Civil Procedure and Practice II Course Notes

CIVIL PROCEDURE AND PRACTICE II
Date: September 23, 2005
Lay out a schedule of time limits from filing of the document to appeal.
THE OVERRIDING OBJECTIVE

CPR Part 1
Under the Overriding Objects the Courts aim to deal with cases justly, primarily ensuring
that cases are heard on their merit and not discarded on purely technical grounds.
It is submitted that the concept of the Overriding Object is not new to the courts. Under
the old Civil Procedure Code the overriding objective, though not a written rule was
essentially the basis on which the court exercised its powers anyway.
Now we have written down these rules to do away with many procedural obstacles to
ensure that cases are heard on their merits, yet that they are brought improperly before the
court.
The Jamaican rules are referred to as the “new rules”. Here the Jamaican Civil Procedure
Rules vary from that of the other territories. The case of Biguzzi v Rank Leisure plc
addressed the implications of this difference. The found that this meant that the court is
not generally bound by the old authorities, hence establishing a break in judicial
precedence. This does not mean that the old rules are completely irrelevant. In the case of
Omega Engineering Inc v Omega SA the court held that it may consider the old
authorities if the powers under the new rules are narrower than under the old. The old
rules are looked at to consider the new. It is submitted, however, that where the new rules
appear to be narrower that its former counter part it was the intention of the drafters that
they should stand apart therefrom, therefore, why look at the old cases to interpret these
rules?
Therefore, old authorities are considered where, for example, there is no reference to a
principle or procedure in the new rules. In such cases we look to the cases for direction.
They may also be considered where the court is concerned with decisions on issues not
changed by the new rules. In such cases it is required that we still look to the old cases for
direction. In the case of Quarrie v C& F (Jamaica) Ltd the judge said that we may look
to the old cases but did not indicate that these cases are binding. See also the case of
Manning Industries Inc v Jamaica Public Service Co Ltd. Moreover, when there is
nothing in the overriding objective that indicates that we should not follow the old
authorities, they are considered by the court.
Note the thinking that the purpose of the new rules is to invite new thinking and therefore
a change in the direction of the precedence previously followed.
Also note the fact that the English precedence are considered to be persuasive generally
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anyway so under the new rules this position is reinforced.
For an argument on this area see Kodilinye
CPR 1.1(1)
These Rules are a new procedural code with the overriding objective of enabling
the court to deal with cases justly.
Our rules are worded differently from that of the UK. Therefore, in as much as we are
able to do so we will place the parties on an equal footing as opposed to when dealing
with expense there is no if and but, it will be done. Per Mr. Garcia: this does not make
much of a difference because we are all dealing with a case justly, which means that a
party should not be prevented from having their case heard even if some procedural
irregularity has occurred as a party should be allowed to have case heard on its merits and
not be turned away because of a purely technical ground. In the exercising of its
discretion the Overriding Objective indicates that the judge should exercise its discretion
fairly.
CPR 1.1(2)
Dealing justly with a case includes:
(a) ensuring, as far as is practicable, that the parties are on an equal footing
and are not prejudiced by their financial positions;
This is an attempt to level playing field between parties. However, it does not mean that
the parties should not be prevented from choosing who they want to represent them. What
the rule means is that the parties may not be reimbursed for the entire cost of their chosen
attorneys.
(b) saving expense;
Under this rule matters which should not go to trial which need not to, therefore, the
court's expenses are spared. The obligation is not only on the party to apply but the court
should consider, for example, giving summary judgment, where it thinks that it should be
granted. Under rule 26.1 there is a general power for the court to exercise its power on its
own initiative.
(c) dealing with it in ways which take into consideration:

(i) the amount of money involved;
(ii) the importance of the case;
(iii) the complexity of the issues; and
(iv) the financial position of each party.
This rule encompasses the concept of proportionality. In the UK (i) refers to whether or
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not it goes on fast track etc. However, in Jamaica the procedure from claim form to case
management conference does not differ where money involved but where other orders
may be made and money is involved the court may consider not to grant certain orders.
The amount of money involved refers to a comparison between the amount of money
claimed and that involved in making the order. This turns heavily on the facts of the case
before the court and therefore (ii) to (iv).
(d) ensuring that it is dealt with expeditiously and fairly; and
This rule involves the making of orders or dealing with a case in a way which may fairly
determine the matter quickly. For example, in an order for summary judgment the party
answering thereto has the opportunity to object hence it is fair and allows the court to
dispose of the matter quickly.
(e) allotting to it an appropriate share of the court’s resources, while taking

into account the need to allot resources to other cases.
This considers the question of how much time should be allotted for the case. See the
judgment of Lord Wolfe in the case of Arbuthnot Latham v Trafalgar Holdings Ltd.
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Date: September 30, 2005
OVERRIDING OBJECTIVE Cont'd
The overriding objective sought to add simplicity in meaning so that the layman can
understand and apply the rules. Hence the natural meaning of words is to be applied. See
the case of Vinos v Marks & Spence plc and Godwin v Swindon Borough Council (The
overriding objective does not give the court powers to exercise powers which it does not
already have)
The Role of the Inherent Jurisdiction
Rule 1.2 The court must seek to give effect to the overriding objective when it:
a). exercises any jurisdiction given to it by the Rules; or

b). interprets any rule.
The overriding objective is an interpretative tool. In interpreting the rule consider the best
meaning to be given once there is no natural meaning to be applied. Totty v Snowden
The court exercising its discretion. If the rules say the court may but does not give
grounds then the court must exercise its discretion. In so doing it is the overriding
objective that is used as guidance.
Where does the court get its various powers from? There are those that are provided in
the rules and those that are not. In the case of the latter the issue whether the court is
going beyond its jurisdiction arises. There are statutory powers or from the court's
equitable jurisdiction.
Do the courts have the power to make orders based on its inherent jurisdiction? In
Bremer Vulkan Schiffbau and Maschinenfabrik v South India Shipping Corporation Ltd
the court held that it has inherent jurisdiction which must exist as a part of its jurisdiction,
therefore, it had an inherent power to avoid an abuse of its process. Where the court
strikes out a claim due to an abuse of its process then it is exercising its inherent
jurisdiction. There is nothing in the rules that do or are capable of taking away an
inherent jurisdiction conferred by the Constitution.
Whether the courts below the Supreme Court have inherent jurisdiction? There is the
view that the magistrate's court does not have inherent jurisdiction because, unlike the
Supreme Court, it is a creature of statute and not of the common law. In the case of
Langley v North West Water Authority the court, however, suggests that courts not
established by the Constitution do have inherent jurisdiction. Note that although not
identified in the Constitution they do carry out a constitutional function as they operate as
a part of the judiciary under the concept of the separation of powers.
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Duties of Parties
Rule 1.3 It is the duty of the parties to help the court to further the overriding
objective.
Attorneys are also governed by this rule. There is inter alia an obligation to inform the
court if there is a settlement.
CASE MANAGEMENT
The court is under an obligation to further the overriding objective.
Case Management Conference
Rule 27.3
(1) The general rule is that the registry must fix a case management
conference immediately upon the filing of a defence to a claim other than a
fixed date claim.
(2) Where the defendant files a defence and also an admission of a specified
sum of money, the case management conference is not to be fixed until the
claimant gives notice under rule 14.7(3) that the claim is to continue.
(3) The case management conference must take place not less than 4 weeks
nor more than 8 weeks after the defence is filed (or notice is given under
rule 14.7(3) unless any rule or practice direction prescribes a shorter or
longer period or the case is urgent. One question to consider is: when does
this time begin to run if there is, for example, an ancillary defendant added or
a counterclaim.
(4) However a party may apply to the court to fix a case management
conference before a defence is filed.
(5) The application may be without notice but must state the reasons for the
application.
(6) The registry must give all parties not less than 14 days notice of the date,
time and place of the case management conference. One must bear this in
mind and recall that for interim applications the party must give 7 clear days
notice to the opposing party. For summary judgment applications the party
must give 14 days notice. All of this must be done before the case
management conference.
(7) However the court may with or without an application direct that shorter
notice be given:
a) if the parties agree; or
b) in urgent cases.
(8) The general rule is that costs incurred in attending a case management
conference are costs in the claim.
(9) However the court may make some other order where the case
management conference has to be adjourned due to the failure of one or more
parties to:
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a) attend the hearing; or
b) co-operate fully in achieving the objective of the case management
conference.
Case Management has replaced the summons for directions under the old rules which
was made after the pleadings are in and where the court would have a list of orders to
consider to make which the parties would go through together and agree and contest
certain orders.
In reality case management conferences are scheduled for a long time after.
At the case management conference. The word conference is used to present the idea that
it is to be a meeting cheered by the Judge thus advancing the interests of settlement. The
court must also consider whether to exercise any one of its many powers including
statutory and inherent powers. Rule 26.1(1) The list of powers in this rule is in addition
to any powers given to the court by any other rule or practice direction or by any
enactment.
The court is to ensure that the matter is properly prepared for trial, ironing out the issues
and setting out the time for trial. At this stage it is the attorney's duty to consider whether
it should amend the pleadings so that it can be done before or at the case management
conference. You will want to consider what interlocutory applications should be made. To
do this you may want to work on your witness statements for you may need to request at
the case management conference that you may want to call expert witnesses or request
further information from the other side. Consider the issues and have your authorities to
support your position; the possibility of settlement; the question of mediation.
Court's Powers 26.1 and 2. In the latter the court can make orders on its own initiative.
See the case of Western Broadcasting Services Ltd v Seaga which concerned the exercise
of case management powers in relation to the issue of settlement. Broad case
management powers.
Attendance at Case Management Conference
Rule 27.8(2) The general rule is that the party or a person who is in a position to
represent the interests of the party (other than the attorney-at-law) must
attend the case management conference or pre-trial review.
Does it mean that the client must attend both or either. There is the view that they should
be present at both.
Rule 27.8(1) Where a party is represented by an attorney-at-law, that attorney-at-law

or another attorney-at-law who is fully authorised to negotiate on behalf
of the client and competent to deal with the case must attend the case
management conference and any pre-trial review.
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Note sanctions for non appearance
Rule 27.8(5) Provided that the court is satisfied that notice of the hearing has been
served on the absent party or parties in accordance with these Rules:
a) if the claimant does not attend, the court may strike out the
claim and award costs; and
b) if any defendant does not attend, the court may enter
judgment against that defendant in default of such attendance.
Adjourn and award costs
Rule 27.9 Orders to be considered Some are compulsory and others are not.
Rule 27.11 Limited power to vary the CMC Order (Time table) by consent.
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CIVIL PROCEDURE AND PRACTICE II TUTORIAL
Date: October 4, 2005
TUTORIAL SHEET 1
THE INHERENT JURISDICTION OF THE COURT
The Supreme Court
The High Court is a constitutional court succeeding the old common law courts. The
High Court, therefore, has inherent jurisdiction to control its procedure to ensure its
proceedings are not used to achieve injustice. In Bremer Vulkan Schiffbau and
Maschinenfabrik v South India Shipping Corporation Ltd (HL) Lord Diplock said that the
High Court has:
…a general power to control its own procedure so as to prevent its being used to
achieve injustice. Such a power is inherent in its constitutional function as a court
of justice. Every civilized system of government requires that the State should
make available to all its citizens a means for the just and peaceful settlement of
disputes between them as to their respective legal rights…So, it would stultify the
constitutional role of the High Court as a court of justice if it were not armed with
the power to prevent its process being misused in such a way as to diminish its
capability of arriving at a just decision of the dispute.
Thus, where a party in a High Court claim males a application for an order which is not
contemplated by the old rules or the CPR or seeks an order in circumstances not
envisaged by those provisions, it is always possible for the court to grant relief by
resorting to its inherent jurisdiction. However, this inherent jurisdiction must operate
within statutory confines and cannot override statutes. In Harrison v Tew the defendant, a
solicitor, had acted for the plaintiff, client, in a number of transactions. When the
defendant’s fees were agreed between the parties and money paid into the client’s account
a bill was drawn up and the agreed monies transferred from the clients’ account to the
firm’s account. 12months after the settlement of the last bill, the plaintiffs consulted other
solicitors and claimed that as a result they had discovered that the defendant had
overcharged them. On application that the bill of costs be referred to a taxing master for
taxation notwithstanding that under the provisions of the Solicitor’s Act 1974 no
application could be made after 12months had elapsed since the payment of the bills, the
master, purporting to exercise the court’s inherent jurisdiction made the order which was
affirmed by the judge. The Court of Appeal, however, allowed the defendant’s appeal
holding that the court had no such jurisdiction. The issue on appeal by the plaintiffs was
whether the Solicitors Act precludes an application for taxation of a solicitor’s bill of
costs by the party chargeable after the expiration of 12months from the payment of the
bill or whether, notwithstanding the wording of that subsection the court has inherent
jurisdiction to order taxation. The respondent submitted that the Act covers the entire
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field and comprehensively regulates all applications for taxation by the party chargeable.
He submitted that the Act means what it says and imposes an unconditional ban on all
applications for taxation which are made more than 12months after the bill has been paid.
He conceded that the courts have always has an inherent jurisdiction over solicitors as
officers of the court, which includes the power to, at the instance of the client, to order
taxation of a bill of costs, but contended that, like other aspects of the common law, that
jurisdiction can be overridden by statutory enactment. The appellants submitted inter alia
that as between a solicitor and his client the court retains at common law an inherent
jurisdiction to order taxation even though the period fixed by the Act has expired. After
tracing the development of the law relating bills of costs and the time limit expressed in
the statute and recognizing that before the statutory development the courts had exercised
inherent jurisdiction over solicitors as officers of the court to direct taxation of their bills
on the application of their clients, the court observed that the doctrine of parliamentary
supremacy consisted essentially of the rule that the courts are under a duty to apply the
legislation made by Parliament. The common law co-exists with statutory provisions with
which it is not inconsistent. The court drew a distinction between affirmative and
negative provisions whereby the former which is made without any negative expressed or
implied does not take away the common law. The House of Lords held that the Act was
expressly negative, covering every application for an order for taxation which can be
made by a party chargeable more than one month after delivery of a bill and therefore the
Act subsequently displaced the inherent jurisdiction with regard to all bills which have
been made more than 12months before the application to the court is made. Hence it was
held that the court’s inherent jurisdiction in any area may be ousted by subsequent
statutory provisions dealing with the matter.
The Lower Courts
Being a creature of statute, it was always thought that the lower courts had no inherent
jurisdiction. However, the Court of Appeal in Langley v North West Water Authority held
that although there is no statutory authority for making local practice directions none is
needed because the lower court had inherent jurisdiction to make directions regulating its
own procedures provided that no such direction was inconsistent with the rules of the
court or other statutory provisions. In that case the plaintiff’s solicitor had failed to
comply with a local practice direction to send with the service copy of the particulars of
claim the plaintiff’s written authority to inspect any hospital records. The Defendant
subsequently issued a summons for an order that both the hospital records and the general
practitioner’s notes be provided for their inspection. The registrar ordered costs in the
application to the defendant. The plaintiff appealed against this and the judge affirmed
that award of costs and ordered that the practitioner’s notes be provided to the defendant.
The Court of Appeal dismissed the appeal.
QUESTION 2 : What is meant by “dealing justly with a case”?
This is found in CPR rule 1.1(2). This means that all case are given the opportunity to be
heard on their merits as opposed to shutting out litigants through a technical breach of the
rules. For example, if service is delayed beyond the period of validity because the
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claimant’s solicitors had difficulty obtaining psychiatric reports for service with the
particulars of claim; where the court allowed the claimant to rely on a revised statement
of past and future loss and expense quantifying the claim greater than originally sought.
However, recall that in the case of certain procedural considerations where non-
compliance is as a result of the claimant’s or his solicitor’s conduct the court will not
dispense with non-observance of the procedural requirement. The exercise of the
overriding objective is discretionary.
NATURAL MEANING OF WORDS
The CPR provides that the court must give effect to the overriding objective when
interpreting the rules. However, the Court of Appeal has said this does not apply when the
words of a rule are clear. In Vinos v Marks & Spencer plc (approved in Godwin v
Swindon Borough Council) May LJ said that interpretation to achieve the overriding
objective does not enable the court to say that provisions which are quite plain mean what
they do not mean, nor that the plain meaning of the rules should be ignored. The Court
cannot, therefore, assume a discretion in order to assist a deserving case where there is no
jurisdiction to make an order, even by resorting to the overriding objective (Godwin v
Swindon Borough Council).
Overriding Objective as a Guide to Interpretation
Where are no express words in the CPR dealing with a situation, the court is bound to
consider which interpretation best reflects the overriding objective when construing the
rules Totty v Snowden
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CIVIL PROCEDURE AND PRACTICE II TUTORIAL (In class)
INTRODUCTORY TUTORIAL
What is the procedure prior to Case Management Conference?
Step 1
What type of matter is it? This will determine whether you begin proceedings by filing a
claim form and particulars of claim or a fixed date claim form supported by affidavit
evidence. The most important difference between the two proceedings is the fact that In
the case of the former the matter is heard in a hearing in open court and cross-
examination is used to address the issue of contended matters. In the case of the latter the
evidence is heard on affidavit although there may be cross-examination on thereon.
Step 2
Wait for the Acknowledgement of Service to be filed (14 days). The Acknowledgement of
Service can be served anytime after 14days once the default judgment is not filed or
entered. If no acknowledgement has been filed apply for default judgment.
Step 3
If an Acknowledgement of Service if filed wait for the defence to be filed (42 days from
the service of the claim form and particulars of claim). Can the 42 days be extended? Yes
the power to do so has been limited.
Mr. Hylton highlighted the 56 days issue where the rules say that there will be no
extension beyond 56 days. This is ambiguous for the rules do not indicate whether this
period includes the 42 days or begins to run thereafter. This rule prevents parties from
agreeing to an indefinite period.
Parties need not apply for case management conference after the defence is filed as at the
point of filing thereof the registrar takes over. If there is a counterclaim the same period
as to the defence etc apply. If the Registrar receives the defence without the counterclaim
it goes on to set the date for the case management conference, however, if it receives both
documents time will being to run again and the registrar will wait for the additional
period before setting down the date for case management conference.
Note that the rules are stated in the negative with reference to a reply to a defence in a
counterclaim. It is therefore assumed that the rules presume that there shouldn’t be one
and permission is required.
Counting Time
Clear days: Do not include Saturdays, Sundays, the day served or the day received (the
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day of service), public holidays and when the registry is closed
Where the time is greater than or equal to 8 days then you would count Saturdays and
Sundays.
Time does not run for some things, for long vacations See rule 3.5. The rule only applies
to statement of case.
Note: The overriding objective applies where the court has a discretion. The overriding
objective shifts the focus of the rules from certainty to justly. The financial aspect
under “dealing justly with a case” is important and is not found in the Belizean
rules.
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PRE-TRIAL REVIEW
There the length of the trial is determined, date thereof.
Rule 38.5 - Parties to prepare pre-trial memorandum

