Case Management and Interim Applications 187

CHAPTER 13

Case Management and

Interim Applications

13.1 Introduction 187

13.2 Directions questionnaire 188
13.3 Allocation to track 188
13.4 The small claims track 189
13.5 The fast track 189
13.6 The multi-track 190
13.7 The case management conference and pre-trial review 190
13.8 Disclosure and inspection of documents 191
13.9 The evidence of lay witnesses 192
13.10 Expert evidence 192
13.11 Use of plans, photographs and models at trial 193
13.12 Pre-trial checklist (listing questionnaire) 193
13.13 Variation of case management timetable 193
13.14 Interim applications 193
13.15 Interim payments 194
13.16 Specific disclosure of documents held by a third party 196
13.17 Conclusion 197

LEARNING OUTCOMES
After reading this chapter you will be able to:
• explain why and how and upon what criteria claims are allocated to the appropriate
track, and the court’s role in managing cases
• set out the standard directions together with the timeframe for fast track cases, and
explain how directions are dealt with in multi-track cases
• explain what an interim payment is, the grounds and procedure for obtaining an
interim payment, and how the amount of an interim payment is determined.

13.1 INTRODUCTION
Case management is one of the key elements of the CPR 1998. The overriding objective of the
Rules, as set out in CPR, r 1.1, is to enable the court to deal with cases justly and at
proportionate cost. In accordance with CPR, r 1.4, the court must further the overriding
objective by actively managing cases, and r 1.3 requires solicitors and their clients to assist the
court in furthering the overriding objective. Dealing with cases justly and at proportionate
cost includes allotting to each case an appropriate share of the court’s resources (r 1.1(2)(e)),
which, in the first instance, requires the court to ensure that cases are dealt with in the
appropriate court and are allocated to the appropriate track. It also means that the court will
enforce compliance with rules, practice directions and orders (r 1.1(2)(f )), and it has various
sanctions at its disposal in order to enable it to do so.
188 Personal Injury and Clinical Negligence Litigation

The bulk of the activities which require active management by the court arise in the period
between the filing of the defence and trial, or earlier settlement. During this period, the case
is allocated to the appropriate track and the parties receive from the court a set of directions,
setting out a number of steps which must be taken within specified time limits. The aim of
these directions is to encourage settlement and, where this is not possible, ensure the matter
is properly prepared for trial.
This chapter contains a brief account of some of the main issues relating to case management
and interim applications which are relevant to personal injury and clinical negligence cases.
See Civil Litigation for a more in-depth consideration of this area.

13.2 DIRECTIONS QUESTIONNAIRE

Where a claim is defended, upon receipt of the defence, the court will make a provisional
decision regarding the appropriate track for the case and will serve on the parties a notice of
the proposed allocation (CPR, r 26.3). The factors relevant to allocation are set out at 13.3
below.
The notice of the proposed allocation requires each party to complete the relevant directions
questionnaire (N180 for small track cases; N181 for fast track and multi-track cases), return it
to the court office stated in the notice and serve copies on all other parties by the date
specified on the notice. Parties are advised as to where the directions questionnaire may be
obtained, unless a party is not legally represented, in which case a copy of the questionnaire
will be enclosed with the notice.
Where a case is suitable for allocation to the fast track or multi-track, parties are also required
to file proposed or agreed directions (see 13.5 and 13.6 below).
See Document 14 of the Case Study at Appendix 1 for an example of a directions questionnaire.

13.2.1 Stay to allow settlement of case

A party returning his directions questionnaire may request a stay of up to one month while the
parties try to settle the case. Where all parties request a stay, or where the court, of its own
initiative, considers such a stay would be appropriate, the court will direct a stay for one
month. The court may also extend the period of the stay until such a date or such a period
as it considers appropriate. If proceedings are settled during the stay, the claimant must
inform the court.

