Civil procedure

CIVIL PROCEDURE

Cavendish

Publishing

Limited

CP

London • Sydney

CIVIL PROCEDURE

Stephen M Gerlis

District Judge and Recorder

Paula Loughlin

LLB, LLM, Solicitor

Cavendish

Publishing

Limited

CP

London • Sydney

First published in Great Britain 2001 by Cavendish Publishing Limited,

The Glass House, Wharton Street, London WC1X 9PX, United Kingdom

Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080

Email: [email protected]

Website: www.cavendishpublishing.com

© Gerlis, Stephen M and Loughlin, Paula 2001

All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system, or transmitted, in any form or by any means, electronic,

mechanical, photocopying, recording, scanning or otherwise, except under the

terms of the Copyrights Designs and Patents Act 1988 or under the terms of a

licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,

London W1P 9HE, UK, without the prior permission in writing of the

publisher.

Gerlis, SM (Stephen M)

Civil procedure

1 Civil procedure – England 2 Civil procedure – Wales

I Title II Loughlin, Paula

347.4'2

ISBN 1 85941 497 4

Printed and bound in Great Britain

For our families.

FOREWORD

The modern Civil Procedure Rules (CPR) pioneered by Lord Woolf are

proving to be one of the real success stories in the history of English law. It

was not written in the stars that this would be so. One of their early critics,

Professor Michael Zander, predicted that passive resistance by the legal

profession could and probably would wreck them. A combination of judicial

enforcement and voluntary culture change within the profession has proved

him wrong. But old habits die hard, and courts and practitioners still have

things to learn and problems to work out under the new dispensation. English

justice, while now speedier and generally simpler, can still be unacceptably

expensive.

These changes, however, are not taking place in isolation. They form part

of the most important tectonic shift in our legal system since the reforms of the

1870s. It is a shift which includes a fundamental reform of the legal aid

system, with implications for access to justice, changes in the structure of the

legal profession, and - arching over all of these - the Human Rights Act 1998

which, by bringing the effect of Article 6 of the European Convention on

Human Rights into our law places on every court a duty to ensure proper

access and a fair hearing for everyone.

The tension between this fundamental obligation and the need for speed

and simplicity runs through the CPR. It is what makes a book like this so

necessary for anyone who is brought either by their work or by misfortune

(for nobody in their right mind willingly goes to law) into a legal system

which hopes it has finally exorcised the ghost of Jarndyce. But the

combination of rules, practice directions, protocols and residual sources of

procedural law is already creating an editorial maze, as a glance at the

standard volumes will show. The way this book is organised and presented is

therefore especially welcome. Instead of simply tracking the rules

numerically, it reallocates the disparate materials into subject headings,

explaining each as it goes. Instead of a detailed map on which you have first

to get your bearings, here is a user-friendly guidebook.

Like other guidebooks, it does not make maps unnecessary. Practitioners

will always do well to consult both. The unexpected, as any lawyer will

confirm, keeps happening, and occasional anomalies or omissions are bound

to be revealed from time to time in the CPR. But for those who need a clear,

readable and practical guide to the new terrain of litigation, which tells them

what to do, what to expect, and where to look for details, this book performs

an invaluable service.

Stephen Sedley

The Rt Hon Lord Justice Sedley

Royal Courts of Justice

London

vii

PREFACE

Two years after the CPR 1998 were introduced, the LCD published a report

evaluating the success of the civil justice reforms brought into effect by the

CPR. The report, Emerging Findings: An Early Evaluation of the Civil Justice

Reforms,

1 a mixture of anecdotal and statistical evidence, concludes that ‘there

is a feeling that the new system is running smoothly and that all the

participants – court staff, judges, lawyers and other users – are working to

fulfil Lord Woolf's vision of a new civil justice system.2

It is indeed remarkable how ‘Lord Woolf's vision of a new civil justice

system’ set out in his two reports,3 has been assimilated into and

revolutionised our civil procedural system. Concepts such as the ‘overriding

objective’ and ‘proportionality’, which were almost irrelevant under the old

system, are now of the utmost importance to every claim litigated under the

CPR 1998 and have brought about a corresponding change of culture in the

legal profession. Although the CPR are by no means complete and numerous

revisions and amendments have already been made since they came into force

in April 1999,4 the key principles of the Woolf reforms enshrined in the CPR

have remained constant throughout.