(3) A pre-trial memorandum must contain -
(a) a concise statement of the nature of the proceedings;
(b) details of any admissions made;
(c) the factual and legal contentions of the party or parties filing it; and
(d) a statement of the issues to be determined at trial.
(4) The pre-trial memorandum must be accompanied by a copy of such documents

that are intended to be used at trial which may be of assistance in settling the
claim.
Preparation: Pre-trial memorandum - give the judge a fair idea of what the case is about,
contentions and issues. It will assist the judge in making certain determinations such as:
Is it a case that can be settled; what orders should be made to bring the case to trial such
as lists of authorities, skeleton arguments
Rule 38.6 - Scope of Pre-Trial Review

At the pre-trial review the parties must be prepared to address -
(a) the possibility of settlement of ay or all of the issues in the claim;
(b) the possibility of referring any unsettled issues to a form of alternative dispute
resolution;
(c) the simplification of the issues in the claim;
(d) agreement of any expert evidence;
(e) the appointment of a court expert to give evidence as to give evidence as to any
contested matters of expertise;
(f) the possibility of admissions which may shorten the trial;
(g) the issue of liability;
(h) the amount of damages, if claimed;
(i) the estimated duration of trial;
(j) the need for interpreters at the trial; and
(k) any other matter that may promote the fair, expeditious and economic disposition
of the claim.
Rule 38.7 - Directions at pre-trial review

(1) At the pre-trial review the court must give directions as to the conduct of the trial
in order to ensure the fair, expeditious and economic trial of the issues.
(2) In particular the court may -
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(a) direct either party to provide further information to the other;
(b) give directions for the filing by each party and service on all other parties of one
or more of -
(i) a skeleton argument;
(ii) a chronology of relevant events;
(iii) a summary of any legal propositions to be relied on at the trial; and
(iv) a list of authorities which it is proposed to cite in support of those of those
propositions;
(c) direct the parties jointly to prepare one or more of -
(i) a core bundle of documents (that is, a bundle containing only such
documents which the trial judge will need to pre-read of to which it will be
necessary to refer repeatedly at the trial);
(ii) an agreed statement of facts;
(iii) an agreed statement of the basic technical, scientific or medical matters in
issue; and
(iv) an agreed statement as to any relevant specialist area of law, which
statement shall not be binding on the trial judge;
(d) direct when ad by whom the documents listed in paragraph (c) should be filed at
the court;
(e) give directions as to the extent to which evidence may be given in written form;
(f) direct whether or not there shall be any opening or closing addresses and the time
to be allocated to each;
(g) give directions as to the procedure to be followed at the trial;
(h) decide on the total time to be allowed for the trial; and
(i) direct how that time shall be allocated between the parties.
The attendance rules are the same as those stipulated in relation to the case management
conference.
The judge has to consider the issue of settlement therefore the parties should attend.
The attorney needs to go through the rules and determine what orders you may want to
seek at the pre-trial review. Also consider what interlocutory applications you may want
heard at the review so that you can file your applications in time.
Rule 38.4
The judge or master who conducts the pre-trial review may not try the claim except -
(a) administrative law proceedings under Part 56;
(b) admiralty proceedings under Part 70; and
(c) claims tried in the Commercial Division under Part 71; or
(d) where all parties consent.
The judge who conducts the pre-trial review cannot hear the claim. Though we have
some exceptions. If this judge considers the question of settlement he should not hear the
trial for he may have some prejudice as he may have heard some concessions or
information which would influence his thinking at the trial.
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Same judge can hear the case management conference and pre-trial review.
TUTORIAL SHEET 2
ADMISSIONS
Deals with ways in which a matter can be determined without a trial.
An admission is an acceptance by one party of a fact relevant to the issue before the
court.
Formal vs Informal Admissions.
The distinction between formal and informal admissions is the time when made. When a
formal admission is made you cannot lead evidence against it. For example, admitting to
a paragraph in a pleading. Most formal admissions tend to be written. If counsel comes to
court and admits something then that stands as an admission. In the case of informal
admissions evidence that can be proven or disproven at trial. For example, where it is
said in affidavit in support of an application. That person can go to court and testify to the
contrary. Something in a document may amount to an informal admission. It becomes a
question of whether the judge believes what you said in the document or at trial.
Part 14 - deals with the making of admissions

Rule 14.1 - Making an admission
(1) A party may admit the truth of the whole or any part of any other party's case.
(2) A party may do this by giving notice in writing (such as in a statement of case or
by letter) before or after the issue of proceedings.
(3) A defendant may admit the whole or part of a claim for money by filing an
acknowledgement of service containing the admission.
(4) The defendant may do this in accordance with the following rules -
(a) rule 14.6 (admission of whole of claim for specified sum of money);
(b) rule 14.7 (admission of part of claim for money only); or
(c) rule 14.8 (admission of liability to pay whole of claim for unspecified sum
of money).
(5) A defendant may file an admission under paragraph (4) at any time before a
default judgment is entered. But the claimant may apply for assessed costs if the
admission is filed after the time for filing an acknowledgement of service has
expired.
(6) The court may allow a party to amend or withdraw an admission.
Generally, formal admissions are made. The power is given to the court to amend or
withdraw an admission.
Rule 14.9 - Requests for time to pay

(1) A defendant who -
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(a) makes an admission under rules 14.6 (admission of whole of claim for specified
sum of money), 14.7 (admission for part of claim for money only) or 14.8
(admission of liability to pay whole of claim for unspecified sum of money).
The defendant may admit and ask for time to pay.
Rule 14.4 - Admission by notice in writing - application for judgment

(1) Where a party makes an admission under rule 14.1(2) (admission by notice in
writing), any other party may apply for judgment on the admission.
(2) The terms of the judgment shall be such as it appears to the court that the
applicant is entitled to an admission.
Rule 14.11 - Requests for time to pay - procedure where time and rates not agreed
(1) This rule applies where -
(a) the only remedy which the claimant seeks is the payment of a sum of
money together with interest and costs;
(b) the defendant -
(i) admits the whole of a claim for a specified sum of money; or
(ii) offers to pay a specified sum; and
(iii) requests time to pay or makes an offer to pay by the defendant's
offer as to the amount, time and rate of payment.
(2) Where this rule applies, the claimant must state in the request for the judgment in
form 7 the reasons for objecting to the defendant's proposals as to payment.
(3) The court must consider the defendant's request and the claimant's objections and
enter judgment for the amount of the claim, interest and fixed costs under rules
65.4 and 65.5 on such terms as it sees fit.
(4) The general rule is that the court should enter judgment under paragraph (3)
without a hearing.
(5) Where the court decides to deal with the matter at a hearing, it must give the each
party at least 7 days notice of the date, time and place of the hearing.
(6) Where there is a hearing, the court must determine whether to make an order for
the costs of the application, by whom the costs should be paid and assess such
costs under rule 65.8.
Application to be in Form 7. It does not apppear that a judge at hearing is necessary. In

rule 14.7 - admission of part of claim for money only:
(4) Where the defendant has not requested time to pay under rule 14.9, the claimant
may file a request for judgment in form 7 for the amount admitted, interest and
fixed costs and may specify -
(a) the date on which the judgment debt is to be paid; or
(b) the time and rate at which it is to be paid by instalments.
(5) The registry must enter judgment in accordance with the request.
A party may also admit facts voluntary or by rule 29.13 - notice to admit facts.
(1) A party may serve notice on another party requiring that other party to admit the
facts or the part of the first party's case specified in the notice.
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(2) A notice to admit facts must be served no later than 42 days before the trial.
Importance of notice to admit.

Baden v Societe Generale pour Favorise le Favoriser le Developpement du Commerce et
de l'Industrie en France SA - the court encouraged use thereof and suggested that they
should be used more often where no facts are in issue. Don't send notice to admit where
you know chances are unlikely that the person will admit. Should be limited to matters
not in dispute.
There are cost consequences with the notice to admit. Under Rule 29.13(4):
Where the party served with the notice to admit does not admit the facts set out in the
notice within 21 days of service of the notice upon that party, the court may order the
party served with the notice to pay the costs incurred by the party serving the notice.
Lipkin Gorman v Karpnale - the court will essentially consider whether there are facts
which should have been reasonably admitted and failure to do so will give arise to costs.
Amending and withdrawing admissions.

Minor admissions are more readily allowed but where amendment involves varying your
position then the question of withdrawing admission is involved.
Bird v Birds Eye Walls Ltd (seeSIMES) - The court in considering the issue whether it
should grant permission the following consideration was observed:
It was just ...the risk of prejudice to C's investigation was significant and the
reason for the decision to withdraw had not been reasonably explained.
Gale v Superdrug Stores - Dissent- focus on the good reason. There was also the question
of prejudice to the other party and the explanation for change
Sollit v Brady (CA) [followed dissenting judgment in Gale v Superdrug Stores ] (Thorpe
J) - therefore the focus now is on the reason but you also consider the prejudice.
Watson v Officer - said Sollit v Brady was decided on different rules in that the UK rules
make different provisions See pp297-298 Kodilinye But the UK pre-action protocols
were the same prior to the rules. Jamaica Follow Gale v Superdrug Stores .
STRIKING OUT
Rule 26.2 - Court's power to make orders of its own initiative

(1) Except where a rule or other enactment provides otherwise, the court may
exercise its powers on an application or of its own initiative.
(2) Where the court proposes to make an order of its own initiative it must give any
party likely to be affected a reasonable opportunity to make representations.
(3) Such opportunity may be to make representations orally, in writing,
telephonically or by such other means as the court considers reasonable.
(4) Where the court proposes -
(a) to make an order of its own initiative; and
17
(b) to hold a hearing to decide whether to do so,
the registry must give each party likely to be affected by the order at least 7 days
notice of the date, time and place of the hearing.
The hearing is an inter parte hearing.
Rule 26.3- Sanctions - striking out statement of case

(1) ...the court may strike out a statement of case or part of a statement of case if it
appears to the court-
(a) that there has been a failure to comply with a rule or practice direction of with an
order or direction given by the court in the proceedings;
(b) that the statement of case or the part to be struck out is an abuse of process of the
court or is likely to obstruct the just disposal of the proceedings;
(c) that the statement of case or part to be struck out discloses no reasonable
grounds for bringing or defending a claim; or
(d) that the statement of case or part to be struck out is prolix or does not comply
with the requirements of Parts 8 or 10.
Rule 26.4 - Court's general power to strike out statement of case

(1) Where a party has failed to comply with any of these rules or any court order in
respect of which no sanction for non-compliance has been imposed, any other
party may apply to the court for an "unless order".
(2) Such an application may be made without notice but must be accompanied by -
(a) evidence on affidavit which -
(i) identifies the rule or order which has not been complied with;
(ii) states the nature of the breach; and
(iii) certifies that the other party is in default; and
(b) a draft order.
(5) An "unless order" identify the breach and require the party in default to remedy
the default by a specified date.
(7) Where the defaulting party fails to comply with the terms of any "unless order"
made by the court that party's statement of case shall be struck out.
(8) Rule 26.9 (general power to rectify) shall not apply.
Rule 26.9 - General power of the court to rectify matters where there has been a
procedural error
(1) This rule applies only where the consequence of failure to comply with a rule,
practice direction or court order has not been specified by a rule, practice
direction or court order.
(2) An error of procedure or failure to comply with a rule, practice direction or court
order does not invalidate any step taken in the proceedings, unless the court so
orders.
(3) Where there has been an error of procedure or failure to comply with a rule,
practice direction, court order or direction, the court may make an order to put
matters right.
(4) The court may make such an order on or without an application by a party.
18
Where a matter is struck out here 26.5 also an application which the rules do not sate that
it needs to be heard by a judge. Where it goes to the registry the rules speak to a request
as opposed to an application. A judgment obtained on this matter is not a judgment on its
merits therefore can be set aside.
Rule 26.6 - Setting aside judgment entered after striking out

(1) A party against whom the court has entered judgment under rule 26.5 (judgment
without trial after striking out) when the right to enter judgment had not arisen
may apply to the court to set it aside.
(2) An application under paragraph (1) must be made not more than 14 days after
the judgment has been served on the party making the application.
(3) Where the right to enter judgment had not arisen at the time when judgment was
entered, the court must set aside judgment.
(4) Where the application to set aside is made for any other reason, rule 26.8 (relief
from sanctions) applies.
Although the court has the power to extend the 14 days generally the court feels that the
more you are not in compliance with the rules the more unlikely it is for you to get the
extension sought
Rule 26.7 - Sanctions have effect unless defaulting party obtains relief
Relief from sanctions 26.8 The idea of moving quickly.

Rule 26.8 - Relief from sanction
(1) An application for relief from sanction imposed for a failure to comply with any
rule, order or direction must be -
(a) made promptly, and
(b) supported by evidence on affidavit.
(3) In considering whether to grant relief, the court must have regard to -
(a) the interests of the administration of justice;
(b) whether the failure to comply was due to the party or the party's attorney-at-law.
(c) whether the failure to comply has been or can be remedied within a reasonable
time;
(d) whether the trial date or any likely trial date can still be met if relief is granted;
and
(e) the effect which the granting of relief or not would have on each party.
Striking out is to be reserved for plain and obvious cases. W & H Trade Marks (Jersey)
Ltd v W and H Trade Marks (Jersey) Ltd followed in Three Rivers District Council v
Bank of England (No.3)
Taylor v Midland Bank Trust Co Ltd makes one of the points made in Three Rivers
District Council v Bank of England (No.3).
19
CIVIL PROCEDURE AND PRACTICE II (In Tutorial - Justice Ellis)
Question 2
Judge should not act capriciously whether within the strict confines of the rules or his
inherent authority or when acting under his discretion.
Maltez v Lewis May 4, 1999. Sought to prevent opponent from using a Queens Counsel.
The argument presented was that there should be a leveled playing field. Using a silk was
disproportionate and that would be in breach of the rule. It was also argued that the silk
cost more money thus breaching the rules as to saving cost. Justice Newburger rejected
the argument claiming that he lacked jurisdiction to make the order sought (but he did
have jurisdiction; it was not necessary to say this) and even if he did he would not
exercise it. He conceded that there are greater case management powers which operated
on a wider basis. It was a citizen's fundamental right to be represented by an attorney of
his choice. The right is not absolute. Note that the court highlighted the court's evident
aversion to the possibility that the CPR might be used tactically in the way the old rules
so often were used (i.e. Asking the court to act unjustly to take advantage of a
technicality). (Ian Granger - The Civil Procedure Rules in Action pp 8-23 see also the
proportionality* concept as dealt with there).
There are wider consideration to be addressed other than acting just to save cost (see May
LJ McPhilemy v The Times Newspaper All ER @ p791-the court will strive to manage
the case so as to minimize the burden on litigants of slender means, including excluding
peripheral issues to the main issues which ... Don't just act to save costs and in so doing
exclude vital evidence. @p793 - Lord Wolfe - one must show that the objective is to limit
expenses and not as a tactical move)
*Proportionality actually means - the factors against which proportionality are to be

measured are listed in the rules - amount of money involved etc - more generally,
however, it may be necessary to quote Lord Wolfe - is it right to cling to a system that
offers perfection for the few and nothing at all for the many. Perhaps if we could really be
sure that our existing system was perfect, but it is not. Every system contains a
percentage of error. If time and money are no object was the right approach in the past it
is not today. Flinn v Robin Thompson and Partners [2000] The Times 14 March
20
STRIKING OUT CONTINUED
RULE 26.3(1)(a)
Failure to comply...
This is not any minor failure to comply.
Morgans (a Firm) v Needham - it is inappropriate to strike out on the basis of a failure to

comply unless it was clear as to what they are to do
AXA Insurance Co Ltd v Swire Fraser Ltd - The court considered the prejudice to the
party in compliance. Don't consider it like in the preCPR cases. This consideration is
new.
Purefuture Ltd v Simmons & Simmons - if you can properly sanction the person otherwise
then that is what you should do as opposed to striking out the case.
Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd - If no sanction can appropriately
rectify the wrong then strike out the case.
Rogers v Rhys Evans (a Firm) - If you have a good excuse and the time table for trial can
still be met then don't strike out.
Taylor v Anderson - In additional inexcusable delay one must show considerable risk and
not just doubt that a fair trial will be possible.
Powell v Baladz - balance claimant's right to fair trial and defendant's to fair justice.
These cases show that you must demonstrate non-compliance and a considerable
risk that a fair trial (prejudice) is no longer possible before strike out will stand on
this ground.
The unless order is treated differently though similar considerations are taken when relief
from sanction is sought. The onus shifts. The court can extend the time for compliance
with an unless order (Ropac Ltd v Intrepeneur Pub Co [2000] 26 LSGaz R 38.
Relief from sanction