13.2.2 Transfer of proceedings between courts

The court has the power to transfer cases between the High Court and the county courts and
within district registries of the High Court (CPR, r 30.1). It may do so of its own volition, or
upon application by a party to the proceedings. Where the matter has been commenced in the
county court and a party believes that it is suitable for trial in the High Court or vice versa, it
should set out its reasons in the directions questionnaire.
The court may transfer designated money claims issued in the Northampton County Court
(see 12.4.1) to the claimant’s preferred court or the defendant’s home court as appropriate
(CPR, r 26.2(A)). Parties should set out in the directions questionnaire the court in which they
would like the matter to be dealt with, and should reach an agreement on this point, if
possible.

13.3 ALLOCATION TO TRACK

In accordance with CPR, r 26.6, personal injury and clinical negligence claims are allocated to
the appropriate track within a three-tier system largely in accordance with the value of the
claim as a whole and the value of the claim for damages for ‘personal injuries’ suffered, ie that
part of the damages which relates to pain, suffering and loss of amenity.
 Case Management and Interim Applications 189

The small claims track is the normal track where:

(a) the value of the claim as a whole is not more than £10,000; and
(b) the value of any claim for damages for personal injuries is not more than £1,000.
The fast track is the normal track for any claim for which the small claims track is not the
normal track and which has a value of not more than £25,000. However, such a case will be
allocated to the fast track only if the court considers that:
(a) the trial is likely to last for no longer than one day; and
(b) oral expert evidence at trial will be limited to one expert per party in relation to a
maximum of two expert fields.
The multi-track is the normal track for any claim for which the small claims track or the fast
track is not the normal track.
Once the court has allocated a claim to a track, it will notify all parties, and it will also serve
them with copies of the allocation questionnaire provided by all other parties and a copy of
any further information provided by a party about his case.

Factors taken into account

When allocating a case, the court may take into account the following factors (CPR, r 26.8(1)):
(a) the financial value of the claim (or amount in dispute if different);
(b) the nature of remedy sought;
(c) the likely complexity of the facts, law or evidence;
(d) the number of parties or likely parties;
(e) the value of any counterclaim or other claim and the complexity of any matters relating
to it;
(f ) the amount of oral evidence that may be required;
(g) the importance of the claim to persons who are not parties to the proceedings;
(h) the views expressed by the parties;
(i) the circumstances of the parties.
When assessing the value of the claim for the purposes of track allocation, the court will
disregard any amounts not in dispute, interest, costs and any possible finding of contributory
negligence which may be made against the claimant (CPR, r 26.8(2)).
If the statements of case are later amended and it becomes clear that the case has been
allocated to an inappropriate track, the court may subsequently re-allocate a claim to a
different track (CPR, r 26.10).

13.4 THE SMALL CLAIMS TRACK

The small claims track has been specifically designed to enable individuals to pursue or
defend a claim without the need to instruct solicitors. A consideration of the procedure for
these claims is beyond the scope of this book.

13.5 THE FAST TRACK

Case management of cases allocated to the fast track (see CPR Part 28) will generally be by
directions given at allocation and, later, on the filing of the pre-trial checklists (listing
questionnaires). The court will seek to give directions without the need for a hearing wherever
possible, and sanctions will be imposed upon parties or their legal representatives whose
default makes a hearing necessary.
Generally, the court will give standard directions for the management of the case, based on
what is set out below, which will not be more than 30 weeks from allocation to trial. Although
190 Personal Injury and Clinical Negligence Litigation

the parties may seek to agree directions, they are unlikely to be approved if they are not based
on the following:
Disclosure 4 weeks
Exchange of witness statements 10 weeks
Exchange of experts’ reports 14 weeks
Pre-trial checklists, listing questionnaires sent out by court 20 weeks
Pre-trial checklists, listing questionnaires filed by parties 22 weeks
Trial 30 weeks
When giving directions relating to the trial, the court may fix a trial date but would more
usually set a ‘trial period’, a three-week period within which the trial will take place.

