incorporated in Principal office of the corporation; or any place of
England and Wales business within the jurisdiction which has a real
connection with the claim
Company (registered in England and Wales) Principal office of the company; or any place of
business within the jurisdiction which has a real
connection with the claim.

Any other company/corporation Any place of business within the jurisdiction.

What if claimant has reason to believe defendant no longer resides at address?

r6.9(3): Must take reasonable steps to ascertain the address of defendant’s current residence or place of
business. If cannot, must consider alternative place or method by which service may be effected and make
application to court accordingly.

When to serve
 r 7.5(1): A claimant who wishes to serve a claim form must complete step required of the method in
the table before 12 midnight on the calendar day four months after the date of issue of the claim.
Method of Service Step Required
First class post, document exchange or other Posting, leaving with, delivering to or collection by the
service which provides delivery on next relevant service provider
business day
Delivery of document to or leaving it at Delivery of document to or leaving it at relevant place
relevant place
Personal service Leaving it with relevant person
Fax Completing the transmission of the fax
Other electronic method Sending email/other electronic transmission

Deemed Service of CLAIM FORM

 r 6.14: Deemed served on the SECOND BUSINESS DAY after completion of the “relevant step” under
above table
 The “relevant step” occurs when the claim form is dispatched i.e.
o The date of postage if sent by post or DX.
35
 o The date it is delivered if it is served personally or electronically.
 r 6.2(b): business day means any day except Saturday, Sunday, a bank holiday, Good Friday or
Christmas day.

Service of OTHER DOCUMENTS

r 6.25 relates to service of all other court documents OTHER THAN THE CLAIM FORM, e.g. statements of case.
They are essentially the same as for claim forms in respect to how, who, and where to serve.
BUT DIFFER: in deemed service and when to serve

Method of Service Deemed Service r 6.26

Personal service  If the document is served personally before 4.30pm on a business day, on that
day; or
 in any other case, on the next business day after that day.
First class post  The second day after it was posted, left with, delivered to or collected by the
relevant service provider provided that day is a business day; or
 if not, the next business day after that day.
Delivering document  If it is delivered to or left at the permitted address on a business day before
to or leaving it at a 4.30pm, on that day; or
permitted address  in any other case, on the next business day after that day.
Document exchange  The second day after it was left with, delivered to or collected by the relevant
(DX) service provider provided that day is a business day; or
 if not, the next business day after that day.
Fax  If the transmission of the fax is completed on a business day before 4.30pm, on
that day; or
 in any other case, on the next business day after the day on which it was
transmitted.
Other electronic  If the e-mail or other electronic transmission is sent on a business day before
method 4.30pm, on that day; or
 in any other case, on the next business day after the day on which it was sent.

R 6.2(b) ‘business day’= any day except Saturday, Sunday, bank holiday, Good Friday, Christmas Day.

Service of PARTICULARS of Claim

When Must it be Served?

PD 7A, para 6.1:
Where the claimant does not include the particulars of claim in the claim form, they may be served separately:
 either at the same time as the claim form, or
 within 14 days after service of the claim form provided that the service of the particulars of claim is
within 4 months after the date of issue of the claim form

Deemed Service IN BRIEF

CLAIM FORM - rule 6.14:
nd
 2 business day after step
PARTICULARS - rule 6.26:
nd
 If post/DX, 2 day IF on a business day, OR next business day after that
 Any other, if before 4:30pm on business day then that day OR business day after that

36
 5: Interim Applications
Interim Applications

Interim applications are applications made after the issue of proceedings but before the trial.
Part 23 of the CPR 1998 sets out the general rules governing applications to the court.
 Application to set aside default judgment (part 13)
 Application for summary judgment (part 24)
 Application for an interim injunction (part 25.1)
 Application for an interim payment on account of damages (part 25.6)
 Security for costs order (r 25.12)
More than 1 application can be made. If application being made out of necessity (e.g. client unable to comply
with a deadline), make application at earliest opportunity. May be a tactical application.

Applications to the court – Application Notice

An application to the court is made by an application notice using Form N244
Party making the application = applicant,
Party against whom the order is sought = respondent.
Content  r23.6: An application notice must state what order the applicant is seeking and, briefly,
why the applicant is seeking the order.
Statement of truth
 If the applicant wishes to rely on matters set out in the applicant notice as evidence at
hearing, must be verified by statement of truth on the second page of N244.
Evidence
 PD 23A, para 9.1: where there is no specific requirement to provide evidence, it should be
borne in mind that, as a practical matter, the court will often need to be satisfied by
evidence of the facts relied on.
 This will usually take form of a witness statement.
 Can be statement of case or application notice itself
 Evidence relied upon must be filed at court and served on parties with the N244
 Evidence in response should be served ASAP
 When preparing supporting evidence, consider
o Who should make the statement?
 Person with first-hand knowledge for relevant points
o What needs to be included?
 Important points and relevant detailed evidence, anticipate opponent’s
case where appropriate
o How should statement appear?
 Numbered paragraphs, chronological order
o Hearsay evidence?
 Witness statement must indicate contents deriving from maker’s own
knowledge and those from third party
 Source of any matters of information/belief must be given
o Exhibit supporting documents
Procedure Resolving (consent order)
 Can the issue be resolved through agreement without an application to the court?
o Pursuant to the Overriding Objective (CPR Part 1).
o Failure to attempt, could lead to adverse costs order against you.
37
  If parties agree on the order they wish the court to make, they can apply for an order to
be made by consent without need for parties to attend
 Parties must ensure they provide the court with any material it needs to be satisfied that
it is appropriate to make the order
o Usually a letter is sufficient
Service
 If not, notify your opponent (i.e. serve notice) that you intend to make an application 3
days before hearing (unless exception in PD 23A para 3 applies – freezing injunction or
search order common examples)
o Para 3 PD 23A states that an application can be made w/o notice being given to
the other side e.g.
a) where there is exceptional urgency
b) where the overriding objective is best furthered by doing so
c) by consent of all parties
d) with the permission of the court
e) Where court order, Rule or Practice Direction permits
o When order is made w/o notice, copy of order must be served on the respondent
with a copy of application notice and supporting evidence and statement of right
of respondent to make an application to set aside or vary the order
o Respondent may then apply to set aside or vary the order within 7 days of service
of the order on him
 Then complete the application notice (N244): comply with contents requirements above.
 Submit the application notice to the court where the claim will be issued/was
started/has been sent/where trial is to take place: r23.2.
Along with:
 Requisite fee;
 An additional copy of notice for each party;
 A copy for the court; and
 A copy of the draft order sought, in all but the most simple application: PD 23A
 Copy of evidence (as described above)
 Time limit: service must be at least three clear days before the hearing, unless another
time limit is specified.
Telephone Many district registries now have facilities to deal with interim applications by telephone
hearings/ conferencing
video  PD 23A, para 6.2 = general rule is that at a telephone enabled court, all allocation hearings,
listing hearings, interim applications, case management conferences and pre-trial reviews
conferences
with a time estimate of less than an hour will be conducted by telephone
 exceptions of:
 applications made with no notice to other party
 where all parties are unrepresented
 where more than 4 parties wish to make representations at hearing
 if application is being heard by telephone then no party/party’s legal representative can
attend the judge in person
 unless every other party has agreed
o Applicant’s legal representative must file and serve case summary and draft order no later
than 4pm at least 2 days before the telephone hearing if the claim has been allocated to
multi-track or if the court directs
o For video conferencing facilities, should apply to master or district judge for directions

Possible interim costs orders

Any interim application will involve the parties in expense.
 A party may be involved in collecting evidence, interviewing witnesses, conducting a site visit,
38
 negotiating, etc.
 The applicant will prepare the notice of application and supporting witness statement.
 A court fee is payable for making the application.
 The respondent will usually prepare a witness statement in response.
 The more complex the application, the greater the costs involved.
 The cost of travelling to and from the court, and the advocate dealing with the application
‘Pay as you go’ litigation
At the end of any interim application, the judge may decide that one party should pay the other party’s costs.
 Usually the loser will pay the winner’s costs, but the court has a discretion based on the conduct of
both parties, the success of each sides’ arguments and the overriding object.
Possible costs orders – PD 44, para 4.2
Type Effect
Claimant’s costs  The defendant pays the costs of the claimant’s interim application
 Party named in the order and thereby in whose favour the order is made is entitled
to the costs in respect of the part of the proceedings to which the order relates,
whatever other costs orders are made in the proceedings.
 Costs are normally summarily assessed and ordered to be paid w/i 14 days.
Costs in case  ‘Wait and see’ order - whoever loses at trial will pay the other’s costs (can only be given
where trial is a possibility)
 In this order, no party is named. At this interim stage, no party is able to recover his
costs of the interim hearing.
 The outcome at the end of the whole proceedings will determine which party
recovers these interim costs.
 The party in whose favour the court makes an order for costs at the end of the
proceedings is entitled to his costs of the part of the proceedings to which the order
relates.
Claimant’s costs  Another ‘wait and see’ order - if the claimant wins, the defendant will pay claimant’s
in case costs. If the claimant loses then each party will bear their own costs (can be stated as
the vice versa)
 If the named party is awarded costs at the end of the proceedings, that party is
entitled to his costs of the part of the proceedings to which the order relates.
 So, the party not named in the order is never entitled to recover his interim costs
 The named party recovers his interim costs of the application only if he is ultimately
awarded costs at the conclusion of the proceedings.
No order as to  Each party will bear their own costs and can never recover them from the other party
costs (this will happen if you forget to ask for your client’s costs at the end of the application)
Claimant’s costs  E.g. D’s application to set aside default judgment entered 3 months ago by the Claimant
thrown away has been granted.
 Claimant’s N260 should include any costs claimant incurred in trying to enforce the
summary judgment

Part 52 – procedure for appeals against an interim order

 52.3(b) – only if appeal has a real prospect of success/some other compelling reason
 Permission to appeal can be sought at the original hearing or within 21 days of the original decision
 r52.11 – appeal limited to review of district judge’s or master’s original decision, no new evidence unless
court orders otherwise
 Appeal will be allowed if original decision was
o Wrong.
o Unjust because of a serious procedural or other irregularity

39
  If the appeal is allowed, the appeal judge may make a variety of orders e/g/
o Setting aside or varying original order (and)
o Ordering a re-hearing

40
 Drafting an application notice (Template of N244)

N244 Name of court Claim no.

Application notice
Fee Account no. Help with Fees – Ref no.
(if applicable) (if applicable)
For help in completing this form please read H W F - -
the notes for guidance form N244 Notes. Warrant no.
(if applicable)
Claimant’s name (including ref.)

Defendant’s name (including ref.)

Date

1. What is your name or, if you are a legal representative, the name of your firm?

2. Are you a Claimant Defendant Legal representative

Other (please specify)

If you are a legal representative whom do you represent?

3. What order are you asking the court to make and why?

4. Have you attached a draft of the order you are applying for? Yes No

5. How do you want to have this application dealt with? at a hearing without a
hearing

at a telephone hearing

6. How long do you think the hearing will last? Hours Minutes

Is this time estimate agreed by all parties? Yes No

7. Give details of any fixed trial date or period

8. What level of Judge does your hearing need?

9. Who should be served with this application?

41
 9a. Please give the service address, (other than details of
the
claimant or defendant) of any party named in question 9.

Page 2 of form

10. What information will you be relying on, in support of your application?

the attached witness statement

the statement of case

the evidence set out in the box below

If necessary, please continue on a separate sheet.

…...

____________________________________________________
Statement of Truth

(I believe) (The applicant believes) that the facts stated in this section (and any continuation sheets) are
true.

Signed __________________________________ Dated

___________________________________
Applicant(‘s legal representative)(‘s litigation friend)

Full name
_________________________________________________________________________

Name of applicant’s legal representative’s firm

_____________________________________
Position or office held
________________________________________________________________
(if signing on behalf of firm or company)

11. Signature and address details

Signed ___________________________________ Dated

_________________________________
Applicant(’s legal representative)(’s litigation friend)

Position or office held

_______________________________________________________________________
(if signing on behalf of firm or company)

Applicant’s address to which documents about this application should be sent

If applicable
Phone no.

42
 Fax no.
DX no.
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E-mail address

Guidance for Filling Out N244

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 6: Tactical Applications and Settlement
Tactical Applications

Summary Judgment

Part 24 CPR
Summary judgment is a procedure by which the court can decide a claim or a particular issue without a trial.
Acknowledges that in certain cases, trial is unnecessary; aim of the procedure is to facilitate a quick
determination of a case, avoid long-running litigation and save costs.
Possible benefits of summary judgment:
 Save costs and time
 Learn information about other side’s case
 May pressure other side into withdrawing their claim
 BUT Claimant may not get same award of damages as they would have done had there been a full trial

Making a Summary Judgment

Grounds CPR 24.2 - The court may give summary judgment if:
 (a)(i) the claimant has no real prospect of succeeding on the claim or issue; or
Burden of  (a)(ii) the defendant has no real prospect of successfully defending the claim or issue
proof is on  AND
the applicant.  (b) There is no other compelling reason why the case or issue should be disposed of
at a trial.
1: No Real Prospect of Succeeding on or Defending the Claim
 In order to defeat an application for summary judgment, the respondent needs more
than just an arguable case.
 It has to be one that has a "real, as opposed to a fanciful, chance of winning" (Swain v
Hillman [1999] EWCA Civ 3053).
 Commonly, applications will focus on (para 1.3, PD24):
o A point of law which means the respondent has no real prospects of
succeeding in his claim.
o Evidence which can reasonably be expected to be available at trial, or
the lack of it, which means the respondent has no real prospects of
succeeding
 E.g. where it is clear beyond question that the statement of case is
contradicted by all the documents.
o A combination of these.
2: No Other Compelling Reason to Try the Case or Issue
The following may constitute compelling reasons:
(if they are proven, summary judgment not appropriate)
1. Need to investigate:
1. The respondent may need time to investigate the claim, not having had the
opportunity to do so, and such investigation might provide it with real
prospects of success.
oE.g. if the respondent has been unable/not had enough time to contact a witness
2. Difference in facts
3. Where one party holds all of the factual cards
1. Summary Judgment can be sought prior to disclosure. It is therefore possible
that, in certain cases, one party will be in possession of the majority of the

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 evidence before they are under an obligation to disclose.
2. Where the facts are wholly in the applicant's hands and it would be unjust to
enter judgment without giving the respondent the opportunity to establish a
defence in the light of disclosure, or after serving a request for further
information (Harrison v Bottenheim (1878) 26 WR 362).
4. Questionable conduct by the applicant:
1. Summary judgment has been refused where the applicant's conduct can be
questioned, for instance where they are being dishonest or devious (Miles v
Bull [1969] 1 QB 258).
5. The case is particularly complex:
1. Summary judgment is not intended to be a substitute for a trial in which the
court can make a detailed investigation of all of the issues. Therefore,
particularly complex claims are less suited to Summary Judgment (Three Rivers
District Council v Bank of England (No. 3) [2001] UKHL 16).
6. The case is on a novel point of law for which there is little prior authority.
 Swain v Hillman [1999] EWCA Civ 3053
Contents of The application should include:
the  Application notice, form N244. (must state that it is an application for summary
Application judgment)
 Supporting evidence – on form or on witness statement
 Draft order.
 Fee
Procedure  Claimant can only apply after defendant has filed an acknowledgment of service or a
defence, unless the court gives permission
 Defendant may apply at any time
 The application notice and evidence should be served on the opponent at least 14
days before the hearing unless this is varied by a practice direction or the court (CPR
24.4(3)).
 The respondent should file and serve evidence at least seven days before the hearing
(CPR 24.5(1)).
 If the applicant wishes to rely on written evidence in response to the respondent's
evidence, he should file and serve it at least 3 days before the hearing (CPR 24.5(2)).
Outcome  PD 24, para 5.1 –4 possible outcomes of any summary judgment applications
1. Judgment on the claim
2. Striking out or dismissal of the claim
3. Dismissal of the application
4. Conditional order
 Requires a party to
o Pay a sum of money into court, or
o Take a specified step in relation to his claim or defence, as the case may
be
 And provides that that party’s claim will be dismissed, or his statement of
case will be struck out if he does not comply (para 5.2, PD24)
 Made if it appears possible that a claim or defence may succeed but
improbable that it will do so
 In the absence of financial constraints, would expect a claimant to pay into
court a sum of about 75% to 80% of those costs the defendant could
reasonably expect to recover at the end of the claim if it were fully contested
(defendant should provide estimate of costs)
Directions When court determines a summary judgment application it may:
 Give directions as to the filing and serving of a defence, if one has not already been
filed; and
 Give further directions e.g. case management directions as to the future conduct of
the case

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 Costs Depends on the type of claim and the outcome of the application:
 Where a claimant is successful in obtaining summary judgment for a specified sum,
the court may award fixed costs (under Part 45)
 £175 if the judgment exceeds £25 but does not exceed £5,000
 £210 if the judgment exceeds £5,000
 Where a claimant is successful in unspecified claims, they have established liability but
later assessment of quantum of damages is necessary
 Court will normally award the claimant his costs of making the application and
summarily assess these
 Court then usually fixes a date to assess quantum and deal with costs of the
entire claim (disposal hearing) and may allocate the matter to a track and give
case management directions
 Defendant secures summary judgment
 Claim is struck out
 Court normally awards the defendant his costs of the claim (including pre-action
costs) and, unless agreed, these will be subject to a summary assessment
 N.B. PD 44 para 4.2 – court has some discretion over awarding costs if there has
been issue with the conduct of the parties
 If a conditional order is made, the claimant’s application has not been granted nor has
defendant got the application dismissed
 Neither side has won so usual order is costs in the case

Interim Payments
Part 25 CPR
An interim payments order requires a party to make an advance payment of damages, a debt
or other sum (excluding costs).
The idea behind this power is that a claimant can avoid the financial hardship of any delay between
commencing the claim and its final determination (but claimant does not have to prove financial hardship)
N.B. PD 25B para 1.2: permission of court must be obtained before making voluntary interim payment in respect
of a claim by a child or protected party
Making an Application for Interim Payment
Procedure  The claimant may NOT make an application until after the time for acknowledging
service.
 The claimant should first try to negotiate with defendant or defendant’s insurance
company.
 The claimant MAY make more than one application.
 An application notice must be:
o Supported by evidence.
o Served at least 14 days before the hearing.
 If the respondent wishes to rely on written evidence, this must be:
o Served at least 7 days before the hearing.
 If the applicant wishes to use evidence in reply, this must be:
o Served at least 3 days before the hearing.
Evidence The application must be accompanied by evidence of:
 The amount of the payment being sought.
 Items or matters in respect of which the interim payment is sought.
 The likely amount of the final judgment.
 The reasons for believing the conditions for an interim payment are satisfied.
 Any other relevant matters.
Grounds The applicant must prove, on the balance of probabilities, that: (r25.7(1))
1 The defendant has admitted liability to pay damages.
2 The claimant has obtained judgment for damages to be assessed.
3 If the claim went to trial, the claimant would obtain judgment for a substantial
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 amount of money from the Defendant.
a. Court has held that this is a high burden- litigation inevitably involves risk, and
so the court must be satisfied that the applicant will succeed at trial, not
merely that this is likely - British and Commonwealth Holdings PLC v Quadrex
Holdings Inc [1989]
4 In a claim against two or more defendants:
a. The court is satisfied that the claimant would obtain judgment for a
substantial amount of money against at least one of the defendants
b. All defendants are insured.
c. Defendant is either a public body or insurer under the Motor Insurers Bureau
Agreement
 It is not necessary to show that the applicant will suffer any prejudice if he does not
receive the payment so long as he can make out the grounds (Stringman v McArdle
[1994]).
Court’s If applicant can establish an entitlement to an interim payment, the court has discretion as to:
discretion  Whether to make an order at all.
o The court may decline to make an order if the issues are complicated, or if
complicated questions of law arise.
 The amount of the order, if made.
o The court must not make an interim payment of more than a “reasonable
proportion of the likely amount of the final judgment” and will consider what
sum the defendant is able to pay.
 Take into account contributory negligence and any relevant set off or
counterclaim
o E.g. British and Commonwealth Holdings PLC v Quadrex Holdings Inc [1989] 3
WLR 723 – Court of Appeal held that an interim payment of £75 million when
the total claim was for £100 million was unnecessarily high having regard to
the impact this would have on the defendant’s business in the intervening
period.
o CPR 25.6(7): Court may order an interim payment in one sum or in instalments
CPR 25.8(2)(a): Court cannot order the repayment of any part of an interim payment.
Overpayment If the defendant is ordered to make an interim payment that ultimately is more than the final
judgment, the court will likely order that the outstanding sum be paid back to the defendant
with interest

Security for Costs

The general rule in litigation is that the unsuccessful party pays the winner’s costs after proceedings.
It can sometimes be the case that a defendant will become concerned that the claimant is unlikely to pay these
costs in the event he is successful.

Part 25.12(1) CPR

 Provides that a defendant to any claim (so includes claimant defending a counterclaim) may apply for
security for his costs of the proceedings
i.e. order which requires the claimant to provide security that the defendant can use to enforce any costs order
made in his favour in the event that claimant fails to pay costs awarded by court.

Grounds
(1) Court is satisfied, having regard to all the circumstances of the case, that it is just to make order: CPR
25.13(1)(a)
(2) A defendant will only be able to obtain an order if he can satisfy one of the following grounds: CPR
25.13(1)(b) (and it is just as in CPR 25.13(1)(a) above)
Claimant based CPR This ground acknowledges that in jurisdictions outside of the EU, it can be
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outside the EU 25.13(2)(a) difficult to successfully enforce awards of costs.
Impecuniosity of CPR I.e. if the claimant is a company and there is reason to believe it will be
a company 25.13(2)(c) unable to pay the defendant’s costs.
(i.e. financial o This will generally involve consideration of the company’s available
situation) assets, and the nature and liquidity of these.
o Evidence that the company is in liquidation is likely to be sufficient to
successfully make-out this ground (Northampton Coal, Iron &
Waggon Company v Midland Waggon Company (1878) 7 Ch D 500).
White Book Commentary
 The defendant does not have to show on a balance of probabilities
that the claimant company “will be unable to pay”
o etc: the defendant may well be able to show that there is reason
to believe that the company will not be able to pay even if the
company can adduce substantial evidence to the contrary
 A net asset balance is not determinative of the question whether a
company can pay a costs liability when it falls due.
o A company with assets with a value exceeding its debts will
nevertheless be unable to meet its debts if those assets are
illiquid. That issue involves consideration of the nature and
liquidity of the assets
The evasive CPR  A claimant who has changed his address since the claim was
claimant 25.13(2)(d), commenced with a view to evading the consequences of the litigation
(e) and (g) (CPR25.13(2)(d)).
 A claimant who has failed to give his address in the claim form or who
has given an incorrect address (CPR 25.13(2)e).
 A claimant who has taken steps in relation to his assets that would
make it difficult to enforce an order for costs against him (for
example, dissipation of assets, transfer overseas or to places unknown
to the defendant) (CPR 25.13(2)(g)).
The nominal CPR 25.13(f) A claimant who is acting as a nominal claimant (i.e. he is suing for the
claimant benefit of some other person) and there is reason to believe that he will be
unable to pay the defendant’s costs if ordered to do so (CPR 25.13(2)(f)).

Other specific statutory Certain statutory provisions require security be given.

provisions

Factors relevant to the exercise of the court’s discretion

If one of the above grounds apply, the court will only make an order if it is satisfied that it is
just, having regard to all the circumstances of the case (CPR 25.13(1)(a))
In exercising its discretion, the court will consider the following:
The strength of  The less likely the defendant is to win at trial, the less justified he will be in seeking
the claim and security.
the defence  Does the claim have a “reasonably good prospect of success”?
The claimant’s  The court will be reluctant to make an order which the claimant cannot pay, as this
ability to would have the effect of stifling what is potentially a perfectly legitimate claim on
provide security the part of the claimant.
The causes for  Why are there concerns over the claimant’s ability to pay?
the claimant’s  It could be, for instance, that the shortage of money has been caused by the
impecuniosity defendant’s behaviour, and in such circumstances it may be unjust to make an order.
Property within  The court is unlikely to grant an order if the claimant has substantial property in the
the jurisdiction jurisdiction, even if the claimant is not resident in the EU.
Timing of the  The application should be made ASAP.
application  If the defendant has delayed for no good reason, the court may be less willing to

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 order security.
In exercising its discretion under CPR 25.13(2), the court will consider the following factors:
1) Whether C’s claim is bona fide and not a sham
2) Whether C has a reasonably good prospect of success
3) Whether there is an admission by D in its defence or elsewhere that money is due
4) Where there is a substantial payment into court or an ”open offer” of a substantial amount
5) Whether the application for security was being used oppressively e.g. so as to stifle a genuine claim
6) Whether C’s want of means has been brought about by any conduct by D, such as delay in payment or
in doing their part of any work
7) Whether the application for security is made at a late stage of the proceedings

Procedure
 There is no provision in CPR 25.12 for the claimant to make an application.
However, the court does have the power under CPR 3.1(5) to require any party to provide security for a sum if
that party has, without good reason, failed to comply with a rule.
 The defendant should apply as soon as the facts justifying the application are known
o (Due to the timing of the application being a relevant factor as to whether security will be
awarded)
 The defendant should write to the claimant first and ask that they provide security before making an
application (consistent with the overriding objective).
 If an application is necessary, this must be supported by written evidence in the form of a witness
statement to:
o Establish that a ground exists
o Persuade the court that it is just to exercise its discretion and make the order.
o Justify the amount sought.
Type of security
 Order must specify amount of security, date by which the claimant must provide it and the form it is to
take
 “security” may take the form of:
o The claimant being required to make a payment into court by a particular date
o Provide a banker’s guarantee or
o An undertaking.
o Charging the Claimant’s property
 If the claimant fails to provide security by the date ordered, Part 25 is silent but in practice, if the claimant
fails to provide payment on-time, the claim may be struck out and defendant entitled to apply without
further order for judgment to be entered with costs to be assessed. (But no automatic sanction for failing
to make a security or give security to court that has been ordered.)

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 Discontinuing a Claim

Part 38
Rather than settle or continue with proceedings, the claimant can discontinue a claim at any time
by serving a note of discontinuance on all parties and filing it at court.

 In certain circumstances, the court’s permission will be needed to do this (i.e. where an interim
payment/injunction has been made or any party has given an undertaking to the courts.
 Where there are two or more claimants, one will need the other’s written consent (or the court’s
permission) to discontinue the claim.
 If the claimant discontinues, it is liable for the defendant’s costs incurred so far on the standard basis
(unless the court orders otherwise).

Settlement

Why settle?
 Settlements allow the parties to save time, money and stress and to bring the matter to a close.
 For commercial parties, settlement frees up management time.
 Commercial terms may be agreed between the parties that a court cannot award.

 Parties should continually review whether to make an offer to settle throughout proceedings.

Solicitor’s authority to settle

 Prior to proceedings being issued, the solicitor has no authority to settle and
can only do so with the client’s express approval (pref written).
 Once proceedings have been issued, the solicitor has implied authority to
compromise a claim but should still seek the client’s instructions.

 During negotiations, all discussions should take place on a “without prejudice” basis to ensure that they
cannot be referred to in court at any point and weaken a party’s case.

Pre-action settlements Settlements during proceedings

 Should be recorded in writing but an
exchange of correspondence will be
sufficient.
 Claimant will not be entitled to recover
legal costs unless this has been agreed and
specified.
 Court order or a judgment are preferable as these allow
enforcement proceedings to be taken if the terms are not complied
with (otherwise only a breach of contract action is possible).
 The general rule is that interest is not payable on costs until the
judgment is entered (unless varied by the settlement).
 Formalities for consent order (r40.6(7)):
o Order agreed by the parties must be drawn up on the
terms agreed
o Must be expressed ‘by consent’
o Must be signed by legal representatives acting for each of
the parties to whom the order relates
 N.B. terms of a consent order will be open to public inspection
AND terms agreed must be within the powers of a court to
order

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 Tomlin Orders

Exemplar – WS 11 Task 2
Tomlin orders stay a claim on agreed terms (type of consent order)

 Certain terms must appear in the body of the order itself (see table) under PD 40B para 3.5
 Any other agreed terms are set out in a schedule to the order, an agreement annexed to the order or a
separate document, depending on the level of confidentiality required.
 Tomlins must comply with the formalities set out in CPR 40.6(7)
o It must be drawn up on the terms agreed by the parties.
o It must be expressed as being “By Consent”.
o It must be signed by the legal representative acting for each of the parties.

 CPR 40.6(7): used where the parties want any terms of the settlement to be confidential and/or
beyond the power of the court to order – by putting in Schedule (advantage, whereas normal
consent orders are open to public inspection: CPR 46.6)
 NB: CPR 5.4B and 5.4C permits parties and non-parties to apply to court for a copy of any
document filed. In L’Oreal and Others v eBay International AG and Others [2008] disclosure of
a schedule to a Tomlin order was permitted under CPR 5.4B.
 The schedule can include terms that the court could not impose (“in future dealings A will give B a
10% discount on all orders”)
 Effect of tomlin order is to dispose of court proceedings

Tomlin order (body)

“By consent”
Stay of proceedings
(including provisions that should any party not act in accordance with the stay, it will be lifted and either
party may go to court to have the settlement enforced without starting new proceedings)
Payment of money out of court
This will be rare and only likely to occur where a party had to pay a sum into court under a previous order e.g.
a conditional order made on a summary judgment application.
Payment and assessment of costs
(Who pays? For what? How much? By when?)
If the parties wish for the amount of costs to be assessed by the court at detailed assessment the order must
specify this.
Signatures of the parties’ solicitors

Schedule
Agreed terms
Who is paying what, to whom, by when? What happens in the event of late payment?
Any payment of money should include provision for interest on late payment

If particularly concerned about confidentiality, instead of having terms in a schedule, have terms set out in
agreement held by solicitor’s/neutral venue that is not the court.