Woodward v Finch - Court rejected explanation for delay but thought that the relief was
sought promptly, default not intentional, trial date could be met, no significant effect on
the parties, effect of refusal from relief on the claimant. In the circumstances (only 3 days
out etc) appropriate to give relief
21
RC Residuals Ltd v Linton Fuel Oils Ltd - Consider unless order regarding expert
evidence which had been breached. Several defaults by the claimant. Evidence crucial to
the claimant's case. Similar considerations were made and relief made. Need to balance
the factors to be considered in 26.8 Illustrates the need for application to be supported
with cogent evidence for failure to comply.
Chapple v Williams - court entitled to look at the merits of the defence. This is not
specifically listed in our rules or the English rules hence this is an additional criteria.
Though this may fits under the need to do justice and the fact that a discretion is being
applied the overriding objective comes into play.
Striking out on the ground Party obstructing just disposal of the proceedings
Rule 26.8(1)(b) Not treated in the rules as different from abuse of process. Vexation,
scurrilous or obviously unfounded - English practice direction which we don't have.
Ashmore v British Coal Corporation - vexatious - depends on the circumstances of the

case but may include public policy and the interests of justice.
Bustall v Beyfus - claim vexatious where party joined merely to obtain disclosure of
documents.
Rassam v Budge - Lack of clarity in defence is an obstruction to a fair trial.
British and Colonial Land Association Ltd v Foster - defence may be struck out if
unclear how much is admitted and how much is denied.
Re Morgan - mere prolixity or setting out inconsistent position in the statement of case is
unlikely to result striking out on this ground. In our jurisdiction do not rely on this.
Western Trust & Savings Ltd v Acland & Lenson (a Firm) - this rule is not strictly
relevant where the complaint is delay as against the form or content of the case.
Habib Bank Ltd v Jaffer - claim struck since delay constituted a whole sale disregard of
Abuse of process
Biguzzi v Rank Leisure plc - lesser sanction appropriate don't strike out. Where there is a
clear case of abuse of process then strike out.
Grundy v Naqvi - look at validity of the reason as to abuse of process of the court
Grovit v Doctor - can delay itself constitute abuse - yes sufficient delay can without the
need to show prejudice. Abuse of process then can strike out even if there is no delay or
prejudice.
Res judicata can give rise to abuse of process. The idea is that where the issues raised in
22
the second proceedings are identical to those in earlier proceeding and should be
automatically struck out as an abuse of process unless there is fraud etc. This is similar to
the position in consent judgments. One also cannot litigate issues which should have been
raised in earlier proceedings. There should be finality to litigation. This principle applies
when you are dealing with the same parties. Manson v Barclays Bank plc cf Gribbon v
Lutton - a second claim involving a different party was struck out. The claimant in the
second proceedings was a party to the first and what was sought was inconsistent with
what was ruled in the first.
Bradford and Bingley Building Society v Seddon- the absence of a hearing on the merits
favours relitigation.
23
CIVIL PROCEDURE AND PRACTICE II TUTORIAL (In class)
TUTORIAL SHEET 1
Question 3
The inherent jurisdiction of the court.
See p10 (photocopy)
Birkett v James
Default intentional and contumelious (e.g. defy an unless order);
Conduct which amounts to an abuse of the process of the court;
There has been an inordinate and inexcusable delay in bringing or prosecuting the action
(plaintiif or his lawyers).
Such cases are not affected by the CPR because the rules codify certain powers for
example the rules provide for the award of costs for such delay thereby codifying the pre-
CPR position.
Department of Transport v Chris Small [1989] 1 All ER 897

Hunter v Skingley [1997] 3 All ER 58
Some positions are codified in the CPR while others have not been eroded thereby. Also
where the CPR is silent on a particular position the pre-CPR cases on point may be
instructive.
24
CIVIL PROCEDURE AND PRATICE II
SIME
ADMISSIONS
Notice to Admit Facts
To protect against wasting the court's time a party may serve the other side with a notice
to admit facts. A notice to admit facts must be served no later than 21 days before trial.
Notices to admit are looked on favourably by the courts, because they narrow the issues
to be decided at trial and therefore tend to save costs and reduce delays. In Baden v
Societe Generale pour Favoriser le Developpement du Commerce et de l'Idustrie en
France SA Lawton LJ said that notices to admit were of the greatest importance in the
administration of justice and ought to be more frequently used.
Use of admissions
Admissions made in response to a notice to admit are formal admissions as between the
parties who served and were served with the notice, but only for the purposes of the case
in hand. Other prties to the present action are not entitled to make use of such admissions,
although they may be entitled to serve their own notices to admit.
Cost consequences
Under the old rules a party which refused or neglected to make an admission after being
served with a notice to admit facts would usually be ordered to pay the costs of proving
those facts at trial, and the costs occasioned by and thrown away as a result. The CPR
does not have an equivalent provision. However, the costs rules are broad enough to
encompass this pre-CPR position.
The effect is that if the party refusing to make the admissions wins at trial, instead of
having an expectation of recovering the entire costs of the action under the principle that
costs usually follow the event, it will most likely have to pay the costs (including related
costs) of proving the facts not admitted, and will only recover the balance of the costs of
the claim.
The trial judge always has a discretion whether to impose this costs sanction. According
to the Court of Appeal in Lipkin Gorman v Karpnale Ltd, the judge should ask whether in
the circumstances of the case the facts ought to have been admitted, and whether it would
be just to require the winner at trial to pay the costs involved in proving the facts not
admitted. It is open to the court to find that it was reasonable to contest some of the facts
stated in a notice to admit, but not others, and to operate the costs rule over the facts
which should reasonably have been admitted, as in Baden v Societe Generale pour
25
Favoriser le Developpement du Commerce et de l'Idustrie en France SA. The question
whether the facts subject to a notice to admit are controversial in the context of the case is
one of degree. Simply because the existence of a fact may not be capable of being finally
established until it is found at trial does not mean that the court will refuse to penalize a
party to admit it (the Baden case).
Withdrawing admissions
The court may allow a party to amend or withdraw any admission made by that party in
response to a notice to admit facts on such terms as it thinks just.
26
CIVIL PROCEDURE AND PRACTICE TUTORIAL
TUTORIAL SHEET 1
Dealing with a case justly
- The primary concern of the court is doing justice. Shutting a litigant out through a
technical breach of the rules will not often be consistent with this, because the primary
purpose of the civil courts is to decide cases on their merits, not to reject them through
procedural default.
Equal footing
In Maltez v Lewis the concept of dealing with the parties on an equal footing was held not
to extend to the court being able to prevent a party from instructing the lawyers of its
choice, even if one side could not afford lawyers as expensive as those being used by the
court. In McPhilemy v Times Newspapers Ltd the Master of Rolls said that if a party
wanted the court to restrain the activities of another party with the object of achieving
greater equality, the party making the application had to demonstrate it were itself
conducting the proceedings with a desire to limit expense so far as practical. However,
the powers of the court to restrain excess did not extend to preventing a party from
putting forward allegations which were central to its case. That said, it was open to the
court to attempt to control how those allegations were litigated with a view to limited to
costs.
Dealing with cases expeditiously, fairly and saving expense
- The need to deal with cases fairly and expeditiously, and also on the need for
proportionality.
Allotting an appropriate share of the court's resources
Expense would not be saved by hearing the appeal, and given the short time to trial
hearing the appeal would not be a good use of the court's resources.
27
CIVIL PROCEDURE AND PRACTICE TUTORIAL (In class)
Question 4
It is stated in the rules that the parties are under an obligation to assist the court in
furthering the overriding objective.
This is a new culture.
What are examples of ways in which the attorneys may assist the court?
-Comply with court orders
-Notify court of settlements, if any
-Settle where possible
-Conform to the rules
-State claims and issues clearly before the court
-Going to alternate dispute resolution where appropriate
Aside: Parties mulct in costs - party order to pay costs.
Cadogan Properties v Mount Eden [1999] CPLR 476, Law Times 29 June 1999 - dealt
with highly technical points on extension of time for service and service out of the
jurisdiction. Even the winning party was criticised for pursuing an ultra technical course.
Because he was not pursuing the speedy way of determining the case, he was facilitating
an increase in the costs and therefore not furthering the overriding objective. He also
pursued an appeal for no other reason than to teach the other side a lesson. It is worth
pointing out that the rules do not contain just a general requirement to co-operate but also
a positive duty on behalf of the attorneys and the parties in general to co-operate.
The courts role must not be impaired. It will not regard itself as bound by agreed case
management directions which are inappropriate, i.e. not appropriate to achieve the
overriding objective Re Debtors (No. 13) Miscellaneous The Times 10 April 2000.
It is now the court's responsibility to encourage parties to have resort to ADR. Uly Lever
Public Liability Company v Proctor and Gamble The Times 4 Nov 1999 - The issue here
was one of settlement
Question 5
Allocation of court resources. A time table is set at CMC therefore to make applications
outside of that arena would, or are likely to, throw off that timetable. Therefore, in order
to assist the court in furthering the overriding objective such applications may go against
this obligation. To sanction such actions the court may award wasted costs or strike out
28
the application.
Where the agenda set out, namely the trial date, at CMC would not be interfered with.
Where the matter is urgent and the tribunal is satisfied that it is such.
Where the situation arose after CMC.
Where to hear it would further the overriding objective.
Question 6
It is an informal hearing. One of the reasons the parties must attend is to facilitate
settlement. This process is a means of encouraging the parties to amicably participate and
promote solution.
Question 7
One of the issues is one of settlement, therefore the parties should be present to facilitate
this.
Note: In the case of absence, with conditions, the defaulting party may apply to set aside
the judgment made in absence.
29
PANEL DISCUSSION ON ADVISING CLIENTS ON PROCEDURAL ISSUES
CAMILLE FACEY (Cable and Wireless)
For the client its not an academic exercise. They're interested therein in only a peripheral
way. They want to know that you understand their issue and how the law relates to that
issue and what their position is. They want a crisp statement as to the law relating to the
issue, their options and the likelihood of success. In two pages let them have the answer
to their issues. Clarity. Can they do it or not. If dealing with procedure lay it out simply,
step by step. After those two pages you include the pros and cons and possibly how they
arrived at that conclusion.
Cf lawyers who want to know about the law.
GRACE McKOY (NCB)
They want guidance. This must be in the first opinion, where there are follow ups. May
need follow up opinions. Suits filed against and by. When sued they want to know
whether they have a good case. Whether they need to settle. They want the probability of
success ie 70:30 chance pf success based on the facts given.
CHRISTOPHER PRYCE (CitiBank)

They need to know the regulatory matters, global and local. They are a business. They
need summary information leading to the advise. May need advise as to what to do and
the other options available.
Timeliness
Legally sound
Present options
Legal advise is insurance of sorts. Comfort to proceed.
If the principle which is covered is overriding settlement is not an option.

That is to say what precedent could arise from the settlement.
Facts
Issues
Law
Options
Never presume that we know everything. It cannot be too basic
30
May want a summary, possibility point form.
Executive summary - two page
*End summary - no more than a page; plain ad easy language; sufficiently capture all the
points the recipient needs; setting out the options and implications. If you recommend an
option just say why you think so. Any question that they may have must be addressed in
the opinion.
If the instructions are not clear or you feel something is missing ask the client about it
before giving the opinion.
You may want to include cost benefit, public opinion.
In some instances you will have to cite case law and take the main point you wish to
address.
You may be required to quote legislation.
Action steps
Facts
Issue
Law
Option
Recommendation
Likelihood of success
31
Date: October , 2005
Three Rivers District Council v Bank of England (No.3) - Striking out should be reserved
for plain and clear cases. Farah v British Airways plc and the Home Office - An
exception to this proposition is where you are dealing with a developing area of
jurisprudence and where the facts need to be investigated.
Christofi v Barclays Bank plc - Instead of striking out the court could allow an
amendment.
NON-APPEARANCE AT CASE MANAGEMENT OR TRIAL
What happens if one party is not at the CMC or at the trial
CMC – Rule 27.8 (4)

Where the case management conference or pre-trial review is not attended by the
attorney-at-law and the party or a representative the court may adjourn the case
management conference or pre-trial review to a fixed date and may exercise any of its
powers under Part 26 (Case management - the court's powers) or Part 64 (Costs)
Rule 27.8 (5)

Provided that the court is satisfied that notice of the hearing has been served on the
absent party or parties in accordance with these Rules, then
(a) if the claimant does not attend, the court may strike out the claim; and
(b) if any defendant does not attend, the court may enter judgment against
that defendant in default of such attendance.
The options available to the court depend on whether anyone attends at all. If only the
attorney attends, the court should not apply the more drastic sanctions. The Court can
proceed with the CMC if there is an absence. The court may also impose sanctions by
way of costs.
The significance is that the court may (as is expressed in the rules):
1. strike out the claim where there is an absence Rule 27.8(5)(a); and
2. give judgment in favour of the attending party Rule 27.8(5)(b).
If no-one shows they may strike out. If only the attorney shows the court will award a
lesser sanction like costs.
Attendance at Trial
Rule 39.5
Provided that the judge is satisfied that notice of the hearing has been served on the
absent party or parties in accordance with these Rules -
32
(a) if no party appears at the trial the judge may strike out the claim and may
counterclaim; or
(b) if one or more, but not all parties appear, appears the judge may proceed
in the absence of the parties who do not appear.
General position - if a party doesn't attend you can strike out. Notice sent and no party
attends the judge may strike out. If one or more appears the judge may proceed in the
absence of the one who doesn't appear.
Note: When the rule stipulates that the court may proceed, how should the court proceed -
suppose the claimant doesn't show - Does "proceed" mean proceed with the matter
including striking out powers. The essence of the court's power - court empowered to
proceed in some way if one party is absence hence the matter can be brought to an end if
a party does not show.
If you get judgment based on the absence of a party that judgment may be set aside
because it is not a case on the merits. This application must be made within 14 days
(which may be extended). Requires evidence on affidavit etc
Rule 39.6(3)
The application to set aside the judgment or order must be supported by evidence on
affidavit showing -
(a) a good reason for failing to attend the hearing; and
(b) that it is likely that had the applicant attended some other judgment or
order might have been given or made.
Note that the practice is that the date of the trial is given at the CMC so how can the
attorney not know when to attend.
There is a distinction between notice of the hearing date and the notice of the claim itself.
If the party is not present (the defendant who did not get the proceedings/claim) then
arguably these provision do not apply because the judgment so entered is a nullity. Note:
there is no case law on this. The pre-CPR position can be found in White v Weston [1968]
2 QB 647
Where, however, the claim has been served but no notice of the trial date served the court
says that the proceedings are not a nullity so the provisions apply and must be satisfied.
(b) is different from England where the rule says that the application to set aside
judgment is allowed only if the applicant moves promptly and has a good reason for not
attending or has a reasonable prospect of success at the trial. Garcia - but (b) also
includes that you have to prove that your case has some merit ie real prospect of success.
Hackney v Borough [2003] 4 All ER 1205 considers the English provision and the real
prospect of success (note that it is arguable that we have this consideration). Another
distinction in the English rules the ONLY IF we do not use this wording. Note: where we
use "only if" in our rules it has been interpreted to mean no other consideration Barclays
Bank plc v Ellis - "only if" means only if.
33
Note: if the affidavit must show a good reason and must show that some other order will
be made - must show means. You have to show these to succeed in the application.
Regency Rolls Ltd v Carnall - Factors under the relief from sanction considerations
should be applied to the setting aside of judgment on absence of party. Position -
understanding because some sanction has been applied. Problem - relief from sanction
section lays out factors to be applied and also does the set aside rule but the rule does not
have connecting words.
Neufville v Papamichael - Special obligation on claimant to attend a trial therefore more

difficult for them to satisfy the requirements.
Rouse v Freeman - Do not strike out the claim if the lawyer is present. The judgde could
proceed and award costs.
STAY OF PROCEEDINGS
Difference between stay, striking out, unless order and discontinuance. What is the
degree/effect of each? How final are they?
Finality of striking out depends on the grounds on which it was struck out. If not on
merits then the judge shouldn't strike out but then if struck out can you bring new
proceedings?
A stay contemplates something temporary. The claimant is temporarily prevented from

proceeding. See Simes 283 -285 6th Ed See Gardner v Southwark London Borough
Council (No 2). However, there are circumstances where it is considered to be permanent
such as a Tomlin Order The idea of the order is a permanent stay.
SETTLEMENTS GENERALLY
See Sime 515-516

Green v Rozen
Focus on the principle and whether the option adequately satisfies the principles and
settles the claim.
Green v Rozen lists the ways in which a settlement can arise. This list is, however, not
exhaustive. In Atkinson v Castan - settlement by consent order which made no order
other than to costs and the terms of the settlement were actually included in the recitals ie
WHEREAS...(recital).
NOW THEEFOR IT IS AGREED THAT (Terms)
The consent order had recitals and presumably effective because it extinguishes the right
of action because the claim merged in the consent order and no other claim can be
brought where there was an agreement that the parties could not now claim where you
have an unless order.
34
DISCONTINUANCE -Part 37
Rule 37.5
(1) Discontinuance against any defendant takes effect on the date when the notice of
discontinuance is served on that defendant under rule 37.3(1)(a).
(2) The claim or a relevant part of the claim is brought to an end as against that
defendant on that date.
(3) However, this does not affect -

(a) the right of the defendant under rule 37.4 to apply to have the notice of
discontinuance set aside; or
(b) any proceedings relating to costs.
Because of this power it is more final and stands on the same footing as a striking out
because it can be set aside on an application made within 28 days from the service of the
notice and the rules take effect from service of that notice. This application is not
frequently made because the defendant will get the cost of the claim.
Rule 37.3(5)
Where there is more than one defendant, the notice of discontinuance must specify
against which defendant or defendants the claim is discontinued.
If there are multiple defendants you must say against whom you are discontinuing the
claim.
Question - suppose you fail to specify?