13.6 THE MULTI-TRACK

Where the value of the claim is more than £25,000, or where other factors make it unsuitable
for the fast track, the claim will be allocated to the multi-track (see CPR Part 29). Claims will
range from those which are just above the financial limit and which are fairly straightforward,
to those of high value where the issues, evidence and law are extremely complex, and the court
will adopt a flexible approach in order to manage the claim in accordance with its needs.
When allocating a case to the multi-track, the court will either:
(a) use the information contained in the directions questionnaires and any draft directions
submitted by the parties in order to give directions for case management and set a
timetable; or
(b) fix a case management conference or a pre-trial review, or both, when it will hear from
the parties and then give such directions relating to management of the case as it thinks
fit.
In accordance with CPR, r 29.1(2), when drafting case management directions, both the parties
and the court should take as their starting point any relevant model directions and standard
directions, which can be found online at www.justice.gov.uk/courts/procedure-rules/civil, and
adapt them as appropriate to the circumstances of the particular case.

13.7 THE CASE MANAGEMENT CONFERENCE AND PRE-TRIAL REVIEW

Where the court decides that directions cannot be given without hearing directly from the
parties, it may, at any time after the filing of the defence, fix a date for a case management
conference and/or, after the return of the directions questionnaires, set a date for a pre-trial
review. Where a party is legally represented, any case management conference or pre-trial
review called by the court must be attended by a legal representative who is familiar with the
case and has the authority to take decisions regarding the management of the case. It is
therefore important that the solicitors have obtained their client’s instructions regarding all
matters which are likely to be dealt with at the hearing. The court will expect the parties to be
in a position to deal with all outstanding matters regarding the conduct of the case, and to
reach an agreement regarding these matters wherever possible. It is increasingly common for
case management conferences to be conducted over the telephone.

13.7.1 Case management in relation to an additional claim

Where the defendant to an additional claim (see 12.12) files a defence, a case management
hearing will take place to enable the court to consider the future conduct of the proceedings
and give appropriate directions. It is obliged to ensure, in so far as it is practicable, that the
original claim and all additional claims are managed together (CPR, r 20.13). In accordance
with PD 20, para 5.3, at the hearing the court may:
 Case Management and Interim Applications 191

(a) treat the hearing as a summary judgment hearing;

(b) order that the additional claim be dismissed;
(c) give directions about the way any claim, question or issue set out in or arising from the
additional claim should be dealt with;
(d) give directions as to the part, if any, the additional defendant will take at the trial of the
claim;
(e) give directions about the extent to which the additional defendant is to be bound by any
judgment or decision to be made in the claim.
Paragraph 7 of PD 20 sets out how parties should be described in the proceedings when there
are additional claims. In summary, the claimant and defendants in the original claim should
be referred to as such, and additional parties should be referred to as ‘Third Party’ or ‘Fourth
Party’, depending on the order in which they were joined to the proceedings.

13.8 DISCLOSURE AND INSPECTION OF DOCUMENTS

Recent changes to the rules relating to disclosure and inspection of documents in multi-track
cases require parties to file and serve a disclosure report, which includes an estimate of the
costs associated with the disclosure process. However, it should be noted that where a multi-
track claim includes a claim for personal injuries, it is exempt from this requirement.
Consequently, parties are not required to give more than standard disclosure in fast track and
multi-track cases unless the court directs otherwise (see CPR, r 31.5).
Standard disclosure means that a party is required to disclose only:
(a) the documents on which he relies;
(b) the documents which could adversely affect his own case, adversely affect another’s case
or support another party’s case; and
(c) all documents which he is required to disclose by any Practice Direction.
The court may dispense with or limit standard disclosure, and the parties can agree in writing
to dispense with or limit any part of standard disclosure. The duty of standard disclosure
continues throughout the proceedings, and if a document comes to a party’s notice at any
time, that party must immediately notify every other party. Privileged documents, however,
should not be disclosed.

13.8.1 Procedure
Each party must make and serve a list of documents, which must identify the documents ‘in a
convenient order and manner as concisely as possible’. The list must indicate documents
which are no longer in the parties’ control and state what has happened to those documents.
The list must include a disclosure statement by the party:
(a) setting out the extent of the search made to locate the documents;
(b) certifying that he understands the duty of disclosure and that, to the best of his
knowledge, he has carried out that duty.