CPR 40.6(2)(b) – A court officer may not make a consent order by entering and sealing an agreed order if one or
more of the parties is a litigant in person (if none of the parties is a litigant in person, court can enter and seal).
CPR 40.6(5) – where an application to the court is necessary for a judgment or order to be made in the terms
agreed by the parties, an oral hearing is NOT necessary.

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52
 Part 36 Offers

Part 36 offers a formal settlement framework.

 Written offer in accordance with Part 36 setting out
o Claimant - the sum they would be prepared to accept
o Defendant – the sum it would be prepared to pay in order to bring the claim to an end
If offer accepted, claim over except from agreeing a reasonable figure for offeror’s legal costs.
If the other party refuses a reasonable Part 36 settlement offer and fails to get a more advantageous judgment,
it will be financially penalised under r36.17. It is, therefore, a means of putting pressure on the other side.

How to Make a Part 36 Offer

When? r36.7 and r36.4: Can be made before, during, and after proceedings and during
appeal proceedings
Form and content Under r36.5(1). The offer must:
requirements  Be in writing.
 Make clear that it is made pursuant to Part 36.
 Specify a period of not less than 21 days during which, if the offeree
accepts the offer, the defendant will pay the claimant’s costs under r 36.13
(known as ‘the relevant period’);
 State whether it relates to the whole of the claim or to part of it, or to an
issue that arises in it, and if so to which part or issue; and
 State whether it takes into account any counterclaim.
Relevant period Relevant period is 21 days from the date after the offer is served.

Making the offer If the offeree accepts the offer within this period, the defendant will pay the
claimant’s costs under r36.13.
 For calculating the relevant period, the offer is deemed to be made when it
is served on the offeree (his solicitors if he is legally represented): r36.7(2)
 The usual rules on deemed service of documents other than claim form
apply: r6.26
 Offer is deemed inclusive of interest for the relevant period: r36.5(4)
 Where the offer is made close to trial under 36.3(g), the relevant period is
the period up to the end of the trial or such other period as the court
orders
 Once a trial is in progress, the offeree needs the court’s permission to
accept: r36.11(3)

The financial consequences of r36.17(3) and (4) (see below) will not apply to the
offer unless the judge has abridged the relevant period.
Does the court know? No, not until costs are assessed (as per r44.3), at which point any admissible offer
to settle is considered. The Part 36 offer is treated as being made on a without
prejudice basis and may not be referred to in proceedings: r36.16(1).
How much should be Under r36.4:
offered?  Where the offer is made by the defendant, it must offer a single sum
(inclusive of interest) in payment (not instalments); and
 The defendant must be willing to pay the whole amount within 14 days of
the claimant accepting the offer.
Under r36.5(4), the sum offered is taken to include all interest until the relevant
period expires.

If unclear: Clarification by offeree

If Part 36 offer is unclear, the offeree may request clarification from the offeror
within 7 days of receiving the order. Best to put it in writing. r36.8
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Method It may be made using the form N242A or a letter.
More than one offer It is possible to make more than one Part 36 offer.

How to Withdraw a Part 36 Offer

Implied withdrawal Does not exist – a second Part 36 offer does not implicitly withdraw the first and
the offer may be accepted at any time (r36.11(2)).
It is crucial to expressly withdraw your first offer if you wish to reduce the amount
of your offer the second time around.
Express withdrawal Must be done in writing. Usually just serve a letter on the offeree. Check whether
court’s permission is needed.
Do not tend to expressly withdraw when revising the amount offered upwards.
Permission from the  Where the relevant period has ended, no permission from the court is
court needed.
 Where the relevant period is ongoing, to withdraw or change the offer
court permission must be sought under r36.10.
The effect of Once the terms are reduced/changed/offer withdrawn, the offer is no longer a Part
withdrawing/changing 36 offer and so the r36.17 financial consequences will no longer apply to it.
the offer

How to Accept a Part 36 Offer

When?  May be done at any time, before or after the relevant period, provided the
offer has not been withdrawn: C v D.
 Accepting after the end of relevant period may have adverse costs
consequences (see below).
 Where the relevant period is until the end of the trial: under r36.11(3),
where the trial is in progress, the offeree needs the court’s permission to
accept.
How?  Serve written notice of acceptance on offeror: r36.11(1). No prescribed
form.
 Where proceedings have begun, notice must also be filed with the court:
PD 36 para 3.1.
 Where a party is child or otherwise not fully capable, the Part 36 offer may
not be accepted without the court’s permission: r21.10
Effect of acceptance  The claim is stayed.
 Where the claimant has accepted a defendant’s Part 36 offer, the money
must be paid within 14 days of the acceptance or the claimant can enter
judgment for any sum outstanding: r36.14(6).
 In all other cases, the if the paying party has not honoured the terms of the
offer, they may apply to the court to enforce.
Costs and consequences D accepts C’s offer D accepts C’s C accepts D’s C accepts D’s offer
of accepting the offer AFTER the relevant offer WITHIN offer WITHIN AFTER the relevant
period has expired the relevant the relevant period has expired
36.13(5) period period
The court will usually C entitled to his costs of the D pays C’s costs of the
order that D pays C’s proceedings up to the date on proceedings up to the
costs of proceedings up which notice of acceptance is date the relevant
to the date of notice of served on the period expired.
acceptance of the offer defendant/claimant AND
was served. C pays D’s costs for the
This will include the period from the date
costs incurred in of expiry of the
defending a relevant period to the
counterclaim where date the notice of

54
 that is covered under acceptance: r36.13(5).
the Pt 36 offer.
On what basis are costs If the parties cannot agree costs among themselves, the court will determine these
assessed? on the standard basis.

Consequences of not accepting a Part 36 offer

In exam, be able to explain

1. What Part 36 is and what it aims to do
2. Consequences of accepting an offer
3. What happens if D makes an offer and, at trial:
 C wins [strictly] more than D’s offer
 C wins, but fails to beat D’s offer (CPR 36.17(3))
 C loses (CPR 36.17(3))
4. What happens if C makes an offer and, at trial?
 C wins at least as much as C’s own offer (CPR 36.17(4))
 C wins, but [strictly] less than C’s own offer
 C loses
5. Whether your client should accept/make an offer

“Like with like” calculation

(1) Work out how much interest would have been owed on the sum awarded by the judgment from the
date interest became payable (up to and including day 21) – or whatever is the end of the relevant
period.

(2) Add the interest calculated to the amount of the judgment.

(3) If the total of these is less than the Part 36 Offer by any amount, however small, this is a “less
advantageous” judgment.
 Where a claimant is awarded a sum less than the amount of the defendant’s Part 36 offer, r36.17 applies.
 Where a claimant is awarded a sum less exactly the same as or more than the amount of the defendant’s
Part 36 offer, r36.17(4) applies.

(4) Apply the correct set of consequences from the tables below.

DO IN EXAM: Timeline for both claimant and defendant’s offers indicating:

 Date of loss (earliest date from which court can award interest on damages)
 Date of instructions of solicitors (earliest date from which costs could be awarded)
 Date offer served
 Day 21 (end of relevant period) (do not include date offer was served when counting)
 Day 22 (offer has expired and penalties kick in if relevant)
 Judgment date

Example
o C seeks £70,000, having suffered loss in July 2010.
o He issues proceedings in July 2013 and claims interest under s35A of the SCA 1981 (8% per annum).
o He is offered £50,000 inclusive of interest on 5 Jan 2014.
o The relevant period expires on the 26 th January. C does not accept the offer.
o At trial, he is awarded £38,000 + interest of £15,200 i.e. a total of £53,200. This is larger than D’s offered
sum, however this is not a like for like comparison.

55
 On a like for like comparison, if C had accepted the Part 36 offer, he would have been entitled to interest
from the date of the loss to the date the relevant period expired i.e. from July 2010 – 26th Jan 2014.
 That is three years and 6 months. The interest on the sum of 8%, awarded at trial, for that period, would be
£10,640. That plus the judgment sum = £48,640.
 This is less than the total amount offered, so C should have accepted the offer, and has failed to obtain a
judgment more advantageous than the offer

Bigger the judgment in the claimant’s favour

C does not accept C obtains judgment C obtains judgment C obtains judgment

D’s offer and loses less advantageous more advantageous at least as
Costs from date of at trial than D’s offer than D’s offer but advantageous
less advantageous (same or better) as
loss/date of
than own offer own offer
instruction to date
= Inappropriate for = Inappropriate for = Appropriate for = Inappropriate for
of judgment and C to reject offer. C C to reject offer; both to reject offer; D to have rejected
end of relevant has lost, D has won C won, D lost C won, D lost offer; C won, D lost
period r36.17(1)(a) r36.17(1)(a) r36 not triggered r36.17(1)(b)
triggered triggered triggered
 C pays D’s costs  D pays C interest  D pays C interest  D pays C interest
on standard on damages as on damages as on damages as
basis claimed in the claimed in the claimed in the
 From: date D particulars of particulars of particulars of
instructed claim claim claim
solicitors  From: date of  From: date of  N.B. if no
 To: date of loss loss damages
judgment  To: date of  To: date of awarded,
 (Because judgment judgment interest will be
claimant has lost based on
the case, not amount of costs
specifically given to the
because of Part claimant
36)  From: date of
loss
 To: end of
relevant period
(day 21 after C’s
offer)
 D pays C’s costs  D pays C’s costs  D pays C’s costs
on the standard on the standard on standard
basis. basis. basis
 From: date C  From: date C  From: date C
instructed instructed instructed
x solicitors solicitors solicitors.
 To: end of  To: date of  To: date of
relevant period judgment relevant period
(day 21 after C’s (day 21 after C’s
offer) offer)

Consequences Consequences No Part 36 Consequences

r36.17(3)(b) r36.17(3)(a) and (b) consequences r36.17(4)(a)-(d)
Split costs order

56
Penalty costs of not  C pays D’s costs  D pays interest
accepting a Part 36 on standard on C’s damages
offer – from date basis at up to rate of
 From: date 22 10% above base
after expiry of
after D’s offer rate
relevant period to
 To: date of  From: date 22
end of trial judgment (the after C’s offer
earlier on in  To: date of
x proceedings x judgment
offer was made,
the bigger this
amount is going
to be because
longer period
from date 22 to
judgment date)

 C pays interest  C pays interest  D pays C’s costs

(usually 1% + on D’s costs at on the
base rate) on D’s up to 1% (+ base indemnity basis
costs (unless rate) (Bim Kemi) (‘punishment
unjust to do so)  From: date 22 x basis’)
 From: day 22 after D’s offer  From: date 22
after D’s offer  To: date of after C’s offer
 To: date of judgment  To: date of
judgment judgment
 C pays own  C pays own  D pays interest
costs costs on C’s indemnity
 From: date C  From: date 22 basis costs at up
instructed after C’s offer to rate of 10%
solicitors  To: date of above base rate
 To: date of judgment x – norm is 4%
judgment (Rowlands)
 From: date 22
after C’s offer
 To: date of
judgment
x x x  For Part 36
offers made
after 1 April
2013, an
additional
sanction of up to
£75,000 may be
awarded at the
court’s
discretion
(Feltham v
Bouskell)
 Calculated as a
percentage of
damages: 10%
on the first
£500,000

57
 awarded and 5%
for any amount
from £500,000
to £1,000,000
up to a
maximum of
£75,000
N.B. court will not make order if it is unjust to do so.

8: Case and Costs Management

Overview of the Procedure
1. When the defence has been filed, the court will provisionally decide which “track” to allocate the claim
to.
2. The court will then send the parties’ a Notice of Allocation, which, for Multi-Track Claims, will normally
require the parties to:
 Complete a Directions Questionnaire (Form N181) by a specified date.
 Attempt to agree directions and then file proposed directions by a specified date.
 File and exchange cost budgets either:
a. With the DQ if the value of the claim is less than £50,000 (CPR 3.13)
b. In any other case, not later than 21 days before the first Case Management Conference (CPR
3.13).

Allocation

When defence is filed, the court provisionally decides which track the case will follow by:
 Serving each party a notice of proposed allocation
 Requiring the directions questionnaire by a certain date.

Which track?
Small claims Fast track Multi-track
CPR PT 27 CPR PT 28 CPR PT 29
Straight-forward claims of value Claims worth between £10K and Claims worth more than £25K.
not exceeding £10K, although £25K that can be tried in one day Claims will go to the County Court
claims worth more than this may or less. if straight-forward (debt action
also be allocated to this track (PD Will be heard in the County Court etc.) and to the High Court if
26 para 8.1(2)). unless they raise a point of public complex.
interest.
PD 29 para 2.6 lists the claims suitable for being tried in the RCJ, e.g. professional negligence; Fatal Accidents;
fraud/undue influence; defamation; malicious prosecution/false imprisonment; claims against police;
contentious probate
If not in this list, transfer to County Court where value is less than £50K, or to the High Court District Registry
where value is over £50K.
 For example: ‘This claim is suitable to be managed and tried in the RCJ because it is a professional
negligence claim worth over £50K and the witnesses are based in London.’

The defendant can get an automatic transfer to a court more local to them under r.26.2(1) if:
 The claim is for a specified sum;
 The court the claimant has begun proceedings in is not the defendant’s home court as defined in r.2.3;
 The defendant is an individual; or
 Any other defendants in the proceedings have not yet taken steps in the proceedings.

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 Allocation Hearing

Once all parties have filed their directions questionnaires, the court allocates the claim to a track.
 A party may appeal the allocation (if a hearing was held) or apply to court for reallocation (if no hearing
was held) (PD 25 para 11).
 Parties must be given 7 days’ notice of the allocation hearing.
The legal representative who attends should be:
 The one responsible for the case (PD 26 para 6.5);
 Must be familiar with it, in any case, and
 Have sufficient authority to take any decisions likely to arise.
 Where this is not complied with, the court may order costs to be paid to the party who did attend the
hearing on the indemnity basis. Those costs will be summarily assessed (payable immediately/on
specified date). If those costs are not paid, the defaulting party’s statement of case may be struck out.
Arguments in favour of changing location of trial to another court
 Consider business of court (do some research, check with the court and solicitors);
 Consider facilities available in the court;
 Logical to ask for it to be in the defendant’s district;
o Defendant has no choice to be involved in the trial therefore balances the inconvenience
o So as not to disrupt the business of directors and senior management who may have to be
involved
o Decreases transport costs of lawyers, witnesses, documents, employees, etc.
o As defendant will have to bear more costs, in line with OO to minimise these.

Court’s Case Management Powers

 r1.4: the court has the duty to manage cases actively.

 r3.1(2): lists the non-exclusive powers of the court.
 The court can make any orders conditional and specify the consequences of the party’s non-compliance
o Ordering a party to pay money into court as security (r. 3.1(5)) is a typical ‘consequence’.
 When exercising its power under r.3.1(5) the court must have regard to the amount in dispute and the
costs the parties have/may incur (r.3.1(6)).

Extension of  The court has the power to extend the time for compliance with a Rule, including
time retrospectively (CPR 3.1(2)(a))
Strike-out  The court has the power to strike out a statement of case (CPR 3.4(2)):
o It may do so of its own accord (does not require an application), or the Claimant can
make an application.
o The court may exercise its power if:
 The statement of case discloses no reasonable grounds for bringing or
defending the claim (i.e. it is doomed to fail).
 The statement of case is an abuse of the court’s process or is o/w likely to
obstruct the just disposal of the proceedings or
 There has been a failure to comply with a rule, practice direction or court
order.
 However, if there are less drastic ways of dealing with default which will
produce a just result, strike out is unlikely
Alternative  Alternatively, the court may sanction the party e.g. for delay, by requiring them to pay
sanctions – costs caused by their failure on an indemnity basis.
costs/interes  Or, make an order affecting the interest payable on any damages
t
Unless orders  Where a party fails to comply with a direction, the court may serve an order which
provides that “unless” a party complies with that direction, their claim/defence will be

59
 struck out.
N.B. Can still apply for extension of time
Transfer of  CPR 26.2 – if there is a claim issued in the High Court:
money claims o For a specified amount of money.
o Against a defendant who is an individual.
 This will be automatically transferred to the defendant’s home court.

60
 The Directions Questionnaire

 This is form N181 (or form N180 for the small claims track)
The Directions Questionnaire provides the court with information to enable it to make decisions about
allocation and case management. Pursuant to the OO, judges are obliged to manage cases actively and to deal
with each case proportionately and appropriately in light of the other cases which require the courts' resources
(CPR Part 1).
 Where a claim is likely to be allocated to the multi-track, file the costs budget with the DQ, a case summary (if a
case management conference will occur), budget discussion report, a disclosure report, and a draft order for
directions.
 Any party that fails to file a costs budget when required to do so will be treated as having filed a budget
comprising only the applicable court fees (r. 3.14) (i.e. unable to recover additional fees)

Filing
Note that the time for filing a DQ cannot be altered by agreement between the parties (CPR 26.3(6A)).
When to file Once the last defence is filed, the court will serve on the parties a proposed allocation
notice. This triggers an obligation to file a DQ. Notice will state the date for return of the
DQ and a return address.
Failure to file County Court money claims:
- r.26.2A - the court will serve a further notice on the defaulting party, requiring him
to comply within seven days. If he does not, his statement of case will
automatically be struck out.
All other claims:
Where a party does not file its DQ on time, the court will make the order it considers
appropriate, including:
 Listing the case for a case management conference;
 An order for directions;
 An order striking out the claim;
 An order striking out the defence and entering judgment; or
 An unless order where both sides failed to file (unless you file within seven days
the claim will be struck out).
The party who did not file is likely to be penalised, e.g. being ordered to pay costs of the
other party for any additional hearing required. The court will allocate on the basis of the
information available to order a hearing.

Drafting the DQ
Settlement  Tick the “For legal representatives only” box.
o Confirms that you have explained to your client the need to try to settle – check
instructions but almost always this will be yes.
 Tick the “do you want to attempt to settle” box.
o Generally, no reason why you shouldn’t tick yes. But, check instructions and give
reasons if answer is no.
Rule 26.4(2A) – court may impose a stay if it considers
 Do you want a stay?
it appropriate, regardless of the parties’ desires
o Check your instructions.
Court  If the case is in the High Court, fill in B1. Is that where you want the case to stay?
 Which division?
o Will almost certainly be Queen’s Bench Division
o Chancery or Family are other alternatives but unlikely
 Location:
o Local to the parties.
o If in London, consider the RCJ.
61
  PD 29, para 2.6 provides that the following types of claim are suitable for
trial in the RCJ:
 (1) Professional negligence claims,
 (2) Fatal Accident Act claims,
 (3) Fraud or undue influence claims,
 (4) Defamation claims,
 (5) Claims for malicious prosecution or false imprisonment,
 (6) Claims against the police,
 (7) Contentious probate claims.
Pre-action  Have you complied with the relevant Pre-Action Protocol?
protocols o Answer should generally be yes; check instructions.
Case  Have you made any interim applications? E.g. summary judgment, application to extend
management time to file and serve a defence etc.
information o Check instructions. If you have made an application, what is it?
 Which track?
o Small Claims = < £10k
o Fast Track = £10k - £25k
o Multi-Track = > £25k
o If proposed directions are for normal track, dont need to put anything in track box
Disclosure of  Have you agreed the extent of disclosure of electronic documents?
electronic o Check instructions.
documents  Type of disclosure.
o “Standard Disclosure” (CPR 31.6 – but do not write rule no.)
 Have you filed and served a disclosure report?
o Check instructions.
o CPR 31.5(3) requires all parties in multi-track claims to file and serve a disclosure
report not less than 14 days before the first Case Management Conference.
 Have you agreed a proposal in relation to disclosure?
o Check instructions.
Experts  Have we used, or do we want to use an expert?
 Do we already have a report from them or are we going to get one?
 Is the case suitable for a single joint expert?
 Fill in the details of the expert i.e. their:
o Name
o Field of Expertise
o Justification and estimate of costs.
 Why do we need the expert? Issues as to liability and quantum? What are these?
 Is this proportionate; consider the value of the claim and necessity of the
evidence.
 How much is the expert charging for his report, meeting, and attending trial, if
known?
 N.B. CPR 35.5(2) – if claim is on small claims track or fast track, no expert unless necessary
in the interests of justice
o In general, expert evidence should be limited to what is reasonably required to
resolve the proceedings
Witnesses  Who are we calling as a witness?
 What are they witness to? What will they talk about?
Trial  If case is Multi-Track, it will be more than one day.
 Fast-Track or Small Claims should be one day.
 List any dates you, your supervisor, or witnesses will be unable to attend in the next 12
months. Consider the date you are drafting the DQ in the question.
Costs  Multi-Track claims – you will attach a Precedent H.
Other  Check if we intend to make any applications in the future?

62
 information
Any further  Not normally necessary to fill this in.
Info?
Directions  The directions order you want the court to make should accompany the DQ.
Signature and  Remember to strike out irrelevant headings under the signature box.
firm details  Check instructions for contact info.

Scrutinising the directions questionnaire

Consider the following:
 Part C – whether the pre-action protocol complaints is accurate.
 Part D – whether they have disclosed any electronic documents.
 Part E – what position they have taken with experts and what that
means.
 Part F – whether you should interview any witnesses named.
 Part H – their costs estimate.
 Part J -if any additional information has been applied.

Directions Order

A draft directions order is essentially the order you want the court to make at the first CMC. Should be attached
to the Directions Questionnaire. It deals with the procedural issues in the litigation. The Ministry of Justice
publish standard directions for Multi-Track cases. Must identify which paragraphs are relevant to the facts of the
question, include the relevant ones and delete the irrelevant ones.

Order of 1. Heading, hearing reference

Proceeding 2. Allocation
s (Reflected 3. ADR
in how the 4. Disclosure and inspection of Fast Track – 1. Standard disclosure
Directions documents standard 2. Inspection of non-privileged
Order is 5. Exchange of Witness Statements directions documents
structured) of witnesses of fact order 3. Simultaneous exchange of
6. Expert evidence follows this witness statements
o Permission order of 4. Filing of joint expert’s report
o Exchange of reports proceedings 5. Questions to joint expert
o Without prejudice meeting 6. Answers to questions by
o Statement of joint expert
7. Filing of pre-trial checklist
agreement/disagreement
7. Pre-trial directions
8. Trial directions
9. Costs

For a multi-track case, the court will do one of the following depending on which is most appropriate (PD 29
para 4.5):
1. Give directions for management of the case and set a timetable directly (simpler cases); OR
2. Hold a case management conference (CMC) or pre-trial review (or both) and give direction at this.

The approach of the court when setting directions on its own initiative is set out in PD 29 para 4.10. This
includes, among other things:
 Standard disclosure (2);
 Simultaneous exchange of witness statements (3);
 Single joint expert on any issue unless there is a good reason not to (4);
63
  Expert reports to be exchanged simultaneously on those issues where issues are not determined by a SJE
(5);
 Direct discussion between experts where the reports are not agreed (6);
 Case management conference to be listed after the date of compliance with the directions (7);
 To specify a trial period (9);
 Where appropriate that court may require the parties to consider ADR (9) or explain why it is not suitable.

Common Directions Order – look at textbook exemplar p.436 (use exemplar)

Par What does it Explanation
a deal with?
1 Allocation/Track  Which track is the claim allocated to?
o Will likely be Multi-Track.
 “The Claim is allocated to the Multi-Track and is assigned to Master Jones for
case management”.
2 ADR  Standard direction that the parties will consider ADR.

o Copy this out.

 “At all stages the parties must consider settling this litigation by any means of
Alternative Dispute Resolution (including Mediation); any party not engaging
in any such means proposed by another must serve a witness statement giving
reasons within 21 days of that proposal; such witness statement must not be
shown to the trial judge until questions of costs arise”.
3 Costs  Are the Budgets Agreed?
management o No need to include the second para if no areas of disagreement.
order  “The court records that the budgets are agreed between the parties to the
extent set out in the copy budgets attached. The parties must exchange clean
copies of the budgets forthwith”.
 “In respect of those parts of budgets which are not agreed, the court records its
approval after making the appropriate revisions, which must be incorporated
within the budgets forthwith”.

4 Disclosure of  The order will set dates for:

documents o When parties must give each other standard disclosure lists
Inspection of o When the parties must file requests for inspection.
documents  Requests for inspection generally must be made before 7 days
after the parties share lists.
 Compliance with this request should be within 14 days of the
date of the request unless the request is objected
 “Disclosure of documents will be dealt with as follows:
o by 4pm on 24 July 2017 the parties must give to each other standard
disclosure of documents by list and category.

o by 4pm on 31July 2017 any request must be made to inspect the original
of, or to provide a copy of, a disclosable document.

o (c) any such request unless objected to must be complied with within 14
days of the request”
5 Exchange of  The order will set a date for the parties to exchange witness statements. The
witness standard direction provides that a party may only rely on a witness statement
statements of which is not served on time with the permission from the court.
witnesses of
fact  “Evidence of fact will be dealt with as follows:
by 4pm on 2 October 2017 all parties must serve on each other copies of the
64
 signed statements of themselves and of all witnesses on whom they intend to rely
and all notices relating to evidence.
Oral evidence will not be permitted at trial from a witness whose statement has
not been served in accordance with this order or has been served late, except
with permission from the Court”.
6 Expert evidence  You need permission from the court to rely on expert evidence.
o What issues do parties need expert evidence in relation to?
Permission and o What evidence/which expert is the Claimant permitted to rely on?
exchange o What evidence/which expert is the Defendant permitted to rely on?
 When will the respective reports be exchanged?
 Without prejudice discussion/meeting?
 Must serve the order on the parties with their instructions – statement of
agreement/disagreement.
 Permission for oral evidence?
7 Trial listing  Lists a date before which the parties must apply to court to fix the trial date.
 Trial: Judge Alone
 Category: A/B/C
o Refers to the type of Judge you will get:
o Category A = High Court Judge
o Category B = High Court Judge or Deputy High Court Judge
o Category C = Deputy High Court Judge
 Trial Window – set an appropriate date, check your instructions.
 Time Estimate – anything sensible – MT Trials often take around 6 days.
 Requirement on the Parties to File Pre-Trial Checklists
8 Pre-trial  Pre-Trial review – last CMC?
directions o If yes; how will it be conducted?
o File and send draft directions and a case summary before the CMC.
9 Trial directions  File bundles: generally “not more than 7 nor less than 3 clear days before the
trial”. “The parties must endeavour to agree the contents of the bundle before it is
filed”.
 Bundle Contents:
o A case summary
o A chronology
o A trial timetable.
 Requirement to Exchange Skeleton Arguments – “exchange skeleton
arguments at least 3 days before the trial by email.”
10 Costs  Costs in the case
o i.e. “Wait and see” – whoever loses at trial will pay the costs of this hearing.

Where the parties agree directions between themselves

Under PD 29 para 4.7(1), the court’s approval to agreed directions (as made between the parties) will
only be given if the directions:
 Set out a timetable by reference to calendar dates for the taking of steps for the preparation
of the case;
 Include the date or a period (the trial period) when it is proposed that the trial will take place;
 Include provision about disclosure of documents; and
 Include provision about both factual and expert evidence (it may be that no expert evidence
is required).

Further, under para 4.8, directions agreed by the parties should, where appropriate, contain
provisions about:
 The filing of any reply or amended statement of case that may be required;

65
  Dates for service of requests for further information under PD 18 and of questions to expert;
 The disclosure of evidence; and
 The use of single joint expert, or in cases where it is not agreed, the exchange of expert
evidence (including whether exchange is to be simultaneous or sequential) and without
prejudice discussions between experts.
 Where a party does not follow the timetable, pursuant to the OO, you must warn them that
you intend to apply to court for an injunction unless they comply (within a certain time
frame) BEFORE you actually do (PD 29 para 7.2.).
Case Summary

N.B. Neutral document.

Drafting a Case Summary - PD29 (Look at Textbook Exemplar p.434)

In most multi-track cases a case summary will be prepared before any case management conference.
 The formalities are set out in PD 29, para 5.7 (1): The case summary:
 (a)  should be designed to assist the court to understand and deal with the questions before it;
 (b)  should set out a brief chronology of the claim, the issues of fact which are agreed or in dispute
and the evidence needed to decide them;
 (c)  should not normally exceed 500 words in length; and
 (d)  should be prepared by the claimant and agreed with the other parties if possible.
 Purpose of case summary: assist the judge to identify the issues in dispute between the parties and so
help him determine how the case should progress to trial, e.g. what issues require expert evidence, what
issues might be suitable for ADR, etc.
Heading/title of  Look at facts
proceedings
Title of document  Case Summary
Chronology of  Set out the dates:
proceedings  The Claim Form was signed.
 On the Particulars of Claim (not the date it was posted or deemed served).
 On the Acknowledgment of Service
 On the Defence (and Counterclaim)
 On the Reply and defence to Counterclaim
 On the Directions Questionnaire
Agreed issues of  Go through the Defence and highlight the areas that the Claimant and Defendant
fact agree upon.
Issues in dispute  Liability
 Again, refer to the Defence and highlight the areas in dispute between the
Claimant and Defendant.
 Quantum
 Is the value of the claim in dispute?
Evidence required  State the evidence the Claimant relies upon.
to deal with  Identify by suitable references, such as liability and quantum and split into factual and
disputed Issues expert
 Claimant’s testimony.
 Any other witnesses of fact?
 Check the DQ for details of these.
 If it is not certain which witnesses of fact will be relied upon, it is
acceptable to list the likely number of witnesses so the court can
consider whether this is reasonable.
 Does the Claimant wish to rely on any expert evidence (subject to the court’s
permission)?
 Repeat the above for the Defendant.
66
N.B. if CMC happening by telephone, parties are required to file a case summary with court prior to
hearing (PD 23A)

Pre-trial Checklist PD 29, para 8

The purpose of the pre-trial checklist is to check that directions have been complied with so the court can
fix/confirm the trial date.
 Directions order will specify the date by which the checklist should be returned.
 Checklist will be sent to parties at least 14 days before it must be filed in court (form N170).
 Must be returned to court not later than 8 weeks before the trial date or start of trial period.
o Parties encouraged to share them with one another before filing.
 Failure to comply:
o If no party filed, court will direct that any claim, defence or counterclaim will be struck out unless
checklist filed within 7 days of service of the order
o If some but not all have filed a checklist, court will usually fix a listing hearing and give directions
 Following the check, court will confirm the date, length and place of trial (usually have 3 weeks’ notice).
o Alternatively, court may decide it is necessary to hold pre-trial review (or cancel one listed). This is
common for trials lasting longer than 10 days.
o 7 days’ notice must be given of decision to hold/cancel pre-trial review.