Rule 37.3(6)
A notice of discontinuance which does not specify against which defendants it is intended
to discontinue is deemed to discontinue the claim or that part of the claim specified in the
notice against all defendants.
It will be taken as discontinuance against all (expressly stated in the rules).
Note that the claimant cannot set aside.
Jarvis v Price Waterhouse Coopers plc - the court considered that it could qualify as
decision of the court.
Note that in some cases you can serve a discontinuance without the permission of the
court. It is arguable whether it extends to these too.
When does a court set aside a notice? Generally one can set aside where service amounts
to an abuse of process of the court eg Fakih Brothers v A.P. Moller (Copenhagen) Ltd;
Ernst and Young v Butte Mining plc; Gilham v Browning (lays out the principles well -
35
read it); Coffee Industry Board v Blue Mountain Coffee Co-operative (appeared to think
that the position was like in Ernst and Young v Butte Mining plc - Garcia thinks he's
wrong - it went on appeal and the consent order was allowed which allowed the Board to
discontinue the claim which in effect reinstituted the claim),
Whether a discontinuance can be set aside on a ground other than for an abuse of process.
It is possible for others to be a ground because of the wording of the rules and also the
court may have regard to the Overriding Objective.
36
Date: November 4, 2005
FOR ASSIGNMENTS
In the last paragraph or sentence the client must know the advice.
Start with the summary.

Garcia puts the summary at the end.
Accurate statement of the law applied to the facts. If there are blurred areas in the law or
even in the application of the law then you bring it out. Point out to the client both ways
and come down on one side and say why.
1. Accuracy - statement of the law

2. Brevity - the advice being as brief as possible given the facts and issues involved
3. Clarity
DISCONTINUANCE
Gilham v Browning - Can a notice of discontinuance be set aside on a ground other than
an abuse of process? Yes. The Court can exercise a discretion and in doing so the
overriding object comes into play. See the case of Coffee Industry Board v Blue
Mountain Coffee Co-operative could have been decided in this way - Garcia.
The CPR does not speak to abuse of process and the case law does.
Costs is also an issue. If discontinuing the claim as the claimant - pay costs to the
defendant. Why? There is a certain assumption as to why he discontinues in that he does
not wish to proceed. It may also include an absence of merit and is therefore conceding
that he or she has lost or cannot win the case. This is the general rule. Exception - where
the assumption is proven to be incorrect then the general rule might not apply. Amoco
(UK) Exploration Co v British American Offshore Ltd; Stanway v Attorney General;
Barretts and Baird (Wholesale) Ltd. v Institution of Professional Civil Servants
Note that costs are to the discretion of the court.
Stay pending costs of the second claim if the claimant discontinued the first case and
brought a second. The defendant of the second case may also apply to strike out on the
ground that the second claim is an abuse of process.
When exercising the abuse of process ground the court is generally applying very wide
discretion.
37
ACCORD AND SATISFACTION
This refers to a settlement agreement. Release and discharge relies on the principle to
settle the claim.
Accord - refers to an agreement to settle a claim. It may be one to settle a claim in court
or another is a cause of action. THE RELEASE.
Satisfaction - refers to the consideration for the agreement DISCHARGE - once the
amount has been paid
There is an affective discharge of a matter where you have both and an accord and a
satisfaction.
Aside: Look in the contract text on this area - Chitty on Contract
The contract should be signed by the party to be charged - the person against whom you
would enforce the release - generally the claimant.
A fresh claim cannot be brought if there is a release and discharge. The new claim can be
treated as a breach of the release and satisfaction agreement or as an abuse of process.
Alcan Jamaica Co. V Austin - note that it is possible to have a partial discharge.
A settlement agreement can be set aside on the grounds that would ordinarily vitiate a
contract such as undue influence.
38
TUTORIAL SHEET 2
DETERMINATION OF MATTERS WITHOUT TRIAL
ADMISSIONS
Withdrawal of admissions
In the Jamaican case, Watson v Officer Anderson J considered the principles which
should be applied by the court in deciding whether to permit a party to resile from his
earlier admissions by amending his statement of case. He considered that the applicable
principles were those laid down by Ralph Gibson LJ in Birds v Birds Eye Walls Ltd and
followed by the majority in the English Court of Appeal in Gale v Superdrug Stores, both
pre-CPR cases. In the post-CPR case, Sollit v Brady, the Court of Appeal had pointed out
that Gale had been decided before pre-action protocols and pre-disclosure, and before the
effect of the CPR had made litigation more certain. The court preferred the descending
judgment of Thorpe LJ in the Gale case, but how did the approach of Thorpe LJ differ
from that of the majority in Gale? The majority had stressed that the discretion to allow
amendment of pleadings was a general one in which all the circumstances had to be taken
into account and a balance struck between the prejudice likely to be suffered by each side
if the admission were allowed to be withdrawn or made to stand, as the case may be.
Thorpe LJ on the other hand, had emphasised that the court should focus on the reasons
for the withdrawal of the admission, and this approach was approved in Sollit.
Interestingly and, it is respectfully submitted, quite correctly, Anderson J noted that the
pre-action protocols and pre-disclosure were 'matters which have had significant
implications for the way the English court viewed attempts to resile, but of course they
have no relevance to our situation here'. He reasoned that while the Jamaican court was
not bound by either Gale or Sollit the majority view in the former case remained the more
persuasive authority to follow as it contained the correct statement of the approach to be
adopted. He continued at pp 1100-102:
"I accept that the test of prejudice to a participant is an appropriate one for the court to
consider in coming to its decision. Indeed, it is implicit in our CPR which, in Rule 1.1(1),
sets out the overriding objective as 'enabling the court to deal with cases justly'...In the
proper exercise of any judicial discretion in circumstances such as the instant matter,
certainly it is useful to bear in mind our own Rule 1.1(1) as well as the words of Sir
George Waller in Bird v Bird's Eye Walls Ltd...
I find it very difficult to visualize any personal injury case where if a formal admission of
liability were withdrawn 18 months after it had been made, it would not prejudice the
claim.
39
I also find considerable cogency in the dicta of Bowen LJ in Shoe Machinery Co v
Cutlan, cited by Millet in Gayle, to the effect that: 'Courts do not exist for the sake of
discipline, but for the sake of deciding matters in controversy, and I do not regard such
amendment as a matter of favour or grace...It seems to me that as soon as it appears that
the way in which a party has framed his case will not led to a decision of the real matter
in controversy, it is as much a matter of right on his part to have it corrected, if it can be
done without injustice, as anything else in the case is a matter of right.'
And I say this notwithstanding, indeed fully conscious of, the emphasis in the new rules
on efficiency of the trial process in the interest of early and just resolution of disputes
between litigants."
In the instant case, the defendant was, in the circumstances, 'clearly and considerably
more at risk of prejudice than the plaintiff', and accordingly
QUESTION 4
Rule 26.4
(1) Where a party has failed to comply with any of these Rules or any court order in
respect of which no sanction for non-compliance has been imposed, any other party may
apply for an "unless order".
(2) Such an application may be made without notice but must be accompanied by -
(a) evidence on affidavit which -
(i) identifies the rule or order which has not been complied with;
(ii) states the nature of the breach;
(iii) certifies that the other party is in default; and
(b) a draft order.
(5) An "unless order" must identify the breach and require the party in default to
remedy the default by a specified date.
(7) Where the defaulting party fails to comply with the terms of any "unless order"
made by the court that party’s statement of case shall be struck out.
Under rule 26.5(2) where a party has not complied with an "unless order" any other party
may ask for judgment to be entered and for costs. Rule 26.6(1) stipulates that a party
against whom such a judgment has been entered, when the right to enter judgment has not
arisen, may apply to the court to set it aside. This application would be made not more
than 14 days after the judgment has been served on the party making the application
(26.6(2)). Rule 26.6(3) states that where the right to enter judgment had not arisen at the
time when judgment was entered, the court must set aside judgment.
Rule 26.8(1) permits a party who has failed to comply with a rule, order or practice
direction to make a prompt application supported by evidence on affidavit for relief from
the sanction. Rule 26.8(2)
40
The Court may grant relief only if it is satisfied that -
(a) the failure to comply was not intentional;
(b) there is a good explanation for the failure; and
(c) the party in default has generally complied with all other relevant rules, practice
directions, orders and directions.
(3) In considering whether to grant relief, the court must have regard to -
(a) the interests of the administration of justice;
(b) whether the failure to comply was due to the party or that party's attorney-at-law;
(c) whether the failure to comply has been or can be remedied within a reasonable
time;
(d) whether the trial date or any likely trial date can still be met if relief is granted;
(e) the effect which the granting of relief or not would have on each party.
QUESTION 6
Rule 37.2(1) The general rule is that a claimant may discontinue all or part of a claim
without the permission of the court.
This indicates that a claimant may generally do so as of right.
QUESTION 7
Rule 37.2(2) However -

(a) a claimant needs permission from the court if he wishes to discontinue all or part
of a claim in relation to which -
(i) the court has granted an interim injunction;
(ii) any party has given an undertaking to the court;
(b) a claimant who has received an interim payment in relation to a claim (whether
voluntary or pursuant to an order under Part 17) may discontinue only if -
(i) the defendant who made the payment consents; or
(ii) the court gives permission; and
(c) where there is more than one claimant, a claimant may not discontinue unless -
(i) every other claimant consents in writing; or
(ii) the court gives permission.
41
QUESTION 8
Rule 37.4
(1) Where the claimant discontinues without the consent of the defendant or the
permission of the court, any defendant who has not consented may apply to have
the notice of discontinuance set aside.
(2) The defendant may not apply under this rule more than 28 days after the
date when the notice of discontinuance was served on that defendant.
42
CIVIL PROCEDURE AND PRACTICE TUTORIAL (In class)
TUTORIAL SHEET 2
Baden case - Lawton LJ - the use of the notice to admit is of great importance in the
administration of justice and should be more often used. As the essence of this is to save
costs and the time of the court it fits in with the overriding objective.
Walsh v Misseldine - emphasises .....(simes) Therefore always consider the overriding

objective.
Striking out - general principle

This has traditionally been said to be appropriate only in plain and obvious cases- dictum
of Lord Templeman in Williams and Humberg Ltd v [1986] AC 368 Cases therefore
requiring prolonged and extensive arguments are not application for the sanction of
striking out - Three Rivers
The power to strike out determines on the application of any party or the judge may do so
on his own initiative (exercising his jurisdiction to seek the overriding objective). In
relation to no cause of action - Taylor v Inntrepereneur Estates
43
A formal admission can also be made orally. So the distinction between formal and
informal admissions is one of effect. The informal admissions are things that you are
entitled to prove or disprove at court.
Offers to Settle and Payments into Court

Parts 35 & 36
In the English cases you must be careful because there are differences with the UK rules
and ours. However, we cannot disregard their case law because we don't have sufficient
case law in this area here to do so.
Note the general principle and the way they apply them where there is a difference.
Pre-CPR rules did not have rules for offers to settle.
The idea of offer to settle is to look for without prejudice and save as to costs.
Calderbank v Calderbank - at the end of the trial when an award as to costs will be
considered it can look to the without prejudice letter in considering the costs to award.
The idea of such an offer made by the defendant is to go against the general rule. So the
letter can be used only with reference to costs and not with admitting to the settlement.
Where the Claimant gets a judgment which indicates that he should have accepted the
offer then instead of getting an award of costs on victory the letter would be used when
the court is deciding costs.
This and payment into court have the same effect. The physical payment into court is to
estimate what is an appropriate offer and what the claimant is likely to get in a judgment
and pay into court more than what he is likely to get. After damages have been awarded
the court would look to the payment into court to consider costs.
Both were traditionally made by the defendant and only if the claimant beat the offer
would he get an order for costs in his favour - Findlay v Railway Executive. This meant
that you had to get a judgment which exceeds the offer amount. If the judgment was
equivalent then the court would say that you have not beat the offer - Wagman v Vare
Motors Ltd. Costs therefore was the sanction to encourage the claimant to settle for a
suitable offer. The current position is now in Part 35. In relation to the amount as to
sanction see 35.15. It varies a little as to what it means to beat an offer to settle. It now
means that you must get an award that is about 85% of the amount that was offered and
no longer better than the offer 100%. This means that the defendant when assessing how
much to offer would have to exceed more than what they estimate, more than 15% of the
44
estimate.
Rule 35.15
(1) The general rule for defendant's offers is that, where the defendant makes an offer
to settle which is not accepted and -
(a) in the case of an offer to settle a claim for damages, the court awards less
than 85% of the amount of the defendant's offer; or
(b) in any other case, the court considers that the claimant acted
unreasonably in not accepting the defendant's offer,
the claimant must pay any costs incurred by the defendant after the latest date on
which the offer could have been accepted without the court's permission.
(2) Where a claimant makes an offer to settle and -

(a) in the case of an offer to settle a claim for damages, the court awards an
amount which is equal to or more than the amount of the offer; or
(b) in any other case, the court considers that the defendant acted
unreasonably in not accepting the claimant's offer,
the court may, in exercising its discretion as to interest, allow interest on the
damages at a rate of 20% per annum.
(3) The court may decide that the general rule under paragraph (1) is not to apply in
particular case.
(4) In deciding whether the general rule should not apply and in considering its
discretion under paragraph (2), the court may take into account -
(a) the terms of any offer;
(b) the stage in the proceedings at which the offer was made;
(c) the information available to the offeror and the offeree at the time that the
offeror made the offer; and
(d) the conduct of the offeror and the offeree with respect to giving or refusing
information for the purposes of enabling the offer to be made or
evaluated.
(5) This rule applies to offers to settle at any time, including before proceedings were
started.
Under the CPR Part 36 the payment can be made in support of an offer to settle and in
other circumstances (36.1) One such other case is in the defence of tender - in the defence
you tender the amount the that the claimant was offering and make a payment into court.
UK - offer to settle "must" be supported by a payment into court. OURS - it "may" be
supported by a payment into court.
Rule 36.1(1)
This part deals with payments into court made -
(a) to support an offer of payment under Part 35;
45
(b) in accordance with an order of the court; or
(c) to support a defence of tender.
Part 35 - sets out a procedure for making the offer to settlement without prejudice as to
costs. This goes further than the Calderbank Letter, such as saying whether the offer
covers interests and costs and it must be left open for a minimum period and the time for
acceptance and the extension thereof.
Rule 35.3
(1) A party may make an offer to another party which is expressed to be "without
prejudice" but in which the offeror reserves the right to make the terms of the
offer known to the court after judgment is given with regard to -
(a) the allocation of the costs of the proceedings; and
(b) (in the case of an offer by the claimant) the question of interest on
damages.
(2) The offer may relate to the whole of the proceedings or to part of them or to any
issue that arises in them.
Rule 35.4
A party may make an offer to settle under this Part at any time before the beginning of
the trial.
Rule 35.5
(1) An offer to settle must be in writing.
(2) The offeror must serve the offer on the offeree and a copy on all other parties.
(3) Neither -
(a) the fact; nor
(b) the amount,
of the offer or any payment into court in support of the offer must be
communicated to the court before all questions of liability and the amount of
money to be awarded (other than costs and interest) have been decided.
(4) Paragraph (3) does not apply -

(a) to an offer which has been accepted; or
(b) where a defence of tender before claim has been pleaded.
Rule 35.6
(1) An offer to settle a claim for damages must state whether or not the amount
offered includes -
(a) interest; or
(b) costs.
(2) Where the offer includes interest or costs, it must state the amount which is
46
included for each.
(3) Where there is a counterclaim as well as a claim. The offer must state -
(a) in the case of an offer by the claimant, whether or not it takes into account
the counterclaim; or
(b) in the case of an offer by the defendant, whether or not it takes into
account the claim,
and in each case in what amount.
Rule 35.8
(1) An offer to settle must state whether or not it covers the whole or part of the
claim.
(2) Where it does not state that it is to cover part only of the claim, it is to be taken to
cover the whole claim.
(3) Where the offer covers only part or parts of the claim it must -
(a) identify the part or parts of the claim in respect of which it is made; and
(b) if more than one, state what is offered in respect of each part covered by
the offer.
Suppose you don't follow that procedure? This is a lingering

question 35.1(2) - does not limit the procedure the one laid out in the rules. It allows
persons to make offers otherwise but does it allow you to make a Calderbank offer
without following the procedure. The court also has a general discretion has to ordering
costs. Nothing in part 35 restricts the making of the Calderbank Letter.
Rule 35.1(2)
This Part does not limit a party's right to make an offer to settle otherwise than in
accordance with this Part.
Part 35 provides offers with respect to claimants (different from pre-CPR) See rule
35.15(2) above. If not accepted by the defendant the rules have compensated the claimant
by a better award as to interest.
The principles of offer and acceptance apply