13.8.2 Specific disclosure

Where a party believes that the other party has failed to carry out his duty of disclosure and
inspection under CPR Part 31, he may apply for an order for specific disclosure under CPR,
r 31.12. An order for specific disclosure can require a party to disclose specified
documents or classes of documents, or carry out a search for specified documents and
disclose any documents located as a result of that search.
An application for specific disclosure must be supported by evidence. The court will order
specific disclosure only if necessary to dispose fairly of the claim or save costs.
192 Personal Injury and Clinical Negligence Litigation

For applications for an order for pre-action disclosure, see 10.10.2.

13.9 THE EVIDENCE OF LAY WITNESSES

As part of its management powers, the court will decide the issues on which it requires
evidence, the nature of that evidence and the way in which the evidence should be placed
before the court (see CPR Part 32).
Facts should normally be proved at the trial by oral evidence of witnesses, and at any other
hearing by the written evidence of witnesses. The court may allow a witness to give evidence
by any means, which includes by means of a video link.

13.9.1 Procedure
According to CPR, r 32.4(1): ‘A witness statement is a written statement signed by a person
which contains the evidence which that person would be allowed to give orally.’ A witness
statement must comply with the requirements set out in PD 32 (CPR, r 32.8).
The court will normally give directions that each party serve the witness statements of the oral
evidence on which he intends to rely at the trial. The directions usually envisage that
simultaneous exchange will take place, but that court may give directions as to the order in
which such witness statements are to be served and whether or not the statements are to be
filed.
If a witness statement has been served and a party wishes to rely on that evidence at trial, the
party must call the witness to give oral evidence unless the court otherwise orders.

13.9.2 Statements to stand as evidence-in-chief

Where a witness is called to give oral evidence, his statement shall stand as evidence-in-chief,
unless the court orders otherwise (CPR, r 32.5(2)).
The witness giving the oral evidence may amplify the witness statement, and give evidence in
relation to new matters that have arisen since the statement was served. However, he may do
this only if the court considers there is a good reason not to confine his evidence to the
contents of the statement that has been served.
Evidence in proceedings other than at the trial should be by witness statement, unless the
court or a particular Practice Direction otherwise directs.

13.9.3 Witness summary

Where a party is required to serve a witness statement and he is unable to obtain such a
statement, for example because the witness refuses to communicate with the party’s solicitor,
he may apply to the court for permission to serve only a witness summary instead (CPR,
r 32.9). This application should be made without notice. The witness summary is a summary
of the evidence which would otherwise go into a witness statement, or, if the evidence is not
known, matters about which the party serving the witness summary will question the witness.
Where a witness statement or a witness summary is not served, the party will not be able to
call that witness to give oral evidence unless the court allows it.

13.10 EXPERT EVIDENCE

The duties of experts in relation to court proceedings and the directions which the courts are
likely to make are dealt with in Part 35 of the CPR (see Chapter 11 generally and 11.2 for case
management and the use of experts).
 Case Management and Interim Applications 193

13.11 USE OF PLANS, PHOTOGRAPHS AND MODELS AT TRIAL

Where a party wishes to use evidence such as plans, photographs or models, or other
evidence:
(a) which is not contained in a witness statement, affidavit or expert’s report;
(b) which is not given orally at trial;
(c) which has already been disclosed in relation to hearsay evidence;
the party wishing to use the evidence must disclose his intention to do so not later than the
latest date for serving witness statements (CPR, r 33.6).
If the evidence forms part of expert evidence, it must be disclosed when the expert’s report is
itself served on the other party. Having disclosed such evidence, the party must give every
other party an opportunity to inspect it and agree its admission without further proof.