Case Management Conferences

 Court will hold a case management conference in multi-track cases where it feels that it needs a more
‘hands on’ approach.

Purpose PD29
Para 5.1:
(r3.12 –  Review the steps which the parties have taken in the preparation of the case, and in
purpose of particular their compliance with any directions that the court may have given,
costs  Decide and give directions about the steps which are to be taken to secure the progress
management
of the claim in accordance with the overriding objective, and
is that the
court should  Ensure as far as it can that all agreements that can be reached between the parties
manage both about the matters in issue and the conduct of the claim are made and recorded.
the steps to
be taken and
the costs to Para 5.3: Topics Covered:
be incurred by  Whether the claimant has made clear the claim he is bringing, in particular the amount
the parties to he is claiming, so that the other party can understand the case he has to meet,
any  Whether any amendments are required to the claim, a statement of case or any other
proceedings document,
so as to  What disclosure of documents, if any, is necessary,
further the  What expert evidence is reasonably required in accordance with rule 35.1 and how and
OO of dealing
when that evidence should be obtained and disclosed,
with cases
justly and at  What factual evidence should be disclosed
proportionate  What arrangements should be made about the giving of clarification or further
cost)
67
 information and the putting of questions to experts, and
 (7) Whether it will be just and will save costs to order a split trial or the trial of one or
more preliminary issues.

Who should  If the party is represented- a legal representative who is “familiar with the case and have
attend? sufficient authority to take any decisions likely to arise” (CPR 29.3(2)).

If court has appropriate facilities and CMC will last one hour or less, CMC will happen over telephone.

68
 Statement of Truth = “This budget is a fair and accurate statement of incurred and estimated
costs which it would be reasonable and proportionate for my client to incur in this litigation”
Cost Management

Precedent H  Costs budget. – statement of truth see above

 I.e. a spreadsheet which provides:
What is it? o A detailed breakdown of costs and disbursements incurred.
o An estimate of future costs.
 Must be verified by a statement of truth.
 Must be filed on all Multi-Track claims worth less than £10 million (CPR 3.12(1))
Consequences  CPR 3.13 – parties must file and exchange costs budgets (Court will make CMO
of a failure to unless it is satisfied that litigation can be conducted justly and at proportionate
file cost in accordance with the OO without such an order being made (r3.15(2))
o With their DQ, if the value on the Claim Form is less than £50,000.
o Otherwise, no later than 21 days before the first CMC
 CPR 3.14:
o If a party fails to file a budget, they will be treated as filing a budget as
consisting of court fees only – therefore, their costs recovery will be limited to
any court fees if they win
 If a party fails to file a budget, they should make a Relief from Sanctions
Application.
See relief notes below
What to do if File a Precedent R
you dispute a  CPR 3.13 requires budgets to be exchanged with the opposing party and CPR 3.15
costs budget requires attempts be made to get both parties to agree on a budget and limit what
they can recover
Precedent R
 To help narrow down any areas of dispute, CPR 3.13 requires the parties to complete a
“Budget Discussion Report” – a Precedent R.
o The parties will indicate on this form whether they agree or dispute the costs
incurred by the other party for each stage of the litigation.
o This must be filed no later than 7 days before the first CMC.
o If any areas are in dispute, the court will adjudicate on them at the CMC and
will make a Costs Management Order.

 Costs Management Orders: - can’t cover what already has been spent (Court may not
approve costs incurred before the date of any budget)
o CMO amends (if necessary) and approves a parties’ costs budget.
o CPR 3.18 - if a CMO has been made, the court must have regard to this when
assessing costs and cannot depart from this budget unless there is a good
reason to do so.
o PD 44, Para 3.2 – if a CMO has not been made, a party must file a statement
explaining their reasons if there is a difference of more than 20% between the
costs claimed on detailed assessment and the costs in their costs budget.

 Apply for a Costs Capping Order (CPR 3.19) – exception circumstance, last resort

o The court can make an order which places a limit on the amount a party can
recover from their opponent. Note that this does not limit the expenditure of
the party subject to the order.
o i.e. they can incur whatever costs they want but will only get a limited amount
back from their opponent if they win.
o The court may make such an order if:
 It is in the interests of justice.

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  There is a substantial risk that without one costs will be disproportionate
and
 The court is not satisfied that this risk can be controlled by case
management directions and a detailed assessment of costs.
What if the  Parties should seek to agree an amended budget.
anticipated  PD 3E 7.6 If not agreed, the amended budget should be filed with the court who may
costs change approve, vary, or disapprove the amendments.
after a budget o Each party shall revise its budget in respect of future costs upwards or
is filed? downwards, if significant developments in the litigation warrant such
revisions.
o Such amended budgets shall be submitted to the other parties for agreement.
o In default of agreement, the amended budgets shall be submitted to the court,
together with a note of (a) the changes made and the reasons for those
changes and (b) the objections of any other party.
o Court’s discretion: The court may approve, vary or disapprove the revisions,
having regard to any significant developments which have occurred since the
date when the previous budget was approved or agreed.
 PD 3E 7.7 – if amended budget is agreed or approved by court, refile the amended
budget

If you can show an assumption has changed because of a significant development, more
likely to be able to get an amended budget

 Note that it is difficult to persuade a court that inadequacies or mistakes in a

previously approved budget should be rectified (Murray v Neil Dowlman
Architecture Ltd).

 Thus, amending a budget should be reserved for situations where unforeseen

developments in the litigation occur which alter the anticipated costs e.g. additional
applications, additional witnesses, new documents.

Sanctions and Relief

Sanctions
Strike out of The court also has the power to strike out all or part of a statement of case (r.3.4(2)) where it:
statements of  Discloses no reasonable grounds of claim/defence;
case  Is an abuse of process/likely to obstruct just proceedings; or
 Shows a failure to comply with a rule, PD or court order.
o For example, a failure to provide relevant facts or set out a legal ground is
a failure to comply with r16.5.
Unless order May be made where a party has not complied with a step in the proceedings. Apply without
delay but inform the other side of your intention to do so. If the unless order is not
complied with and no application is made to extend the deadline, the claim/defence will be
struck out with no further action needed (PD 3 para 1.9)
Limiting the issues allowed to proceed to trial
Raising or lowering the interest payable on damages
Costs Requiring the costs incurred by the delay to be paid on an indemnity basis and to be paid
immediately.
Wasted costs Where the failure was the legal representative’s fault and not the party’s. The legal
order representative or his firm then has to pay the costs occasioned by his own negligent conduct.
Failure to pay The court will serve notice requiring payment of the fee by a specified date. If the fee is not

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court fees paid, and no application is made within the specified time period, the claim will be struck out
with costs.

Relief from Sanctions

 Rules 3.8 and 3.9 = party’s ability to obtain relief from sanctions imposed by court
o where party hasn't complied with a rule, P D or court order, any sanction will have effect unless the
party in default applies for and obtains relief from the sanction
• where the sanction is payment of costs, the party in default can only obtain relief from
appealing against the order for costs

 Rule 3.8(4) = where party is required to do something within a specified time, and specifies the
consequence of failure to comply the parties may, by prior written agreement, agree an extension of up to
28 days

 The application for relief must be supported by evidence (e.g. witness statement) and outline:
 Why the failure occurred;
 Extent to which party has o/w complied with the rules, PD, court order and pre-action protocol;
 Whether failure to comply was due to party’s legal representatives;
 Whether trial date can be met if relief granted;
 Effect of failure on each party; and
 Effect of granting relief on each party.
CPR 3.9  (1) The court will consider all the circumstances of the case, so as to enable it to deal
justly with the application including the need:
o (a) for litigation to be conducted efficiently and at proportionate cost; and
o (b) to enforce compliance with rules, practice directions and orders.
 (2) An application for relief must be supported by evidence.

Post Mitchell, it has become clear that the courts will be taking a strict approach. In this case,
the claimant was refused relief for sanctions on the grounds that the relief should be granted
only where non-compliance could properly be regarded as trivial and an application for relief
was made promptly. Relief will not be granted where it will amount to a denial of justice to the
respondent.
Denton In deciding whether to grant relief, the court will use a three-stage test from Denton v TH
Guidelines White Ltd:
 Stage 1: What is the seriousness or significance of the failure?
Wide  If a breach is not serious or significant, relief will usually be granted.
discretion to  Stage 2: Why did the failure or default occur?
courts  I.e. does the party at fault have a reasonable excuse?
 The lack of a good reason doesn't necessarily mean that relief will not be
granted. The Court will also consider Stage 3.
 Stage 3: The court will evaluate ‘all the circumstances of the case, so as to enable [the
court] to deal justly with the application’.
 In particular the CPR 3.9(1) factors above.
 Very open stage

 So, a serious breach for no reason will not automatically be prevented from attracting
relief.
 The key question is whether the case could nevertheless be conducted efficiently and
at proportionate cost.
 Denton also warned that if someone seeks to take advantage of a mistake by the other

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 side, and their failure was not serious or significant, relief from sanctions is appropriate

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 9: Disclosure and Inspection
An Overview of Disclosure

Disclosure is the process of providing your opponent with a list of documents.

Inspection – a SEPARATE process where your opponent has a right to actually see certain disclosable documents.
 You are listing the documents, in your control, that could be relevant to your case – whether to your
advantage or not
 The other party then has the choice to select which documents they wish to view
 Often your list will have identical documents the other party has e.g. an exchange of letters between the
parties’ solicitors – they will therefore not ask you to view these documents
 Main purpose: of the disclosure and inspection stage is to enable the parties to better evaluate the
strengths of their opponent’s case in advance of the trial

Disclosure Report
 A disclosure report is essentially a document which summarises the
documents to be disclosed in a particular case, where these are located, and
provides estimates of the likely costs involved in giving standard disclosure.
o It is verified by a statement of truth.
 It is made in Form N263.
 For Multi-Track cases, CPR 31.5(3) requires all parties to file and serve a
disclosure report not less than 14 days before the first CMC

Consequences Where a party fails to disclose or allow inspection of a document:

of a failure to  Unable to rely on the document (CPR 31.21)
disclose
o You may not rely on that document at trial unless the court permits this.
 Case may be struck out:

o A party who fails to disclose a document that harms/is adverse to his case in
response to an order for specific disclosure may find that his case is struck out.
o Costs Penalties
Subsequent Party may only use document disclosed for the purposes of the case in which it has been
use of disclosed unless:
disclosed  Document has been read or referred to during public hearing (e.g. at trial); or
documents  Court grants permission; or
 Party who disclosed document and person to whom document belongs consents
Non-party Once proceedings have commended, a party can apply for disclosure to a non-party to enable
disclosure them to resolve issues in the case.
 This is used where the party has indicated a document is no longer in his possession
(part 3 of list).

 If the person who now has the document will not hand it over voluntarily, the opposing
party who wants to see it can apply for an order for non-party disclosure under r31.17.

 This application has to be supported by evidence and will only be granted if:

 The documents in question are likely to support the applicant’s case or

adversely affect another party’s case; or

 Disclosure is necessary either to save costs or to dispose fairly of the case

Pre-action Where party does not know whether or not to issue proceedings without more info – they can
disclosure apply against the intended defendant for pre-action disclosure under r31.16.
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 Must analyse documents AND identify from Statements of Case which documents should be INCLUDED.
Steps to assess whether Disclosure is Necessary

STEP 1
Is it a document?
 CPR 31.4: A document is anything in/on which information of any kind is recorded. The key question is,
does material contain useful information? If yes, then it will be document.

 PD 31B, para 1: documents include electronic documents. “any document held in electronic form. It
includes, for example, email and other electronic communications such as text messages and voicemail,
word-processed documents and databases, and documents stored on portable devices such as memory
sticks and mobile phones”. PD31B, para 5(3)

STEP 2
Should the document be disclosed?
 An order to give disclosure is limited to STANDARD DISCLOSURE (for fast track and multi-track), unless the
court directs otherwise – OR – the parties agree in writing to vary this (r31.5(1))
 CPR 31.6: Parties must disclose

 (a) Documents on which they rely AND

 (b)(i) Documents which adversely affect their own case or
 (b)(ii) Documents which adversely affect another party’s case, or
 (b)(iii) Documents which support another party’s case AND
 (c) Documents which he is required to disclose by a relevant practice direction
 NB:
 Always bear in mind the case issues (what is in dispute), normally liability, quantum and costs. Only
disclose those documents that are necessary under r31.6 i.e. relevant to the issues, should be
disclosed. Not every document will be relevant to the case (e.g. may only be relevant to an admitted
point)
 When describing the document say HOW/WHY disclosed
o E.g. the client relies on this because it shows there was a contract, shows there was a breach
of…
o But, DO NOT JUST SAY “RELEVANT” TO THE CASE

STEP 3
What are the documents in the party’s control?
 CPR 31.8: The duty to disclose is limited to documents which are or have been in the control of the party.
A document was/is in party’s control if:

 It was in physical possession;

 They had a right to possession of it; and/or

 They had a right to inspect it or take copies (e.g. medical report)

STEP 4
Apply to facts
 When you apply the information to the facts:

 you must identify exactly what issues are in dispute (rather than those where the parties are in
agreement) (normally, liability, quantum and costs) , and

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  state exactly WHY/HOW the document affects the case

EXAMPLES
 Statements of Case (including Claim Form): will always satisfy conditions for Standard Disclosure as
party will either be relying on it or it will be adverse to his case.

 Documents mentioned in Statements of Case: Will almost ALWAYS satisfy conditions for Standard
Disclosure. BUT still apply to facts.

r31.14 makes it clear that a party may inspect a document mentioned in a Statements of Case – i.e. you cannot
protect it by privilege if you include it.

 Costs: These will usually be in dispute, so documents recording information concerning costs (e.g. Part
36 letters and other offers of settlement) should also normally be disclosed – as it could be adverse to
the party who did not accept the offer when costs are decided BUT be careful HOW you word the
description. DO NOT want to make the judge alert to what it is/was. Describe as ‘inter Solicitor
correspondence’

 Without Prejudice Correspondence (i.e. correspondence which neither party can rely on for the
purpose of proving liability or quantum but will be used for assessment of costs) – will normally satisfy
the r31.6 test and should be disclosed

 Instructions (written or oral) on experts’ report: this is not privileged and must be disclosed –
r35.10(4)
o However, substance of instructions should be included in the expert’s report (r.35.10(3))

However, specific documents that relate to the instructions are not normally disclosed (e.g. the actual report) –
r35.10(4)(a)

STEP 5
Has a copy of the document been created – due to an additional marking?
 Party only needs to disclose one copy of a document (r31.9(1))

 UNLESS copy of a document features a modification, obliteration or other marking/feature:

 on which party intends to rely r31.9(2)(a); or

 which adversely affects his own case or another party’s case or supports another party’s case
r31.9(2)(b);

 If this is the case, the copy is treated as a separate document under r31.9(2)

 And should be disclosed if satisfies r31.6 test

STEP 6
Should anything be redacted before disclosure?
 Irrelevant information may be redacted if it contains commercially sensitive/confidential information
which is irrelevant
 Redacted documents should still be disclosed in Part One of the Disclosure List.
 The description of the document in part one should make it clear that the document disclosed is
redacted.
NB:
 Technically, the other party does have a duty of confidentiality (r31.22)
 Other side can ask to see redacted parts, but we can argue under r31.3(2) that it was disproportionate
to the issues in the case to permit inspection of documents within a category or class of document

75
 disclosed under r31.6(b) (r31.3(2)).

STEP 7
Need for reasonable search and limits to disclosure
 When giving standard disclosure, a party is required to make a reasonable search for documents – CPR
31.7
 PD31A (2) – the parties should bear in mind the overriding principle of proportionality
 CPR 31.7(2)(a): The factors relevant in deciding the reasonableness of a search include the following:

 (a) Number of documents involved

 (b) Nature and complexity of the proceedings

 (c) How easy/expensive will it be to retrieve certain documents; and

 (d) How significant documents are

It is good practice that the parties involved look over the case and make sure they try to agree to a limit so that
they only search relevant data (so limiting people searched and/or keywords) and ensure search is reasonable
 PD 31B para 6 sets out matters to be considered when searching for electronic documents

 Number involved

 Nature and complexity of proceedings

 Ease and expense of retrieval

o Accessibility

o Location

o Likelihood of locating relevant data

o Cost of recovering Electronic Documents

o Cost of disclosing and providing inspection of any relevant Electronic Documents; and

o Likelihood Electronic Documents will be materially altered in course of recovery, disclosure

or inspection

 Availability from other sources

 Significance of any document likely to be located in the search

 PD31, 22: may be reasonable to search some/all of party’s electronic storage (e.g. decide not to search
before a certain time, or limit search by key word)
 Where party has NOT searched for a category of documents because to do so would be unreasonable,
must state this in the disclosure statement and the category/class of documents must be identified
(r31.7(3))
 If a party has limited the search for certain documents, he must state this in his disclosure statement
(located in r31.10(5))

STEP 8
Continuing duty

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 CPR 31.11 Duty of disclosure continues during proceedings
 If document to which duty applies comes to a party’s notice during proceedings: must immediately
notify the other parties
 If document found after a party’s list has been served and it satisfies the r31.6 test notice should be
given by way of letter or supplemental list (PD31A (3.3))
 A failure to disclose promptly without good reason may amount to a breach of para 1.4 – you do
not attempt to deceive or knowingly or recklessly mislead the court.

STEP 9
What can be inspected?
 Either party CAN INSPECT documents referred to in Statements of Case, witness statement, witness
summary or affidavit (r31.14)
 CPR 31.3(1): Party disclosed to has a right to inspect the disclosed documents, except:

 Where the document is no longer in control of the party who disclosed it (r31.3(1)(a))
o ‘control’ = r31.8(2) – if in physical possession, has right to possession of it; has right to
inspect/take copies
 The party disclosing the document has a right or duty to withhold inspection (r31.3(1)(b))
o Privilege/Public Interest
 Damages public interest (documents dealing with national defence, children etc.)
(r31.19)
 Privileged: Party disclosing has right/duty to withhold inspection
 Documents tending to incriminate party who would produce them or its spouse
 A party considers it would be disproportionate to permit inspection and states in his disclosure
statement that this is the reason why he considers inspection should not be permitted.

 Procedure (CPR 31.15):

 The party who wishes to inspect must give the other written notice of his wish to inspect.
 The other party must then permit inspection within 7 days of receipt of the notice.
 The inspecting party may request a copy of the document. If the inspecting party undertakes to pay
reasonable copying costs, his opponent must supply him with the requested copy within 7 days.

STEP 10
Does the document attract privilege?
 A party has a right to withhold inspection of privileged documents - legal professional privilege (two
types)

 Legal advice privilege

 Litigation privilege

Legal advice privilege Litigation privilege

o Communications passing between a party
and his legal adviser: solicitor/barrister
etc
o Which are for the purpose of obtaining
legal advice or providing assistance to the
client
o Balabel v Air India, per Lord Taylor: "legal
advice is not confined to telling the client
the law; it must include advice as to what
should prudently and sensibly be done in
the relevant legal context".
77
o Communications between the client or the
client’s solicitor, and
o A third party which,
o Are for the sole or dominant purpose of
litigation and
 Of obtaining or giving advice with regards
the litigation or obtaining evidence to be
used in it
 E.g. expert reports.
o Are created after litigation is in contemplation or
commenced
 o The reason such documents are privileged o N.B. mere talk of compensation does not mean
is because a client should be able to that litigation is being contemplated
consult his lawyer in confidence, knowing
that whatever is said will not be revealed
without his agreement.

 Privilege covers all and only those in the legal profession (e.g. instructions and briefs to counsel,
counsel’s opinions etc. could be either Advice Privilege or Litigation Privilege), however it DOES NOT
extend to those in other professions. A client could not, therefore, claim privilege over legal advice
received from an accountant, for instance (R (on the application of Prudential Plc) v Special
Commissioner of Income Tax [2013])

Is it a communication between…
Legal adviser Solicitor and 3rd party Client and 3rd party Within the client
(barrister or solicitor) (witness or expert) (internal memos)
and client

Was it created for Was litigation pending or reasonably contemplated when the document was
purpose of obtaining created?
legal advice or
providing assistance
to the client

no yes
yes
Was the sole or dominant purpose of obtaining the document
to use it or its contents as evidence for the litigation OR to
obtain legal advice for the litigation?
no yes

Advice privilege Not privilege Litigation privilege

Unless privilege has  Must be offered for Unless privilege has been waived (expressly by
been waived (expressly inspection client or by service on the other side)
by client or by service  Facts of its existence be disclosed but the
on the other side) document need not be offered for
 Facts of its inspection.
existence be
disclosed but he
document need
not be offered for
inspection.

STEP 11
Has privilege been waived?
 A client waives privilege once a privileged document is served on the other side
 Privilege belongs to client NOT Solicitor
 Solicitor should not waive it without prior consent of client.
 Once a copy is served on the other side, privilege is waived forever and against everyone
 Right to privilege can be challenged by application to the court (r31.19)

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 STEP 12
Is it settlement communication without prejudice?
 Settlement communications (Project communications which are aimed genuinely at settling the matter)
will satisfy r31.6 as it usually discusses the strengths and weaknesses of the claim so could support or
be adverse to either party.
 It is therefore subject to a duty of standard disclosure.

 The letters would initially have been privileged but this has been waived by serving them on the
other side.

Remember – In description keep brief, do not want judge to know what it is! so refer to as ‘inter-
party solicitor communication’)

The Disclosure List N265 (look at exemplar)

The Disclosure List (N265) is split into three parts. Documents in every part of the list are “disclosable”, however
only documents in part one may be “inspected”. In summary, privileged documents are disclosable, however
they are immune from inspection.
 CPR 31.10 requires each party to make and serve on every other party a list of documents in form N265.
 List must identify the documents in a “convenient order” i.e. ideally chronologically (PD 31A, para 3.2).

DRAFTING the list

CONDUCT NOTE: Client is responsible for ensuring full disclosure is made and done properly – and Solicitor must
ensure client is aware of & understands this duty – PD 31A para 4.4.
Section What goes in? How to fill it in? Checking
Part 1 Open to inspection and  PD 31A para 3.2: List the documents in
documents not privileged date order, number them and give concise
 In your control and description
Is there anything
 No objection to  “Email from defendant to claimant dated you would expect
opponent inspecting 4th October 2010” to see that is not
them there?
 N.B. write each document out separately in
exam, do not lump together similar
documents e.g. correspondence

Part 2 Privileged documents
documents that are also disclosable
 In your control BUT
 You have an objection
to your opponent
inspecting them
 List them and then state why you object to
their inspection
o Do not lump together documents
o Only give vague description - ensure the
existence of the document is disclosed
(ensuring duty of disclosure is complied
Is it accurate?
with), whilst ensuring contents of the
Privilege
document are not indirectly revealed
accurately
e.g. “proof of evidence” claimed?
 “I object to you inspecting these documents
because”

 “Document in (1) was created for the

purpose of giving or receiving legal advice
and so are covered by legal professional
advice.”

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  “Document in (2) was created when this
litigation was reasonably contemplated or
after this litigation was commenced for the
sole or dominant purpose of obtaining or
collecting evidence to be used in this
litigation and so are covered by legal
professional litigation privilege”

Part 3 Documents which are no
documents longer in your control and
are non-privileged
 List each document and days when it was
last in your control and where it is Do we need to
now/what has happened to these trace any of these
documents (CPR 31.10(4)). documents and get
a copy from non-
 This part usually mostly features originals of party? (see r31.7)
letters (and will appear in list 1 as copies).

Disclosure Statement
The list must include a “disclosure statement” (CPR 31.10(5)).
This is a statement made by the party which:
 Sets out the extent of the search which has been made to locate the documents
Examine carefully the opponent’s search in light of the facts to see if search is wide enough – check
dates, locations, types of docs, keywords searched for etc.
 Certifies he understands his duty to disclose.
 Certifies that, to the best of his knowledge, he has carried out/complied with that duty.
 Where company/firm makes the statement, the identity of person making the statement,
their office or position and why they are an appropriate person to sign the statement

Note that disclosure statement MUST BE SIGNED BY THE CLIENT and not the solicitor.
 Non-party (e.g. solicitor) cannot generally sign under r31.10(9) and PD 31A 4.7. The
only non-party who can currently sign is insurer or the Motors Insurers Bureau.

Consequences of signing
 Party: Where the declaration is made falsely by party (w/o honest belief in its truth) they
will be in contempt of court.

 Solicitor: The solicitor is under a duty per PD 31A, para 4.4 to make sure the person
making statement understands the duty to disclose – best practice to confirm this with
client and get this in writing.

Challenging the documents list – incomplete or incorrect

If you are dissatisfied with the content of the documents list, because either:
 You suspect disclosable documents have not been included e.g. if the opponent has only
searched back to a particular year, but the dispute has been ongoing for longer than this

 You dispute the fact that a document is privileged

You should:
 FIRST STEP: Write to your opponent and explain why you believe the list is deficient and
ask the other party to comply properly (overriding objective). In letter, say that if opponent
does not comply, will go to court asking for orders below…
 IF FIRST STEP DOES NOT RESOLVE MATTERS: Make an application (form N244) (r31.12.)
o State what documents you are looking for and why they should be disclosed – i.e.
why they satisfy definition of standard disclosure and why you believe they exist
o Must include witness statement in support (likely to be signed by solicitor)
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 o Attach fee
o Draft order
 The court may make (separate orders within same application)
 An order for specific disclosure that the party at fault (r31.12):
- Disclose the documents requested; and/or

- Carry out a search to the extent court orders and disclose resulting docs
 Both are “unless orders”: i.e. party will face a penalty, such as strike-
out “unless” the order is complied with
 An order for specific inspection: that the documents that were not permitted for
inspection on grounds of disproportionality must be allowed to be inspected
 An order challenging privilege (r31.19)

Professional Conduct
Possible Scenarios
If the client If you are aware that your client is deliberately misleading the court in signing a disclosure
seeks to statement which is false (e.g. it deliberately excludes a document)
mislead the  You should withdraw from the case unless the client agrees not to do this.
court in  Para 1.4: A solicitor is under a duty not to mislead the court.
failing to  You should not inform any other party (or the court) of the reasons for ceasing to act
disclose (6.3 – Confidentiality)
documents  Proceeding for contempt of court may be brought against a client who signs a disclosure
statement without an honest belief in its truth.
Continuing Disclosure is a continuing obligation (CPR 31.11): Therefore, documents which fall within CPR
obligation 31.6 must be disclosed even if they only come to your attention after you have supplied the list
of documents.
 If you locate additional documents, you should give notice to your opponent by
way of letter and serve a supplemental list of documents. PD31A 3.3
 You will only be permitted to rely on these at trial however if your opponent
consents or you make a successful application to court.
 Failure to disclose promptly w/o good reason may amount to a breach of para 1.4 – you
do not mislead or attempt to mislead the court.
Where there If you mistakenly receive privileged documents from the other side and this is obvious.
is 1. Was the document listed in part 1 or 2 of N265 ?
inadvertent 2. Is it privileged?
inspection 3. Consider whether or not you should read the document
of privileged  I have a duty as a solicitor to act in my client’s best interests under Principle 7 and this will
documents reveal information that affects my client’s case. It would be in my client’s best interests to
read it all.
 I should then disclose the contents to my client because the information may assist my
client in claiming and defending… BUT
 Para 6.4(d) – make client aware of all info material to matter of which you have knowledge
EXCEPT when the info is contained in a privileged document that you have knowledge of
only because it has been mistakenly disclosed
 Also, solicitors required to uphold the proper administration of justice and to act with
integrity (Principles 1 and 5).
 So, when it is obvious a privileged document has been mistakenly disclosed to you
 Do not read – delete it and send email saying you have deleted.
4. Consider whether you can sue the information in the document (if did not stop reading)
 Under r31.20, contents of privileged documents accidentally sent may not be used by
receiving party without the permission of the court
 Where it is obvious that a mistake was made, the document should be returned and
not used. Any breach may lead to a court order that the solicitor can no longer act in
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 litigation – opponent would make this application and argue this point.
 Where it is not obvious that the information is privileged, it may be used but the
party that disclosed accidentally can ask the court for an injunction to restrain the use
of the material in preparing the case and to return the documents. The court will only
grant this where the mistake would have been obvious to a reasonable solicitor: IBM
Corporation v Phoenix International.
5. Conclude as to what action you should take
 Don’t read any further than you already have, return the doc immediately with a cover
note stating that it has not been read as it was noticed that it was included in error.
 Do not ask client for instructions on the issue - IBM Corporation indicates it should be
returned immediately. In Ablitt v Mills and Reeves, solicitor read the reading on the
client’s instructions and claimant subsequently obtained an injunction prevent firm
from acting any further.