The Emerging Findings report gives a warm welcome and positive

assessment of important innovative procedures initiated by the Woolf

reforms, namely pre-action protocols, Part 36 offers and payments, single joint

experts and case management conferences. The report refers to a ‘new

settlement culture’ encouraged by pre-action protocols5 and a drop in the

number of claims issued by the courts since the introduction of the CPR 1998.6

Unfortunately the report is unable to provide definitive views on whether a

key objective of the rules – making the cost of litigation more affordable and

more proportionate to the value and complexity of the case – has been

achieved. Further research is being undertaken.

In writing this book we aim to provide not just an exposition of the CPR

but have also attempted to explain the principles and purpose behind them so

that the reader comes away with a clear understanding of how the CPR

operate in practice and how the rules are likely to affect the case or set of

circumstances they are dealing with. One of Lord Woolf’s aims in drafting the

new rules was to provide a core code setting out basic practice which the

courts were to apply in the light of the overriding objective to deal with cases

ix

1 www.lcd.gov.uk/civil/emerge/emerge.htm.

2 Ibid, para 9.8.

3 See Access to Justice, Interim Report and Final Report available on the LCD website,

www.lcd.gov.uk/civil/finalfr.htm and www.lcd.gov.uk/civil/interfr.htm.

4 At the time of writing the 23rd update to the CPR 1998 has just been published.

5 Ibid, para 3.15.

6 Ibid, para 3.1.

justly.7 Therefore, although there are various important guideline cases

promulgated by the appellate courts, often presided over by Lord Woolf

himself, the principle still remains that each case is dealt with by the case

management judge according to its unique facts and circumstances and not

according to binding case law precedent. Therefore, although we would

always recommend that the reader consult the most current version of the

rules8 we feel that this book will remain relevant despite the continuing

changes to the CPR as it is written with the intention of explaining the

purpose of the rules and how the principles are applied in practice rather than

simply attempting to convey the substance of the rules themselves.

We would like to thank everyone at Cavendish Publishing and in

particular Jo and Cara for their hard work, patience and encouragement.

Paula wishes to thank Edward, Frances and Noah for their love, support and

understanding. Stephen extends the same wishes to Ann and Maggie.

We attempt to state the rules as of May 2001 and include a brief summary

of CPR Rules 55 and 56 which are to come into force in October 2001.