The offer can be withdrawn at any time before it is accepted even if a minimum time to
accept is made - Scammell v Dicker. However, see the case of Murry v Balckburn
Hyndburn [2005] 1 All ER 207 - the court was looking at the offer to settle without
prejudice as to costs. The court took the view that the offer could not be withdrawn
unilaterally. BUT it was not dealing with an offer within their rules so why could they not
withdraw. Moreover, this is contrary to Scammell.
Note: the offeree must act quickly. Where the offer is withdrawn at all Part 35 does not
apply. IF the offer is left open and is not accepted Part 35 applies. The general contract
law principles are varied when it comes to late acceptance. In relation to acceptance after
the date has lapsed, the court can permit an extension of the time to accept. This position
47
even before the CPR - Gaskins v British Aluminium Co Ltd. Factortame Ltd v Secretary
of the State for the Environment, Transport and the Regions - the court will vary the
general as to costs (general - the claimant gets the costs up to the date of acceptance and
there is no costs after the date of acceptance), where the court allows a late acceptance of
a defendant's offer the claimant gets the costs up to the date when the offer was open to
acceptance -Factortame -and the defendant gets the costs after that.
Rule 35.9
(1) The offeror may state in the offer that it is open for acceptance until a specified
date.
(2) The offer shall have no effect on any decision that the court makes as to the
consequences of the offer unless it is open for acceptance for at least 21 days.
(3) Acceptance of the offer after the beginning of the trial shall have no effect on any
decision that the court makes as to the consequences of such acceptance.
(4) The court may permit the offeree to accept an offer after the specified date on
such terms as the court considers just.
Rule 35.10
(1) To accept an offer a party must -
(a) serve written notice of acceptance on the offeror; and
(b) send a copy of the notice to any other party.
(2) The offeree accepts the offer when notice of acceptance is served on the offeror.
Rule 35.13
(1) Where -
(a) the defendant makes an offer to settle; and
(b) the claimant accepts the offer within any period stated for accepting it and
before the beginning of the trial,
the claimant is entitled to his costs to the day when he accepts the offer.
(2) Where the court or the defendant permits a claimant to accept an offer after the
time stated for accepting it the general rule is that -
(a) the claimant is entitled to costs to the end of the period stated for
accepting the offer; and
(b) the defendant is entitled to any costs incurred between the end of the
period stated for accepting the offer and the date when the offeree accepts
the offer, unless the court orders otherwise.
Rule 35.14
Where the claimant makes an offer which is accepted by the defendant, the claimant is
entitled to costs up to the time when notice of acceptance of the offer is served.
48
Rule 35.5 - offer to settle must not be disclosed to the court (See p 46 above). The
position in the UK is different as there is no disclosure to the trial judge. This is
consistent with the encouragement of settlement.
Williams v Boag – “court” in Rule 35.3 (See p 46 above) means court here in the trial:
“…but in which the offeror reserves the right to make the terms of the offer known
to the court after judgment is given with regard to…”
The Pre-CPR position indicates that when we speak about non-disclosure to the court we
mean the court hearing the trial and not interlocutory applications.
What happens if notwithstanding the rule above there is a disclosure in error; or an

acceptance application made at trial? The case of Millinsted v Grovesnor House (Park
Lane) Ltd recognises the principle that the judge may continue with the trial if he is
satisfied that there is no prejudice to either side. In looking at the question of prejudice
the court is looking at whether a fair trial has been made impossible. When the disclosure
could make a fair trial impossible. See Millinsted v Grovesnor House (Park Lane) Ltd
(Pre-CPR) & Garratt v Saxby (Post-CPR).
The Consequences of Non-acceptance
Claimant's offer
Where the claimant’s offer is not accepted the court has a discretion to order interest at a
higher rate - up to 20% - Note that this depends on the type of the case as this may or
may not be higher.
This interest is not intended to be penal so they would not make an outrageous figure –
McPhilemy v Times Newspaper Ltd (No. 2). This is a general rule and the court has a
discretion. The court may depart from this rule even if the party did not accept the offer.
There are UK decisions which indicate that the claimant should only get this enhanced
interest if the offer is genuine, for less than the amount claimed and not merely a tactical
point. See East West Corp v DKBS (No.2) and Huck v Robson (Making an offer for 95%
of the claim was not a tactical ploy but an offer for 99% was a tactical ploy).
The important question is therefore whether it is a genuine offer to settle or a tactical

ploy. This is dependent on the on facts of the case.
49
Defendant's offer
The consequence is that the cost rule changes. Part 35 sets out circumstances in which the
defendant could lose and still get the order for costs. See Rule 35.15 (See p 45 above)-
where the claimant fails to beat the offer to settle the court will award costs to the
defendant from the date that the offer was open for acceptance (i.e. the point when you
should have accepted) up to trial. The minimum period is 21 days but if you - claimant-
leave it open too long you will increase the amount of the costs.
The court is hesitant to depart from the general rule. This is the situation in both post and
pre - CPR
See Rule 35.15(4) (See p 45 above) - incorporate the justice of acceptance.
Example of departing from the general rule:

1. Were the defendant does not disclose something that is material to the acceptance
of the offer by the claimant, this justifies departure form the general rule. See
Ford v GKR Construction Ltd where there was a failure to disclose video
evidence which was held by the defendant. The court held that had the claimant
had this evidence before, then the claimant may have accepted the offer.
When looking at the entitlement to costs you are looking at the whole proceedings and it
does not apply to proceedings which are continuing. There is distinction when applying
the costs consequences to settlement of whole and part of claims.
PAYMENT INTO COURT

Principles of non-closure operate the same way.
What is the status of the payment as to whether or not it is security for the claimant in
respect of the debt owed by the defendant?
What happens when money is paid into court and the defendant is solvent? - WA Sherratt
Ltd v John Bromley (Church Stretton) Ltd - this is secured debt if the defendant is
insolvent.
If the payment is made to an authorised institution then if the court treats these as a
payment into court then it stands as security. The WA Sherratt Ltd case applies to
payments into court and since Part 36 says that payment into these institutions is a
payment into court then the security issue applies. The claimant is therefore at an
advantageous position as against the other creditor's defendants.
This payment is interest based. The money will earn the interest.
WITHDRAWING A PAYMENT INTO COURT
UK provides for this but and WE DO NOT. UK – Marsh v Frenchay Healthcare NHS Trust
- the question of whether or not a party should be allowed to do so is subject to the
overriding objective. BUT FOR US the Overriding Objective does not create a power
50
where one does not exist therefore THAT CASE DOES NOT APPLY.
Scammell v Dicker applied to withdrawal of offers - if the rules had intended to preclude
the withdrawal of an offer to settle then they would have expressly stated so. The
problem in applying this is that that case considers offers to settle which are contractual
in nature and may be withdrawn under those principles whereas the basis of payments
into court is rules based and should only by withdrawn if the rules say so. Also in relation
to the Scammell case, if the payment is done in support of an offer to settle then why can
you not withdraw an offer to settle and not a payment into court in this case, otherwise
would be in a precarious position.
Aside:
Always refer to what the court below said in your written submissions. Why are you
arguing that they are wrong.
51
SIMES
pp 282-285
STAYS
The court has a general case management power to stay the whole or any part of any
proceedings or judgment either generally or until a specified date or event. While a stay is
in place the proceedings remain alive, but no further steps may be taken to progress the
claim other than applying to lift the stay. A stay on a judgment prevents any steps being
taken to enforce it, until the stay is lifted. A stay may apply to only part of the
proceedings.
Stay on settlement
Proceedings are stayed when a settlement or payment into court is accepted.
Ordinary consent orders following a compromise of a claim frequently provide for the
stay of the proceedings (Rofa Sport Management AG v DHL International (UK) Ltd ).
Similarly, a Tomlin order provides for the stay of the proceedings on the terms set out in a
schedule to the order, with liberty to apply.
Stays in pending proceedings
Stays to enforce compliance with orders
Sometimes the court imposes stays as a means of enforcing compliance with its orders.
This is going to be effective only against a claimant or party in the position of a claimant,
such as a defendant making a counterclaim. Examples are:
(a) Stays which are normally imposed pending the provision of security for costs.
(b) A stay imposed where the claimant in a personal injuries claim refuses a
reasonable request for a medical examination.
(c) A stay pending a satisfactory undertaking as to costs or otherwise connected with

the way in which a claim is funded.
(d) A second claim may be stayed pending payment of the costs of an earlier
discontinued claim or costs of an earlier claim that was struck out, confirming
Gardner v Southwark London Borough Council (No 2)
(e) Where partners fail to comply with a demand for their names and addresses.
Stays to protect concurrent claims
52
There is a general public interest in avoiding a multiplicity of claims. Sometimes it is
simply an abuse of process to bring duplicate sets of proceedings, with the result that the
later proceedings will be struck out. The following examples stop a little way short of
being suitable for striking out, but stays may be imposed instead:
(a) where the dispute should be dealt with by arbitration rather than by litigation.
(b) Wherthe dispute should be dealt with in the administration of an insolvent

person's estate.
(c) Stays on the ground of forum non conveniens
(d) Stays pending the resolution of connected criminal proceedings. Applications for
such stays may be made by any party to the civil claim, or the prosecutor or any
defendant to the criminal proceedings (PD). The evidence in support of the
application must contain an estimate of the expected duration of the stay, and
must identify the respects in which continuing the civil claim may prejudice the
criminal trial.
SIMES
pp 515-516
SETTLEMENTS
Where a settlement has been agreed, the parties must decide how to record it. An
important consideration here is how the agreement can be enforced in the event of either
party failing to abide by its terms.
Five further ways of recording agreed terms were discussed by Slade J in Green v Rozen
(in the context of an agreement reached at the door of the court):
(a) Where a claim is settled on terms as to the payment of money, judgment may be
entered for the agreed sum, subject to a stay of execution pending payment of
stated installments. If the installments fall into arrears, the stay will be lifted, and
the judgment creditor can immediately take enforcement proceedings.
(b) A consent order may be drawn up embodying the undertakings of both parties in a
series of numbered paragraphs. If any other terms are not complied with,
enforcement may be possible immediately or on application to the court
depending on the nature of the term in question.
(c) The agreement may be recorded in a Tomlin order. A Tomlin order has the effect
of staying the claim save for the purpose of carrying the terms set out in a
schedule to the order into effect.
(d) A consent order may be drawn up staying all other further proceedings upon the
agreed terms. If the agreement is reached immediately before the hearing its terms
53
will usually be endorsed on counsel's briefs and the court will be asked to make a
consent order in those terms. Unlike with Tomlin orders, the courts are very
unwilling to remove the stay imposed by such orders, so enforcement can usually
be effected only by bringing fresh proceedings for breach of the contract
embodied in the compromise (Rofa Sport Management AG v DHL International
(UK) Ltd )
(e) The court may be informed merely that the case has been settled upon terms
endorsed on counsel's briefs. This is the most compromising an action. Its effect is
to supersede the existing action with the compromise. Any breach can only be
enforced by issuing fresh proceedings.
A sixth method was the subject of Atkinson v Castan, where a consent order made 'no
order' save as to costs, but set out the agreed terms stated in the recitals without the need
to bring a fresh action.
Where the terms of the settlement are agreed before the hearing then each party has a
responsibility to notify the court. Whether the hearing can be completely vacated depends
on whether the terms agreed are suitable for a judgment or order by consent.
The agreed settlement is itself a contract, so is binding even if it is not made into a formal
order of the court.
Settlements agreed after proceedings have been issued should deal with the costs of the
parties and with the future status of the claim. Options on the latter include entering final
judgment, dismissing the claim, granting a stay, or discontinuing or withdrawing it.
Aside: if the claim is discontinued the claimant is required to pay the defendant's costs
unless specific provision is made to the contrary and that the claimant is not necessarily
barred from commencing fresh proceedings in respect of the same claim.
SIMES
UNLESS ORDERS
Failure to disclose or give inspection
Where a party fails to serve a list of documents in accordance with the court's directions,
or fails to give inspection, an application can be made for an order compelling
performance. Before issuing the application the innocent party should write to the
defaulting party inviting them to remedy the default within a stated reasonable period. If
the default has not been remedied by the time the application is heard, the court will
usually make an 'unless order' requiring the matter to be put right within a stated period,
and specifying some sanction in default. Sanctions can include striking out the defaulting
party's statement of case.
Orders with sanctions
54
Orders containing sanctions must specify the time within which the step under
consideration must be taken by reference to a calendar date and a specific time. The
sanction part of the order may take the form of an unless provision. This is to the effect
that if the terms of the order are breached, the other party may file a request for judgment
to be entered.
RELIEF FROM SANCTIONS
A party in breach of a rule, practice direction, or order imposing a sanction for non-
compliance may apply for relief from sanction. This is done by issuing an application
notice, which must be supported by evidence. Where a party made an application to
extend time for complying with an 'unless order', the court will nevertheless apply the
criteria laid down in the rules.
It was submitted that it is essential for the judge to consider each of the factors listed in
the rules systematically and then to weigh the various factors in deciding whether
granting relief would accord with the overriding objective. This is particularly necessary
in complex cases such as RC Residuals Ltd v Linton Fuel Oils Ltd where there had been
previous defaults before breach of an 'unless order' relating to expert evidence. It was
held that the previous defaults, and an earlier adjournment of the trial date, were weighty
factors. Nevertheless, relief was given as these factors were offset by the fact that the
present default was not intentional, did not affect the parties, the new trial date could still
be met, and a full explanation had been given.
In Woodward v Finch the claimant was the days late in complying with an unless order
for service of witness statements. He explained his delay by pointing to a change in
solicitors, and problems in transferring his legal aid certificate. He purported to serve his
witness statements the day before his application was heard. The Court of Appeal refused
to interfere with the judge's decision to grant relief, despite a history of non-compliance
and the fact that the excuse put forward was not a good one. The main reasons were that
relief had been applied for promptly; the default was more muddle-headedness than
anything else; the trial date could still be met; there was not much effect on either party
through the default; and refusing relief would have a devastating effect on the claimant.
55
CONSENT ORDERS cont’d
Siebe Gorman and Co Ltd v Pneupac Ltd

Dietz v Lenning Chemicals Ltd
A contract can be declared void on the `ground that it is uncertain, so can a consent
judgment. However, in relation to the consent judgment the courts are particularly
reluctant to set them aside on the basis that they are uncertain and they will only do that
in the absence of an agreement on the essential terms. The reasoning is that if you have
an agreement on the essential terms but not on the non-essential terms the court has the
power to carry out the order. Scammell v Dicker 2005 Times CA. In Siebe Gorman and
Co Ltd v Pneupac Ltd Lord Denning observed that context had a double meaning. One
was evidence of a contract, and the other is that an order was made without the parties
objecting to it. In the latter case it is not referring to a real contract but is just an
objection. Because it is not based on contract it is not subject to the previously stated
rules and can be varied or altered. Note that in practice our approach is that when we are
thinking about consent orders we are referring to the first type and must consider
carefully whether we are consenting or not opposing the application. When we are
consenting we don’t mind the order saying we are consenting, but when we are objecting
we do not want the order to say we are consenting because you do not want to get into an
argue as to whether we might have meant to arrive at a consent order in the nature of a
contract. Therefore, in Jamaica the practice is that the consent order means evidence of
contract not no parties objecting. This is however just a practice and there is no case law
saying that we do not follow the second one.
Altering or varying the consent order. If in the nature of a contract it can only be altered
or discharged in the way that a contract may be altered or discharged, that is to say by
fraud illegality etc. We must make distinction between consent orders which are final and
those which are interlocutory. Where it is a final order in the nature of a contract the
above principles apply. Where it is a final order to which one party simply did not object
(Lord Denning’s second type) varying or discharging the order would require an appeal.
Once the court below has made a final determination on the order and the consent order is
where I did not object and it is inter parte I cannot come back to same court to set aside
the order he had previously made as where you can set aside an ex parte order you cannot
set aside an inter parte order.
Interlocutory orders are subject to further distinctions. If we have an interlocutory order

which is by consent in either sense and it sets down time limits for instance the case
management schedule, that can be varied by consent or by the court. However, those
56
which change the positions of the parties or give rights, for example a consent order to set
aside a default judgment is more difficult. Therefore, where the court has made an order
with reference to time it can vary that order and in any event the court has the power to
extend time. Where however, we have a consent order in default of failure to file a
defence and I apply to set it aside and you consent to the application and I am allowed to
defend, that is an interlocutory order. That order is more difficult to come back and say
although I agreed to him filing his defence I now object. Therefore, those which confers
rights are more likely to be treated differently than those that refer to procedure where the
rights of the other are not affected.
Note Rule 42.7 and the procedure for entering consent orders which is not how we used
to do it.
(1) This rule applies where -
(a) none of these rules prevents the parties agreeing to vary the terms of any
court order; and
(b) all relevant parties agree the terms in which judgment should be given or
an order made.
(2) Except as provided by paragraphs (3) and (4), this rule applies to the following
kinds of judgment or order -
(a) a judgment for –
(i) the payment of a debt or damages (including a judgment or order
for damages or the value of goods to be assessed);
(ii) the delivery up of goods with or without the option of paying the
value of the goods to be assessed or the agreed value; and
(iii) costs.
(b) an order for –