10 + 11: Disclosure, Witness Statements and Expert Evidence

Witness Evidence

r32.4(1): A witness statement is a signed statement of the evidence the witness would be allowed to give orally
if called to do so.

 The court can control which evidence is admissible, on which issues, how it is presented before the court
and to what extent it may be cross-examined by giving specific directions, limited in cross examination
etc. r32.1
 Any fact which needs to be proved is to be proved at trial by way of oral evidence in writing (and at any
other hearing in writing)
 Witnesses can give evidence by any means (video link is common)
 Stage 1 – what evidence is admissible?
 Stage 2 – how should it be formatted?

STAGE 1: What evidence is admissible?

Relevant  Only relevant evidence is admissible: O’Brian v CC South Wales Police
o “Any evidence, to be admissible, must be relevant… Relevance must, and can only, be
judged by reference to the issue which the court is called upon to decide”

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 Not  Generally, opinion evidence will be inadmissible.
opinion o This is because the function of a witness is to relay facts; it is then for the court to draw
its own conclusions from these facts.
o So, statements such as, “he was a chancer” would be inadmissible
 Exceptions:
o s3(2) Civil Evidence Act 1972 makes clear that it is admissible to give evidence which
amounts to a ‘personal perception of facts’
 i.e. statement of opinion, if made to convey relevant facts personally perceived
by witness, is admissible
 E.g. speed; if the witness states the vehicle was driving at “about 60 mph”, this
is only an opinion, but it is a perception of a fact and so may be admissible.
o s3(1) Civil Evidence Act 1972 provides that a witnesses’ opinion “on any relevant
matter on which he is qualified to give expert evidence shall be admissible in
evidence”.
 Expert must be called as a witness to give evidence and then they must be a
qualified expert in that field
 So, expert witnesses CAN give opinions but only when called as a witness
 In professional negligence claims, a defendant is allowed to give his own
expert opinion on what he did or did not do which is said to amount to
negligence in his witness statement.
 N.B. if you are a witness of fact, even if you are a qualified expert you cannot
give expert evidence
N.B. exceptions to opinion rule also apply to hearsay evidence

Hearsay evidence
Oral or written statement made outside the courtroom repeated to the court in order to prove the truth of the
matter stated in court.
Admissible if notice requirements met And it is relevant and not inadmissible opinion.
But weight of evidence is not strong
Step 1:  “Hearsay”: s1(2)(a) of the Civil Evidence Act 1995
Define hearsay o A statement (oral or written – any representation of fact or opinion)
and statement o Made otherwise than by a person while giving oral evidence in the
proceedings (made outside the court room)
o Which is tendered as evidence of the matters stated (presented to court to
show that it is true, not just that it was made)
 Hearsay is a therefore statement made:
 Outside of the court,
 Which is repeated to the court
 In order to prove the truth of the matter stated out of court
 N.B. can have multiple hearsay (statement of someone else to someone else made
outside court and repeated to the court)
 E.g. Louise arrives later home to find her house burgled. A passer-by she doesn’t
known tells her ‘I saw three boys in their late teens running down the street five
minutes ago. They were yobs. One of them was carrying a TV’
 The statement was made by a third party outside court and is repeated in court by
Louise to prove the truth of it (that boys were running away from scene, not that the
passer-by told her so). It is hearsay.
Step 2:  Hearsay evidence is admissible in civil proceedings – it is not excluded on the grounds it
Not excluded is hearsay (s1 Civil Evidence Act 1995).
o However, the court will place limited weight on the evidence.

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 Step 3:  It must be evidence that would have been admissible had it been given by a first-hand
Is it admissible witness, i.e. relevant to issues in dispute and not inadmissible opinion etc. (O’Brien v CC
hearsay? of South Wales Police)
 See above – relevant and not opinion or opinion but falls under exceptions

Example: What was admissible and what wasn’t?

Louise can tell the court that the passer-by told her:
 She saw three boys running away five minutes previously
 In her opinion, they were in their late teens
 That one was carrying a TV
 This would be admissible in evidence if given by the passer-by
in court because it is relevant to the issue of liability (O’Brien)
and the opinion evidence falls within s3(2) CEA. It is admissible
as hearsay evidence by Louise.
Louise cannot tell the court:
 The passer-by said they were yobs
 This is inadmissible opinion evidence that goes beyond
relevant facts and perceptions, so does not fall within s3(2).
The passer-by would not have been able to repeat it in court
and so Louise may not either.
Step 4: S2 Civil Evidence Act – must give notice of hearsay evidence
Notice r33.2 provides that:
requirements  If a party serves a witness statement containing hearsay and
when intending  Does not call the witness to give oral evidence,
 They must inform the other side by way of a hearsay notice that he is not
to submit calling the witness to give oral evidence and give the reason why
hearsay  Is the evidence to be given orally?
evidence at trial o Just serve the witness statement along with the others: r33.2(1)(a)
 If the witness will not be testifying, a s2 CEA (hearsay) notice must be served on your
opponent stating that the witness will not be called and why
o This gives them the opportunity to consider the accuracy of the hearsay
evidence
o They may call original maker of the statement to trial to be examined s3
o For this, they must have the court’s permission, which must be applied for no
later than 14 days after the s2 notice was served: r33.4
o Failure to comply with the notice requirements can be influential in affecting
how much weight the court will attach to the evidence, although it will not
affect the admissibility of it: s2(4) – see below
Step 5: Hearsay is not the best evidence of fact as its reliability cannot be assessed by the court.
What weight Hearsay is given limited weight – s4 Civil Evidence Act
will be given to  The hearsay statement will not have been made under oath, therefore this
hearsay increases the chance that it was false or carelessly made.
evidence?  There is a danger of “Chinese whispers”. The greater number of times a statement
is repeated the more likely it is to be an inaccurate recollection of the original
statement.
 The person who made the hearsay statement cannot be cross-examined, and the
judge will be unable to assess their reliability by assessing the witness’s demeanour
in court.
 Probative value will be assessed on:
o What issue does it address;
o How important is that issue in the case;
o What other evidence is available; and
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 oIs it more probative than any other evidence which could be procured through
reasonable efforts?
 The court will take the following into account (statutory guidelines)
o Was it reasonable or practicable to call the maker of the original statement as a
witness?
o Is there any indication of a motive of misrepresentation/to conceal? E.g. were
they employed by the party relying on the statement and are trying to curry
favour
o Do circumstances reveal an attempt an attempt to prevent proper evaluation of
the evidence (i.e. was proper notice given and therefore opponent had a proper
chance to evaluate and respond to it)?
o Does the evidence relate to a key issue in the case?
o Was the original statement made contemporaneously with the events?
o Is it first-hand or multiple hearsay (he said that she said that she read in so-and-
so’s diary)?
o Is other evidence being given on this issue?

STAGE 2: How should the witness statement be formatted?

1. Identify the issues on which the witness is to give evidence
a. an issue is any point alleged by the claimant and not admitted or denied by the defendant.
2. Extract from your interview notes what the witness has to say about the issues .
3. The CPR requires the witness to explain something in his/her own words .
a. The witness must make it clear if the facts are within his/her own knowledge and is not allowed
to give an opinion.
b. A witness may state facts, as he/she perceived them to be, but may not draw a conclusion
based on these facts.
PD 32, para Rules of format
17.1 Heading The witness statement should be headed with the tile of proceedings – as any other court
document
17.2 The top right corner should state:
Layout  The party on whose behalf the statement is filed i.e. claimant/defendant.
 The initials and surname of the witness (e.g. MJ Brownlow).
 The number of the statement (e.g. 1st if the statement is the witnesses’ first witness
statement).
 Identifying initials and number of any exhibits referred to (e.g. MJB1).
 Date the statement was made (e.g. 04/12/16)
18.1 The witness statement must, if practicable, be in the intended witness’ own words, and be
Content expressed in the first person (“I”). Must state:
 The full name of the witness;
 His place of residence or, if he is making the statement in his professional, business or
other occupational capacity, the address at which he works, the position he holds and
the name of his firm or employer;
 His occupation or, if he has none, description – 18.1(3); and
 The fact that he is a party to the proceedings or is the employee of such a party if it be
the case 18.1(4)
18.2 A witness statement must indicate:
Must indicate  Which of the statements in it are made from the witness’ own knowledge and which
are matters of information or belief; and
 The source for any matters of information or belief
Exhibit 18.3 An exhibit used in conjunction with a witness statement should be verified and identified by
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 s the witness and remain separate from the witness statement
18.4 Where a witness refers to an exhibit or exhibits, he should state “I refer to the (description of
exhibit) marked “…”
18.5 The provisions of paragraphs 11.3 to 15.4 of the PD (exhibits) apply similarly to witness
statements as they do affidavits
18.6 Where a witness makes more than one witness statement to which there are exhibits in the
same proceedings, the numbering of the exhibits should run consecutively throughout and not
start again with each witness statement
19.1 A witness statement should:
Formalities  Be divided into numbered paragraphs.
 Have all numbers, including dates, expressed in figures.
 Normally be in chronological order and (Para 19.2)
 Give reference to any document or documents mentioned either in the margin or in
bold text in the body of the statement
19.2 It is usually convenient for a witness statement to:
Formalities  Normally be in chronological order
 Each paragraph of the witness statement should as far as possible be confined to a
distinct portion of the subject
20.1 + 20.2 Must include a statement of truth by the witness in the following form:
Statement of  “I believe that the facts stated in this witness statement are true”
truth  If the witness fails to verify the statement by a statement of truth, the court may
direct that the statement shall not be admissible (r22.3)
 If this or any other part of the witness statement is defected, the court could
refuse to admit it in evidence (para 25.1)
N.B. r32.2(3)(c) – the court can give directions limiting the length or format of witness statements.
Failure to serve a witness statement by the deadline
r32.10: If a witness statement or a witness summary for use at trial is not served in respect of an
intended witness within the time specified by court, then the witness may not be called to give
oral evidence unless the court gives permission.
This is a sanction (Papa Johns v Doyley) and the court will apply r3.9 when deciding to give
permission.
Seeking an extension to serve witness statement
 If one side is unable to meet the deadline, they should seek an agreement for extension
with the other party (but cannot alter key case management dates set in fast track or multi
track cases)
 In deciding whether to consent to an extension, party should consider the overriding
objective, costs included if other side makes an interim application following their refusal
and whether they had good reason for requesting the extension. Any agreement should be
in writing.
 If no agreement is reached, an immediate application the court must be made
 Time limits for service of documents are likely to be strictly enforced by court, post-
Jackson report, e.g. in KPM Marine the claimant was prevented from presenting evidence
on a certain issue at trial
 Only in exceptional circumstances will courts allow a late application, where it is necessary
to comply with overriding objective
Expert Evidence

Part 35
 r35.2: an expert is a person who has been instructed to give expert evidence for proceedings
 s3(1) CEA 1972: where a person is called as a witness in any civil proceedings his opinion on any relevant
matter on which he is qualified to give expert evidence shall be admissible in evidence

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 PD 35 para 2.2: Should not assume role of advocate

Is it admissible?
 Relevant and within the expertise of the expert
o r35.1: expert evidence is restricted to that which is reasonably required to resolve proceedings
 Presented to the court in the correct format – complying with r35 and PD35
 Court permitted use of expert (r35.4(1)), and has given a direction allowing either a named expert or an
expert in a specialised field of expertise to give evidence.
o This will be limited to that evidence reasonable to resolve proceedings (r35.1) taking into account
the overriding objective and the issue of proportionality
o r35.4(2): When the parties apply for permission, must provide estimate of costs of proposed
expert and identify the field in which expert evidence is required and the issues it will address.
Also, when practicable, name of the proposed expert.

Will the court restrict it?

 Court can direct whether expert evidence is allowed at all
 Court can limit the number of witnesses
 Court can preclude oral evidence in favour of written reports
 Court can direct parties to use a single joint expert; and
 Court can limit the amount of expert fees a party can seek to recover from his
losing opponent

Duty of an expert
 Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply
with any relevant professional code – can sue in negligence (Jones v Kaney)
 However, when they are instructed to give or prepare evidence for civil proceedings, they have an
overriding duty to help the court on matters within their expertise (CPR 35.3). This will override any
obligation to the person who instructed or paid the expert.
 This demands that experts be completely objective and unbiased in their evidence.
 Their first duty is to the court, regardless of who instructs them (Steven v Gullis and r35.3)
 Being an employee of a party is not grounds for disqualification, but the court will need to be satisfied the
expert is properly aware of his duty to the court (Field v Leeds City Council). This is difficult to show, so it is
preferable, for appearance’s sake, to instruct an independent third party where possible (Proton Energy
Group v Orlen Lietuva)
 If the expert is unsure of nature of obligations, should file a request for direction from court
 Expert who behaves improperly is likely to be reported to governing body of trial judge

Privileged?
 Instructions are not privileged
 CPR 35.10(4) – Provides an exception to the normal rule that communications between a solicitor
and a third party, such as an expert, are privileged if they come into existence after litigation is
contemplated and they are made for the sole or dominant purpose of litigation.
o Rule 35.10(4) instructions shall not be privileged against disclosure.
 Rule is qualified by PD 35, para 3, which provides that such cross-examination will be permitted only
where it is in the ‘interests of justice’. Arguably, therefore, the instructions remain privileged from
inspection unless and until the court makes an order under the Rule requiring their inspection.
 This will be only where there are reasonable grounds for believing statement is
incomplete/inaccurate (Lucas v Barking)
 Reports are privileged
 CPR 35.10(4) does not apply to expert reports, therefore when first obtained, an expert’s report that
has been prepared for the sole or dominant purpose of the litigation is a privileged document
(litigation privilege).
 Therefore, unfavourable expert reports which you do not wish to rely upon are disclosable, but
exempt from inspection.
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  N.B. r35.10(3) – substance of instructions should be included in the expert’s report

Drafting an Expert Report

The format and content of an expert report

r35.5(1): expert evidence is to be given in a written report unless the court directs otherwise
PD 35
Requirement
para
3.1 Should be addressed to the court, not the instructing party.
Address
3.2 (1) Give details of the expert’s qualifications; e.g. often experts will attach their CV to the report
Content (Exp v Barker).
(2) Give details of any literature or other material which has been relied on in making the report;
(3) Contain a statement setting out the substance of all facts and instructions which are material
to the opinions expressed in the report or upon which those opinions are based;
(4) Make clear which of the facts stated in the report are within the expert’s own knowledge;
(5) Say who carried out any examination, measurement, test or experiment which the expert has
used for the report, give the qualifications of that person, and say whether or not the test or
experiment has been carried out under the expert’s supervision;
(6) Where there is a range of opinion on the matters dealt with in the report –
(a) summarise the range of opinions; and
(b) give reasons for the expert’s own opinion;
(7) Contain a summary of the conclusions reached;
(8) If the expert is not able to give an opinion without qualification, state the qualification; and
(9) Contain a statement that the expert –
(a) understands their duty to the court, and has complied with that duty; and
(b) is aware of the requirements of Part 35, this practice direction and the Guidance for
the Instruction of Experts in Civil Claims 2014.
3.3 An expert’s report must be verified by a statement of truth in the following form:
Statemen  “I confirm that I have made clear which facts and matters referred to in this report are
t of truth within my own knowledge and which are not. Those that are within my own knowledge I
confirm to be true. The opinions I have expressed represent my true and complete
professional opinions on the matters to which they refer”.

Questions

Questions to the expert

 After a report has been disclosed, the other party may put written questions to the expert: r35.6
o Where a party submits questions to expert, they must also send questions to the other side.
 Such written questions: r35.6(2)
o (a) May be put once only;
o (b) Must be put within 28 days of service of the report;
o (c) Must be to clarify the report, unless the court permits, or the other party agrees to allow
questions for a different purpose.
 Answers are treated as part of the report so should be in writing

Defects

Dealing with defects in an opponent’s expert report

 Hannigan v Hannigan [2000]: a claimant mistakenly commenced their claim using the pre-CPR form rather
than the new Form N208. The defendant made an application to strike-out the claim. This was considered a
completely inappropriate line of action.
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  “The interests of the administration of justice would have been much better served if the defendants’
solicitors had simply pointed out all the mistakes that had been made in these very early days”
 It is thus generally sensible to simply inform your opponent of any defects and allow them to seek to
obtain permission to rely on an amended report.
Possible action Pros and cons
Do nothing This is not acting the in the best interests of your client
(Principle 7)
Do nothing until trial and then ask the judge to This would be in breach of CPR 1.3 which prescribes that the
exclude the claimant’s expert’s evidence for parties have a duty to assist the court in furthering the
non-compliance with the CPR overriding objective. Each party has a duty to point out
errors in a report prepared by the opponent’s expert
(Woolley v Essex). There is the risk of an adverse costs
under CPR 44.5(3)
Inform the claimant directly that his solicitors Para 1.2 – do not abuse your position by taking unfair
have been negligent advantage of clients or others
N.B. Principle 1 (uphold RoL) and Principle 5 (integrity)
Inform the expert you will report him to his This is for the trial judge to do (Meadows v GMC)
governing body
Inform the claimant’s solicitors that the defects This is the best response
in the expert’s report must be corrected and CPR 1.3 – parties are required to help the court to further
permission obtained to rely on the report as the OO
amended Woolley v Essex – duty to point out errors in a report
prepared by an opponent’s expert
Make an interim application to exclude the Disproportionate response that occasions delay and
claimant’s expert evidence on the grounds of expense and judge may penalise in costs
non-compliance with the CPR CPR 1.3 – parties are required to help the court to further
the OO (this option goes against this)

Discussions between experts

 r35.12(1): The court may, at any stage, direct a discussion between experts for the purpose to (a)
identify and discuss the expert issues in the proceedings; and (b) where possible, reach an agreed
opinion on those issues.
 Without prejudice discussion between experts are commonly directed to agree and narrow issues that
will be considered at trial. The contents will not be referred to at trial unless the parties agree to do so –
r35.12(4).

Pre-  Parties should discuss and try to agree agenda if necessary

meeting
At meeting  Experts should identify:
 The extent to which they agree
 Points of disagreement and brief reasons for this
 Action that may be taken (if any) to resolve outstanding points of disagreement; and
 Any further material issues not raised and extent to which those agree
 Parties and legal reps should not attend unless experts and parties agree to it or court gives
permission
o If leg reps do attend, they must not intervene in the discussion except to answer
questions put to them/advise them on points of law
Post-  r35.12(3): Experts prepare written joint statement dealing with points raised in discussion
meeting setting out those issues on which
 (a) they agree; and
 (a) they disagree, with a summary of their reasons for disagreeing.
 Experts must give own opinions to assist court and do not need parties’ authority to sign the
report. Individual copies must be signed by experts at conclusion of discussion or asap, but
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 within 7 days
 If an expert significantly changes their opinion as a result of discussion, the report must
include a note by that expert explaining change of opinion
 Copies of statements must be sent to parties no later than 14 days after signing
 The agreement between experts on issues does not bind parties unless they expressly
agree to be bound by agreement (r35.12 and Stallwood). If a party subsequently wants to
change expert or get additional evidence, it would have to demonstrate to the court that it
had a good reason for doing so (unsound mind/acted beyond his expertise). Begin by asking
why expert changed their views.

Single Joint Expert – is it appropriate?

General rule – parties should instruct a single expert if the case concerns a substantially established area of
knowledge and it is not necessary for the court directly to sample a range of opinions.
STEP 1: What type of claim is it?
Fast track Multi-track
Generally, a SJE will be directed unless there is good Parties instruct their own experts – SJE is less likely.
reason not to (PD 38 para 3.9) SJE may be ordered on quantum, even if the parties
call their own expert evidence on liability

STEP 2: Set out and apply facts to the factors that will be considered
Proportionality
Speed and cost
effectiveness
Particular issue
Areas of expertise
Previous expert
instruction
PD 35, para 7: The court will consider…
 Is it proportionate for both parties to have separate experts with reference to:
 the amount in dispute,
 the importance to the parties, and
 the complexity of the issue.
 Is the instruction of an SJE likely to result in a faster and more cost-effective
way of resolving the case than separate experts?
 Expert evidence is to be given on issue of liability, causation, or quatum?
 Is the expert evidence in a substantially established area of knowledge where
there is less likely to be a range of expert opinions?
 Has the party already instructed an expert on the issue in question? Was this
done in accordance with the provisions of the CPR (e.g. pre-action protocol).
 If one party has already instructed an expert, the court should bear in mind
that this expert could be questioned, as opposed instructing a new expert.

STEP 3: Conclude
Possible problems
Should the client  If the expert is a friend or connection, this may not look good at trial. It would
commission their own be preferable to appoint an independent expert for the sake of appearances.
expert in advance? The expert may not be acceptable to the other side and so will not be chosen as
the SJE if one is ordered, in which case the time and expense of instructing that
expert will have wasted.
 However, a preliminary opinion may be useful in deciding how to proceed with
the litigation (if at all).
Should the client  The disadvantage to a party in proposing or agreeing to an SJE is that if they do
propose/agree to SJE? not find in favour of the client’s side, you cannot just conveniently dump that
expert’s report in the privileged list of documents and commission another.
 You need court’s permission to change the expert or get additional expert
evidence, which it will only do so if it is unjust to refuse (Daniels v Walker)
The client is dissatisfied  The case of Daniels v Walker is the authority that where dissatisfied with
with the report expert’s report they should:
produced by the SJE  submit questions first

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  then if they are not satisfied, apply to court for permission to call
another expert
 court will grant this if (with OO in mind) it’d be unjust to refuse
 If dissatisfied party has already their own expert report, the court should not
grant permission to use it at trial until the two experts have met to resolve
their differences

Who is the expert?

Consider whether there is a possibility of conflict of interest

 A conflict of interest does not automatically disqualify an expert (Toth v Jarman)
 The key question is whether they are independent (a material/significant interest will probably mean
evidence is not accepted)
 If there is a conflict, it must be disclosed asap
 In any event, produce CV giving details of employment and other activities that could raise conflict
Expert is employed by one of the parties Expert behaves improperly
Not disqualified by mere fact of being employed by a party  Likely to be reported by governing
 Court will need to be satisfied that expert was sufficiently body by trial judge: Meadow v
aware of his responsibilities to the court GMC and may be ordered to pay
 Generally preferable, for appearance’s sake, to instruct an costs if he fails to comply with his
independent witness obligations
 The situation arose in Fields v Leeds City Council where it
was held that a party’s employee was not debarred from
giving expert evidence. However, if the expert is an
employee, he or she would need to show they understood
their duty to the court. This could be quite difficult so in
practice most solicitors would instruct independent expert

Conduct points
 An expert cannot be instructed under a CFA
 A solicitor must never mislead a court by calling a witness whose
evidence the solicitor knows is untrue (para 1.4)

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 12: Trial and Post-Trial Issues
Final Preparations for Trial
 Briefing Counsel
o If not already instructed pre CMC, brief and instruct counsel well before trial.
o The content of the brief should deal in detail with the facts still in issue and how they are to be
proved.
o Brief fee should be restricted to the maximum amount allowed for advocacy if in a fast-track case.
In a multi-track case this is only one day fee.

 Attendance of Witnesses – Part 34

o Make sure to encourage witness attendance by serving Witness Summons. Issued by the court,
served 7 days before attendance date:
 Requires witness to give evidence in court
 And produce documents to the court
o Binding; liable to be fined or imprisoned for contempt if in High Court proceedings.
o At the time of service of a witness summons the witness must be offered or paid:
 (a) a sum reasonably sufficient to cover his expenses in travelling to and from the court;
and
 (b) such sum by way of compensation for loss of time as may be specified in PD 34A.

 Expert Witnesses
o Paragraphs 84–87 of the Guidance for the Instruction of Experts deal with the attendance of
experts at court.
o Experts are expected to keep those instructing them informed of their availability and make every
effort to ensure that they are available to attend court if required.
o A witness summons to require the attendance of an expert at trial should be used only if
required by the expert (e.g. police officers, who will not otherwise be witnesses in civil cases)
Trial

Trial Bundles
Contents  PD 32, Para 27.5: Unless the court orders otherwise, the trial bundle should include a
copy of:
(normally (1) The claim form and all statements of case.
contained in a ring (2) A case summary and/or chronology where appropriate.
binder or lever
arch file) Case summary
 Each party must prepare a case summary - often called a skeleton
argument.
 Aim is to assist the court and the parties by indication of what points are or
are not in issue and the nature of the argument about the disputed
matters.
 This should:
o Concisely review the party’s submissions of fact in relation to each of
the issues with reference to evidence
o Concisely set out the propositions of law advanced
o Refer to the main authorities
o Be divided into numbered paragraphs
o Identify key documents which the trial judge should, if possible, read
before trial
 Khader v Aziz: “Good skeleton arguments are tools with practical uses: an

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 agenda for the hearing, a summary of the main points, propositions and
arguments to be developed orally, a useful way of noting citations and
references, a convenient place for making cross references, a time-saving
means of avoiding unnecessary dictation to the court and laborious and
pointless note-taking by the court”.
 Draft examples Appendices B(14) & B(15)

(3) Requests for further information and responses to the requests.

(4) All witness statements to be relied on as evidence (only ones got
permission for)
(5) Any witness summaries.
(6) Any notices of intention to rely on hearsay evidence under r33.2.
(7) Any notices of intention to rely on evidence (such as a plan, photograph
etc) under rule 33.6 which is not—
(a) contained in a witness statement, affidavit or expert’s report,
(b) being given orally at trial,
(c) hearsay evidence under rule 33.2,
(8) Any medical reports and responses to them.
(9) Any expert’s reports and responses to them.
(10) Any order giving directions as to the conduct of the trial, and
(11) Any other necessary documents.

 You do not have to include the parties’ disclosure lists.

Original  PD32, Para 27.6
documents  Originals of the documents contained in the trial bundle, together with copies of
any other court orders should be available at the trial
Responsibility for  PD32, Para 27.7
preparation  The legal representative who has conduct of the claim on behalf of the claimant
Illegible PD32, Para 27.11
documents  If a document to be included in the trial bundle is illegible, a typed copy should
be included in the bundle next to it, suitably cross-referenced
Agreed contents  PD32, Para 27.12
 The contents of the trial bundle should be agreed where possible, and that the
documents contained in the bundle are authentic.
 Where agreement is not possible, a summary of the points on which the parties
are unable to agree should be included
Identical bundles  PD 32 Para 27.13
 The party filing the trial bundle should supply identical bundles to all the parties
to the proceedings and for the use of the witnesses.
When filed?  Unless court orders otherwise, the trial bundle must be filed not more than seven
days and not less than three days before the start of trial.
Structure of the Trial
Preliminary  At the outset, parties may wish to deal with procedural matters, right at the beginning,
issues such as:
o Permission to amend a statement of case.
 Very late application, liable to fail especially without prior notice to the
other side.
 r32.5(3) allows a witness to amplify his statement or give evidence not
included in his statement, for instance of matters that have arisen since he
served the statement or in response to matters dealt with another party’s
witness, but only if the court gives permission.
o An application to strike out part of an opponent’s witness statement.
Trial Timetable  At the trial, the judge may confirm or vary any timetable given previously, or, if none has

93
 been given, set her own.
o Fast track trial usually < 1 day. If more, usually the next day.
o In multi-track cases, the judge will normally sit on consecutive court days until
the trial has been completed.
Opening speech  If allowed by the judge, claimant may commence with an opening speech.
Evidence from Examination in  When a party questions their own witness.
and chief o In most instances, the witness statements will stand as
examination of evidence in chief, and the witness will merely be asked to
the claimant Purpose is to confirm their name, address and that the contents of their
confirm the statement are true.
(The experts name, address, o If a party wishes to ask questions of their witnesses and for one
acting for each contents of of their witnesses to amplify their statement this will require
party are likely statement is the court’s permission under CPR 32.5(3).
to give their true – may o If a party is able to give oral evidence their advocate will be
evidence amplify unable to ask them leading questions i.e. questions which
sequentially suggest an answer.
with their Cross-  Where a party questions an opponent’s witness.
party’s examination o There is no bar on leading questions.
evidence. o The cross-examining advocate must put the claimant’s case to
However, court Purpose to the defendant in cross-examination. Failure to do so implies
may have extract acceptance of their evidence.
directed that favourable  E.g. if a claimant gives evidence that he told a defendant
their evidence is evidence and the purpose of the goods he was purchasing, and the
to be given discredit defendant denies this, it must be put to the defendant in
concurrently, operson being cross examination that in fact he did know of this particular
first by the cross- purpose.
judge asking examined  Improbability of witnesses’ version of events
questions based (witness)  Alleging the witness is biased in some way
on the  Reference to any previous convictions to show the witness
disagreements in a bad light
appearing in Re-  A party will then be given an opportunity to ask questions of his own
their joint examination witness.
statement and o Questioning is limited to matters arising out of cross-
second by Purpose to examination - not possible to introduce new issues at this stage.
questions from restore o Cannot ask leading questions
the parties’ credibility if o Re-examination is thus aimed at resolving ambiguity which has
advocates) any ambiguity arisen as a result of cross-examination.
Evidence from Examination in  As above for claimant
and chief
examination of Cross-  As above for claimant
the defendant examination
Re-  As above for claimant
examination
Problem  When a witness ends up being unfavourable to who called them
witnesses o Difficult as the advocate who called the witness cannot generally then cross
examine them.
 Unless the witness becomes “hostile” – shows lack of cooperation, no desire to see
justice done or give evidence fairly – particularly if evidence is inconsistent with the
witness statement.
 If hostile, the party that called him can cross examine
o Not ideal but damage limitation
 s 4 Civil Evidence Act 1995 – it is open to the court to attach weight to the previous
inconsistent statement as evidence. In practice, however, the court is more likely to take

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 the view that this witness is unreliable
Closing  The parties are usually given an opportunity to make a closing speech; defence advocate
speeches first and then the claimant’s advocate.
Judgment  Judgment may then be given immediately or reserved to a later date.
 The judge will then give judgment addressing:
 Liability i.e. has the Claimant established the cause of action and why does the
judge think this?
 Quantum i.e. how much will the successful party receive in damages.
 Interest – the judge may award interest and will specify the rate and period. It is
for the advocates to work out the amount.
 Costs – CPR 44.2(2)(a) general rule is that the unsuccessful party will be ordered
to pay the costs of the successful party. However, the judge has discretion to
make a different order.
 At the end of a Fast-Track Trial - the judge will make an order with regards
who has to pay costs and make a “Summary Assessment” of the amount of
costs, and state what basis these are payable on.
 At the end of a Multi-Track Trial - the judge will only determine who should
pay costs and on what basis. They will then refer the matter to a separate
“Detailed Assessment” hearing at a later date where a costs judge will
decide the amount of costs.