Stephen Gerlis and Paula Loughlin

June 2001

Civil Procedure

x

7 See Access to Justice, Final Report, Chapter 20, p 274, para 10. (Ibid.)

8 Available free of charge on the LCD website (www.lcd.gov.uk).

CONTENTS

xi

Foreword by The Right Hon Lord Justice Sedley vii

Preface ix

Table of Cases xxxix

Table of Statutes xlv

Table of Statutory Instruments l

Table of International Instruments lxxx

1 INTRODUCTION 1

THE WOOLF REFORMS 1

FUNDAMENTAL REFORM 1

THE PROBLEMS AND THEIR CAUSES 2

The ideal system 2

The problems 3

The solutions 5

2 SOURCES OF CIVIL PROCEDURE: STRUCTURE AND JURISDICTION

OF THE CIVIL COURTS 9

SOURCES OF CIVIL PROCEDURE 9

The Civil Procedure Rules 1998 9

THE CIVIL COURTS 11

The Supreme Court 11

The county courts 11

JURISDICTION OF THE HIGH COURT AND COUNTY COURTS 12

Jurisdiction of the High Court 12

Jurisdiction of masters and district judges in the High Court 13

Jurisdiction of the county courts 13

Jurisdiction of district judges in the county court 14

Penalties for commencing proceedings in the High Court

rather than the county court 15

TRANSFER OF PROCEEDINGS 15

Transfer of proceedings between the High Court and county courts 15

Transfer between county courts 16

Transfer between Royal Courts of Justice and a district registry 16

Transfers between district registries 17

Transfers between divisions and to and from a specialist list 17

Appeal against an order of transfer 18

SPECIALIST PROCEEDINGS 18

COMPUTATION OF TIME UNDER THE CPR 18

Clear days 18

Time limits varied by the parties 19

COURT FORMS 20

Filing of documents at court 21

Civil Procedure

xii

3 LIMITATION OF ACTIONS 23

INTRODUCTION 23

Time when proceedings are brought 23

TIME LIMITS 24

CONTRACT AND TORT 24

Contract 24

Simple contracts 24

Contracts under seal 24

Tort 24

Latent damage 24

Date when cause of action accrues 25

Equitable remedies 26

OTHER CAUSES OF ACTION 26

Special time limit for actions in respect of certain loans 26

Acknowledgment or part payment of debts 26

Sums recoverable by statute 26

Conversion 27

Theft 27

Defamation or malicious falsehood 27

Claim for a contribution 27

Actions to recover land 28

Actions to recover rent 28

Actions to redeem a mortgage 28

Actions in respect of trust property 28

Actions to enforce a judgment 29

PERSONAL INJURY AND DEATH CLAIMS 29

Personal injury claims 29

Time limits if person suffering personal injuries dies 29

Action on behalf of the estate 30

Action by dependants 30

Breach of duty 30

Date of knowledge 31

Knowledge 31

Significant injury 31

Discretion to disapply limitation period 32

Matters that the court will take into account when

deciding whether to disapply the limitation period 32

Second action brought after limitation period expired 33

Defective products 33

TIME LIMITS FOR CHILDREN AND PATIENTS 34

EXTENSION OF THE LIMITATION PERIOD IN CASES OF

FRAUD, CONCEALMENT OR MISTAKE 34

NEW CLAIMS IN EXISTING PROCEEDINGS 35

FOREIGN LIMITATION PERIODS 35

Contents

xiii

4 PRE-ACTION PROTOCOLS 37

INTRODUCTION 37

TYPES OF DISPUTE COVERED BY A PRE-ACTION PROTOCOL 38

Pre-action behaviour in cases not covered by a pre-action protocol 39

INFORMATION ABOUT FUNDING ARRANGEMENTS 39

PRE-ACTION PROTOCOL FOR PERSONAL INJURY CLAIMS 40

Definition 40

Aims 40

The effect of the protocol 40

Scope of the protocol 41

Settling and stocktaking 42

SUMMARY OF THE PERSONAL INJURY PRE-ACTION PROTOCOL 42

Early notification 42

The letter of claim 42

Sending the letter of claim 43

The defendant’s response 44

Disclosure of documents 44

Single joint expert 45

SUMMARY OF CLINICAL NEGLIGENCE PRE-ACTION PROTOCOL 47

Purpose 47

Contents of the protocol 47

Experts 48

SANCTIONS FOR FAILURE TO FOLLOW THE PROTOCOLS 48

Transitional provisions 50

PRE-ACTION BEHAVIOUR IN ALL CASES 50

PRE-ACTION PROTOCOLS AND COSTS 51

5 JUDICIAL CASE MANAGEMENT: THE OVERRIDING

OBJECTIVE 53

INTRODUCTION 53

THE OVERRIDING OBJECTIVE 53

Active case management 55

GENERAL POWERS OF CASE MANAGEMENT 56

Rules as to time 56

Attendance at and form of hearing 57

Managing the issues in a case 57

Further powers 58

ORDERING SUMS TO BE PAID INTO COURT 58

Power to impose conditions on orders 58

Payment into court on failure to comply with a rule, practice

direction or court order 58

COURT MAKING ORDERS OF ITS OWN INITIATIVE 59

SANCTIONS FOR NON-PAYMENT OF CERTAIN FEES 59

Allocation and listing fees 60

Sanction for non-payment 60

SANCTIONS 61

Sanctions applying automatically 61

Parties agreeing extra time for compliance 62

RELIEF FROM SANCTIONS 62

ERRORS OF PROCEDURE 63

6 PARTIES TO AND TITLE OF PROCEEDINGS 65

INTRODUCTION 65

TITLE OF PROCEEDINGS 65

The number of the proceedings 65

The heading of statements of case 66

PARTIES TO PROCEEDINGS 66

Individuals 66

Children and patients 67

Trading names 67

Deceased’s estate 68

Change of party by reason of death or bankruptcy 68

Clubs/unincorporated associations 68

Partners 68

Corporations 69

Representative parties 69

GROUP LITIGATION 70

7 STARTING AN ACTION 71

INTRODUCTION 71

Issuing proceedings 72

Which court? 73

Personal injury claims 74

Court fees 74

THE CLAIM FORM 75

Particulars of claim 75

Statements of truth 76

The Human Rights Act 1998 76

Information on funding arrangements 77

FIXED DATE CLAIMS 77

PRODUCTION CENTRE FOR CLAIMS 77

NOTICE OF ISSUE 78

FORMS FOR THE DEFENDANT 78

Civil Procedure

xiv