(i) the dismissal of any claim, wholly or in part;
(ii) the stay of proceedings on terms which are attached as a
schedule to the order but which are not otherwise part of it (a
“Tomlin Order”);
(iii) the stay of enforcement of a judgment, either
unconditionally or on condition that the money due under the
judgment is payable on a stated date by instalments specified in
the order;
(iv) setting aside or varying a default judgment under Part 13;
(v) the discharge from liability of any part;
(vi) the payment, assessment or waiver of costs, or such other
provision for costs as may be agreed; and
(vii) any procedural order other than one falling within rules
26.7(3) or 27.8(1) and (2).
(3) This rule does not apply -

(a) where any party is a litigant in person;
(b) where any party is a minor or patient;
(c) in Admiralty proceedings; or
57
(d) where the court’s approval is required by these Rules or any enactment
before an agreed order can be made.
(4) This rule does not allow the making of a consent order by which any hearing date
fixed by the court is to be adjourned.
(5) Where this rule applies the order must be –
(a) drawn in the terms agreed;
(b) expressed as being “By Consent”;
(c) signed by the attorney-at-law acting for each party to whom the order
relates; and
(d) filed at the Registry for sealing.
Now no application to the court is necessary. All that one needs to do is to file an order
and say it is by consent. Previously an application had to be filed and before the court
indicate to the judge that there was an order by consent. There are some cases where the
current procedure is not permitted. This is for example where you have a consent order
involving a minor or a patient as the court has a supervisory position that the court has to
exercise and must approve the terms of any settlement and any proposed consent order.
This is to protect the interest of the disadvantage. Is it possible to have a consent order
otherwise than in the circumstances set out in Rule 42.7? Yes, because it does not exclude
other possibilities. In the cases outside of the Rule 42.7 you must apply to the court for
the court to approve the terms of the consent order. It is exhaustive not in the cases in
which you get make a consent order but in the cases where you must obtain the consent
order through the procedure laid down. If you can’t come within Rule 42.7 you bring
your application supported by affidavit evidence and come before the court with the
application for the consent order.
In relation to final consent orders, the manner of challenging them is by appeal or fresh
proceedings - De Lasala v De Lasala
TOMLIN ORDERS
These are types of consent orders but are unique because the actual terms of the
settlement are not set out in the body of the order but rather in a schedule to which only
reference is made in the order. Tomlin Order: Practice Note:
“And the Claimant and the defendant having agreed to the terms set out in the
annexed schedule, it is ordered that all further proceedings in this action be
stayed, except for the purpose of carrying such terms into effect. Liberty to apply
as to carrying such terms into effect.”
When do you use them?
1. Dashwood v Dashwood and EF Phillips and Sons v Clarke (considers a

circumstance not considered in the former).
2. Where you have complex terms of settlement. If it is complex you don’t want to
put it in the body that a judge will have to prove because he will want to
58
understand what he is approving
3. To avoid publicizing the terms of the settlement

4. To have the option of being able to enforce the order without having to bring fresh
proceedings. Once the consent order is entered it is brought to an end and new
proceedings have to be brought for enforcing compliance. In the Tomlin order you
can enforce compliance in the same proceedings which are stayed when the order
is made, except for the purpose of carrying the terms into effect. Therefore the
right is expressly preserved in the order.
The terms of settlement scheduled in the Tomlin order can go beyond the boundaries of
the claim. If there are other issues in dispute in respect of which they may have not
brought the claim they can include it in the schedule - EF Phillips and Sons v Clarke
The court is not to approve or disapprove the terms of the settlement. - Practice note in
Noel v Becker . The practice is that the court will not look at the terms of the settlement.
The Tomlin order is therefore inappropriate to settle a claim involving a minor or a
patient.
Islam v Aktar- the court can rectify the order if by mistake it does not reflect the true
agreement of the parties.
What happens of the order is breached?
This is where the order is particularly useful because based on the wording of the order it
may be dealt with in the same proceedings. This is done by:
1. having the proceedings restored and then making an application
compelling compliance with the terms of the schedule.
2. After that you can enforce the compliance in the way that you would
enforce any other order of the court for example, bring contempt proceedings.
The distinction in effect between what is in the order and what is in the schedule will
determine what you place where and will be determined by for example what you want
publicized.
Any order on which you want the court to act must be in the body of the order and not the
schedule. Therefore, in Horizon Technologies International v Lucky Wealth Consultants
Ltd the PC held that the court could not tax the costs of the action because the provision
in relation to the taxation of the costs was in the schedule and not in the order. This was
an order for the court to do something and not for the parties themselves. Recall that the
court is disregarding what is in the schedule and concentrating on the contents of the
order therefore if you want the court to actually enforce something you put it in the order
and not the schedule.
If seeking compliance with something in the order then you go straight to an order for
compliance and not go through the two stages - restore and comply (one order) and then
59
order for non-compliance (Another order).
INTERIM PAYMENTS
Part 17
Our provisions are similar to those in UK.
An interim payment is a payment in advance of a trial on account of damages that the

claimant may be ultimately awarded. The idea is that the claimant is not to be kept out of
the money that we think he may get, for too long. These are important in for example
personal injury cases.
Grounds for the application – Rule 17.6

(1) The court may make an order for an interim payment only if -
(a) the defendant against whom the order is sought has admitted
liability to pay damages or some other sum of money to the claimant;
(b) the claimant has obtained an order for an account to be taken
between the claimant and the defendant and for any amount found due to
be paid;
(c) the claimant has obtained judgment against that defendant for
damages to be assessed or for a sum of money (including costs) to be
assessed;
(d) except where paragraph (3) applies, it is satisfied that, if the claim
went to trial, the claimant would obtain judgment against the defendant
from whom an order for interim payment is sought for a substantial
amount of money or for costs; or
(e) the following conditions are satisfied –
(i) the claimant is seeking order for possession of land
(whether or not any other order is also being sought); and
(ii) the court is satisfied that, if the case went to trial, the
defendant would be held liable (even if the claim for possession
fails) to pay the claimant a sum of money for rent or for the
defendant’s use and occupation of the land while the claim for
possession was pending.
(2) In addition, in a claim for personal injuries the court may make an order for the
interim payment of damages only if the defendant is -
(a) insured in respect of the claim;
(b) a public authority; or
(c) a person whose means and resources are such as to enable that person to
make the interim payment.
(3) a claim for damages for personal injuries where there are two or more
defendants, the court may make an order for the interim payment of damages
60
against any defendant if -
(a) 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
(even if the court has not yet determined which of them is liable); and
(b) paragraph (2) is satisfied in relation to each defendant.
(4) The court must not order an interim payment of more than a reasonable
proportion of the likely amount of the final judgment.
(5) The court must take into account -

(a) contributory negligence (where applicable); and
(b) any relevant set-off or counterclaim.
Before the payment is made there must not be much doubt as to the merits of the claim.
1. In circumstances where the defendant has admitted liability. As the merit is fairly
clear.
2. (Not in UK) order for the defendant to account to be taken to determine the
amount to be paid. The question is only how much is to be paid.
3. Judgment entered for damages to be assessed. Because you have a judgment on
liability the merit is not in issue. A judgment on admission may fall in this
category (and under (a))
Quarrie - the SC considered whether the hearing of an application for an interim payment
should be adjourned until the outcome to set aside the default judgment. Answer- the
court took the view that the previous practice need not apply as a matter of course as the
court has the power to vary or dismiss the order for the interim payment and because
dealing with a case justly is not fixed at a particular time in the case which allows you to
revisit the interim payment previously ordered.
61
Date: December 2, 2005
INTERIM PAYMENTS cont’d
British and Commonwealth Holding v Quadrex – the court must be satisfied that the
claimant will succeed and not that it is likely that the claimant will succeed.
Shearson Lehman Bros v Maclaine Watson and Co. - it still had to be satisfied on a
balance of probabilities at this interlocutory stage but it was on the higher end of the
scale. This case is making the same point that the court requires a higher test before it is
satisfied to award an interim payment
How does this test compare with the summary judgment test?
The wording is different. In the case of a summary judgment the test is one of proof by
the claimant that the defendant has no real prospect of defending the claim. But Garcia
thinks that this test is greater than the summary test but it may be argued both ways.
British and Commonwealth Holding v Quadrex suggested that the interim payment’s test
was higher than the summary judgment test but the problem with the application of this
case now is that it was a pre-CPR case therefore the summary judgment test was different
in the pre-CPR position where it was given where there was no arguable defence (there
may be some merit in the defence) which is now replaced by no real prospect of
defending (we are still trying to determine what this exactly involves - see our CA
decision - Stewart v Sammuels ).
If it is more difficult to get the interim payment then way not just go to summary
judgment and thereafter go for payment which disposes of the issue of liability. See
Simes for a discussion of this. In the case where you just go for an interim payment and
you have to prove that you “will succeed” no judgment on the matter is actually made
therefore the question of liability is still open.
Andrews v Schooling - CA UK – the issue was whether at the end of summary judgment
application, if summary judgment is refused whether one could order an interim payment.
Although Simes says it would not be appropriate, this case concluded that it could be
done but it had to be done in a particular way. When a conditional leave is given in
summary judgment one of the things ordered is an interim payment. The case thought that
the same could not be applied in unconditional. The problem with this case is that it was
pre-CPR and the ground for summary judgment was different.
62
Summary
1. The test is a very high standard to meet. You will succeed at trial on liability.
2. It is arguable whether the test is higher than the summary judgment test.
3. If the court refuses the summary judgment but decides to order interim payment it
should not give unconditional leave to defend but rather give conditional leave to
defend where the condition imposed is an order for interim payment.
Except in personal injury cases the court must come to this degree of satisfaction in
relation to the very defendant against whom the payment is sought. For example, if you
have five defendants and seeking interim payment against the 1 st then the test is
applicable to the 1st.
Rule 17.6(1)(e) relates to actions for possession. This is in the UK CPR, (b) is the one
that is not in the UK
Rule 17.6 - "may make" order if you come within one of those grounds and the court still
has the discretion whether or not to award the order. How is that discretion to be
exercised? Crimpfil Ltd v Barcalys Bank - the discretion is extremely wide. This is a pre-
CPR decision but probably still the case.
The following must be considered in exercising its discretion

1. An interim payment order is not appropriate where complicated factual issues or
difficult points of law would have to be resolved before making such an order.
Schott Kem v Bantley
2. The reasons why the claimant wants the money.
3. The defendant's means. British and Commonwealth Holding v Quadrex - whether

if there is evidence that the defendant's resources are such that an interim payment
would cause irreparable harm should be taken into account. Yes it should be if it
would and could not be remedied by repayment it should be taken into account
especially in considering the amount. Harman CFEM Facades v Coporate
Officer - how the court should consider the insolvency of the claimant. The court
should not refuse the interim payment order on this ground.
4. The special position of personal injury claims. In rule 17.6(2) the court wants to
be specifically satisfied as to the defendant’s means. The court also deals
differently with the question of multiple defendants. In this case the order may be
granted where the court is satisfied that you will succeed in getting judgment for
substantial damages against at least one defendant. The claimant has to satisfy the
court that each of them has the resources to pay in the event that it is found that
the wrong one paid. See also rule 17.6(3)
The effect of set-off, counterclaim and contributory negligence. Rule 17.6(5)

They must be taken into account.
63
At what stage of the application should they be taken into account? Schott Kem v
Bantley – There are two stages:
1. consider whether if the action is tried the claimant will succeed in
getting an award i.e. the initial grounds in rule 17.6(1).
2. if you come within those grounds the court then considers whether
they should exercise the discretion under rule 17.6(1).
Simes - set off - it is a defense which can reduce or extinguish a claims and
therefore applies to the question of whether the defendant is liable in the first
place and the set off should be considered in the first stage of the application – i.e.
whether the claimant will succeed at trial.
Counterclaims and contributory negligence should be considered in the second

stage – i.e. after the liability issue when looking at the question of whether the
court should exercise the general discretion and how much should be paid. The
reason is because it is a separate action Shanning International Ltd v George
Wimpey International Ltd pre-CPR - ground (d) may invite a court to take a
different approach with respect to contributory negligence.
What amount should be order?
Rule 17.6(4) - a reasonable proportion of what the final award might be. The judges take
a cautious approach avoiding a situation where the claimant will have to pay back the
money. Therefore, the amount should not be minute but substantial. A person is more
likely to get special damages. Andrews v Schooling – in non-personal injury cases – the
court estimated the likely award that the claimant would get at trial and then discounts it.
That case discounted the final award by 75%. Note that there is no rule of practice
regarding the amount of the discount.
64
Date: December 9, 2005
INTERIM PAYMENTS cont'd
PROCEDURE FOR MAKING INTERIM PAYMENTS

1. Form 7,
2. Affidavit in support; and
3. Draft order.
Form 7 - state the grounds relied on under Rule 17.6 and any other ground relevant to the
court's general exercise of its discretion
Service - this application is to be served at least 14 days before the hearing as opposed to
the usual 7 days
The draft order says the same things asked for in the application.
If the order is made for the interim payment to be made within 14 day what happens if the
defendant fails to do so? You can get an “unless order”. The claimant gets the order the
defendant does not comply then the claimant can either come straight to the court inter
parte and ask for the defence to be struck out; or ex parte and ask for an unless order that
unless the payment is made then the defence will be struck out. Both of these require a
separate application. To avoid having the separate application the initial order can state
that if not paid then they stay the proceedings Casio Computer Co Ltd v Osamu Sayo
The affidavit in support. Rule 17.5 states the minimum requirements for the affidavit. The
writer can also include anything else relevant to the exercise of the discretion
Rule 17.5
(1) In this rule and in rules 17.6 to 17.10 the term “claimant” includes a
defendant who counterclaims.
(2) The claimant may not apply for an order for an interim payment before
the end of the period for entering an acknowledgement of service to the
defendant against whom the application is made.
(3) The claimant may make more than one application for an order for an
interim payment even though an earlier application has been refused.
65
(4) Notice of an application for an order must be –
(a) served not less than 14 days before the hearing of the application;
and
(b) supported by evidence on affidavit.
(5) The affidavit must –

(a) briefly describe the nature of the claim and the position reached in
the proceedings;
(b) state the claimant’s assessment of the amount of damages or other
monetary judgment that are likely to be awarded;
(c) set out the grounds of the application;
(d) exhibit any documentary evidence relied on by the claimant in
support of the application;
(e) if the claim is made under any relevant enactment in respect of
injury resulting in death, contain full particulars of the person or persons
for whom and on whose behalf the claim is brought; and
(6) Where the respondent to an application for an interim payment wishes to

rely on evidence or the claimant wishes to rely on evidence in reply, that party
must –
(a) file the evidence on affidavit; and
(b) serve copies on every other party to the application, not less than
7 days before the hearing of the application.
Whether the affidavit evidence must indicate what the claimant plans to do with the
money. Kodilinye suggests that the affidavit should do so. In Wittich v Twaddle the
claimant said he needed the money to complete university education. The UK pre-CPR
cases suggest that one did not need to set out the purpose for the use of the money. In
Stringman v McArdle it was stated that the fact that the claimant might misuse the money
was irrelevant. In Schott Khem Ltd v Bentley the position of a commercial claimant was
considered and the court considered the view that the commercial claimant always needs
money therefore it is assumed that they would pump the money into the business. Hence
there is no need to state why the money is needed. There is a presumption that people
always need money. Campbell v Mylchrest makes the same point.
The UK position changed due to a practice direction in relation to Part 25 (the same as
our Part 17) which says that the claimant must state the proposed use of the money. Are
we therefore required to include evidence as to what the claimant proposes to do with the
money? It is possible to argue on the authorities that the reasoning applied in the pre-CPR
cases apply today which would support a "no". If the court is unconcerned about the issue
of repayment why are they concerned with the use of the money? Moreover, if the case is
strong enough to suggest that the clamant will get the judgment and they are not
concerned with the use of the award, why should they be concerned now at the interim
stage with the use of the money? Since you are asking the court to exercise a discretion
and we do not have any binding authority on the requirement one should include the
reason in the affidavit.
66
Rule 17.5 - the response to the application should include evidence to persuade the court
that the grounds are not met or based on the general discretion the payment should be
refused
Rule 17.5(6) – the respondent must file evidence in reply that it intends to rely 7 days
before the hearing and serve on all relevant parties. Because of the computation of the
time 14 days and 7 days the latter may fall short of this requirement. On the wording if
the claimant delivers the affidavit 14 days before the hearing and the respondent responds
7 days and the claimant can respond to that response within 7 days. Is this possible?
Manner of payment
Rule 17.7
(1) The general rule is that an interim payment is to be made to the claimant.
(2) However the court may order that the interim payment or part of it be
paid into court.
(3) Where an order is made under paragraph (2), the claimant may apply for
the whole or any part of the money in court to be paid out.
(4) An application under paragraph (3) may be made without notice but the
court may direct that notice be given to the defendant.
(5) The court may order that an interim payment be made in one sum or by
instalments.
(6) An order for interim payments made under rule 17.6(1)(e) may direct that
periodical payments be made during the continuance of the proceedings.
(7) The court may direct that repayment of the interim payment, with or
without interest, be secured.
Rule 17.7 - generally the payment is made to the claimant but the court may order a
payment into court where the claimant may apply without notice for money to be paid out
to the claimant. This is particularly applicable where the claimant is a minor. The rule
also provides that the order for the interim payment be secured in the event that the
claimant does not succeed or gets less than the interim payment on judgment. What is the
relevance of the Harmon CFEM Facades (UK) Ltd case which said that the fact that the
claimant is insolvent is not a reason to impose a condition or prevent the award of an
interim payment. In Jamaica the security issue is a condition therefore the Harmon
CFEM Facades (UK) Ltd case may be distinguishable here in Jamaica. A good reason for
ordering security would be that the claimant is insolvent.
Non-disclosure
Rule 17.8
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Neither the fact nor the amount of any interim payment is to be disclosed to the court
until all issues of liability and quantum have been determined.
Rule 17.8 - provides that the fact or amount of the payment into court is not to be
disclosed to the court. If the case can be continued fairly then if there is a disclosure
thereof then it ought to proceed. Because of the similarity in the provision for non-
disclosure of an offer to settle then the reasoning in those cases are arguably applicable
here. But note that the offer to settle is done without the court at all but the interim
payment is a judicial decision to begin with. This point may be argued both ways. The
court is here determining how to exercise its discretion therefore the overriding objective
comes into play.
Once an interim payment has been refused the claimant cannot reapply unless there has
been a relevant and material change in circumstances. Tinsley v Sarkar
The court has the power to adjust the amount of an interim payment. This could mean
discharging it and repayment; or varying it - time for or amount of payment – rule 17.9 at
any time presumably where there is a change in circumstances.
Rule 17.9
(1) Where a defendant has been ordered to make an interim payment, or has
in fact voluntarily made an interim payment, the court may make an order to
adjust the interim payment.
(2) The court may in particular –
(a) order all or part of the interim payment to be repaid;