Professional Conduct
Scenarios  Para 1.4: - A solicitor must never mislead the court
 A solicitor may fall foul of this at trial if they:
 Submit inaccurate information or allow a witness to do so.
 Indicate their agreement with information a witness has put forward which the
solicitor knows to be false.
 Call a witness if they know that witness’s evidence is untrue.
Question Structure
Principles  Principle 7: you must “act in the best interests of each client”
 Principle 1: you must “act in a way that upholds the constitutional principle of the rule
of law, and the proper administration of justice
 Principle 4: you must “act with honesty”
Code Para 2 – Dispute Resolution and proceedings before courts
 2.1 – do not misuse or tamper with evidence or attempt to do so
 2.2 – do not seek to influence the substance of evidence, including generating false
evidence or persuading witnesses to change their evidence
 2.3 – do not provide or offer to provide any benefit to witnesses dependent upon the
nature of their evidence or the outcome of the case (i.e. do not bribe witnesses)
 2.4 – only make assertions or put forward statements, representations or submissions
to the court or others which are properly arguable
 2.5 – do not place yourself in contempt of court, and comply with court orders which
place obligations on you
 2.6 – do not waste the court’s time
 2.7 – draw the court’s attention to relevant cases and statutory provisions, or
procedural irregularities of which you are aware, and which are likely to have a material
effect on the outcome of the proceedings
Para 1.4 – duty not to mislead the court; Para 6.3 – confidentiality
 If a client admits to his solicitor that he has committed perjury or misled the court in
any material matter relating to the proceedings, the solicitor must not act further in
those proceedings unless the client agrees to disclose the truth to the court
 If client refuses, acting would be a breach of para 1.4 so must cease to act for the client
 To keep client confidentiality, the solicitor should not inform the court or any other

95
 party of the reasons for ceasing to act (para 6.3)
If solicitor knows facts or a witness who would assist the opponent, no duty to inform
opponent.
Duties  Not say anything merely scandalous or intended only to insult a witness or any other
when person
acting as  Avoid naming in open court any 3rd party whose character would thereby be called into
an question, unless it is necessary for the proper conduct of the case
advocate  Not call into question the character of a witness he has cross-examined unless the witness
has had the opportunity to answer the allegations during cross-examination
 Not suggest that any person is guilty of a crime, fraud or misconduct, unless such
allegations go to a matter in issue which is material to the client’s case and appear to be
supported by reasonable grounds

Live Texting Court Proceedings

 PG (Court Proceedings): Live Text-Based Communications [2011] (including
twitter)
 Permission is needed from the judge
 UNLESS that person Is a member of the press
A solicitor should not appear as an advocate if it is clear that he/anyone in the firm, will be called as a witness in
the matter, unless the solicitor is satisfied that this will prejudice neither his independence as an advocate nor the
interests of the client nor the interests of justice.
Costs

Costs Generally

What are costs?  CPR 44.1: “Costs” includes fees, charges, disbursements, expenses, renumeration, legal
charges, pre-action costs and, under r44.2(6)(d), any CFA fee or AEI premium.
General rule  r44.2(2)(a): the general rule is that the loser pays the winner’s costs.
Court’s  Under r44.2(1), the court has discretion as to:
discretion  Whether costs are payable by claimant or defendant
 The amount of costs
 When they are to be paid
 The court has wide discretion, however, to make a different costs order, which it may do
in light of:
 The conduct of the parties.
 Whether a party has succeeded in part of his case.
 Where there has been an offer to settle for more than what the successful
applicant recovered.
Indemnity  The winner is entitled to an “indemnity” in respect of the costs he has incurred i.e. he
principle cannot recover more than he has actually spent (his solicitor and client costs).
Is interest  Interest is generally NOT payable on costs before judgment – exception for Part 36
payable? offers (r36.17)
 The court can, however, award interest on costs from any day it sees fit, including
before judgment (r44.2(6)(g)).

Basis of Assessment
CPR 44.3
 The court will assess costs on either the:
o “Standard Basis”
o “Indemnity Basis”
 The court will not, in either case, allow costs which have been:
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 o Unreasonably incurred or
o Are unreasonable in amount.

Standard basis CPR 44.3(2)

When does it  Applies unless the court orders otherwise (CPR 44.3(4)).
apply?
What will the  CPR 44.3(4) The court will only allow costs which were:
court allow?  Reasonably incurred.
 Reasonable in amount AND
 Proportionate to the matters in issue.
 Costs may therefore be disallowed or reduced even if it was reasonable
for them to be incurred (CPR 44.3(2)(a)).
 E.g., it may have been “reasonable” for the claimant to instruct an expert
in a boundary dispute to prove liability. However, if the cost of the
particular expert used was wildly excessive, this will likely be
disproportionate to the matter in issue and would likely be reduced.
Factors  r44.4(3)
Discuss the  The amount of money involved
application of  The importance of the matter to all parties
factors for each  The complexity of the issues or the novelty of questions raised
item of cost  The skill, effort, specialised knowledge and responsibility involved
 The time spent on the case
 The place and circumstances in which any work was done
 The receiving party’s last approved or agreed cost budget
 The conduct of all parties, including before proceedings and any efforts made to
resolve or settle the dispute

Conduct of the parties

Under r44.4(3), the court has regard to the conduct of all parties, including:
 Whether it was reasonable for a claimant to raise/pursue an issue
 If a successful claimant has exaggerated a claim
 Any admissible offers to settle made (which are not Part 36)
 Whether the parties have followed the spirit of the CPR, particularly PDs
and any pre-action protocols; and
 Whether party acted unreasonably in refusing ADR –following factors:
o Nature of dispute
o Merits of case
o Extent to which other settlement methods have been
attempted
o Whether costs of ADR would have been disproportionately high
o Whether any delay in setting up and attending ADR would have
been prejudicial
o Whether ADR had a reasonable prospect of success (Halsey
principle)

Difficult to assess when a party should mediate

 Premature mediation is a waste of time and may lead to a hardening of
positions, making subsequent settlement attempts doomed to fail
 Delay in mediation until after full particulars and documents have been
exchanged can mean costs already incurred become the principal obstacle to
successful mediation
 Solution – try to identify a point when the details of the claim and the
response are known to both sides, but before costs incurred are so great

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 that settlement is no longer possible.

Examples of parties penalised on costs

 Mars UK Ltd Successful claimant awarded only 40% costs for ignoring
genuine attempts by a smaller opponent to achieve a negotiated
settlement.
 Shah v UI Haq Claimant penalised for fraudulent claims
 Widlake v BAA Claimant penalised for exaggerated claims
 Brit Inns Claimant penalised for unrealistic approach to litigation - costs
order made in favour of the defendant.
 Dunnett v Railtrack Costs refused for unreasonable failure to respond to
proposal for mediation
Proportionality  CPR 44.3(5): Costs will be proportionate if they bear a “reasonable relationship” to:
Is the entire  The sums in issue in the proceedings (i.e. the amount claimed).
amount of costs  The value of any non-monetary relief.
claimed by the  The complexity of the litigation.
receiving party  Any additional work caused by the paying party’s conduct.
proportionate?  Any wider factors such as reputation or public importance.
 No costs which were unreasonably incurred or are unreasonable in amount are
allowable
 N.B. the court will have regard to all the circumstances when deciding whether costs are
proportionate and reasonably incurred, and proportionate and reasonable in amount:
r44.4(1)
Any doubts?  r44.3(2)(b) When assessing on the Standard Basis, the court will resolve any doubt it
may have as to whether the costs were reasonably and proportionately incurred or
proportionate in amount in favour of the paying party i.e. the “loser” at trial
o The consequence of this is that if a certain item of costs appears to be high, the
benefit of the doubt is given to the loser and the assumption is that this item is
disproportionate.

The Indemnity Basis

What is it? Generally awarded as a penalty to reflect the court’s displeasure with a party’s behaviour at
either pre-action and/or during proceedings.
Proportionate Does not need to be proportionate
The rule  CPR 44.3(3): Costs awarded on the indemnity basis must be: just reasonable
 Reasonably incurred and
 Reasonable in amount.
Apply the limbs of the rule to each item of costs – e.g. it may be reasonable to
incur travel costs to interview witness in Scotland, but not reasonable to take an
Uber to do so.
Benefit of doubt  There is a presumption of proportionality in favour of the receiving party (CPR 44.3(3))
i.e., the benefit of the doubt is given to the “winner” at trial.
o Consequence of this is that the onus is on the paying party to show that the
costs claimed are unreasonable. Any doubt is in favour of the receiving party, so
the receiving party is more likely to obtain a higher recovery than on standard
basis.

Assessment of Costs: summary and detailed

Fast Track Multi-Track

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 Generally, summary assessment takes place
immediately following the end of the hearing.
o Summary assessment is intended to be brief. It
does not involve the lengthy consideration of
each item of cost claimed as in a detailed
assessment.
o The parties should file a breakdown of their
costs 48 hours before the end of hearing
including revealing amount of the amount of
the CFA success fee/AEI premium.
In Fast Track cases there is a specified figure for the
advocate preparing and appearing at trial:
Cannot award more or less than that except in limited
circumstances.
 Court usually orders a detailed assessment will
take place at a separate hearing in front of a
costs judge.
o Detailed assessment must be instigated by
the successful party by:
o filing a Form N252 and other relevant
documents
o bill of costs,
o copies of fee notes of counsel
o written evidence as to any other
disbursement which exceeds £500
o a statement giving the name and
address for service of any person
upon whom the receiving party
intends to serve the notice of
commencement;
o if a costs management order has
been made, a breakdown of the
costs claimed for each phase of the
proceedings -Precedent Q must also
be filed with this
o within three months of the date of the
judgment or order.
o If late serving the N252, the court may
disallow all or part of the costs/interest of
them. Normally all the interest that has been
accumulating out of time is disallowed so as
to prevent profit from misconduct (r47.8).
The paying party could also apply for an
order to prevent the receiving party
recovering if they do not commence by a
given date.

Provisional Assessment
 Applies to all proceedings for detailed assessment post 1 April 2013 where amount claimed is less than a
prescribed limit (currently £75,000)
 On filing request for assessment in Form N258, there is an application for a provisional assessment. Court
will endeavour to complete the assessment within 6 six weeks and points of dispute will be returned with a
note of the court’s discretion.
 Parties have 14 days to agree on the sum due to the receiving party based on the assessment.
 If parties disagree, may make a written submission to the court.
 If party is unhappy within provisional assessment, can make a request for an oral hearing. However, if the
party fails to achieve an adjustment in his favour of at least 20%, he will pay the costs of hearing unless
court decides otherwise.

Bill of Costs
First part  Sets out the background information, including a brief description of the history of the claim
and a statement of the grade of fee earner(s) involved.
 If the receiving party has been publicly funded, the relevant details must be set out in the
background information.
Main body Breakdown of the work performed, divided into different categories of work as set out in PD 47,
para 5.12: generally, what is allowed
 Attendances and communications (with receiving party, witnesses (inc. experts), inspecting
property or attend proceedings, with court and counsel, agents and work done by them);
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 o PD 47, para 5.22(1) Communications: letters out, emails out and telephone calls
 Usually standard rate of 6 minutes
 Where more complex and lengthy may be charged accordingly
 N.B. communications out are changed, but in are not
o Solicitor is entitled to claim up to the hourly rate for time spent travelling and waiting
(depending on what they charged client) – unless local travel (2)
 Work done on documents (documentation, pre-action protocol, collating documents, etc)
 Work done in negotiations with view to settlement
 Work incidental to proceedings and not already covered; and
 Reasonable cost of compiling bill
N.B. from October 2015 a new bill of costs (Precedent M) is being piloted on an optional basis
Challenging a Bill of Costs
Grounds  If difference of 20% between the bill and the costs budget , receiving party must file a
statement giving reasons why it differs PD44.3(2)
 If CMO, unless there is a good reason, court will not depart: r 3.18 (only for standard basis)
 The hourly charging rate is excessive:
o There are government set guideline charge-out rates.
o Set out in Appendix A(22). Vary depending on location and the “grade” of fee-earner.
o If the hourly rate claimed is excessive in comparison to the guideline rates, this might
form a basis for your opponent to argue for a reduction.
 The status of the fee earner who did the work was too senior :
o Fee earners are categorised as either Grade A, B, C or D:
 Grade A: Solicitors and legal executives with over 8 years’ experience.
 Grade B: Solicitors and legal executives with over 4 years’ experience.
 Grade C: Other solicitors or legal executives and fee earners of equivalent
experience.
 Grade D: Trainee solicitors, paralegals and other fee earners.
o Generally, not justifiable for Grade A fee-earners to undertake simple tasks, e.g.
preparing simple list of documents that could’ve been done by a lower grade fee-earner
 A cheaper, more local firm been used
 The length of time it took to do a certain piece of work was too long .
o E.g. you would not expect a simple list of documents to take more than 1 hour.
 That there is no entitlement to an item of costs under PD 47, Para 5.22:
o (1) You may only charge for outgoing correspondence such as letters and emails.
“Reading time” for incoming correspondence cannot be claimed.
 Charged at six-minute units calculated as a fraction of the hourly rate
o (3) You may not claim for “local” travelling expense within 10-mile radius
o (4) The cost of postage/couriers, out-going telephone calls, fax/telex messages will
generally not be allowed.h
 However, court may allow these exceptionally where the cost is unusually heavy.
o (5) The cost of photocopying will generally not be allowed unless there are:
 “Unusual circumstances”.
 There were an “unusually numerous” number of documents.
o Should not contain any costs related to the detailed assessment proceedings, but can
contain costs for preparing bill of costs itself
Interim  While waiting for the issue of costs to be finalised, the court may order an interim payment to
payment the winner: r44.3(8)
Detailed  The receiving party is usually entitled to costs of the detailed assessment hearing, but the
assessmen court may decide otherwise, considering:
t hearing  The reasonableness or otherwise of claiming or challenging a particular item
 Conduct; and
 The amount of any reduction from original sum claimed
Procedure  Paying party has 21 days to challenge the bill from service of notice of commencement

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 to o If it does not, receiving party can apply for a default costs certificate, which can only be set
challenge aside for good reason
o If points of dispute served late, but before certificate is issued, paying party may not be
heard further unless court gives permission
 On service of points of dispute, the receiving party may serve a reply within 21 days
 Receiving party must file a request for an assessment hearing within three months of expiry
of the period for commencing detailed assessment proceedings.
 At detailed assessment hearing, court will decide what costs to be paid.
 Receiving party must, within 14 days of hearing, file a complete bill showing amount due.

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 Enforcement

Where the opponent is not insured, question of enforcement is one which should have been considered before
proceedings commenced (his whereabouts, that he has means to pay, and that he has assets which can be taken
from him).
Is judgment debt due and enforceable?
Before certain enforcement methods can be used, the judgment debtor must have been given opportunity to pay
the judgment debt and failed to do so.

Procedure
1 Establish the other party’s whereabouts – if necessary, an enquiry agent should be
used (but a limit placed on costs)
2 Obtain information from judgment debtor about his means (part 71) – court order
requiring judgment debtor to attend before an officer of the court to be examined on
oath as to his means
 Order obtained by making an application without notice
 Form N316 if debtor individual, Form N316A if company
 If you wish an examination to be conducted by a judge, you must state this
3 Hearing will usually take place in County Court
4 Examination by officer of the court or a judge
5 Standard questions asked (if wish to ask additional questions should be included in
application) – when hearing before judge, standard questions not used
6 If debtor fails to attend court or refuses to take an oath or answer questions,
committal order made against him

Methods of Enforcement
 Taking control of goods (seizure and sale of debtor’s goods)
 Charging order (charge on land or securities)
 3rd party debt order (order requiring 3rd party who owes money to debtor to pay it directly to creditor
 Attachment of earning order (order requiring the debtor’s employer to make deductions from his earning
and pay them to creditor)
Factors to consider when deciding which method to use:
 Where is the property?
 Who owns the property?
 What type of asset is concerned?
 How soon is money needed?
Taking control of goods  A party can apply to the court to have an enforcement agent seize and sell the
CPR 83 debtor’s personal goods to pay the judgment debt and costs.
o At public auction
o Surplus of proceeds (once costs of enforcement deducted) will be
returned to the judgement debtor
o Cannot force entry into living accommodation or take goods from
someone’s person, but can force entry to business premises in some
circumstances
 Car: Unless debtor shows vehicle is necessary to allow him to
continue his job or business. Officer can only take car where no
other reasonable transport alternatives available
 TV, DVD player, stereo equipment: As not necessary for
domestic needs
 Joint property: Can take it and then account to joint owner for
proceeds of sale
 Money owed under contract
 Offices

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  The following goods are EXEMPT from seizure: SCA 1981, s138
 Goods on hire/hire-purchase.
 Tools, books, telephones, computer equipment, vehicles and other
equipment necessary for the debtor for use personally in his job, trade,
profession, study or business, subject to a maximum aggregate value of
£1350
 Must be an individual debtor for this exception to apply
 Clothing, bedding, furniture, household equipment and provisions that
are reasonably required for satisfying the basic domestic needs of the
debtor and his family.
 Procedure
 If the party has obtained judgment in the High Court, the court may issue a
writ of control on an application by the judgment creditor, regardless of
amount to be enforced.
 If the party has obtained judgment in the County Court, they:
o Must apply to the High Court for a writ of control if the judgment debt
is £5,000 or more – unless issued under CCA 1973
o May apply to either the High Court, OR the County Court for a warrant
of control if the sum is between £600 and £5,000 – can choose (choose
HC – interest accrues on the judgment debt – see below)
o Must apply to the County Court for a warrant of control if the sum to be
enforced is less than £600.
Attachment of earnings  This compels the judgment debtor’s employer to make regular deductions from
order the debtor’s earnings and pay them into court instead – then court will pay
Part 89 judgment creditor
CPR Order 27 o The High Court has no power to make this order and proceedings will
need to be transferred to the County Court.
o An application cannot be made if the outstanding amount is £50 or less,
or if the debtor is unemployed OR self-employed.
o Judgment debtor must be an individual, not a company or partnership.
o Cannot be used in tandem with seizure without permission from court
Charging On land  The creditor can apply to court for a charging order on the debtor’s land.
order o This will provide the creditor with security for their loan and enable
Part 73 them to redeem any unpaid money owed in the event the property is
charged and sold.
o A charging order can be obtained even if the land is owned jointly. In
such circs. the charge will be over the debtor’s beneficial interest.
o Once order made, should be registered with Land Registry/Land Charges
Department – regardless, written notice be given to any prior charges
 Once the creditor has a charging order, he can apply to the court for an order
for sale.
o Fresh proceedings and will be usually initiated in CC
o If an order for sale is successfully obtained, the debtor will be forced to
sell the property and the judgment debt will be satisfied out of the
proceeds of the sale.
o An order for sale cannot be obtained if a debtor has been ordered to pay
his debt in instalments, unless he has failed to pay an instalment.
 Charging orders are thus appropriate where debtor owns property, but are
not appropriate where debtor merely rents and has no proprietary interest
On  Creditor can obtain a charging order over most securities other than those of a
securities building society incorporated in England and Wales – a beneficial interest in
o UK government stocks, stocks of anybody other than a building society
incorporated within England and Wales
o Order may extend to any dividend payable
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 o Procedure similar to procedure for obtaining charging order on land
Third Against  Where a third party owes money to the debtor, the court can order that third
party debt debtor party to pay their debt directly to the judgment creditor.
order o Application will be issued in CC hearing centre that made order being
Part 72 enforced or if transferred to another court, to that court.
o Court makes an order requiring 3rd party to pay judgment creditor the
whole or part of the debt as sufficient to satisfy judgment debt and costs.
o Self-employed debtors often have trade debts and information can be
found out about these during hearing.
o Debt must belong to debtor solely and beneficially.
Against a Commonly target bank accounts. Usually bank or BS account, provided it is in credit.
deposit o Must belong to debtor solely and beneficially (excludes joint accounts).
taking o Interim third-party debt order is served, account frozen up to amount
institutio needed, and upon making a final order the money is paid over to the
n judgment creditor.
o App must state name and address of branch where account is located.
o Payment cannot be made where it would reduce bank balance to less
than £1. (i.e. cannot be enforced against overdrawn accounts)
o Before paying debtor, deposit taking institution entitled to deduct a
prescribed sum for administration expenses.

Interest on Judgment Debtors

County court High court
 Only accrue interest on judgments of £5k or General rule: under the Judgment Act 1838 interest
more (S.74 CCA 1984). The current rate of accrues on all judgments from day pronounced at 8% pa.
interest is 8% pa. o If damages are assessed – interest accrues on them
o Where under the terms of judgement, from day they are finally assessed.
payment is deferred, or to be in o But if costs are being assessed after judgment
instalments, interest will not accrue until (detailed assessment hearing) interest is still taken
that date, or until an instalment falls due. to accumulate from original judgment (so before
you even know how much).
 This means that where a judgment debt is between £600 and £5000, and the debtor has a choice
whether to enforce this through the High Court or County Court, beneficial for them to enforce through
High Court as it will enable them to claim interest on the debt.

Insolvency
 Bankruptcy (individual): If a judgment debt is for £5000 or more, a judgment creditor can petition for
bankruptcy of the judgment debtor.
o The judgment creditor will be unable to do this if he has obtained a charging order as security for
his loan as secured creditors cannot petition for bankruptcy.
o The petitioner must serve a statutory demand and then, three weeks after service, may file for a
bankruptcy petition if the debt remains unsatisfied.
 Winding up (company) = If judgment debtor is a company, judgment creditor may consider winding up the
company if the debt is £750 or more. The procedure for this is very similar to bankruptcy procedure for
individuals

Enforcing a judgment against partnership property

 PD 70, para 6A.1 - judgment made against a partnership may be enforced against any property of the
partnership within the jurisdiction.
 A judgment against a partnership may also be enforced against any person who is not a limited partner and
who either:
o (a) acknowledged service of the claim form as a partner; or
o (b) having been served as a partner with the claim form, failed to acknowledge service of it;
o (c) admitted in his statement of case that he is or was a partner at a material time; or
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 o (d) was found by the court to have been a partner at a material time.
 Can proceedings be taken against partnership property for a partner’s separate judgment debt? Yes – s 23
Partnership Act 1890.
Appeals

Routes of Appeal

The routes of appeal from one court to another are

provided for by:
 s55–s57 of the Access to Justice Act 1999 and
 Access to Justice Act 1999 (Destination of Appeals)
Order 2016.
 Routes are summarised in three tables set
out in PD 52A at para.3.5.

 Subject to any requirement to obtain permission to

appeal an appeal lies to the next level of judge in the
court hierarchy

Permission to Appeal
Permission to appeal is now required in virtually all cases
 Rule 52.6(1) provides that, except in the case of second appeals, permission to appeal may be given only
where one or both of two grounds are established. 

1. Real, rather than fanciful, prospect of success

o The first test for permission sets the bar very low for intending appellants.
o Requests for permissions which are routinely refused are permissions sought to appeal a point
of principle which is absolutely trite (such as basic points in the law of contract) and
permissions to appeal against an exercise of discretion by the court (for example, whether to
award costs; an appellant here would have to show that the court took into account
something irrelevant, or left out something which should have been taken into account, or
reached a conclusion which no reasonable judge could reach).
2. Permission to appeal may be given even if the appeal has no real prospect of success if there is a
compelling reason why the appeal should be heard.
o The second test sets the bar lower still in some cases.
o Usually this will be an issue which, in the public interest, should be examined by the Court of
Appeal, for example, a case raising legal questions of great public interest or of general policy
such as the meaning and effect of a change in the CPR definition of proportionality or the effect
of some new standard form contracts widely used in many cases

 The permission granted may be limited to particular issues to be heard on the appeal or subject to
conditions (r.52.6(2)).
Appeals from Case Management Decisions
 On appeals from case management decisions there are additional factors which the court must consider
even if the appeal does have some prospect of success (PD 52A para.4.6):
1) The point sought to be raised may not be of sufficient significance to justify the costs of an appeal.
2) The procedural consequences of an appeal (e.g. loss of the trial date) may outweigh the
significance of the interim issue.
3) It may be more convenient to determine the point at or after the trial (this factor is particularly
important where the appellate court is also the trial court, e.g. interim appeals in multi-track cases
from masters or district judges).
Conditional  A respondent’s best chance of getting conditions imposed is by making representations if
permission and when permission is sought from the lower court or when the appeal court is
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 considering a permission to appeal application
o Financial conditions should not be imposed if they would have the effect of stifling the
appeal, but if the appellant alleges that, it is incumbent upon them to demonstrate it to
the court by adducing full and frank evidence as to their means.
o Where the appellants are wealthy and the respondents are not and the value of the
lower court decision to them is modest, the appellants may be put on terms that they
will not be entitled to their costs of appeal if they win and perhaps, that they must pay
the respondents’ costs in any event.
Limited  Rule 52.6(2) and PD 52C para.18 describe what should happen when a court gives a limited
permission permission to appeal, i.e. permission on some issues only.
o As to the remaining issues the court may refuse permission altogether or adjourn
the application in respect of those issues to the court hearing the appeal.
o If both the lower court and the appeal court refuses permission to appeal them, the
remaining issues cannot be raised at the appeal hearing
o If the lower court adjourns the application in respect of those issues to the court
hearing the appeal, the appellant must, within the next 14 days, inform both the
appeal court and the respondent, in writing, whether in fact they intend to pursue
the application.
Significance of Permission to Appeal Generally
 The fact that permission to appeal (PTA) has been granted may assist the appellant to obtain a stay of
enforcement of any orders made, and any costs certificates issued, in the lower court pending the appeal
 Neither the PTA nor a stay will cut much ice with a costs judge about to embark upon a detailed
assessment of costs against the appellant unless perhaps the appeal hearing is close and the appellant will
not be able to manage preparing for the appeal and preparing for or participating in the detailed
assessment at the same time.