13.12 PRE-TRIAL CHECKLIST (LISTING QUESTIONNAIRE)

In accordance with the order for directions, the court will send each party a listing
questionnaire to complete and return to the court by the date specified in the notice of
allocation (CPR, r 28.5 (fast track); CPR, r 29.6 (multi-track)). The date specified for filing a
listing questionnaire is not more than eight weeks before the trial date.
If a party fails to file a completed listing questionnaire within the time limit, or fails to give all
of the information, or the court thinks it is necessary, the court may fix a listing hearing or
give such other directions as it thinks appropriate.
On receipt of the parties’ listing questionnaires, the court may decide to hold a pre-trial
review, or cancel a pre-trial review if it has already decided to hold one, having regard to the
circumstances of the case.
Using the information given in the listing questionnaires or at the pre-trial review or listing
hearing, the court will set a timetable for the trial, including confirming or fixing the trial date
and setting out any further steps that need to be taken by the parties prior to the trial.
The court will give each party at least three weeks’ notice of the trial date. Only in exceptional
circumstances will the notice period be shorter than this.

13.13 VARIATION OF CASE MANAGEMENT TIMETABLE

The parties may agree in writing to extend the dates for the carrying out of any steps set out in
the directions subject to CPR, r 29.5. This states that if a party wishes to vary any of the dates
which the court has fixed for:
(a) the case management conference;
(b) the pre-trial review;
(c) the return of listing questionnaires;
(d) the trial;
he may do so only with leave of the court. The parties should not agree to make any other
variations to the timetable which would make it impossible for them to comply with the time
limits set for the above steps.

13.14 INTERIM APPLICATIONS

Interim applications are applications which are made by either party between the issue of
proceedings and trial. The general rules governing such applications are set out in CPR Part
23, but practitioners should be aware that some types of application are governed by specific
rules. For a detailed consideration of interim applications, see Civil Litigation. This text will
deal with the following types of application:
194 Personal Injury and Clinical Negligence Litigation

(a) interim payments;

(b) specific disclosure – see 13.7.2 above; and
(c) specific disclosure against a non-party.

13.15 INTERIM PAYMENTS

An interim payment is a payment made to the claimant, prior to the conclusion of the matter,
in partial settlement of the claim. It is defined as ‘a payment on account of any damages, debt
or other sum (excluding costs) which that party may be held liable to pay to or for the benefit
of another party to the proceedings if a final judgment or order of the court in the proceedings
is given or made in favour of that other party’ (Senior Courts Act 1981, s 32(5) and County
Courts Act 1984, s 50(5)).
In a multi-track case where liability has been admitted or proven, or where the claimant can
demonstrate a strong case on liability, an interim payment will assist in mitigating the effects
of financial hardship caused by the often lengthy period between the accident and the
determination of the claim. Interim payments are particularly important where the claimant
has suffered catastrophic injuries or disablement and requires access to a substantial sum of
money in order to pay for accommodation and/or a care regime.
An interim payment cannot be made in a small claims track case and, whilst not forbidden in
a fast track case, will be rarely made due both to the value of the claim and to the relatively
short period of time from issue of proceedings to trial. For interim payments in cases falling
under one of the low value pre-action protocols, see 21.4.
Where the grounds for making an order are satisfied, the court has a discretionary power to
order that the defendant make an interim payment under r 25.6 of the CPR. The order may
specify that such payment be made by instalments, and more than one order may be made
during the lifetime of a claim. Where the claimant is a child or a protected party (see Chapter
20), the payment will usually be made to the Court of Protection.
In accordance with CPR, r 25.9, where an interim payment has been made either voluntarily or
pursuant to a court order, unless the defendant agrees, this shall not be disclosed to the trial
judge until all questions of liability and quantum have been decided.