(b) vary or discharge the order for interim payment; or
(c) order a defendant to reimburse, either in whole or in part, another
defendant who has made an interim payment.
(3) The court may make an order under this rule –

(a) without an application by a party if it makes the order when it
disposes of the claim or any part of it; or
(b) on an application by a party made at any time.
Interest on the payment. Where the claimant receives the interim payment and invests the
money, is the return on the investment to be taken into account on the determination of
the final award? Parry v North West Surry Health Authority – “no.”
Repayment in the event that it is greater than the amount of the final award. Should
interest be paid to the defendant Mercers Co v New Hampshire Insurance Co – “yes.”
Repay the difference and the claimant may be ordered to pay interest on the difference.
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TUTORIAL SHEET 3
Question 1
An interim payment is a payment in advance of any damages which a claimant may

ultimately be awarded at the conclusion of the trial. The purpose of such a payment is to
ensure that a claimant is not 'kept out of his money' for an unduly long period. Interim
payments are most useful in situations such as personal injury and clinical negligence
cases since the injured person may be in great need of the money. In such circumstances,
it would cause serious hardship if he were bound to wait until the conclusion of the trial,
which might be many months or years away. Therefore it would be unjust to delay, until
after the trial, payment of the money to which the claimant appears to be entitled. Hence,
the interim payment is made to alleviate hardship caused by the wrong of the defendant.
Question 2
A party are likely to agree on a voluntary interim payment where, for example, liability is
not in dispute but where quantum is still being investigated.
Question 3
The grounds for an application of an interim payment are found under rule 17.6. This is
subject to the civil standard of proof though on the higher end of the scale. The claimant
must prove, not that he is likely to succeed at trial but rather that he will succeed at trial
Shearson and British and Commonwealth Holdings. The power to order an interim
payment is a discretionary one, therefore, subject to the overriding objective, the court
reserves the right to refuse an order although the grounds have been satisfied. In
exercising its discretion the court may take into account the defendant's lack of means in
either refusing to make an order or in fixing the amount (British and Commonwealth
Holdings ). However, the reason behind the request for a order for an interim payment
should not be used to refuse a claimant such an order (Stringman held that the plaintiff
was not required to demonstrate any particular need beyond the general need to be paid
her damages as soon as reasonably possible, and the court should not, when considering
whether to order such a payment, investigate how the money was to be used; the judge
was wrong to refuse the interim payment on the ground that the money was to be applied
to a wrong or extravagant purpose).
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Question 4
Summary judgment is available where the defendant has no reasonable prospect of

success, and interim payments are available where the claimant can show that liability
will be established. These are similar concepts, however, the tests differ in substance. It
may be argued that the test under the summary judgment is higher than that of the interim
payment. In the case of a summary judgment, subject to appeal, it is a final order where
the claimant must show that the defendant has no reasonable prospect of defending the
claim. In Ricci it was suggested that the difference lay in the standard of proof. In the
case of an interim payment the court need not exclude every possibility of failure as the
judgment can be overturned at trial. Also, with an interim payment, though you cannot
have unconditional leave to defend a claim, the court can award an interim payment and
conditional leave to defend. This is not the case with the summary judgment.
Question 5
The claimant does rum a risk in receiving the interim payment for if judgment is obtained
against them they will have to repay the interim payment. Moreover, although there is no
express rule concerning the issue of interest on this sum the case of Mercer suggests that
the court may order interest to be paid on this amount. Hence, where the claimant has to
repay the money and interest he takes a risk in accepting the interim payment where is
not a claimant of means.
Question 6
There was an admission of liability though the defendant alleges contributory negligence.
Rule 17.6(1)(a) states that the court can make an order for an interim payment where the
defendant against whom the order is sought has admitted liability to pay damages or
some other sum of money to the claimant. In this case the defendant has admitted some
liability and therefore liability to pay some sum to the claimant. It may therefore be
argued that the claimant can get an order for interim payment now as the question of
quantum is in issue and it is disputed the percentage of liability which must be attributed
to the defendant and this affects the award of damages.
In awarding an order for an interim payment the court must take into account
contributory negligence (rule 17.6(5)(a)). According to Shanning there are two stages.
The first stage is where the court considers whether the grounds have been satisfied and
the set-off should be considered here. At the second stage the court is satisfied that the
grounds have been satisfied and it is left to consider whether to exercise the discretion
and the amount to be ordered. It is submitted, therefore, that the issue of contributory
negligence is considered here.
Under rule 17.6(4) the court will award a reasonable proportion of the final award. The
courts are reluctant to award an interim payment for general damages in a personal injury
claim but the special damages claim will be used in awarding the amount of the interim
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payment. He is therefore likely to get no more than $400,000.
Question 8
Liability has been admitted therefore ground 17.6(1)(a) has been satisfied. Since Joe has
obtained judgment then ground (d) is satisfied.
Question 9
Under rule 17.8 neither the fact nor the amount of any interim payment is to be disclosed
to the court until all issues of liability and quantum have been determined. Where
disclosure of an interim payment has occurred if the case can continue fairly the court
will proceed with the trial or he may abort the trial and consider making a wasted costs
order against the claimant. In deciding whether or not to proceed with the trial the judge
will be exercising a discretionary power and therefore it cannot be said with certainty
which way he will go. As he is exercising a discretionary power then the concept of
dealing with a case justly comes into to play. Hence because of the fact that the claimant
has already closed her case the judge may feel that he would be saving costs and the
court's time by continuing with the trial. We may, however, argue that it would be
prejudicial to the defendant to continue the trial as he may possibly be subconsciously
influenced by the fact that the court has previously decided that the claimant will succeed
and that the claim is worth more than the assessed amount of the interim payment.
Therefore, although the claimant has closed her case, only 2 days have been lost and it
would be in the interest of dealing with the case justly and not a waste of the court's time
to abort the trial and have another judge hear the matter.
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Date: January 13, 2005
Rule 17.1
(1) The court may grant interim remedies including -
(a) an interim injunction;
(c) an order
(i) for the detention, custody or preservation of relevant property;
(f) an order (referred to as a "freezing order") -
(i) restraining a party from removing from the jurisdiction assets
located there; and/or
(ii) restraining a party from dealing with any assets whether located
within the jurisdiction or not;
(h) an order (referred to as a "search order") requiring a party to admit
another party to premises for the purpose of preserving evidence etc
Rule 17.2
(1) An order for an interim remedy may be made at any time, including -
(a) before a claim has been made; and
(b) after judgment has been given.
(2) However -
(a) paragraph (1) is subject to any rule which provides otherwise;
(b) the court may grant an interim remedy before a claim has been made only
if -
(i) the matter is urgent; or
(ii) it is otherwise desirable to do so in the interests of justice;
(c) unless the court otherwise orders, a defendant may not apply for any of
the orders listed in rule 17.1(1) before filing an acknowledgement of
service in accordance with Part 9.
(3) Where the court grants an interim remedy before a claim has been issued, it must
require an undertaking from the claimant to issue and serve a claim form by a
specified date.
(4) Where no claim has been issued the application must be made in accordance with
the general rules about applications contained in Part 11.
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Rule 17.3
(1) An application for an interim remedy must be supported by evidence on affidavit
unless the court otherwise orders.
(2) The court may grant an interim remedy on an application made without notice if
it appears to the court that there are good reasons for not giving notice.
(3) The evidence in support of an application made without giving notice must state
the reasons why the notice has not been given.
Rule 17.4
(1) This rule deals with applications for -
(a) an interim injunction under rule 17.1(1)(a);
(b) an order for the detention, custody or preservation of relevant property
under rule 17.1(1)(c)(i);
(c) an order authorising a person to enter any land or building for the
purpose of carrying out an order under paragraph (b);
(d) a freezing order under rule 17.1(1)(f); and
(e) a search order under rule 17.1(1)(h).
(2) Unless the court otherwise directs, a party applying for an interim order under
this rule must undertake to abide by any order as to damages caused by the
granting or extension of the order.
(3) An application for an interim order under this rule may in the first instance be
made on 3 days notice to the respondent.
(4) The court may grant an interim order for a period of not more than 28 days
(unless any of these rules permits a longer period) under this rule on an
application made without notice if it is satisfied that -
(a) in a case of urgency, no notice is possible; or
(b) that to give notice would defeat the purpose of the application.
(5) On granting an order under paragraph (4) the court must -

(a) fix a date for further consideration of the application; and
(b) fix a date (which may be later than a date under paragraph (a)) on which
the injunction or order will terminate unless a further order is made on
the further consideration of the application.
(6) When an order is made under paragraph (4), the applicant must serve the
respondent personally with -
(a) the application for an interim order;
(b) the evidence on affidavit in support of the application;
(c) any interim order made without notice; and
(d) notice of the date, time and place on which the court will further consider
the application,
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not less than 7 days before the date fixed for further consideration of the
application.
(7) An application to extend an interim order under this rule must be made on notice
to the respondent unless the court otherwise orders.
TYPES OF INJUNCTIONS
Prohibitive Injunctions
These forbid an act. They restrain the respondent from engaging in a particular conduct or
act. The grounds to be satisfied by the applicant:
1. Substantive cause of action actionable in the jurisdiction. The Siskino - the

Claimant had a cause of action which was not actionable in that jurisdiction but in
another jurisdiction therefore the application was dismissed.
2. Where the first ground is satisfied the grant of the injunction is in the discretion of
the court and therefore the court will grant the injunction when it is just and
convenient to do so *American Cyanamid Co v Ethicon Ltd - Lord Diplock *All
ER @ p510-511 Noted guidelines to be considered:
i. Whether there is a serious issue to be tried;
ii. Then the applicant must give an undertaking to damages, that is to pay any
damages if the court finds later that the injunction should not have been
granted and that the applicant can pay the said damages. This is invariably
required by the court. In Kirlees Mertopolitan Borough Council v Wiches
Building Supplies the crown was seeking the injunction to enforce the law and
it was felt that the undertaking in damages was inappropriate where the
undertaking was to enforce the law. In Belize Alliance of NGOs v Department
of the Environment the applicant was unable to give the undertaking therefore
the court found that they would grant the injunction if the applicant can prove
that there is a strong underlying cause of action above the serious issue to be
tried. If the action sought to restrain an obviously unlawful act and domestic
disputes the undertaking may be dispensed with.
iii. After so finding the court will consider whether damages is an adequate
remedy. If it is, then the court will find that there is no need to grant an
injunction. In so doing the court will consider:
a) whether the respondent will be able to pay the damages;
b) whether the harm will be irreparable;
c) if the damages will be difficult to assess. If it is they will still grant the
injunction (e.g. Goodwill);
b) then the court will consider generally where the balance of convenience
will lie (this is really an exercise of discretion and it is the weight of the
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factors considered and not the number). The court can look at the
strength of the parties' cases but not to consider who will win the trial
but rather consider the uncontested evidence and it is on this that the
court determines the strength of the parties' cases. If unclear after all of
this, the court will decide that the balance of convenience is to maintain
the status quo before the claim was filed but if the claim was issued
long before the injunction was sought, the status quo before the
application was made.
American Cyanamid Co v Ethicon Ltd only sets out guidelines and not rules. Cayne v
Global Natural Resources plc so strayed from the guidelines and looked to whether
granting or not would result in injustice.
In applying the guidelines the court's views vary in the way the guidelines operate. Series
5 Sorftware Ltd v Clarke - Laddy J observed that:
1. interim injunctions are discretionary;
2. there are no fixed rules;
3. the court should not seek to resolve complex issues of fact or law;
4. important factors in exercising the discretion are:
a) the adequacy of damages including the ability of the respondent to pay;
b) balance of convenience;
c) any clear view the court may have on the strength of the parties' cases;
and
d) the maintenance of the status quo,
are all important considerations.
Kodilyne 375-379
Simes 365-371
When does the approach ought not to apply (not examinable)
Mandatory interlocutory injunctions
Unlike the prohibitory inunctions this type compels an act. The court is reluctant to grant
these at the interlocutory stage because they are usually more drastic in effect. *Shepherd
Homes Ltd v Santham - the case must be unusually strong and clear before this injunction
will be granted. The court must feel a high degree of assurance that at the trial the
injunction will be upheld. ( @ pp 409 and 412 All ER) This case was applied in Rudd v
Crowne Fire Extinguishers Services Ltd - the applicant had an arguable case and the
circumstances might have satisfied the grant of a prohibitory but not the mandatory
injunction.
Zockel Group plc v Mercury Communications Ltd revisited Shepherd Homes Ltd v
Santham but set out the principles differently. This case also emphasised that since it is an
interlocutory matter emphasis is placed on what is likely to cause the least risk of
injustice.
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Consider the distinction between the prohibitive and mandatory injunctions but in
appropriate cases the court may not require as a high a degree of assurance that the
claimant will succeed in getting the injunction at trial. Quoted Chadwick J in Nottingham
Building Society
THE EVIDENCE IN SUPPORT OF THE APPLICATION FOR AN

INTERLOCUTORY INJUNCTION
1. Set out the facts giving rise to the cause of action, not just what the claim is but
the surrounding details and the exact breach.
2. Facts justifying the importance of the grant of the injunction. If applying ex parte
- set out every reason against the grant of the injunction and the defences that the
respondent has or is likely to argue.
3. Set out the relief claimed. Practice Direction [1983] 1 WLR 433.
If the application is ex parte set out the reasons why no notice has been given 17.3(3)
Kodilyne - Adanac Industries Ltd v Black - the affidavit in support of the application
must be sworn after the claim form is issued. The court now has the power under rule
17.2(1)(a) to grant the injunction before the claim is filed. If the application is made after
the claim form is filed then the affidavit should be sworn after. But if the affidavit is to be
submitted before the claim then it can be sworn outside of existing proceedings.
Undertakings required
The applicant must give the undertaking as to damages. The applicant gives the usual
undertaking to damages. Spell out the actual undertaking sought. See Kodilyne precedent
If it is ex parte part 17 requires other undertakings including service of the documents

and if before the claim form then it should be served within a particular time .
GROUNDS FOR VARIATION OR DISCHARGE OF INJUNCTIONS
1. Material non-disclosure Because of the obligation to make full and frank disclosure the
applicant must set out not only the facts in support of the application but those that would
militate against the grant Jamculture Ltd v Black River Upper Morass Development Co
Ltd - failure give full and frank disclosure of material facts could preclude the grant of an
injunction or warrant its discharge.
Brinksmat Ltd v Eldcombe @ p 1356
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GROUNDS FOR VARIATION OR DISCHARGE OF INJUNCTIONS cont’d
Failure to disclose cont’d All material facts must appear in the affidavit in support of the
application itself, not in documents exhibited to it. There is obviously a distinction
between what are material facts and documents for the purposes of the application for the
injunction and those which will be relevant at the trial of the action, and a claimant
should not feel it is necessary to exhibit more than a few key documents to the affidavit in
support of the application without notice. National Bank of Sharjah v Dellborg
Commercial Bank of the Near East plc v A – The duty to make full and frank disclosure is
a continuing one until the first hearing on notice, so the applicant has a duty to bring to
the attention of the court any material changes in the circumstances after a freezing
injunction has been granted up to at least the hearing.
2. Delay. Failure to act promptly especially if you are applying ex parte where you would
have to show urgency or other reason why the defendant could not be there.
Adanac Industries Ltd v Black - the applicant was guilty in delaying in applying and that
was a ground on which the injunction could be discharged See also Inglis v Granberg
3. Failure by the applicant to observe the terms on which the injunction was granted.
Although the injunction can be varied or discharged where the applicant failed to observe
the terms on which the injunction was granted it must be noted that the power to so
discharge or vary is a discretionary one which is exercised subject to the concept of the
overriding objective.
4. Where the injunction is oppressive or interferes with the rights of parties Cretanor
Maritime Co Ltd v Irish Marine Management Ltd
5. Generally the bars to equitable relief would be grounds for refusing or discharging the
injunction For example, he who comes to equity must come with clean hands See Simes
pp 370 to 373
6. Material change in circumstances since the grant of the injunction
7. Where the terms of the injunction specifically permits the application to discharge or
77
vary. The injunction may give liberty to apply to vary or discharge.
8. Application that is not appropriately worded can be varied
What happens if the order has an effect on a third party who ignores the order? The
usual remedy for breach is contempt of proceedings but this is a problem for a third party.
We get around this by including on the order a penal notice which warns the third party of
the possible contempt proceedings. The notice is served personally on the managing
director, and not at the company, if it is a company. Then if he does not comply you
initiate contempt proceedings against him
Undertaking as to damages
Suppose the injunction should not have been granted? The defendant does not
automatically get these damages but the applicant must apply to the court for an enquiry
as to the damages suffered. In Dalton Yap v Union Bank Union Bank obtained a mareva
injunction against Yap. It was in place until trial. At the trial he was substantially
successful and one claim against him succeeded. The trial judge expressed the view that
the injunction was over the top because it froze all of his assets and he was only liable for
one claim. Yap therefore wanted the damages he had suffered to be assessed. He had to
make an application for assessment. The SC refused it and it went to the CA which
overturned the SC decision and expressed the view that there may also be a claim in
aggravated damages because one of the claims was entirely unfounded.
Ordinarily the court should order that the inquiry be held. However, there are
circumstances where it will not make that order:
1. If there is excessive and inexcusable delay in applying Barratt Manchester Ltd v