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 13: Police Powers and Duties, and the Police Station
At the Police Station

Procedure on Arrival at the Police Station

Arresting Officer
 Has power of arrest without warrant under s24 PACE, but must have suspicion (Hussein v Chong Fook
Kam)
 Tell arrested person they are under arrest: s28(1) PACE
 Tell the arrested person the grounds on which they have been arrested (s24.5, s23(8), Code C
(Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers)
10.5)
 Caution them before questioning: Code C 10.1 – standard wording set out in para 10.5
 Take suspect to police station immediately after arrest unless there are investigations which are
reasonable to carry out immediately elsewhere: s30 PACE
 Bring suspect to the custody officer as soon as practicable: Code C 2.1A
 Where there is insufficient evidence, may ask person to attend police station voluntarily – arrest will only
be made once there are sufficient grounds for arrest (see below)
Custody Officer
 Be of at least the rank of sergeant and be unconnected with the investigation: s36 PACE
 Tell the suspect their rights and give them an oral and written statement of their rights to:
o Free independent legal advice (s58)
o Read the Code of Practice (Code C); and
o Have someone informed of their arrest (s56)
 Consider whether there is sufficient evidence to charge the suspect: s37(1) PACE
 Open a written custody record (s36 PACE) which includes:
 Suspect’s name, address, telephone number, date of birth and occupation
 Reason for arrest: Code G para 4.3
 Time of arrest, time of arrival at the station (and time told of right to legal advice)
 Reason for detention and time it was authorized
 Confirmation that suspect has been told rights
o Suspect’s response and any comments made
 Whether legal advice has been requested; and
o If suspect gives reasons for why he did not want a solicitor, would be wise to record this
information but there is no obligation to state anything beyond the suspect’s decision
regarding legal advice
 List of property suspect had on him on arrival
 May search suspect and seize items if they could be used by suspect to harm himself, others or property:
s54(3)
 Attach a detention log to record all significant events that occurred while in custody
 If there is not enough evidence at present, may authorize a detention without charge (s37(3) PACE) if
there are reasonable grounds for this (e.g. obtain such evidence by questioning). Otherwise, release on bail
or without bail.
 If there are sufficient grounds, CO should require investigation offer to charge suspect.
 If those grounds cease to apply at any time, the CO must release the suspect as soon as they become
aware of this: s39

Volunteer’s Rights (someone who is asked to go to the police station to answer questions but has
107 not been arrested) – free to leave the police station at any time unless they are arrested (s29
PACE 1984); entitled to free legal advice at the police station. If volunteer makes an admission,
police will have some reasonable, objective grounds to arrest and then caution him. The police
will then likely want to further question him before deciding whether or not to charge him.
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 Role of the Solicitor at the Police Station

Defence Solicitors
Most defendants are represented by a solicitor, but they can represent themselves.
 Defence solicitor will provide advice and assistance to a suspect in the police station
before suspect is charged.
 If suspect is then charged, the defence solicitor will represent that person in
proceedings before the court
 If the case reaches the Crown Court, defence solicitor will normally instruct a
barrister/solicitor advocate to be the client’s advocate in court
Objectives
At the police station the solicitor’s main objectives:
(1) Find out as much as possible about the alleged offence (i.e. collect evidence)
 Consider admissibility issues
 Procedural defects?
 Legal defects?
(2) Find out if there have been any breaches of procedure and Codes by the police
(i.e. has there been any mistreatment)
(3) Check on the client’s state and find out about any vulnerabilities

Where a client has exercised his right to legal advice,

the procedure on the solicitor attending the police station is as follows:

Telephone call  The solicitor will need to:

 Identify himself
 Ask the client to confirm that he wants the solicitor to come to the police
station
 Remind the client that any advice will be free.
 Confirm instructions
 Preliminary advice: The solicitor should not assume that the conversation will be
completely confidential, and the client should therefore be advised to confine himself
to ‘Yes/No’ answers
Attend the Police Station
Speak to the  The solicitor has a right to view/inspect the Custody Record and Detention Log (Code
custody officer C, para 2.4 and 2.4(a)) – not a right to take away or get a copy.
o These record all significant events which have occurred since the client
arrived at the police station.
o Check that all the relevant boxes in the Custody Record have been ticked
and that the sections that are filled out have sufficient detail
o Check for any conflicts between the Detention Log and Custody Record e.g.
is time when rights were given the same
 The solicitor should speak to the Custody Officer and check the following details
(against the Custody Record):
 The alleged offence for which the client was arrested.
o Consider who provided any information that the police received and
then acted upon
 The time when the custody officer authorised detention.
 Relevant for assessing Detention Reviews (below).
 The grounds for authorisation of detention:
 I.e. was detention authorised to obtain or preserve evidence, or to
obtain such evidence by questioning?
 Any significant comments made by the client.
 Any samples, fingerprints or impressions of footwear which may already have

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 been taken.
 Any identification procedure which may already have taken place.
 Any interview which may already have taken place at the police station.
 NB: police are entitled, in certain circumstances, to interview
suspects without their legal representative present, however no
adverse inferences may be drawn from silence in such an
interview if the suspect had not been allowed access to legal
advice (Youth Justice and Criminal Evidence Act 1999, s58).
 Whether the client is under any form of physical or mental disability.
o Does this match what solicitor knows about the client?
 Any illness which the client may be suffering from, or any indication that the
client is in any way vulnerable or requires medical treatment.
 Any significant items found as a result of a search either of client’s person, or
at client’s property, or where client was arrested.
 If the client has already been at the police station for six hours or more,
details of any detention reviews.
 Speaking to the Custody Officer and examining the Detention Log/Custody
Record is largely about checking on the client’s welfare and that they have
been treated appropriately at the police station (see below).
Speak to the  The solicitor should seek to obtain from the investigating officer, details as to:
investigating (consider other questions based on the specific facts in question)
officer  The facts of the offence:
o The Custody Log/Detention Record alone is likely to show solely the
offence e.g. Fraud, and not the facts behind it.
 Anyone else under investigation?
 Disclosure of the police’s evidence: Do they have enough evidence to prove?
o Police are not obliged to provide the solicitor with evidence
o HOWEVER, if the police do not provide sufficient evidence/information:
(Code C, para 11.1A)
 The solicitor is entitled to point out that in those circumstances he
cannot properly advise his client as to the nature of the case
against him so will only be able to advise the client to give a ‘no
comment’ interview.
 Any significant statements or silences made by the client
 Any other areas of investigation?
 The next steps in the Investigation:
o Likely to be an interview, then possible charge and release on bail pending
a hearing at the magistrates’ court.
N.B. solicitor should also speak to investigating officer after viewing the disclosure
statement.
Speak to the  The solicitor should give the client details of what he has been told by the investigating
client officer about the offence and advise as to the substantive law and what the police
need to prove.
 The solicitor will then obtain the client’s version of events.
 In light of this, the solicitor will advise as to next steps and the most appropriate
method of answering the police’s questions e.g. no comment interview, written
statement, full interview etc.

Points to consider when assessing the custody record/detention log

Has the suspect  Maximum stay of detention without charge is 24 hours from the “relevant
been kept for time” - s41 of PACE 1984.
longer than is  The “relevant time” is:

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 permissible?  If the suspect was arrested and then brought to the station, the time the
suspect arrives at the station (s41(1)(d))
 If the suspect attended the station voluntarily, but was arrested at the station,
the time of his arrest (s41(2)(c))
Extension
 Extensions up to 36 hours from the relevant time
 s42 - the police have the power to extend the period detention to up to 36
hours from the “relevant time” if:
 Detention is authorised by a superintendent or above who must have
reasonable grounds for believing that:
 Detention is necessary to secure or preserve evidence relating to an
offence or to obtain such evidence by questioning the suspect.
 The offence is an indictable offence (particularly serious offence
which would be tried by jury at the Crown Court e.g. Murder,
Manslaughter, GBH, Rape etc.)
 The investigation is being carried out diligently and expeditiously
 Extensions beyond 36 hours
 s43 – Extensions of a further 36 hours (i.e. 72 hours [3 days] total) possible but
requires a warrant of further detention from the magistrates’ court.
 The detention must be “justified”, which will be the case if:
 Detention is necessary to secure or preserve evidence relating to an
offence or to obtain such evidence by questioning the suspect.
 The investigation is being carried out diligently and expeditiously
 Extensions of the warrant of further detention are possible under s44 if the above
grounds remain satisfied.
 An extension may be “be for any period as the court thinks fit” but:
 This cannot be longer than 36 hours and
 This cannot end later than 96 hours after the ‘relevant time’.
 This means that the police can detain a suspect in police custody for a maximum
period of 4 days before suspect must be released or charged.
Were detention  Detention reviews must be carried out: s40(3) PACE
reviews carried  First review - no later than six hours after detention was authorised by the
out on time? custody officer.
 Second review - no later than nine hours after the first review
 All subsequent reviews - must take place at intervals of not more than nine
hours.
If reviews are not carried out on time, any detention after this time will be unlawful and
will amount to the tort of false imprisonment (Roberts v Chief Constable of the Cheshire
Constabulary [1999])
Purpose of detention reviews – check that reasons for detention still apply.
How has the  Has the client been looked after in terms of:
client been  Cell Condition: must be adequately heated, lit, cleaned and ventilated (Code C,
treated? Para 8.2).
 Bedding: must be clean and sanitary (Code C, para 8.3).
 Toilet and Washing Facilities: a suspect must be able to access these (Code C,
para 8.4).
 Meals: two light meals and one main meal in any 24-hour period. Drinks should
be provided and upon reasonable request between meals (Code C, para 8.6).
 Exercise: suspect should be offered brief outdoor exercise daily if this is
practicable (Code C, para 8.7).
 Visits: suspects should be visited in their cells at least every hour (Code C, para
9.3).
 Received medical attention if injured or suspected of suffering from physical
illness or mental disorder (Code C, para 9.5)

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  E.g. if client complains of headaches and cold sweats/suicide risk should
have received medical attention
 Medication: if detainee possesses or claims to need medication relating to heart
condition, diabetes, epilepsy or another serious condition, advice of appropriate
healthcare professional must be obtained (Code C, para 9.12)
 Girls under 18 must in care of a woman (Notes, para 3G)

 The client has a right under s56(1) of PACE 1984 to have, on request, someone
informed of his arrest “as soon as practicable”. If the right was delayed, was this
permissible?
 The police may only delay this right:
 For a maximum of 36 hours from the “relevant time” i.e. time of
authorisation of detention (s56(3)).
 If this was authorised by an inspector or above (s56(2)(a))
 If the suspect is detained for an indictable offence (s56(2)(b))
 If there were “reasonable grounds” for the delay i.e. that allowing the
suspect to access their right would likely:
 Lead to interference with evidence or harm to another person.
 Lead to the alerting of other suspects.
 Hinder the recovery of any property obtained as a result of the
offence.
 The authorisation should be confirmed in writing as soon as practicable
(s56(4)).

 Similarly, a client has a right under s58(1) to legal advice. If this right was delayed, was
this permissible?
 The circumstances in which this right can be delayed are the same as those for
delaying the right to inform another of their arrest, save for a delay in exercising
a right to legal advice must be authorised by a superintendent or above.

 Custody officers are permitted to seize and retain items on a suspect’s person under
s54(3)
o Code C 4.1 and 4.2 – custody officer have right to take away, they must note
(4.5) – but find out what was taken
o If the client has had items removed from his person, what are these? Was it
acceptable for these to be removed?

 If the client has made reasonable requests e.g. for drinks, medication etc. were they
given to the client or refused? If they were refused, were the grounds for refusal
reasonable?

Why is this important?

 If the client has been mistreated at the police station it may be possible to argue
at trial that, for instance, any evidence given in interview such as confession was
inadmissible because it was obtained in circumstances in which it was unfair to
admit it e.g. client was desperate to get out of the station, feeling unwell,
desperate to leave, so said whatever was said purely to try and get home.

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 Responses to Interview Questions

A client whom the police wish to interview has four options:

1. Answer all questions;
2. Give a ‘no comment interview’;
3. Selective silence, where the client answers some questions but not others;
4. Hand in a written statement and give a ‘no comment interview’

Exam Technique - Go through all the options. If question asks for advantages and disadvantages, then do both.
Otherwise, just discuss advantages. Then pick an option to recommend and provide reasons e.g. this is the best
option because on balance it has the most advantages.

Option Pro Cons

Selective No advantages
silence Always get rid of it first – “do not use this
option as it has no advantages”
Answer all  Allows the client to put his version of
questions events on record straight away.
o The credibility of the accused’s
evidence at trial will be boosted if
he can show that he placed his
defence on record at the earliest
opportunity and his record remains
consistent
 Useful if the client’s defence is
particularly strong and the client will
comes across well when interviewed
(positive inferences; could make jury
sympathetic)
 Answering questions in full may even
result in the police deciding not to
pursue the case any further.
 Answering all the questions put by the
police is also likely to ensure that at
trial the court or jury will not be
permitted to draw adverse inferences
from silence.
o To avoid adverse inferences
suspect must ensure he mentions
all facts he will rely upon in his
defence (s34), accounts for any
object, substance or mark at the
crim-scene (s36), and accounts for
his presence at a particular place at
 Not advisable. Comes across very badly at
trial. (Whole interview admissible.)
 Adverse inferences may be drawn from
unanswered questions (ss 34, 36 and 37) –
silences could be interpreted as client has
something to hide
 By only answering some questions, it will
appear to the magistrates or jury that the D
has something to hide.
 Risk that the suspect may say something
incriminating or make comments which
undermine their credibility.
 A recording of the interview will be played to
the court, or a transcript read out. A suspect
who comes across as confused or angry, who
makes admissions, or who gives a
contradictory or implausible account of events
is likely to have his credibility severely
damaged.
 Police may not have provided sufficient
disclosure to answer all questions – i.e. might
have additional information/evidence that they
will spring up in interview.
 May lead client to make an attack on character
of another person.
 Could still lead to an adverse inference being
made from silence under s34 if the suspect
raises at trial a fact which they could
reasonably have mentioned when interviewed
but did not.

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 the time of the offence (s37) when
answering all the questions
o Apply this to the question’s facts

 If the client admits the offence, it is

sensible to do so in an interview:
o Positive mitigating factors
o The solicitor can tell the court that
his client cooperated with the
police from the first opportunity
and saved the police spending
additional time and resources
investigating the offence.
No  No danger of the client incriminating  Adverse inferences from silence may be
comment himself by making any admissions, or drawn under s34, 36 or 37 if charged and
interview inadvertently giving the police a piece of pleads not guilty
evidence which they would not o If the client fails to mention something
otherwise have had which he later relies upon in his defence.
o If the client fails to account for an object,
No comment interviews may be advisable mark or substance at the crime-scene.
where: o If the client fails to account for his reasons
 The case against the client is weak: for being in a particular location at the
o If the police do not currently have time of the offence.
sufficient evidence to prove the
allegation, giving an interview may  Defence presented in trial may be considered
result in the suspect making a a sham and fabrication
damaging admission which would
enable the police to charge him –
e.g. circumstantial evidence
(evidence from which a
defendant’s guilt may be inferred)
as opposed to direct
 The police have failed to give full
disclosure:
o Lack of full disclosure from the
police creates a risk that the client
may implicate himself if he
answers questions in interview.
Common tactic to spring previously
undisclosed evidence on a suspect
to make the client say something
incriminating in interview.
 The client is physically or mentally unfit
to be interviewed, or likely to perform
badly due to age, lack of maturity,
vulnerability etc.
 The facts of the case are complex:
o If facts complex or relate to
matters occurring so long ago, that
the client cannot reasonably be
expected to provide an immediate
response to the allegations, he will
likely come across badly in
interview.

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 o May be able to argue that lack of
full disclosure means unable to
know if facts are complex
 If the client’s case is weak:
o The client will only come across
badly in interview if he attempts
to answer questions to which he
has no real response
o More likely to incriminate himself
 If the client has any other good
personal reasons for staying silent:
o E.g. if the client will suffer extreme
embarrassment if he were to tell
the police what actually happened.
No  (Same advantages as for no comment  To the extent possible must outline all the
comment interview and…) evidence the client would seek to rely on in
with a trial (if miss something, could have adverse
written  Useful strategy to employ where the inference)
statement solicitor is concerned that the client
may perform badly if he answers  Client must be well prepped not to answer
(Hand it in questions in interview, but the solicitor anything, otherwise may amount to selective
during/afte considers that his client needs to place silence.
r interview his version of events on record to avoid
– better if adverse inferences being drawn at trial.
after as if
they bring  If the client is young, emotional, or has
up extra never previously been arrested and
stuff you detained at the police station.
can
comment  The written statement will allow the
on it in client to set out his defence in a clear
written and logical way and won’t be at risk of
statement) being “tripped up” by interview
questions.

 If the written statement contains all of

the facts which the defendant later
relies upon in their defence at court
(s34), accounts for an object, mark or
substance at the crime-scene (s36), and
accounts for his reasons for being in a
particular location at the time of the
offence (s37) the court will not be able
to draw an adverse inference.

Conclude
Usually the best option – “No comment with a written statement has all the advantages of no comment plus all
the advantages of giving in a written statement”

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 Inferences from Silence

If a defendant remains silent when interviewed by the police, the court is, in certain circumstances, permitted
to draw a negative conclusion (an “adverse inference”) from his silence.

Criminal Justice and Public Order Act 1994

If a suspect Section  When can the court draw an adverse inference?
fails to 34  If a suspect:
mention  Fails to mention any fact when questioned at the police station s34(1)
when (a)
questioned  Which he later relies upon in his defence s34(1)(a)
something  Could reasonably have been expected to mention that fact in their
which he interview? s34(1)(b)
later relies  The court will be entitled to draw an adverse inference from his
upon in his silence when he was initially questioned s34(2)
defence
 The adverse inference is likely to be:
 That the defendant concocted a story in the aftermath of the incident OR
 That the defendant remained silent because he did not believe the facts
would stand up to police scrutiny e.g. if his story would not be corroborated
by the questioning of other witnesses.

 s34:
(1) Where in any proceedings against a person for an offence, evidence is given
that the accused—
(a) at any time before he was charged with the offence, on being
questioned under caution by a constable trying to discover whether or
by whom the offence had been committed, failed to mention any fact
relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might
be prosecuted for it, failed to mention any such fact, being a fact
which in the circumstances existing at the time the accused could
reasonably have been expected to mention …
(2) the court/jury “may draw such inferences from the failure as appear proper.”

 A s34 inference can still arise even where a suspect answers every question put to
him if the suspect raises at trial a fact which they could reasonably have mentioned
when interviewed but did not.

 Privilege: If a defendant states at trial that the reason he remained silent was due
to legal advice, and the defendant gives the reasons WHY the solicitor gave that
advice, this will waive privilege.
 This means that a defendant could be cross-examined on any other reason
for the solicitor’s decision to advise him to remain silent and what the
defendant’s instructions were which led to that advice being given.

 Written statements
 If suspect hands in a written statement to the police which contains all of the
facts which defendant later relies upon in their defence, court will not be
able to draw adverse inference under s34 even if they give a no-comment
interview
 However, if solicitor prepares a written statement for the client but then does
not hand this into the police (which may happen if the solicitor doubts the
accuracy of the instructions he has received in the statement and is reluctant
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 to disclose client’s defence because he believes facts may not stand up to
scrutiny)
 The solicitor may hand the statement to police at a later stage. This will
prevent an inference being drawn that the client concocted his case
after the interview.
 However, this will not prevent an adverse inference that the defendant
was not sufficiently confident in his defence that he did not believe the
facts would stand up to police scrutiny.
If a suspect, Section  When can the court draw an adverse inference?
when 36  Where a person is arrested and there is:
questioned,  On his person, in or on his clothes or footwear, in his possession, or in
fails to any place where he is at the time of the arrest
account for  An object (could include emails found on a computer/laptop), substance
the presence or mark.
of an object,  Which a police officer reasonably believes may be attributed to the
substance or accused’s participation in the commission of an offence and
mark at the  When asked to account for the presence of that object, that person fails
crime scene. or refuses to do so.

 The adverse inference is likely to be:

 That the defendant had no explanation for the presence of the object at all,
or no explanation which would stand up to police questioning.

 E.g. if suspect is arrested on suspicion of assault, has blood on his shirt and refuses
to answer question as to why this is, court can draw adverse inference.

 Require a Special Caution:

 A s36 inference may only be drawn if the police officer who requests an
explanation for the object, substance or mark gives the suspect a “special
caution” under para 10.11 of PACE Code C:
 This requires the suspect to be told:
 What the offence under investigation is.
 What fact the suspect is being asked to account for.
 That the officer believes that this fact may be due to the suspect taking
part in the offence in question.
 Court may draw an adverse inference from the failure to answer.
 That a record is being made of the interview and that it may be given
in evidence if the suspect is brought to trial.
If a suspect, Section  When can the court draw an adverse inference?
when 37  If:
questioned,  A person is found by the police at a particular location (i.e. where the
fails to crime happened)
account for  At or about the time of the offence for which he was arrested.
his presence  That police officer reasonably believes that that person’s presence at
at a that place may be attributed to his participation in the commission of
particular an offence.
place  When questioned at the police station, the defendant fails to account
for his presence at that place.

 The adverse inference is likely to be:

 That the defendant has no explanation for his presence at that particular
place, or no explanation that would have stood up to police questioning.

 Require a Special Caution:

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  A s37 inference may only be drawn if the police officer who requests an
explanation for presence at a particular place gives the suspect a “special
caution” under para 10.11 of PACE Code C:
 This requires the suspect to be told – SAME AS ABOVE IN s36

Conduct Issues when Advising a Suspected Criminal

If the client  If the client intends to give evidence to the police or at court which is false e.g. admit
intends to they are guilty to solicitor, but intend to deny it in interview…
intentionally  solicitor must cease to act for the client unless they agree not to do this.
mislead the  Para 1.4: Duty not to mislead the court.
police/court  Calling a witness whose evidence you know is untrue goes against this duty
 Thus, you cannot continue to act for a client who does this.
 It is appropriate to advise the client against giving false evidence and
remind them that they will receive credit for co-operating with the police.
 Para 6.3 – Confidentiality - do not tell the police or the court the reasons
why you are ceasing to act
 N.B. Principle 7: you must “act in the best interests of each client”
 Let client give false evidence as they will not be convicted
 However, must also consider Principle 1 (proper administration of justice) and
Principle 5 (integrity)

 You can, however, attend an interview if the client admits their guilt and intends to give
a “no comment” response, as this will not involve the client providing misleading
information.
 You can continue to act for such a client.

 If you suspect that your client’s defence is fabricated, but the client maintains the
truthfulness of this, it is best not to risk breaching your duty not to mislead the court
(para 1.4) by placing this defence before the court.
 Cease to act. Do not tell the police or court the reasons why (6.3)

 A solicitor should not act for a client who, to the knowledge of the solicitor, provides the
court with a false name, address or date of birth.
 Cease to act. Do not tell the police or court the reasons why (6.3)

 If a client insists on pleading guilty even though his instructions indicate he may have a
defence to the charge he faces
 You can continue to act for such a client.
Conflicts of  Conflict issues often arise where a solicitor is asked to advise two (or more) individuals
interest who are jointly suspected of having committed an offence.
 If a suspect’s account suggests a conflict (e.g. the suspect denies guilt and accuses
the other of committing the offence), the solicitor should:
 Decline to act for the second suspect.
 Inform the police that he should receive separate legal advice.
 Acting for both suspects would be a breach of 6.2- there would be a client
conflict

 If acting for two clients where a conflict isn’t immediately apparent, be mindful of:
 The risk of potential conflicts e.g. if the case for mitigation for one client is that they
played a minor role in the offence, and that the other client played a larger role, this
would bring them into conflict.

 If the conflict does not emerge until the solicitor has questioned BOTH suspects, he
118
 should decline to act for both. Be mindful that you would only be able to act for one of
the suspects if you could ensure your duty of confidentiality to the other suspect under
6.3 is not at risk (this is unlikely).
Disclosure  A solicitor representing a defendant has no duty to inform the prosecution or the court
of any evidence or witnesses that would prejudice the defendant’s case.

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 Charging the Suspect

Police have Four Options

1. Release suspect without charge and without bail – let them go
Should be done if police determine suspect did not commit the crime or there is
insufficient evidence against the suspect and it is unlikely that further evidence will
be obtained.

NB: Unless the case has been submitted to the CPS for a charging decision or the
custody officer is satisfied that bail is necessary and proportionate, there is
presumption of release without bail when police have no evidence upon which to
charge (s52-67 Police and Crime Act 2017).
2. Release suspect without charge but on bail while police make further enquiries
Can only bail someone for 28 days unless extension authorised by superintendent
rank or above or court authorises it

3. Release suspect without charge but on bail (or keep suspect in custody) for the
purpose of enabling the CPS to make a decision on charges
CPS make decision on two-part test:
 Is there sufficient evidence to provide a realistic prospect of conviction?
 If there is sufficient evidence, is it in public interest to charge the suspect or
can the matter be dealt with differently?
4. Charge suspect or offer suspect an alternative charge

Alternatives to charging
 Informal warning (for minor public order offences)
 Penalty notice (traffic offences, drunk and disorderly behavior) includes fine
 Simple caution (suitable for juveniles and adults with no previous
convictions or cautions for similar offences). Not suitable for indictable only
offences or either way only in exceptional (s17(2) and (3) CJA 2015).
General conditions:
o must be sufficient evidence to justify prosecution
o offender must have voluntarily admitted to the offence
o offender must agree to be cautioned
o conditional caution – must satisfy:
 must be evidence that offender committed offence
 sufficient evidence to charge offender
 caution and implications explained
 Offender signs document containing details of offence, his admission and
consent to caution and conditions attached
o client should only accept if he accepts guilt and there is sufficient
evidence against him
o if there is insufficient evidence then the CPS may choose not to
prosecute
o disadvantage - will have a formal record of admission of guilt and will
lose the option of caution on a subsequent occasion
 will be disclosable when applying for certain jobs
 if sexual offence then it will be on the sexual offences register
and police may retain fingerprints for minimum of 5 years

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 14: Initial Steps in Criminal Proceedings
Advising Client on a Plea

Client’s Decision
 The plea is the client’s decision. The solicitor should remind their client that a guilty plea will lead to a
reduced sentence compared to pleading not guilty and then being convicted
Professional Conduct Point
 If solicitor is told by D that he is guilty but intends to enter a not guilty plea then this will raise
professional conduct issues
 Solicitor is under a duty to act in his client’s best interests (Principle 7), but there is an overriding
duty not to mislead the court (para 1.4)
 Solicitor would need to advise the client of the benefits of entering a guilty plea (above) and the
limitation on the solicitor’s ability to continue representing the client if he entered a not guilty
plea
 If client insists on maintaining a not guilty plea, solicitor can still represent him at trial but
because of solicitor’s duty not to mislead the court:
o Limited to cross-examining prosecution witnesses and putting the prosecution to proof of
their cases
 In cross-examination, solicitor should be careful not to assert any positive
defence that he knows to be false
o Can make a submission of no case to answer at the end of the prosecution case and ask
the magistrates to dismiss the case
 E.g. if prosecution fail to discharge their evidential burden to show that the
defendant had a case to answer
o Will be unable to continue acting for defendant if a submission of no case to answer was
unsuccessful and client wishes to enter witness box to give evidence solicitor knows to
be false
Next Steps for Solicitor
 At this stage the defence solicitor should:
 obtain funding from the LAA (Legal Aid Agency) to pay for the work he will do on his client’s behalf
(unless paying privately)
 obtain details of the prosecution case from the CPS
 take a statement from the client
 advise the client on the strength of the prosecution evidence and the plea that the client should
enter
 in the case of an either way offence, inform the client that his case may be dealt with by either
Magistrates’ Court or Crown Court and advise on advantages of these
 make an application for bail where necessary

Allocation

 If a defendant is
 Charged with an “either way” offence and
 Pleads not guilty and
 The Magistrates’ Court accepts jurisdiction of the offence.
 The Magistrates’ will offer the defendant a choice of whether they wish for their trial to be heard
at the Magistrates’ Court, or the Crown Court.

Classification of Offences

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 Indictable only  The most serious form of offence.
offences  Must be dealt with by a trial on indictment at a Crown Court (s51(1) CDA 1998).
 The Defendant will make an initial appearance before the magistrates’ court
which will immediately send the case to the Crown Court for trial.
 Examples: Murder, rape, robbery.
Either way  Offences that can be dealt with by either a summary trial at the magistrates’ court
offences or a trial on indictment in the Crown Court.
 The defendant will have a “plea before venue” hearing at the magistrates’ court
 If the defendant pleads not guilty, the magistrates’ court may either:
o Refuse jurisdiction (on consideration of the factors below) or
o Accept jurisdiction, but then offer the defendant the choice to be tried by a
Jury in the Crown Court, or
 If the defendant pleads guilty, the magistrates’ court will either:
o Sentence the defendant or,
o If they consider their sentencing powers to be inadequate, they will commit
the defendant to the Crown Court for sentence.
 Examples: Theft; assault occasioning actual bodily harm; most forms of burglary;
low-value shop lifting if the defendant is an adult and pleads not-guilty.
Summary offences  Least serious form of offence.
 Must be dealt with in the magistrates’ court (summary trial).
 Examples: Common assault, various road traffic offences.

Accepting jurisdiction of the offence

Procedure  Allocation procedure is set out in s19 and s20 of the Magistrates’ Court Act 1980
 s.19(2)(a) = the prosecution will inform the courts of facts and D’s previous
conviction
o Since this is an exception to the court not being allowed to know previous
convictions, would need to ensure that the magistrate dealing with
allocation is not the magistrate involved in the trial
 The magistrates shall CONSIDER:
 Oral representations made by the prosecution & defence advocates (s19(2)(b)).
 Whether the magistrates’ have adequate sentencing powers to deal with the
offence in question (s19(3)(a)).
o Magistrates may pass a maximum sentence of 6 months imprisonment
for a defendant convicted of an either way offence.
o However, they can pass a sentence of up to 12 months if the defendant is
convicted of two or more offences.
o If the overall seriousness of the offence, by reference to the
Magistrates’ Court Sentencing Guidelines, merits a more serious
sentence, the magistrate should commit the defendant to Crown Court
for sentence pursuant to s3 Powers of Criminal Courts (Sentencing) Act
2000.
 The Allocation Guideline issued by the Sentencing Council (Appendix B): p.505
o GENERAL RULE: “In general, either way offences should be tried summarily
(MAGISTRATES) unless the outcome would clearly be a sentence in excess
of the court’s powers… or for reasons of unusual legal, procedural or factual
complexity, the case should be tried in the Crown Court. This exception may
apply in cases where a very substantial fine is the likely sentence.”
o Where the court decides that the case is suitable to be dealt with in the
magistrates’ court, it must warn the defendant that all sentencing options
remain open and, if the defendant consents to summary trial and is
convicted by the court or pleads guilty, the defendant may be committed
to the Crown Court for sentence.
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 o AFTER THAT, then go to SENETENCING guideline in Appendix B (SEE
BELOW)

Example of factors considered

 In WS13, Mr Moore was charged with burglary of a domestic premises. The
sentencing guidelines for this offence are at p532. These provide that the
offence will be categorised as either a Category 1, Category 2 or Category 3
offence.
o On the facts, the burglary was likely a Category 3 offence; it took place
when no-one was home, no violence was used (factors which, if present
would indicate “Greater Harm” and would likely be a Cat 1 or Cat 2
offence), and there are few factors indicating “Higher Culpability” such as
the use of van – but not very sophisticated
o The category range for a Category 3 offence extends to 26 weeks’ custody
i.e. 6 months custody. Magistrates’ court sentencing power is 6 months so
they could accept jurisdiction.

 s.19(4) = in considering the adequacy of its sentencing powers, the court should do
so in light of the maximum aggregate sentence that they could impose for all the
offences taken together, if the charges could be joined in the same indictment or
arise out of the same, or connected circumstances

 s.21 MCA 1980 = if the court decided that the offence is more suitable for
indictment, D is sent directly to the Crown Court
 If the court decides that the case is more suitable for a summary trial, it must
explain to D that:
 the case appears suitable for summary trial
 he can consent to be tried at summary or choose an indictment at the
Crown Court
 s.20(1) and (2) MCA 1980 = if he consents to summary trial and is
convicted then he may be sent to Crown Court for sentencing
 s.20(3) to (7) and s.20A MCA 1980 and Part 9 CPR = at this stage the defendant may
request an indication of sentence (i.e. an indication or whether a custodial or non-
custodial sentence would be more likely if he were to be tried summarily and plead
guilty

If magistrates accept jurisdiction then the Defendant chooses venue.