13.15.1 Grounds for making the order

In accordance with CPR, r 25.7(1), the court may order an interim payment only if:
(a) the defendant admits liability; or
(b) the claimant has a judgment for damages to be assessed; or
(c) if the matter were to proceed to trial, the claimant would obtain judgment for a
substantial amount of money.
The court will take into account the defendant’s ability to pay the interim payment before
making an order.
In a claim where there are two or more defendants, the court may make an order for interim
payment against any of them if it is satisfied that, if the claim went to trial, the claimant would
obtain judgment for substantial damages against at least one of the defendants although it
cannot determine which. It will do so only where all the defendants are either insured or they
are a public body, or liability will be met by the MIB.
Although a claimant will normally set out in his application why the interim payment is
required, he is not obliged to show that there is a need for the payment. In Stringman v McCardle
[1994] 1 WLR 1653, Stuart-Smith LJ said: ‘It should be noted that the plaintiff does not have
to demonstrate any particular need over and above the general need that a plaintiff has to be
paid his or her damages as soon as reasonably may be done.’
 Case Management and Interim Applications 195

13.15.2 Procedure
Before making an application to the court for an interim payment, the claimant’s solicitor
should contact the defendant’s solicitor and request that the defendant make a voluntary
interim payment. The defendant may be amenable to such a request; if the payment is to fund
treatment or rehabilitation costs, this may reduce the final award of damages and interest
payments will be reduced. However, where the claimant is a child or protected party, the
permission of the court is required before an interim payment is made (PD 25B, para 1.2).
A claimant may not seek an interim payment until after the time for acknowledging service
has expired.
The application should be made using Form N244 and must be supported by evidence.
Although the evidence may be set out on the application form itself, generally it will be set out
in a witness statement. Paragraph 2.1 of PD25B states that the evidence must deal with the
following:
(1) the sum of money sought by way of an interim payment,
(2) the items or matters in respect of which the interim payment is sought,
(3) the sum of money for which final judgment is likely to be given,
(4) the reasons for believing that the conditions set out in rule 25.7 are satisfied,
(5) any other relevant matters,
(6) in claims for personal injuries, details of special damages and past and future loss, and
(7) in a claim under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim
is made and the nature of the claim.

Paragraph 2.2 of PD 25B states that any documents in support of the application should be
exhibited, including, in personal injuries claims, the medical report(s).
The application notice and witness statement in support must be served on the defendant (the
respondent) at least 14 days before the return date for the application. If the defendant wishes
to rely on a witness statement in response to the application, he must file and serve a copy of
that witness statement at least seven days before the hearing; and if the claimant (the
applicant) wishes to file a further witness statement in reply, he must do so at least three days
before the hearing.
Where the claimant has been in receipt of recoverable benefits which will fall to be repaid by
the defendant to the Compensation Recovery Unit (CRU) (see Chapter 16), the defendant
should obtain a certificate of recoverable benefits and file this with the court.

13.15.3 The amount of the interim payment

When dealing with an application for an interim payment, the court will seek to avoid making
an overpayment which may lead to the claimant having to repay money to the defendant (see
13.15.4). In accordance with CPR, r 25.7(4) and (5), the amount of the interim payment must
not exceed a reasonable proportion of the likely amount of the final judgment, taking into
account contributory negligence and any relevant set-off or counterclaim.
Where there is a large discrepancy between what the claimant and the defendant believe will
be ultimately awarded, the court will first look at the amount of special damages which have
already accrued and the amount of special damages which will arise prior to the date of trial.
There can be a large degree of certainty as to the likely amount of damages to be awarded in
this respect. The court will then attempt to determine what the court is likely to award in
respect of pain, suffering and loss of amenity, etc, and future loss of earnings and costs of
care, which is much more speculative.
Defendants have sought to limit the size of interim payments by arguing:
196 Personal Injury and Clinical Negligence Litigation

