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Civil Litigation Notes for the BTC - Distinction!
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Table of ContentsPre-Action Conduct 3
Pre-Action Protocol for Personal Injury Claims 6
PART 1: THE OVERRIDING OBJECTIVE 13
PART 2: APPLICATION AND INTERPRETATION OF THE RULES 16
PART 3: THE COURT’S CASE AND COSTS MANAGEMENT POWERS 17
PART 6: THE SERVICE OF DOCUMENTS 30
PART 7: HOW TO START PROCEEDINGS – THE CLAIM FORM 37
PART 8: ALTERNATIVE PROCEDURES FOR CLAIMS 41
PART 9: RESPONDING TO PARTICULARS OF CLAIM – GENERAL 44
PART 10: ACKNOWLEDGMENT OF SERVICE 45
PART 12: DEFAULT JUDGEMENT 46
PART 13: SETTING ASIDE OR VARYING DEFAULT JUDGEMENT 50
PART 15: DEFENCE AND REPLY 53
PART 16: STATEMENTS OF CASE 56
PART 17: AMENDMENTS TO STATEMENTS OF CASE 63
PART 18: FURTHER INFORMATION 68
PART 19: PARTIES AND GROUP LITIGATION 71
PART 20: COUNTERCLAIMS AND OTHER ADDITIONAL CLAIMS 76
PART 21: CHILDREN AND PROTECTED PARTIES 86
PART 23: GENERAL RULES ABOUT APPLICATIONS FOR COURT ORDERS 90
PART 24: SUMMARY JUDGEMENT 94
PART 25: INTERIM REMEDIES & SECURITY FOR COSTS 99
PART 26: CASE MANAGEMENT – PRELIMINARY STAGE 118
PART 28: THE FAST TRACK 127
PART 29: MULTI-TRACK 129
PART 31: DISCLOSURE AND INSPECTION OF DOCUMENTS 139
PART 32: EVIDENCE 163
PART 36: MISCELLANEOUS RULES ABOUT EVIDENCE 170
PART 34: WITNESSES, DEPOSITIONS AND EVIDENCE FOR FOREIGN COURTS 173
PART 35: EXPERTS AND ASSESSORS 177
PART 36: OFFERS TO SETTLE 190
,PART 38: DISCONTINUANCE 206
PART 39: MISCELLANEOUS PROVISIONS RELATING TO HEARINGS 209
PART 40: JUDGMENTS, ORDERS, SALE OF LAND ETC 211
PART 44: GENERAL RULES ABOUT COSTS 219
PART 47: PROCEDURE FOR DETAILED ASSESSMENT OF COSTS AND DEFAULT PROVISIONS
232
PART 52: APPEALS 233
PART 70: GENERAL RULES ON ENFORCEMENT AND JUDGMENTS AND ORDERS 243
PART 71: ORDERS TO OBTAIN INFORMATION FROM JUDGMENT DEBTORS 246
PART 72: THIRD PARTY DEBT ORDERS 251
PART 73: CHARGING ORDERS, STOP ORDERS AND STOP NOTICES 255
PART 83: WRITS & WARRANTS – GENERAL PROVISIONS 259
PART 84: ENFORCEMENT BY TAKING CONTROL OF GOODS 264
PART 89: ATTACHMENT OF EARNINGS 267
, Pre-Action Conduct
Introduction:
● Pre-action protocols explain the conduct, and set out steps the court expects parties
to take before commencing proceedings
● A person who knowingly makes a false statement in a pre-action protocol
letter/other document prepared in anticipation of legal proceedings may be subject
to proceedings for contempt of court
● Level of detail in a latter of claim will depend on the type/value of the case, but
should always include the main facts/circumstances, nature of dispute/claim, and the
remedy sought
● If claimant does not write to defendant until the end of the relevant limitation
period, the claimant should issue proceedings if necessary to protect client’s position
and should then delay serving the claim form while protocol is followed or should
serve the claim and invite the court to order a stay
● Defendant’s response letter should be detailed – not merely a deny of the claim
● Parties should be wary of making substantial changes to statements of case without
explaining why this is necessary – without good reason this could amount to
“unreasonable conduct”
● Most protocols don’t require parties to take specific steps to try and settle the claim
pre-issue, but strongly encourage early settlement discussions and ADR
● Pre-action part 36 offers may have the same costs consequences as
post-commencement offers, provided the offeror has provided the offeree with
sufficient info to enable her to understand/evaluate the offer
● Protocols do not specify whether they apply to small claims. But courts will make
costs awards in small claims cases for “unreasonable conduct”
● Provided a letter of claim is sent, proportionality should preclude the need to follow
all steps in a protocol
● While parties can apply for pre-action disclosure, generally they cannot apply to
court for pre-issue for rulings on other matters. But, EG – court was once prepared to
hear an application from an insurer for a declaration of non-liability in a situation
where the action was only likely to proceed where the defendant was insured
Objectives of Pre-action Conduct and Protocols:
Before commencing, court will expect parties have exchanged sufficient information to –
1. Understand each other’s position
2. Make decisions on how to proceed
3. Try to settle issues without proceedings
4. Consider a form of ADR to assist with settlement
5. Support the efficient management of those proceedings
6. Reduce costs of resolving the dispute
, Proportionality
● A pre-action protocol/this PD must not be used by a party tactically to secure an
unfair disadvantage over another party
● Parties should only take reasonable/proportionate steps to identify/narrow/resolve
the factual, legal or expert issues
● Costs incurred should be proportionate
● Where parties incur disproportionate costs, those costs will not be recoverable
Before issuing a claim at court
● Where there is a relevant pre-action protocol, parties should comply with this before
commencing proceedings
● If no relevant pre-action protocol, parties should exchange correspondence/info –
o Claimant to write to defendant with concise details of the claim – incl the
basis of the claim, a summary of facts, what the claimant wants from the
defendant and if money then how the amount has been calculated)
o Defendant should respond in reasonable time (14 days in straight forward
case, no more than 3 months in a complex case)
▪ Reply: acceptance or rejection of claim
▪ If rejection, the reasons why and an explanation of what parts are
disputed
▪ Whether the defendant is making a counterclaim and the details of
this
o Parties to disclose key documents relevant to issues in dispute
Experts
● Court must give permission before expert evidence can be relied on
● Court may limit the fees recoverable
● If necessary to obtain expert evidence (particularly in low value claims) should
consider using a single expert, jointly instructed with costs shared equally
Stocktake and List of Issues
● Where a dispute has not been resolved after following pre-action protocol/this PD,
they should review their respective positions
● Should consider if proceedings can be avoided and at least seek to narrow issues in
dispute
Compliance with this PD and the Protocols
● Court will consider non-compliance when giving directions for the management of
proceedings
● Not likely to be concerned with minor/technical infringements, especially if matter is
urgent
● Examples of failure to comply – when a party has:
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