If magistrates say it is not within their sentencing powers, Defendant has no choice and
must be tried at the Crown Court.

Sentencing Guidelines
See: Appendix B for sentencing guidelines for the following either-way offences
1. Assault Occasioning ABH & Racially/Religiously Aggravated ABH – p521
2. Common Assault & Racially/Religiously Aggravated Assault – p528
3. Domestic Burglary – p532
4. Non-domestic Burglary – p536
5. Fraud offences – p543
6. General Theft – p547
7. Theft from a Shop or Stall i.e. shoplifting offence – p551
8. Handling Stolen Goods – p555

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 Pros and Cons of the Magistrates Court vs Crown Court
Factors in favour of
Crown Court Magistrates’ Court
 Statistically greater chance of an acquittal at a  Limited sentencing powers
Crown Court  The max sentence magistrates can pass is 6
 Juries are perceived to be more sympathetic months imprisonment for one offence. The
to defendants than “case-hardened” sentencing powers of a Crown Court judge
magistrates. are much greater.
 There is a chance that a defendant, with  However: magistrates retain the power to
previous convictions will encounter the same commit the defendant to the Crown Court for
magistrate who may be prejudiced against sentence if, during or after the trial, facts
him. emerge that make the offence more serious
 Application: Particularly useful in cases where than it appeared at the allocation hearing and
there is a body of circumstantial evidence so render the magistrates’ sentencing powers
against the defendant. If the evidence is inadequate.
dubious, a more sympathetic jury trial may
benefit the defendant.
Note is what the jury has to believe difficult to
believe? E.g. unemployed is in bed at 6am.
Sympathetic story – drug rehabilitation, got
job interview
 Disputes over the admissibility of evidence  Prosecution costs
benefit the defendant compared to the process  If a defendant loses i.e. he is convicted, he will
in the Magistrates Court likely be ordered to make a contribution to
 Because, in the Crown Court, questions of the CPS’s costs.
law & fact are determined by different  These costs are likely to be higher in the
people i.e. the Judge and Jury respectively. Crown Court vs the Magistrates’ Court as
Disputes over legal questions, e.g. the additional preparation work is ordinarily
admissibility of evidence, will be heard necessary for a Crown Court trial.
without the jury.
 The jury will be sent out of the room, and the
judge will conduct a “voir dire”. The jury will
thus be unaware of evidence e.g. a previous
conviction, and corroboration points unless it
is deemed admissible.
 At the magistrates’ court by contrast, the
magistrate determines questions of law and
fact, which means he will necessarily know
about the evidence due to him having to
consider its admissibility.
 Thus, even if the evidence is deemed
inadmissible, the magistrate will still know
about it and this may be in the back of his
mind when making his decision.

 A Crown Court judge will likely have a more  Defence costs

sophisticated understanding of the law than a
magistrate
 There is no requirement to hold a legal
qualification to be a lay magistrate. Thus, if
the case raises particularly difficult areas of
law, it is often advisable for it to be heard in
the Crown Court.
124
 These will be significantly cheaper for a
defendant in the Magistrates’ court.
 If the defendant is funded by legal aid, he
will not be required to contribute towards
his defence costs in the magistrates’ court.
However, in the Crown Court he will be
means tested and may have to make
contributions towards costs during

 The case will take longer to get to trial
 The fact that a case takes longer to get to
trial allows more time for preparation. This is
useful if the case is particularly complex or
there are a large number of witnesses of fact.
 EXAM TIP: APPLICATION
if this question comes up in the exam you should make a JUDGMENT CALL on which court is best ON
THE FACTS. It is likely that the factors will be finely balanced and whichever choice you make will be
acceptable PROVIDING YOU JUSTIFY YOUR ANSWER.
125
proceedings or at the end of his case.
 The case will take less time to get to trial
 This may be an important consideration if a
defendant has a reason for the case to be
concluded quickly e.g. if the defendant has
been offered employment in another part of
the country or overseas.
 This is really important for a defendant who
is denied bail still in custody.
 Stress
 Hearings at the magistrates’ court are
generally less intimidating than Crown Court
trials, requiring less formality (e.g. no wigs
and gowns in the magistrates’ court).
 Application: if your client is vulnerable or
nervous then the magistrates’ court is likely to
be the better choice.
 Conversely, if your client has numerous
previous convictions, they will likely be
comfortable with a Crown Court trial as they
have been in the situation before.
 No obligation to serve a defence statement in
the Magistrates’ Court
 A defendant pleading not guilty in the Crown
Court is obliged to serve a defence statement
under ss5, 6 and 6A of the Criminal Procedure
and Investigations Act 1996.
 This puts the CPS on notice of factors the
defendant will raise in his defence well in
advance of trial, allowing them time to
prepare rebuttals.
 If CPS already know what defence is, this will
not be a big advantage.
 Legal Funding

 A defendant who wishes to apply for legal aid must satisfy two tests:
 The interests of justice test:
 The defendant must show that it is in the interests of justice that he receive public funding to cover
the cost of his legal representation; and
 The means test:
 The defendant must demonstrate that his finances are such that he is unable to pay for legal
representation.
 If the defendant satisfies these tests, the court will grant a criminal defence representation order. (if
case is tried in the Crown Court, the representation order will extend automatically to cover
proceedings in the Crown Court)
The interests of justice test
Sch 3, para 5(2) of the Access to Justice Act 1999 - sets out the factors which a court will take into
account in deciding whether it is in the “interests of justice” to provide a defendant with legal aid.
The factors are listed as headings in the Application for Legal Aid, Form CRM14
Factor When it will be relevant in the client’s favour.
Can select more than 1
“It is likely that I will lose  If the likely sentence will be custodial.
my liberty if any matter  Even if the sentencing guidelines do not indicate that magistrates would
in the proceedings is normally impose a custodial sentence for the offence, you should consider if
decided against me” there are any aggravating factors which make the offence more serious than
it otherwise would be and lead to the client’s imprisonment.
o E.g. previous convictions (more likely to go to jail), other aggravating
factors in the sentencing guidelines.
 Also, relevant if it is likely the applicant will be denied bail so will be remanded
in custody during the proceedings.
“It is likely that I will lose  If a conviction will likely lead to the loss of the defendant’s job.
my livelihood” o E.g. a prison sentence
o Disqualification from driving (e.g. if the D is a bus driver)
o If the offence is common assault and, for instance, the defendant is a
teacher, as conviction of a violent offence will prevent him from working
with children.
o If the offence involves dishonesty and the defendant works in a position
of trust e.g. conviction of theft is likely to prevent a bank manager being
employed in that role in the future.
“It is likely that I will  ‘Serious’ damage will occur when the disgrace of a conviction is more than
suffer serious damage to the direct effect of the penalty, and will result in the defendant losing his
my reputation” reputation for honesty or trustworthiness.
o E.g. Relevant where the defendant is in a position of standing and
respect in the community e.g. vicar or school governor.
 Will only apply to defendants with no previous convictions or only convictions
for very minor offences.
“A substantial question  Relevant when there are challenges as to the admissibility of evidence.
of law may be involved o E.g. arguments about adverse inferences; hearsay; exclusion of
(whether arising from an confessions under s78 of PACE 1984; admission of previous convictions
act, judicial authority or under s101 of CJA 2003
other source)”
“I may not be able to  If the defendant:
understand the court o Has a mental or physical disability.
proceedings or present o Has poor English
my own case” o Is particularly young or old
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 o Is otherwise vulnerable.
“Witnesses may need to  Relevant if the defendant wishes to call a witness in support of his case.
be traced or interviewed Witnesses need to be traced and have their statements taken.
on my behalf”  The defendant must, however, explain WHY he requires legal representation
in order to trace the witness and take the statement.
“The proceedings may  Relevant if a witness needs to be cross-examined:
involve expert cross-  To determine a question of law or
examination of a  To decide on the admissibility of a particular piece of evidence or
prosecution witness  If the evidence given by the witness is complex or technical.
(whether an expert or o E.g. if the defendant’s solicitor is attempting to persuade the court to
not)” exclude a confession his client made when interviewed, it will be
necessary to cross-examine any police officers who are giving evidence
for the prosecution to establish that the Codes of Practice issued
under PACE 1984 were breached.
o E.g. if the prosecution seek to rely on expert evidence of a forensic
scientist.
o E.g. Palmer Tate in WS 14
“Any other reason”  Designed to cover any matters not falling under the other headings.
 E.g. Pleading not guilty and likely to be tried in Crown Court

The Means Test

People who do not  Applicants who receive:
need to satisfy the  Income support.
means test  Jobseekers allowance.
 Guaranteed State pension.
 Income-related employment and support allowance.
 Universal Credit.
 Applicants who are under the age of 18.
The means test  The court will means test the applicant’s income by adjusting this i.e. weighting this
depending on whether they have a partner or children.
 If an applicant’s adjusted annual income:
 Is less than £12,475: they will qualify for legal aid.
 Is more than £22,325: they will not qualify for legal aid.
 Is between £12,475 and £22,325: the court will carry out a full means test.
 The full means test calculates an applicant’s disposable income by deducting
expenditure on things such as tax and national insurance, housing costs etc. from an
individual’s income.
 If the applicant’s disposable income does not exceed £3,398, they will qualify for
legal aid.

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 Bail
Rule 8.2 Criminal Procedure Rules – prosecution
- Whether client will get bail or be remanded in custody are under a duty to provide the defence with IDPC
o Most important issue from client’s viewpoint upon request and, if no request is made, must be
- How to deal with an opposed bail application: available no later than beginning of the day of the
first hearing. See page 121 for contents
o Obtain initial disclosure of the prosecution case (IDPC) ASAP
o Speak to the prosecutor in court to see if bail (with conditions) can be agreed
 If not, find out on what basis the prosecutor will be objecting to bail
o Take your client’s instructions on the prosecution papers, particularly his record of previous
convictions and what bail conditions he is willing and able to comply with
o May also need to make contact with
 A probation officer
 Employer
 Surety
- Bail will have to be considered by the court whenever the case is to be adjourned
- Whether bail is granted could be decided by the magistrates, police bail or crown court

Step 1
Is there a presumption of a right to bail?
 s4 of the Bail Act 1976
 There is a presumption that bail will be granted to:
 All defendants prior to conviction.
 Defendants who have been convicted, if their case has been adjourned for the court to obtain
reports before sentencing.
 Defendants who are appearing before the court for breach of a community sentence.

 The presumption DOES NOT apply to defendants:

 Who have been committed to the Crown Court for sentence.
 Who are appealing against a conviction or sentence.
 Serious offences: Murder/attempted, manslaughter, rape or attempted rape, or other serious
sexual offences

 Bail may only be granted in exceptional circumstances (s25, Criminal Justice and Public Order Act
1994) for defendants accused of:
 Murder or attempted murder.
 Manslaughter.
 Rape or attempted rape.
 Other serious sexual offences.

Step 2
If a presumption applies… are there substantial grounds to rebut the presumption?
 Paras 2 to 7 of Sch 1, Part 1 of the Bail Act 1976.
 Para 2(1): Will the defendant, if granted bail?
 Fail to surrender to custody
 Commit an offence whilst on bail
 Interfere with witnesses or otherwise obstruct the course of justice? (ensure it is explicit on
facts)
 Will not get bail if any of these
 If none, unconditional bail granted.

Step 3
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 Para 9: Factors the court will consider in determining whether the grounds are satisfied
- When bail is opposed, the prosecution will set out their objections to bail
o They do this by relying on one or more of the grounds contained in Part 1, Sch 1 Bail Act 1976,
along with any supporting factors.
o Defence should then deal with each ground and supporting factors in turn and argue why that
ground is not made out to the standard required by the Bail Act.
o It will then be usual for the defence advocate to set out a package of realistic bail conditions to
overcome any concerns the court may have about granting bail.
Ground Factor Prosecution argument Defence argument
Failure to The nature and  This is a serious offence  The court will assess whether
surrender seriousness of likely to attract custodial the seriousness of the offence
the offence penalty – the defendant and likely sentence that will be
para 9(a) will abscond to avoid it imposed will make it likely that
the defendant will fail to
surrender.
 How serious is the offence? Not
premeditated/not high value?
Which category offence is it?
 Are there any aggravating
factors which would likely result
in a harsher sentence e.g.
previous convictions, suspended
sentences?
 If there were previous
convictions, when were these?
Is the defendant now
reformed? No longer drug
addict, job interview coming
up?
 Alternatively, defendant is
innocent, pleading not guilty
and wants to clear name so will
attend court
Failure to Strength of the  Highly probable  Dispute strength of the
surrender prosecution defendant will be evidence and put forward any
case para 9(d) convicted – will abscond innocent explanations
to avoid sentence, esp if it defendant has for key evidence
is prison
Failure to Defendant’s  If the defendant has  Defendant’s solicitor might
surrender AND bail history para absconded previously look to why the defendant
commit further 9(c) (specify dates of failure) previously absconded.
offences this is likely to be  Did he have a “good” reason?
indicative that he may do Was it deliberate or did he
so again merely mix up the dates, for
instance?
 Did the defendant voluntarily
surrender/hand himself in, or
was he arrested?
 How did the court sentence
him for this offence? If the
sentence was lenient, or if the
defendant received a further
grant of bail in the proceedings,
this is likely to indicate that that

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 the court did not view the
absconding as being particularly
serious.
 How long ago were such
indiscretions?
 Is the defendant now
reformed?
 Did it happen every time or
only a couple?
Failure to The character,  The defendant’s criminal  How recent were such convictions?
surrender AND antecedent record (previous If not recent, cannot be said that it
commit further (history), convictions/an extensive is reasonably likely defendant will
offences associations record) may be relevant reoffend
and community in considering whether  Have the defendant’s circumstances
ties of D para the defendant is likely to changed at all? Say no longer
9(b) fail to surrender, or addicted to drugs or in gang? Job
commit an offence whilst interview? Receiving income
on bail. support?
 Is the defendant a  No previous record of offending ON
BAIL
serial offender?
 Reason for offending
ongoing – drugs/gang
 Does he have a history
of committing a certain
types of offences?
 Done it before on bail?
Failure to Associations  The defendant’s social  Does the defendant have
surrender, and community ties may indicate a strong ties to the local area
commit further ties of the likelihood that he will which make it less likely that
offences, AND defendant para abscond, commit he will abscond? Try to offer
interfere with 9(b) offences or interfere with them: For instance does he
witnesses witnesses whilst he is on have a permanent
bail. address/owns house, a job, or
 Links abroad – may family in the area?
abscond overseas
 Is the defendant, for
instance, involved in a
gang, or known to
associate with
criminals?
 No reason to stay in
area – unemployed,
no family ties, no
fixed abode
 Prosecution
witnesses live close
to him – may attempt
to interfere

 EXAM STRUCTURE: Take each ground in turn and apply the relevant factors as to why:
 If acting for the prosecution, bail should NOT be granted; or
 If acting for the defence, why bail should be granted.
 Consider if bail is more likely if conditions are imposed.
Making a further bail application

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  If bail is refused, the magistrates are under a duty to consider bail at any
subsequent hearing so long as the defendant is still in custody and the
presumption in favour of bail still applies.
 The defendant is permitted to make one further full bail application at a
subsequent court appearance using any argument, even if these have previously
been heard and bail was refused (Bail Act 1976, Sch 1, Part IIA).
 Thereafter, the defendant may only apply for bail if he is able to raise a new legal
or factual argument.
 (If case is sent to Crown Court, further application for bail will have to be made in
the Crown Court)

Step 4
Removal of substantial grounds by conditions
 Make the argument that any substantial grounds can be removed by the imposition of conditions that
appear necessary to the court
 Conditional bail (s3 BA 1976) – gives court power to do this.
 If court refuses bail, defendant remanded into custody until trial

Sureties  A third party enters into an agreement (“a recognisance of money”) with the court
that he will use every reasonable effort to ensure the defendant attends court.
 If the defendant fails to attend, the court will declare the immediate and
automatic forfeiture of the recognisance and order the surety to appear before
the court to explain why he should not pay over the sum. – Needs money and a
third party? E.g. partner
Security  The defendant will be required to deposit a sum of money (or goods) with the court.
 If the defendant fails to attend, he will forfeit the security he has given.
Requires money
Reporting to a  The court may order the defendant to report to his local police station on a regular
local police Station basis (often once each day at a specified time) so that the police may ensure that the
defendant remains in the local area.
Residence  The court can require the defendant to reside at a specified address. The police will
often check that the condition is being complied with by visiting the address late at
night or early in the morning.
 The defendant may also be electronically monitored (tagged). Ask defendant if they
would be okay with this before suggesting it.
Curfew  The court can require a defendant to remain at his place of residence between
certain specified hours.
 This may be used to prevent a defendant committing further offences whilst on
bail. Consider when the crime suspect is accused of took place.
Non-  This condition for non-communication may be imposed:
communication  If the court is concerned that the defendant may try to intimidate a witness for
with prosecution any particular reason.
witnesses  Or if defendant is charged with a violence offence and the court is concerned
he may commit further offences of violence against the complainant.
Restriction on  A condition may be imposed preventing the defendant from entering a geographical
entering specified area or town.
areas o E.g. because a prosecution witness resides there and the court is concerned
about intimidation/interference etc.
o E.g. because the defendant habitually commits offences in the same place or
type of place.
Attending  Requires a defendant to keep in regular touch with his solicitor and attend meetings
appointments when required.
with his solicitor
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 or the probation  The purpose behind this is to ensure that the case is not delayed because
Service the defendant has failed to provide his solicitor with prompt instructions.
Surrender of  Surrender passport – cannot travel.
Passport  If the court is concerned that the defendant may attempt to abscond.

15: Evidence and Admissibility of Confessions

Bad Character Evidence

Previous convictions = Bad character evidence

“Bad Character”  ‘Evidence of, or a disposition towards, misconduct’, other than evidence connected
s98 CJA 2003 with the offence for which the defendant has been charged
 Previous convictions show disposition towards misconduct – this is the STARTING
point

“Misconduct”  ‘The commission of an offence or other reprehensible behaviour’

s112 CJA 2003  Previous conviction = offence

 If the alleged misconduct by the defendant is connected to the offence with which he has been charged,
this will not fall within the definition of bad character in s98, and will therefore be admissible in evidence
without needing to consider whether it satisfies the test for admissibility of bad character evidence set out
in the CJA 2003.

 A defendant’s bad character cannot of itself prove guilt.

 The prosecution must adduce other evidence to substantiate their case before the jury or
magistrates are permitted to take his bad character into account.

Adducing Evidence of Previous Convictions

 Evidence of a defendant’s previous convictions is only admissible under one of 7 gateways under s101(1)
(a–g) of the CJA 2003 - we only look at gateway (d) on the LPC.

 s101(1): (1) In criminal proceedings evidence of a defendant’s bad character is admissible if, but only if:
Gateway (d):
 It is relevant to an important matter in issue between the defendant and the prosecution.

Gateway (d)
s101(1)(d) CJA 2003
It is relevant to an important matter in issue between the defendant and the prosecution
 Evidence will be admissible if it is “relevant to an important matter in issue between the defendant and the
prosecution” s101(1)(d) CJA 2003 – first define important matter
 THEN Two requirements. s103(1) The evidence will only admissible if it shows that:
 (a) The defendant has a propensity to commit offences of the kind with which he is charged;
OR
 (a) The defendant has a propensity to be untruthful
What is an  “An important matter” is defined as “a matter of substantial importance in the
“important context of the case as a whole” CJA 2003, s112(1).
matter”?
 Evidence will be admissible if it is “relevant to an important matter in issue
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 between the defendant and the prosecution”

1 s103(1)(a) s103(2) CJA 2003 - This may be established by evidence that the defendant has been
Propensity to convicted of: (previous convictions that are….)
commit offences
“of the same kind” SAME DESCRIPTION
Do previous  s103(2)(a) an offence of the same description as the one with which he is
convictions charged.
demonstrate  s103(4)(a) same description if statement of offence in a written charge
relevant would be in the same terms
propensity?  I.e. a previous offence which is the same as the current one. The facts of
the earlier conviction must be sufficient to support an offence charged in
the same terms now.
 E.g. a previous conviction for theft committed on premises whilst
the defendant was a trespasser fits the current description of
burglary, so these two offences would be the “same”
 If convicted of ABH and previous conviction of GBH wouldn’t
satisfy s103(2)(a).

SAME CATEGORY
 s103(2)(b) an offence of the same category as the one with which he is
charged
 s103(4)(b) defines as if they belong to same category of offences
 Only relevant for:
 Sexual Offences (don’t deal with this on course)
 Theft Offences – all of the following are in the same “category”
prescribed by the Secretary of State:
o Theft; Robbery; Burglary; Aggravated burglary; Handling
stolen goods; Going equipped for stealing; Making off
without payment

FACTUALLY SIMILAR
 s103(2) Offences which are factually similar - “without prejudice to any other
way of doing so”
 Re Brima: You can use factually similar previous convictions to show
propensity to commit offences of the same kind
 Previous convictions will be admissible if there are significant factual
similarities between them
 E.g. if previous offences similarly involved the defendant getting drunk and
committing a violent crime such as assault, GBH, criminal damage.

 R v Hanson: Three questions to ask: Want to say yes to them

 Does D’s history of offending show a propensity to commit offences of the
kind with which he is now charged?
 If so, does that propensity make it more likely that the defendant
committed the current offence?
 If so, is it just to rely on convictions of the same description or category,
having in mind the overriding principle that proceedings must be fair?
2 s103(1)(b)  R v Hanson, Gilmore & Pickstone [2005]: Propensity to be untruthful will be
Propensity for the shown if:
defendant to be  The defendant pleaded not-guilty and was found guilty.
untruthful  The defendant was found guilty of an offence involving the telling of lies
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 e.g. fraud (by false misrep), perjury etc. - Dishonest offences (like theft) do
not satisfy this
3 Defences  Are there are significant differences between the facts of the previous offences
If relevant and the current offence which means it ought not to be admissible? E.g.
propensity is  Circumstances of offence
made out consider  Damage against property vs damage against person
the grounds on  Threatening behaviour vs physical violence
which the
defendant  Would it be unjust to rely on the convictions given the time which has elapsed
solicitor might since they occurred? (s103(3)).
argue the relevant  Significant amount of time (e.g. over 10 yrs ago), young, reformed etc.,
propensity has only mention spent for the next section
NOT been made  (Only applies to propensity to commit offences of the same kind)
out?
R v Hanson 3 questions to ask Want to counteract them here – say no
 Does the defendant’s history of offending show a propensity to commit
offences of the kind he is now charged?
 If so, does that propensity make it more likely that the defendant
committed the current offence?
 If so, is it just to rely on convictions of the same description or category,
having in mind the overriding principle that proceedings must be fair?
 Does the propensity make it no more likely that the defendant is guilty of the
offence? (s103(1)(a)).
 E.g. are the current circumstances different; motivated by desperation
etc?
4 If yes, will the  s101(3) CJA 2003: The court must not admit evidence which would have such an
court exclude “adverse effect on the fairness of the proceedings that the court ought not to
convictions under admit it”. This will mainly occur where:
s101(3)?
 (N.B. s78 PACE has a discretionary power to not admit evidence)
 The convictions are more prejudicial than probative:
 If the jury are likely to convict on the basis of the previous convictions
alone due to the extent or nature of these.
 Admissibility of the convictions is sought to support a case which is otherwise
weak (R v Hanson, Gilmore & Pickstone)
 Prosecution has no positive evidence only circumstantial
 If dishonest: If only pleaded not guilty once – unfair if only conviction -
doesn’t show propensity

 The defendant’s previous convictions are “spent”:

 The court will likely exclude spent convictions, however the fact they are
spent is not definitive

 If the offence is particularly similar on the facts, this might justify it being
admissible even if the previous conviction is “spent”.

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 Spent Convictions under the Rehabilitation Act 1974
Absolute Discharge 0 years
Conditional Discharge 0 years
Fine 1 year from date of conviction
Community Order 1 year
Custodial Sentence up to 6 2 years
Months
Custodial Sentence Between 4 years
6 Months and 30 Months
Custodial Sentence Between 7 years
30 Months and 4 Years
Custodial Sentence Over 4 Never spent.
Years
The previous convictions will be admissible if the CPS can satisfy a ground and there are
no defences the defence could raise and the convictions are not excluded by the court

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 Admissibility of Confessions

 Confession made before a trial will be admissible due to s114(1)(a) CJA 2003 in conjunction with s76(1) of
PACE 1984.
 The admissibility of a confession may be challenged
 On the basis of s76(2) of PACE 1984, that the confession either:
 Was not made at all (i.e. the person who claims to have heard the confession was mistaken or is
lying).
 Was made, but only for reasons other than the fact that he was actually guilty of having
committed the offence (s76(2)).
 I.e. Oppression (s76(2)(a)) or
 In consequence of anything said or done which was likely to render the confession unreliable
(s76(2)(b)) i.e. a Breach of Code C.
 Under s78 of PACE 1984 which provides the court with a more general discretion to exclude the
admission of any evidence which the court considers would have such an adverse effect on the
fairness of proceedings that it ought not to be admitted.

Definition of a  s82(1) PACE 1984 – a confession is “any statement wholly or partly adverse to the
confession person who made it, whether made to a person in authority or not and whether made in
words or otherwise” – wide definition

 Anything said by a D that constitutes an admission of any element of the offence

with which he is subsequently charged, or that is any way detrimental to his case
will satisfy definition of a confession in s82(1)
Pre-trial  A confession made before the trial would ordinarily satisfy the definition of hearsay
confessions evidence.
are not  It is a statement made outside of court, which is repeated in court to prove the
hearsay truth of the matter stated.
 Hearsay evidence is generally inadmissible in Criminal Proceedings. HOWEVER
 A confession will be admissible by virtue of s114(1)(a) CJA 2003 - provides that
hearsay evidence will be admissible if it is made admissible by virtue of any
statutory provision
 s76(1) of PACE 1984 provides that confessions are admissible: “In any
proceedings a CONFESSION made by an accused person may be
given in evidence against him in so far as it is relevant to any matter
in issue in the proceedings and is not excluded by the court in
pursuance of this section”.

SECTION 76(2) PACE 1984 - only for confessions (oppression/unreliability: mandatory exclusion)
Challenging  A defendant may argue that the confession should not be admissible because:
the  He did not make the confession at all i.e. the witness to the confession was
admissibility mistaken or lying.
of a confession  He made the confession, but only for reasons other than the fact that he was
under s76 actually guilty of having committed the offence (s76(2)(b)).
 This will either be “Oppression” under s76(2)(a) or
 In consequence of anything said or done which was likely to render the
confession unreliable under s76(2)(b)
Oppression  s76(8): “oppression” includes torture, inhuman or degrading treatment, and the use or
s76(2)(a) threat of violence”.
 High threshold.
Anything said  I.e. a Breach of Code C.
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 or done which  Does not require deliberate misconduct on the part of the police, though evidence
was likely to will usually only be inadmissible if there has been a breach.
render the  Relevant sections of the Code:
confession  Part 6 – Right to Legal Advice – LINK e.g. if had legal advice, would not have
unreliable confessed…
s76(2)(b)  Part 8 – Conditions of Detention. Meals & Refreshments (8.6** & Note 8B) –
e.g. diabetic and asked for drinks with sugar
 Part 9 – Care and Treatment of Detained Persons – i.e. medical needs - e.g
diabetic and police didn’t find out – only confessed due to this, felt unwell
 Part 11 – Interviews. Right to Legal Advice (11.2) /Inducement/Oppression to
Elicit a Confession (11.5)**
 Part 12 – Interviews. Periods of Rest (12.2)/Fitness for Interview
(12.3)**/Breaks for Meals (12.8)
 Annex G
 Annex H
 See Summary Notes for Code C: Identify whether any of these Paragraphs have
been breached- if they have, there may be cause to exclude the confession.
 Breach of s58 of PACE 1984/Part 6 in denying the client legal advice will only make
the confession inadmissible if there is a causal link between the breach and
unreliability of the confession- so experienced criminals who are aware of their
rights will find this hard to rely on.
 N.B. in exam, prove causal link between breach of Code C and the unreliable
confession being made
 Pg 387-388 for instances where a causal link found between breach of Code
C and confession
Burden of  If the defendant argues that a confession should not be admissible through oppression or
proof (under a breach of Code C, it is for the prosecution to prove beyond reasonable doubt that the
s76) confession was NOT so obtained.