(a) that allowing substantial interim payments to cover the cost of purchasing new
accommodation and/or an expensive care regime, in circumstances where the
defendant argues that the accommodation or care regime is excessive for the claimant’s
needs, distorts the ‘level playing field’ against defendants. When quantum is ultimately
considered by the court, it is considerably harder for the defendants to argue this point
when the accommodation has already been purchased and the care regime is up and
running, and where expert witnesses are able to give evidence as to how the claimant’s
needs are being met. In Spillman v Bradfield Riding Centre [2007] EWHC 89, the claimant, a
minor, suffered serious head injuries when she was kicked by a horse at the defendant’s
riding school. The application for an interim payment to fund special care and to enable
her parents to purchase a larger house, which they argued was necessary for her benefit,
was rejected at first instance. At appeal, the defendant unsuccessfully argued that if
the interim payment was ordered in the amount sought by the claimant, the head of
damage would become self-fulfilling as, at the date of trial, the claimant would have
benefitted from the accommodation and care to which the defendants argued she was
not entitled;
(b) that allowing a substantial interim payment may prevent the court at trial from awarding
periodical payments (see 15.5) because there will be insufficient damages left to be
paid. This argument is particularly relevant to cases where the claimant’s life expectancy
has been reduced significantly. Where it is likely that the final judgment would involve
an order for periodical payments to be made, the court has to consider what is the ‘likely
amount’ for the purposes of CPR, r 25.7(4). In Braithwaite v Homerton University Hospitals
Foundation Trust [2008] EWHC 353 (QB), the court held that the amount of the final
judgment was the capital sum plus a periodical sum payable during the life of the
claimant. Consequently, the court must be confident that the amount of the proposed
interim payment is not in excess of the capital sum ultimately awarded at trial.
There is no rule as to what constitutes a ‘reasonable proportion’, but decided cases appear to
suggest that the courts will order a maximum of 75% of the likely final award of damages.
For guidance in cases where an interim payment is sought and where the final judgment is
likely to include a periodical payment order, see the Court of Appeal’s judgment in Cobham Hire
Services Ltd v Eeles [2009] EWCA Civ 204.
It should be noted that where recoverable benefits have been received by the claimant, he will
receive the interim payment net of the amount of the benefits. The defendant will pay an
amount equal to the recoverable benefits to the CRU.

13.15.4 Repayment and variation

In accordance with r 25.8 of the CPR, where a defendant has made an interim payment either
voluntarily or pursuant to an order, the court may order that all or part of that sum be repaid
by the claimant, or that the defendant be reimbursed by another defendant.
In addition, where a defendant makes an interim payment which it transpires exceeds his
liability under the final judgment, the court may award interest on the overpaid amount from
the date the interim payment was made.

13.16 SPECIFIC DISCLOSURE OF DOCUMENTS HELD BY A THIRD PARTY

Once proceedings have been commenced, the court may make an order for specific disclosure
of documents against a non-party under CPR, r 31.17(3), only where:
(a) the documents of which disclosure is sought are likely to support the case of the
applicant or adversely affect the case of one or other of the parties to the proceedings;
and
(b) disclosure is necessary to dispose fairly of the claim or save costs.
 Case Management and Interim Applications 197

The application must be supported by appropriate evidence. An order under r 31.17 will
specify the documents or class of documents which must be disclosed, and require the
respondent to make disclosure or specify any of those documents which are no longer in his
possession or for which he claims the right or duty to withhold from inspection. The order
may specify a time and place for such disclosure and inspection.

13.17 CONCLUSION
When proceedings are defended, upon completion of the directions questionnaires, the case
will be allocated to the appropriate track, and may be transferred from the court of issue to
another court where appropriate. The court will then actively manage the matter in
accordance with the overriding objective set out in CPR, r 1, and will require the parties and
their solicitors to co-operate fully in achieving that objective. The parties will be expected to
do their best to settle the matter as soon as possible and without the need for a court hearing.
Directions will be issued as are appropriate for the track to which the case has been allocated,
and practitioners must do all they can to ensure that steps are taken within the specified time
limits.
Solicitors acting for claimants and defendants may make interim applications to the court in
relation to diverse issues such as time extensions, specific disclosure and interim payments,
either where agreement cannot be reached between the parties or where the CPR require the
court’s involvement. Where possible, such applications should be made at the time of case
management conferences, pre-trial reviews or at the same time as other applications, in order
to save court time and costs.
Sound case management systems and procedures are essential, as judges are increasingly
intolerant of avoidable delays and mistakes which lead to unnecessary applications.
198 Personal Injury and Clinical Negligence Litigation