SECTION 78 PACE 1984 – any evidence (fairness – discretionary)

Challenging  Alternatively, admissibility of a confession may be challenged under s78 PACE 1984.
the  The court has a general discretion to refuse evidence which “would have such an
admissibility adverse effect on the fairness of the proceedings that the court ought not to admit
under s78 it”.
 The defendant may seek to rely on s78 if:
 They accept that they confessed, but claim it was untrue or
 They deny making the confession at all.
The defendant  If the defendant alleges that they confessed only in light of a breach of Code C:
accepts  The court is unlikely to exercise its discretion under s78 unless the breach is
making the “significant and substantial” (R v Walsh (1989))
confession,  E.g. failure to caution the suspect (breach of para 10.1).
but claims it  Denying the suspect legal advice – this will almost always result in the court
was untrue exercising its discretion under s78 (R v Walsh (1989) 91 Cr App R 161).
 However, a defendant is entitled to argue that a confession is inadmissible even if there
has NOT been a breach of Code C under s78:
 If there has been no breach of Code C, the court will commonly exercise its
discretion where:
 the physical condition of the defendant renders the confession unreliable:
 E.g. if the defendant was tired, emotional, or suffering from the effects of
illness or medication (about which he had not told the police) when he
made the confession OR
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  the defendant had an ulterior motive for making a confession:
 E.g. needing to get out of the police station as soon as possible for reasons
unconnected to the police investigation or wanting to protect another
person.
The defendant  If the police allege the defendant confessed outside of an interview, but the defendant
denies making denies this, the defendant may successfully challenge the admissibility the confession if:
the confession  The police failed to make an accurate record of the defendant’s comments (as
required by Code C, para 11.4).
 The police did not give the defendant an opportunity to view and to sign and
approve the record of his comments (as requires by Code C, para 11.11).
 The police failed to put his admission to him at the start of his subsequent
interview (as required by Code C, para 11.4).
Burden  No burden – both sides give their side of argument – no positive burden on anyone

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 PACE Code C

A summary of the obligations on the police from the relevant paragraphs of Code C.

Para 6 Right to  6.1 – detainees must be informed that they may consult with a solicitor.
legal advice  6.4 – The police must not do or say anything with the intention of dissuading a
suspect from obtaining legal advice.
 6.5 – Outlines the circs. in which a client’s right to legal advice may be delayed.
 6.6 – If a detainee requests legal advice, they may not be interviewed until they
have received such advice unless particular exceptions apply.
 6.16 – 6.17 – records must be made of requests for legal advice.

Guidance Notes
 6ZA: Police officers may not indicate that the time the suspect is liable to be
detained for might be reduced if they do NOT ask for legal advice, unless the
police are asked this question directly.
 6E: An officer who takes the decision to exclude a solicitor must be able to
satisfy the court that the decision was properly made.
 6J: Solicitors must be allowed to consult with clients in private.
 6K: A suspect is not obliged to give reasons for declining legal advice and
should not be pressed to do so.
Para 8 Conditions  8.1 – One detainee per cell so far as practicable.
of  8.2 - Cells must be adequately heated, cleaned and ventilated.
detention  8.4 – Defendant must have access to toilets and washing facilities.
 8.6 – Meals
o At least 2 light meals and 1 main meal should be offered in any 24-hour
period.
o Drinks should be provided at meal times and upon reasonable request
between meals.
o Note 8B: Meals should, so far as practicable, be offered at recognised meal
times, or other times that take account of when detainee last had a meal.
 8.7 - Brief outdoor exercise shall be offered daily if practicable.
Para 9 Care and  9.3 - Detainees should be visited at least every hour. Also outlines what the police
treatment should do if the suspect is under the influence of drink or drugs.
of detained  9.5 - The custody officer must make sure a detainee receives appropriate clinical
persons attention as soon as reasonably practicable if the person appears to need it.
(appears to be suffering from physical illness, is injured, appears to be suffering
from a mental disorder, or appears to need clinical attention)
 9.5A – 9.5 applies even if the detainee makes no request for clinical attention.
 9.8 - A healthcare professional must be called to assess the detainee if they
request one.
 9.15 – Any arrangements necessary after the healthcare professionals examination
must be recorded.
 9.17 – The custody record should record all medication a detainee has and a note
of such medication they claim to need.

Guidance Notes
 9C – alerts police to the fact that a detainee who appears drunk or behaves
abnormally may be suffering from illness, the effects of drugs or may have
sustained injury, particularly a head injury which is not apparent. When there
is any doubt, police should always act urgently to call an appropriate

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 healthcare professional or an ambulance.
Para Interviews -  11.1A – Defendant’s right to information: “Before a person is interviewed, they
11 general and, if they are represented, their solicitor must be given sufficient information
to enable them to understand the nature of any such offence, and why they are
suspected of committing it”. However, this does not require the disclosure of
details at a time which might prejudice the criminal investigation.
 11.2 – Immediately prior to the interview (or recommencement of an interview),
the interviewer should remind the suspect of their entitlement to free legal
advice and that the interview can be delayed for legal advice to be obtained.
 11.4 –The interviewer must put to the defendant any significant statement or
silence made prior to the interview at the beginning of the interview, after
cautioning the suspect.
 11.5 – Interviewers must not attempt to elicit answers through use of oppression
or inducement – “no interviewer shall indicate, except to answer a direct question,
what action will be taken by the police if the person being questioned answers
questions”.
e.g. if suggest answer in right way will get out quicker
 11.11/11.12 – The suspect/their solicitor should be given an opportunity to read the
interview record and sign it as correct.
 11.18 – interview of anyone detained who appears unable to appreciate the
significance of questions and their answers/understand what is happening because
of the effects of drink, drugs, or any illness, ailment or condition may only take
place if officer superintendent rank or above considers delaying will lead to
consequences 11.1(a) to (c) and satisfied the interview would not significantly
harm the person’s physical or mental state.
Para Interviews  12.2 - Generally, a suspect must be allowed at least 8 hours rest in a 24 hour
12 in police period.
stations o The period of rest should normally be at night or other appropriate time
which takes account of when the detainee last slept or rested.
 12.3 – The police and appropriate healthcare professionals, if necessary, must
assess whether the detainee is fit enough to be interviewed before the interview.
“The custody officer shall not allow a detainee to be interviewed if the custody
officer considers it would cause significant harm to the detainee’s physical or
mental state”.
 12.8 - Breaks from interviewing should be made at recognised meal times or at
other times that take account of when an interviewee last had a meal. Short
refreshment breaks shall be provided at approximately two hour intervals.

Guidance Notes:
 12B: Meal breaks should normally last at least 45 minutes and shorter breaks
after two hours should last at least 15 minutes.
Annex Fitness to The annex gives general guidance on things the police should consider with regards
G be the detainee’s fitness to be interviewed, such as:
interviewed  2(b) – highlights that “anything the detainee says in the interview about their
involvement or suspected involvement in the offence about which they are being
interviewed might be considered unreliable in subsequent court proceedings
because of their physical or mental state”. – E.g. if drunk/ smells strongly of
alcohol?
 3(a) – “the detainee’s physical or mental state might affect their ability to
understand the nature and purpose of the interview, to comprehend what is
being asked and to appreciate the significance of any answers given”.

Annex Detained This annex contains a checklist. If the detainee fails to meet any of the provisions in
H person the checklist, an ambulance or healthcare professional should be called. In brief:
observation  2. Can the suspect be roused, respond to questions and respond to simple
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 list commands?
 3. A person who is drowsy and smells of alcohol may also have diabetes;
epilepsy; a head injury; drug intoxication or overdose; a stroke.

16: Preparing for Trial, Sentencing and Professional Ethics

Hearsay Evidence
Definition  s114(1) of the CJA 2003: “a statement not made in oral evidence in the proceedings”
 Hearsay evidence is any:
 Oral or written statement.
 Made outside of court.
 Which is repeated in court.
 In order to prove the truth of the matter.
Examples of  A witness repeating at trial what he has been told by another person.
hearsay  A statement from a witness being read out at trial instead of the witness attending.
 A police officer repeating a confession at trial.
 A business document being introduced in evidence at trial
o E.g. this will be a written statement; e.g. an accounts ledger showing an entry
of £500 will amount to a statement made outside of court.
When will hearsay  s114 CJA 2003:
be admissible?  Generally inadmissible.
 Hearsay will only be admissible if:
 Any statutory provision makes it admissible (s114(1)(a))
 Any rule of law preserved by s118 makes it admissible (s114(1)(b))
 All parties agree to the evidence being admissible (s114(1)(c))
 Court satisfied that it is in the interests of justice for it to be admissible
(s114(1)(d))
N.B. Magistrates Court cannot deal with evidence by video link, but Crown Court can.
“Any statutory  Relevant provisions which make hearsay admissible are:
provision” s114(1)  Cases where a witness is unavailable – CJA 2003, s116
(a) CJA 2003  Business and other documents – CJA 2003, s117
 Reports prepared by experts (if leave of court is obtained) – CJA 1988, s30
 Evidence of a confession made by the defendant – PACE 1984, s76(1)
 Statements from witness which are not in dispute – CJA 1967, s9
Cases where a  Hearsay evidence will only be admissible where a witness is unavailable
witness is  IF they are unavailable because:
unavailable  (a) The relevant person is dead;
s116(2) (a – e) CJA  (b) The relevant person is unfit to be a witness because of his bodily or
2003 mental condition.
 (c) The relevant person is outside the United Kingdom and it is not
reasonably practicable to secure his attendance.
 (d) The relevant person cannot be found, although such steps as it is
reasonably practicable to take to find him have been taken.
 (e) Through fear the relevant person does not give oral evidence in the
proceedings, either at all or in connection with the subject matter of the
statement, and the court gives leave for the statement to be given in
evidence.
 s116 applies only to first-hand hearsay
 i.e. if B tells C something, and C seeks to repeat the matter in court, C will
only be able to do so under s116 if B is dead, outside of the UK and it is
not reasonably practicable to secure his attendance etc.
 However, if A tells B who tells C something, and C seeks to repeat the
matter in court, s116 will not enable this and the hearsay will be
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 excluded.
Challenging the  The court may refuse to admit hearsay evidence:
admissibility of  By exercising their discretion under s126(1) of the CJA 2003.
hearsay evidence  By exercising their discretion under s78 of PACE 1984.
 If the evidence is a confession, by the prosecution failing to successfully prove
that the two grounds under s76(2) of PACE 1984 do not apply.
 s126(1):
o Court has a general discretion to refuse to admit hearsay if “the court is
satisfied that the case for excluding the statement, taking account of the
danger that to admit it would result in undue waste of time, substantially
outweighs the case for admitting it”.
o Essentially a balancing exercise
o How important is the hearsay to the case? Would admitting the
hearsay amount to an undue waste of time?
 s78 PACE 1984:
o The court may exclude hearsay if the evidence “would have such an adverse
effect on the fairness of the proceedings that the court ought not to admit
it”.
o Relevant to confessions:
 Likely to be relied upon because the defendant persuades the court
that their confession was untrue (due to a breach of Code C, the
suspect’s physical condition, or an ulterior motive on the part of the
defendant making the confession unreliable) OR
 The defendant successfully denies making the confession at all on the
basis it was not recorded properly by the police (see Confession
Evidence).
 Confessions: Can the confession be excluded under s76(2):
o i.e. s76(2): Has the confession been brought about due to:

 Oppression (torture, inhuman or degrading treatment, and the use or

threat of violence – s76(8)) or
 Anything said or done which was likely to render the confession
unreliable (i.e. a Breach of Code C – s76(2)(b)).
Hearsay notices  Part 20 of the Criminal Procedure rules provides that a party who is seeking to rely
on hearsay must serve a hearsay notice on all other parties and the court.
 This will only be required if the hearsay is admissible:
 Due to a witness being unable to attend court (s116(2)).
 Due to it being in the interests of justice to admit the hearsay (s114(1)(d)).
 Due to the evidence being multiple hearsay (s121).
 Either the prosecution or defence rely on s117 for admission of a written
witness statement.
 Note, a hearsay notice is NOT required to admit confession evidence under
s76(1).
 Time Limits:
 Magistrates Court:
 Notice must be sent not more than 28 days after the defendant pleads not
guilty.
 Crown Court:
 Notice must be sent not more than 14 days after the defendant pleads not
guilty.

Documentary Hearsay

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 s117 CJA 2003: Documentary hearsay
Exception to the general rule that hearsay is inadmissible
 If there is documentary hearsay (e.g. a receipt from a shop which evidences that the accused purchased a
gun; this will be hearsay i.e. a written statement made outside of court, which the CPS will wish to repeat
to the court to prove the truth of the matter stated in the document i.e. that the accused bought a gun).
 This will be admissible so long as the document was created or received by a person in the course of a
trade, business, profession or occupation.
 The person who created or received it must have had personal knowledge of the matters dealt with
in the document e.g. the receipt example above, if it was created by the shop-worker who served the
gun-man.
 Multiple documentary hearsay will be admissible. E.g. A tells B tells C who writes the statement down in a
document.

Procedure: Hearsay Notices

Overview Part 20.2 of the Criminal Procedure Rules provides that a party who is seeking to rely on
hearsay must serve a hearsay notice to rely on intention on all other parties and the court.
 This will only be required if the hearsay is admissible:
 Due to a witness being unable to attend court (s116).
 Due to it being in the interests of justice to admit the hearsay (s114(1)(d)).
 Due to the evidence being multiple hearsay (s121).
 Either the prosecution or defence rely on s117 for admission of a written
witness statement.
 Note, a hearsay notice is NOT required to admit confession evidence under s76(1).
Time Limits Magistrates Court:
 Notice must be sent not more than 28 days after the defendant pleads not guilty.

Crown Court:
 Notice must be sent not more than 14 days after the defendant pleads not guilty.

Drafting a Hearsay Notice

Look at exemplar

Case details  Check the question/your instructions.

 What is the defendant’s name?

 Which court is the trial being held in?
 What is the case reference?
 What are the charges?
Check the Charge Sheet. Copy what it says.

Notice is given  “The Prosecutor” if the prosecution are seeking to adduce hearsay, or
by…  The name of the co-defendant.

Ground(s)  Tick one or more of:

 The witness is unable to attend – s116

 The evidence is in a statement prepared for the purposes of criminal proceedings or
for a or for a criminal investigation and the witness is unavailable or unable to
recollect – s117(1)(c).
 The evidence is multiple hearsay – s121
 It is in the interests of justice for the evidence to be admissible – s114(1)(d).

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 Details of the  Explain what the hearsay evidence is.
hearsay
evidence  You do not have to set out the witnesses’ evidence in full, you attach a copy of the
statement. Just summarise what the witness is going to say.

Facts on which  Why is the witness unable to attend trial?

you rely  Explain why you need a hearsay notice.
E.g. the witness is out of the UK and unable to return; the witness is dead etc.

Reasons why  The general rule is hearsay is inadmissible. This panel is asking you to explain why an
the hearsay exception applies.
evidence is  Refer to the relevant provision of the CJA 2003
admissible
e.g. s116(2)(c) provides that hearsay will be admissible where a person is outside the United
Kingdom and it is not reasonably practicable to secure his attendance. The witness in
question has returned to live and work in Poland… etc.

Reasons for  If the notice is served late, explain why.

any extension  A hearsay notice must be served not more than 28 days after the defendant pleads
of time (Magistrates Court) or not more than 14 days after the defendant pleads (Crown
required Court).

Drafting a Notice to Introduce Evidence of a Defendant’s Bad Character

Look at exemplar.

Case Details  Check the question/your instructions.

 What is the defendant’s name?
 Which court is the trial being held in?
 What is the case reference?
 What are the charges? Check the Charge Sheet. Copy what it says.
This Notice is  This Notice is given by the prosecutor.
Given by…  I want to introduce evidence of the bad character of [The Defendant] on the following
ground(s) in the Criminal Justice Act 2003:
 Will only ever be gateway d. List them as in the Exemplar.
Facts of the  In this box you should set out:
Misconduct  The offences you are seeking to rely on under Gateway (d) which show:

o The Defendant has a propensity to commit offences of the same kind as the
present offence
o The Defendant has a propensity to be untruthful.
For Gateway (d):
 State the offence and when it was committed.
 Explain how it makes out the relevant propensity.
 Does the “fact” of the offence or the “circumstances” of the offence enable it to be
admissible?
 Fact:
 If seeking to show that the Defendant has a propensity to be untruthful because
he pleaded not guilty but was found guilty, the very FACT that the D was found
guilty of this offence is sufficient.
 The “circumstances” of the offence are irrelevant because the fact the
defendant pleaded not guilty but was found guilty is all the court needs to
know for the relevant propensity to be made out.

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  Circumstances:
 i.e. if you are seeking to show that the defendant has a propensity to commit
offences because he has previous convictions which are factually similar, the
prosecution will be relying on the circumstances in which these offences were
committed to persuade the court that the relevant propensity is made out.
 The “fact” that the defendant has been previously convicted is not enough; court
needs to know the circs. behind that conviction.
How will you  You will attach evidence of the defendant’s previous convictions i.e. the Police Record.
prove those  A police officer will likely be called to evidence that these are the defendant’s
facts? previous convictions.
 The Defendant will be cross examined.
Reasons why  Explain the relevant gateways: e.g.
the evidence  s101(1)(d) CJA 2003 – relevant to an important matter in issue between the
is admissible? prosecution and defence as to propensity to truthfulness [list all offences where the
defendant pleaded not-guilty but was found guilty etc.], and propensity to commit
offences of the type charged when in drink [drunk] [list all offences which show that
factual similarity]
Reasons for  If the notice is served late, explain why.
any extension
of time  A notice to admit evidence of the defendant’s bad character must be served by
required the prosecution not more than 28 days after the defendant pleads (Magistrates
Court) or not more than 14 days after the defendant pleads (Crown Court).

Sentencing

Five purposes of 1.The punishment of offenders;

sentencing 2.The reduction of crime (including its reduction by deterrence);
s142(1) CJA 2003 3.The reform and rehabilitation of offenders;
4.The protection of the public; and
5.The making of reparation by offenders to persons affected by their offence
Principles of  Seriousness (s143(1))
Sentencing  How culpable is the offender?
s143 CJA 2003  Four levels, from most to least serious.
 The offender intended to cause harm.
 The offender was reckless as to whether harm would be caused.
 The defendant knew about the risks of his actions even though he did not
intend to cause harm.
 The offender was negligent.
 Aggravating and mitigating factors
 Does the Defendant have any previous convictions? (s143(2))
 Has the Defendant committed any offences whilst on Bail? (s143(3)).
 Was there Racial or Religious Aggravation? (s145)
 Was there hostility based on sexual orientation or disability? (s146)
 The totality principle
 The court must take into account any “associated offences” i.e. offences for which
the defendant has been convicted of in the same proceedings, or offences which
the defendant has asked the court to take into account (offences “taken into
consideration”).
 A defendant may have committed several similar types of offence for which
he has not yet been prosecuted but for which he may subsequently face
prosecution
 A defendant may ask the court to take into account another offence to “wipe
the slate clean” and ensure he does not have to face a further conviction in
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 the future.
 N.B. offences taken into consideration are still regarded as aggravating factors
Types of  Custodial – the defendant is deprived of his physical liberty.
Sentence  Community Sentence (S148 CJA 2003) - the defendant is required to take part in
activities within the community (unpaid work, activity, programme, prohibited
(sentencing requirement, curfew requirement, exclusion, residence requirement, mental health
ladder) treatment, drug rehabilitation, alcohol treatment, supervision)
 Fine
 Discharge – i.e. the court chooses not to sentence the offender.
 This may be conditional – i.e. similar to a suspended sentence in that if the
defendant commits an offence during the period of the conditional discharge, the
court may revoke the conditional discharge and sentence the defendant for his
original offence.

Ancillary Orders
 The court may impose ancillary orders on a defendant convicted of a criminal offence.
 Consider whether any of these may be appropriate when drafting a plea of mitigation.

Compensation  For any injury or other loss suffered by the victim (Power of Criminal Courts
(Sentencing) Act 2000, ss 130– 133).
Costs  Prosecution Costs - may be ordered by the court sentencing him to pay some or all of
the costs incurred by the CPS.
 Defence Costs
Victim surcharge  i.e. a flat rate payable to the victim.
 A court must order the victim surcharge when it deals with an offender in
respect of an offence committed on or after 8 April 2016 (page 235).
 Imposed even if there is no victim
Forfeiture orders  A court may order the forfeiture of any property which was in the defendant’s
possession or control at the time he was apprehended, if the property was:
 Used for committing or facilitating any offence;
 Intended to be used for committing or facilitating any offence; or
 Unlawfully in his possession (Powers of Criminal Courts (Sentencing) Act
2000).
Confiscation and  A defendant appearing in the Crown Court may be made the subject of a confiscation
restitution order in respect of the proceeds of his criminal activity.
orders
Criminal  Formerly ASBOs - s22 of the Antisocial Behaviour, Crime and Policing Act 2014.
behaviour orders  A magistrates’ court may make a criminal behaviour order (CBO) if:
 The court considers that the defendant has engaged in behaviour that
caused, or was likely to cause, harassment, alarm or distress to any person;
and
 The court considers that an order will help in preventing the defendant from
engaging in such behaviour.
Binding over  Requires the person to “keep the peace” by refraining from specific activities.
order  Before imposing a binding over order, the court must be satisfied that a breach
of the peace involving violence or an imminent threat of violence has occurred,
or that there is a real risk of violence in the future.
Sex offences  Details will be entered onto the sex offenders register.
 If a defendant has been convicted of a violent or sexual offence, the court may
also make a sexual offences prevention order.
Serious crime  A court making an order will be able to impose prohibitions or restrictions on, or
prevention requirements in relation to:
orders
 (a) an individual’s financial, property or business dealings or holdings;
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  (b) an individual’s working arrangements;
 (c) the means by which an individual communicates or associates with
others, or the persons with whom he communicates or associates;
 (d) the premises to which an individual has access;
 (e) the use of any premises or item by an individual; and
 (f) an individual’s travel (whether within or outside the UK).
Plea in Mitigation

Preparation
Identify the Use the relevant SENTENCING GUIDELINE.
maximum  Having regard to the indicative factors in the grid, is the offence:
and likely  High Culpability
sentence  Medium Culpability
 Lesser Culpability
 E.g. in WS16, the offence (theft) was medium culpability (B)- there was “some
degree of planning involved” and a “breach of some degree of trust or
responsibility” when the defendant stole from her employer.
 What is the level of harm?
 Identify any factors which indicate significant additional harm.
 E.g. in WS16, there were none. Although “impact of theft on a business” is a
relevant factor, the amount of money was small and the impact not
particularly significant.
 Which Category is the Offence in?
 E.g. in WS 16, the offence was Category 3 as there was no additional harm and
the financial value of the theft was between £500 and £10,000.
 Conclude on the sentence by cross referencing Category and Culpability.
 E.g. WS16 – the offence was 3B, meaning the Starting point was a High Level
Community Order, and Sentence Range was Low Level Community Order – 36
weeks custody.
Study the  These are prepared by the Probation Service ‘with a view to assisting the court in
pre-sentence determining the most suitable method of dealing with an offender’ (CJA 2003, s 158(1)).
report  Contains:
 Details of the offence and the defendant’s attitude towards it – whether he now
admits his guilt.
 Information about the defendant’s personal history and family situation, and
any medical problems the defendant may have.
 The officer’s assessment of the risk of harm to the public from the defendant
reoffending.
 A conclusion incorporating the sentence which the officer considers most
appropriate for the defendant.
 Look for things within the report to help with the plea in mitigation.
Determine  What Sentence should we be Aiming for?
the objective  This should be towards the lower end of the Sentencing Guideline.

The objective of the plea mitigation is to persuade the court to impose a sentence which is less severe than the
‘sentencing starting point’

STEPS Structure
1 The  Introduce the plea by stating that the court “may be minded to impose” a particular
objective sentence (likely to be custodial – the starting point sentence) but that you hope to
persuade the court that [a lesser sentence e.g. community sentence] will be a more
suitable sentence.
2 The This requires D’s solicitor to:

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 offence  Minimise the impact of any aggravating factors surrounding the offence; and
 Emphasise the importance of any mitigating factors.

 Minimise the impact of any aggravating factors but first acknowledge them
 Was the offence planned or premeditated?
 Did the offender operate in a group or gang?
 Did the offender deliberately target vulnerable groups (such as the elderly or
disabled victims)?
 Was the offence committed whilst under the influence of drink or drugs?
 Was a weapon used?
 Was there deliberate and gratuitous violence or damage to property, beyond
that required to carry out the offence?
 Did the offence involve the abuse of a position of trust?
 Was the offence committed against those working in the public sector or
providing a service to the public e.g. police officer?
 In property offences, was the property of high value (including sentimental
value) to the victim?
 (Offences taken into consideration?)
 Highlight the presence of any mitigating factors: Then minimise/dismiss aggravating
factors with mitigating ones
 Did the defendant act on impulse?
 Did the defendant experience a greater degree of provocation than normally
expected?
 Did the defendant only play a minor role in the offending?
 Was the defendant motivated by genuine fear?
 WS 16, with the defendant, Julie White:
o There was a lack of planning or premeditation; she appears to have
committed the thefts on impulse, as a cry for help.
o The value of the property in question was relatively small bearing in mind
the assets of the bank.
3 The  I.e. the "sob story" - list factors about the offender which help explain/go towards
offender justifying why they committed the offence.

 Minimise the significance of aggravating factors: (as above)

 Has there been a failure to respond to previous sentences?
 Highlight the presence of mitigating factors:
 Was the Defendant suffering from a mental illness or physical disability?
 Is the Defendant particularly young or old (particularly in the case of young
offenders who are immature and have been led astray by others)?
 Has the defendant been remorseful, or attempted to make reparation to their
victim?
 Highlight the Defendant’s Family Circumstances :
 Does he have a regular home and job? Will his family help him stay out of
trouble in the future?
 Does he have children to care for? Is he a single parent? Is he expecting
children?
 Will the defendant lose his job? Will this damage the defendant if he is trying
to get his “life back on track”?
 Highlight an Early Guilty Plea:
 Has the Defendant co-operated with the police?
 If the defendant as pleaded guilty, the court must “take into account’ the
stage in the proceedings at which the defendant gave his indication of a
guilty plea (s144 CJA 2003):
 Recommended Reductions (Reduction in Sentence for a Guilty Plea)
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  1/3 reduction if entered at the ‘first reasonable opportunity’;
 1/4 reduction if entered when the trial date has already been set.
 1/10 reduction if given either just before the trial begins, or during the
trial.
 Distinguish Previous Convictions:
 Explain how the current offence is different.
 If there are previous convictions, how long ago were they committed?
 Highlight an absence of previous convictions, if applicable.
 A defendant of hitherto good character will lose his good name as a result of
being convicted.
 Will there be other consequences of conviction? I.e. is the defendant being
punished enough?
 e.g. A defendant may have to relinquish other positions of responsibility
following his conviction.
 What is the risk of re-offending?

 Look at the pre-sentence report from the Probation Service.

 If this highlights a low-risk of re-offending, then highlight this.
 It may be that the low-risk will be in certain circumstances which an ancillary
order may be able to deal with.
4 Give  Conclude with the sentence you think should be imposed.
suggested  This should be lower than the likely sentence.
sentence  Should be realistic so should be at the lower end of the range of possible
sentences which will be suggested to the court.
 If suggested sentence is the same as that in the pre-sentence report, the
solicitor should emphasise this point.
 Suggest any Ancillary Orders which may be appropriate
 Explain the purpose to the court: the court must look at s.142(1) CJA 2003 and the
purposes of the sentencing:
 Punishment
 Reduction and deterrence of crime
 Reform and rehabilitation of offenders
 Protection of the public
 Reparation to victims
 With these purposes in mind, the court has a duty to state its reasons for the
sentence it imposes – s.174

Conduct Issues at a Criminal Trial

Scenario Action
 Advise the client NOT TO DO SO.
If your client
suggests  Although influencing the complainant would:
influencing the o Be in your client’s best interests (Principle 7)
complainant to  BUT: You have:
make them
o A duty to act with integrity under Principle 5, and
drop the case
o A duty to uphold the Rule of Law and proper administration of justice
under Principle 1.
 In light of this, the client should be advised not to influence the complainant.

 Solicitors tampering with evidence or seeking to persuade a witness to change

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 their evidence would be against 2.1 and 2.2

 Notwithstanding any breaches of the code, the client may be guilty of perverting
the course of justice or seriously damaging his credibility when comes to trial.
 If the client insists, we must cease to act for the client .
o To otherwise act would be a breach of para 1.4, which provide that you
have a duty not to mislead the court or be complicit in anyone else
misleading the court.
o Stop acting for professional reasons – do not disclose real reasons because
of the duty of confidentiality (para 6.3)

 Do nothing.
If your client
informs you he  Although you have a duty under:
is guilty after he o Principle 1 to uphold the Rule of Law and proper administration of justice; and
has been o Principle 5 to act with integrity
acquitted o Because court proceedings have completed, there is no danger of the solicitor
misleading the court which would otherwise be a breach of para 1.4
o However, owe client an ongoing duty of confidentiality under para 6.3 which
lasts beyond the end of a retainer.
o Make a note in your own file so you do not act for him again.

 If informed before acquittal

 Influencing the complainant would:

o Be in your client’s best interests (Principle 7)
 BUT: You have:

o A duty to act with integrity under Principle 5, and

o A duty to uphold the Rule of Law and proper administration of justice
under Principle 1.
 Therefore, the client should be advised to plead guilty, or if the court process has
already started, with the client’s permission, solicitor must inform the court that
they have misled them

 If client does not give you permission, must cease to act

 To o/w act would breach the duty not to mislead the court para 1.4

 Stop acting for professional reasons – do not disclose real reasons because of the
duty of confidentiality (para 6.3)

 Make a note in your own file so you do not act for him again.

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