Bolton Metropolitan Borough Council. An order for an inquiry is not penal and
does not depend on fault on the part of the claimant.
2. If there is no evidence that the claimant is liable under the undertaking or that the
defendant has not suffered provable loss. An application for an inquiry made by a
successful defendant at the end of the trial will normally be refused only if it is
unlikely that the defendant has suffered any provable loss. McDonald’s
Hamburger’s Ltd v Burgerking UK Ltd The court will also give directions as to
how the inquiry is to take place and may also refer to the filing of particular
documents.
When should the inquiry take place? If you obtain an ex parte injunction and you apply
for it to continue to trial and the judge discharges the injunction when do you apply? The
cases indicate that the application for the inquiry should be made at trial. Note that at the
interlocutory case there is determination on the merits and the assessment of damages
should be based on the determination at trial. Ushers Brewery Ltd v P S King & Co
(Finance) Ltd. The court has a discretion as to when the application should be made and
when the actual assessment is made. Bien sur this is subject to the overriding objective.
78
FREEZING ORDERS
These are prohibitory. The Freezing Orders are designed to prevent the defendant from
disposing of his assets to frustrate any judgment that may obtained against him. Mareva
Compania Naviera SA v International Bulk Carriers SA
GROUNDS
Jamaica Citizens Bank Ltd v Yap
1. A good arguable case. Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft

mbH & Co KG, The Niederhaussen According to Kerr LJ the expression means ‘a
case which is more than barely capable of serious argument, and yet not
necessarily one which the judge believes to have a better than 50 % chance of
success’.
2. A risk or danger that the assets sought to be frozen might be dissipated outside of
the region of the court if unrestrained. Ninemia Maritime Corp v Trave
Schiffahrtsgesellschaft mbH & Co KG, The Niederhaussen
There appears to be more grounds. Bank of Bermuda Ltd v Todd recognised that the claim
must be one over which the court has jurisdiction and the defendant must appear to have
assets in the jurisdiction. Equity does not act in vein. But note that you can get a world
wide freezing order so you may not need to prove the latter. The case also looked at
whether there is balance of convenience in favour of granting the injunction (we have no
authority on this one but note that the court has a general discretion.
RISK OF DISSIPATION
The risk must be a real risk and the basis of that fear must be shown on evidence
Wheelabrator Air Pollution Control v Reynolds. In Jamaica Citizens Bank Ltd v Yap Yap
knew how to move his money around and that he was fraudulent.
The standard of proof is a good arguable case on the merits and one that there is a real
risk of dissipation.
The fact that the defendant is out of the jurisdiction is not a ground to deny granting the
order but may be used in favour of granting. The court will look to whether the defendant
has substantial links to the jurisdiction Z Ltd v A-Z (a freezing injunction can apply to
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proceeds of a letter of credit when received. A defendant or anyone else with notice of a
freezing injunction will be in contempt of court if they dispose or assist in the disposal or
dissipation of enjoined assets) and Third Chandris Corporation v Unimarine SA (Past
incidents of debt default by the defendant, although it is not essential for the claimant to
have such evidence.) Lord Denning MR said at p669:
‘The mere fact that the defendant is abroad is not by itself sufficient …But there
are some foreign companies whose structure invites comment. We often see in this
court a corporation which is registered in a country where the company law so
loose that nothing is known about it – where it does no work and has no officers
and no assets…Judgment cannot be enforced against it. There is no reciprocal
enforcement of judgments…In such cases the very fact of incorporation there
gives some ground for believing there is a risk that, if judgment or an award is
obtained, it may go unsatisfied.”
The court indicated that the extent of the links should be considered, for example, money
in bank vs realty.
The fact that the defendant has previous debts which he had defaulted on may be relevant
to the risk of dissipation. Whether the judgment of the court may be enforceable in the
jurisdiction where the defendant’s assets are located. Montecchi v Shimco (UK) Ltd
80
CIVIL PROCEDURE & PRACTICE II
Date: December 16th, 2005.
Tutor: Mr. Dave Garcia
INTERIM REMEDIES
See the CPR Part 17. The court is given a fairly wide power to grant interim remedies. It
should be noted that the list is not an exhaustive one. CPR 17.2 Interim remedies can be
granted at any time. One may apply for an interim remedy before a claim is filed and
even after the judgment is given. One may apply for an interim remedy after judgment to
freeze the assets so there are assets to satisfy the judgment. One should note the limits
that apply under 17.2 if one is applying before a claim is filed. One must show that the
matter is urgent or that it is in the interest of justice. Usually one applies for an interim
remedy because the matter is urgent.
Urgent
A matter is considered to be urgent only if it is truly impossible to proceed otherwise.
See Bates v Lord Hailsham.
One must also give an undertaking to file a claim form within the specified time.
Documents needed: -
a. One applies on form seven;
b. with an affidavit;
c. draft order; and
d. an affidavit of urgency.
See 17.3(1). Because 17.3(1) says “unless otherwise ordered” this it is argued allows for
an oral presentation to the court which may then be reduced to an affidavit at a later date.
17.3(2) allows for an ex parte application but it states what must be shown to get this.
One needs to include all the applicable information because any failure to provide any
information may result in the interim remedy being overturned.
Interim Injunctions
1. 17.4(2)there must be an undertaking as to damages See American Cyanamid
2. one may apply for an interim injunction upon the giving of three days notice, this
is due to the urgency which is usually required in these circumstances.
3. interim injunctions may be made without notice 17.4 provides that there are
additional requirements when one is seeking to apply ex parte
(a) the court needs to be satisfied that the application is urgent and this has to
do with the impossibility to give the required notice and this impossibility
81
cannot arise from the applicants own delay. See the case of Bates v Lord
Hailsham [1972] 1 WLR 1373
(b) or show that notice would defeat the purpose of the application
(c) the order should be for a fixed period of no more that 28 days. Some have
been issued for longer check validity
(d) The court should fix a date for the further consideration of the matter at an
inter partes hearing
(e) The court should fix a date when the interim injunction order will
terminate or expire if there are no further court orders granted
The pre CPR process at an application for mareva and anton piller orders were granted
were orders which applied until the trial. Under the CPR one should no longer get an
order which applies all the way until trial, but rather one only receives 28 days and it is
then up to the claimant at an inter partes hearing to show that they get the inter partes
order for a longer period. The shift in procedure means that at the “further consideration”
hearing, it is the claimant who presents first and has the burden of showing that they
should in fact have the interim relief continued. The burden therefore shifted from the
defendant at that stage to the claimant. There used to be a distinction between injunctions
generally and anton pillar orders and mareva injunctions, but the procedure is now the
same for all.
The applicant is required once they have received an exparte to serve the respondent
personally with the application, the affidavit, the order and when and where the court will
consider the matter further. See CPR 17.4(6) See also the case of Interant Telecoms UK
Ltd v Fashion Gossip Ltd Times, November 10 1999, which states the applicant should
also serve full notes of the hearing (this is not the practice in Jamaica). These must all be
served at least seven days before the date for the further consideration hearing. If the
order of the court states the time date and place of the further hearing, then one might not
need to do a separate notice with this information. One should consider if one wishes to
serve a separate notice ex abundante cautello.
Extension of Interim Order

Where one seeks an application for an interim injunction to be extended, then one needs
to serve the respondent before one can get an extension. This notice must be for seven
days (see CPR Part 11). The court has the power to shorten or waive the notice time for
application of extension of interim injunction.
If however the matter comes before the court and one party seeks an adjournment, then
the court often extends the injunction without considering the balance of convenience. If
the respondent has filed an affidavit response then the court has new material in response
to the claimants application and should possibly consider the new material before
deciding whether the injunction should be extended to the adjourned date. One should
therefore be prepared to argue that the injunction continue or be discontinued where there
is an application for an adjournment of the further consideration of the injunction hearing.
Consider
Injunctions especially
82
Mareva and
Anton Pillar
One needs to consider the grounds and basis of the application and the basis upon which
it can be varied.
The overriding objective applies where the court is exercising a discretion conferred on it
by the rules. The discretion to grant an interim injunction is conferred by the Supreme
Court Rules and not the CPR, hence, the court is not exercising a discretion in accordance
with the overriding objective.
FREEZING ORDERS cont'd
ASSETS IN THE JURISDICTION.
Ideally one should identify what the assets are. However, in SCF Finance Ltd v Masri a
joint account in the jurisdiction sufficed. Further, in Third Chandris Corporation v
Unimarine SA evidence of an overdrawn bank account was thought to be evidence.
Therefore you may not have to identify the assets but rather present evidence to indicate
that the defendant has assets in the jurisdiction or does business there. This goes to
proving a good arguable case that there are assets in the jurisdiction. If you cannot
identify the assets that the person is going to dissipate because you don't know who to
serve the order on the client may not want to go for the order.
This requirement may be dispensed with if you are seeking a worldwide freezing order.
Here it may help to show that there are no assets in the jurisdiction. If there are sufficient
assets to satisfy the claim then the court will not grant the world wide order. Derby and
Co Ltd v Weldon (Nos 3 and 4). The court will also the enforceability of the order in other
jurisdiction. Motorola Credit Corp v Uzan (No. 2) - this case was considering whether it
was inexpedient to grant the worldwide order. This consideration arises from their rules
and we do not have similar provisions. However, a court ought to consider so in the
absence of statute. These considerations primarily relate to the jurisdiction granting the
order and the jurisdiction where the order is to be enforced.
This order is still discretionary so if you satisfy the grounds the court may still refuse to
grant the order Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi
Negara and Polly Peck International plc v Nadir (No 2).
The Procedure
The procedure for making the application is generally the same for injunctions generally.
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Undertakings
1. Undertaking as to Damages. The fact that the undertaking was not of significant
value does not mean that the claimant would not get the injunction Allen v Jambi
Holdings Ltd - suggests that one can be given which is fairly meaningless. This is
contrary to the normal injunction. Also the Crown is not generally required to give
the undertaking in damages but may be required to do so in exceptional
circumstances. This is contrary to the freezing injunctions Customs Excise
Commissioners v Anchor Foods Ltd
2. To notify the respondent and serve the documents
3. To inform third parties of the right to apply for a variation or directions.
4. The claimant undertakes to indemnify third parties regarding the reasonable
expenses they may incur in complying with the injunction.
5. To indemnify third parties in respect of any liabilities they may incur in
complying with the order
6. In relation to worldwide injunctions the claimant should undertake not to enforce
the order in the foreign court without first obtaining the permission of the local
court. Derby and Co Ltd v Weldon (No 1).
If the injunction is issued before the claim form then you would need an undertaking to
file and serve the claim form etc
PROVISOS THE FREEZING ORDER MUST CONTAIN.

This is not required for regular injunctions.
1. Allowing the defendant to draw on his assets for ordinary living expenses. These
are to be in accordance with the defendant’s life style TDK v Video Choice Ltd.
Expenditure on extraordinary items is not covered, for example on expensive
motor cars. PCW (Underwriting Agencies) Ltd v Dixon - the jurisdiction does not
exist to limit the spending of money but to provide for his ordinary, usual lifestyle
but nothing more.
2. Allowing the defendant to settle ordinary living expenses.
3. Allowing the defendant to meet ordinary business expenses Iraqi Ministry of
Defence v Arcepey Shipping Co SA. This is so because the purpose of the
injunction is not to make the claimant a secured creditor.
4. Allow the defendant to pay the ordinary costs of defending the claim.
5. Indicates that the defendant's bank should have a right of set-off in respect of
debts accrued before the injunction. This follows from the dame point that the
injunction is not intended to make the claimant the secured creditor in priority to
the defendant's debts. Oceanica Castelana Armadora SA v Mineral -Import
Export
(Further provisos for worldwide freezing orders)
6. Babanaft proviso Babanaft International Co Bassante - a third party in another
jurisdiction is not to be considered affected by the order unless it is declared
enforceable by the relevant foreign court.
7. Baltic provisos Baltic Shipping Co v Translink Shipping Ltd . See also Bank of
China v NBM LLC. The concern is the protection of third parties who should be
able to know what their rights and obligations are and who need not keep running
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to the courts for direction. Third parties served with the order may comply with
what they reasonably believe to be their civil and criminal obligations in the
jurisdiction where the assets are located.
The combination of 6 and 7 indicates that it is not easy to enforce the worldwide order. It
may not be easy to prove contempt of the order and that law and what they reasonably
believed that the injunction did not require them to act in a particular way.
Where appropriate the injunction should be limited to the assets needed to satisfy the
judgment. There are two types of freezing orders:
1. Unlimited in terms of the assets they cover
2. Limited to a specific amount or specific assets.
See Simes p 384 for the draw backs.

Jamaica Citizens Bank Ltd v Yap - If the bank had limited the amount to near the
judgment then they would not have had to pay on the enquiry because Yap had so much
assets.
One cannot always accurately estimate the value of the claim.
If it is a claim for a debt you have to account for interest.
If it is aggravated damages you don't know what the amount of the order will be.
On the one hand you may want to go high to cover the estimated award but on the other
hand you may expose yourself as in Yap to damages.
DISOVERY OF ASSETS
An order for discovery of assets is often made when a freezing order is sought. Motorola
Credit Corp v Uzan and Parker v CS Structured Credit Fund Ltd (This should not be a
mere fishing expedition). This may make the latter more effective. This simply requires
the defendant to list the assets that you already know in principle exists.
Third parties are bound by the order. If a third party with knowledge of the injunction
assists in the dissipation of the assets may be held in contempt of court. Z Ltd v A-Z.
Before applying for contempt proceedings you may have needed to serve the order and
there must be penal notice on the order which notifies the third party of the possibility of
contempt proceedings.
If the order is to cover assets held on trust the order must specifically state this in the
order. Federal Bank of the Middle East Ltd v Hadkinson.
If the order is to cover assets jointly held this must be evident from the wording of the
order. SCF Finance Co Ltd v Masri
The respondent must be served as required by the order and the rules. It would also be in
your interest to serve third parties as they become liable when they are aware of it. There
is no rules that requires you to serve the defendant first. Therefore, usually where the
assets are liquid it may be wise, for example where it is a bank account, serve the bank
first.
85
For post judgment mareva injunctions the grounds and procedure operate differently.
Need not show good arguable case, or enforceability in the jurisdiction. The undertaking
in damages is not usually required. You need to the real risk of dissipation and the assets
in the jurisdiction unless it is a worldwide injunction.
Date: February 3, 2006
FREEZING ORDERS cont'd
VARIATION
The following are grounds for variation:

1. Possible effect on third parties therefore the order may be made to alleviate the
effect thereon.
2. The order should make provision for the living expenses etc of the respondent. If
inadequate provision is made in the provisos then the order may be varied.
3. Generally the things that apply to injunctions generally.
GROUNDS FOR DISCHARGE
1. Material non-disclosure which applies to injunctions generally. Half Moon Bay v

Levy
2. If at the inter partes hearing or the application to discharge the court finds that one
of the grounds for granting the order was not satisfied the court may discharge on
the basis that it was improperly granted.
3. If the defendant provides security for the claim. The purpose of the freezing order
is to ensure that there are assets to satisfy the claim.
4. If there is irregularity in the claimant’s affidavit evidence. This may depend on the
severity of the irregularity. In Vantage Distributors Ltd v Top Mode Ltd the
claimant relied on hearsay evidence and failed to state that they were relying on
hearing evidence and who told them and the grounds for believing that the source
is credible. Irregularities in the affidavit may provide a separate ground. Or may
be thought of as a part of the above ground. After striking out these irregularities
the court will look to whether the remainder of the affidavit is enough to satisfy
the grounds on which it was granted.
5. Unfair conduct of the claimant Negocios Del Mar SA v Doric Shipping

Corporation SA
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6. A change of circumstances may also justify a discharge. This means that the
injunction should not stand now as opposed to whether it should have been
granted to begin with.
SEARCH ORDERS / ANTON PILLAR ORDERS
It is a mandatory injunction as it mandates the defendant to allow entry unto his

premises for the purpose of searching and seizing documents or property relevant to the
claim. It therefore does not permit the claimant to forcibly enter. If the defendant fails to
allow the claimant to enter he may be liable to contempt of court in contempt
proceedings. The fact that the defendant does not allow the search can be used against the
defendant in the case. Omrod J in Anton Pillar KG v Manufacturing Processes Ltd
described this as damning evidence against the defendant.
The element of surprise is very important and possibly even more so than in the case of
the freezing order. Because of the types of case it is commonly seen in breach of copy
right cases.
GROUNDS
The standard of proof is very high. The grounds were laid down in Anton Pillar KG v
Manufacturing Processes Ltd.
1. The applicant (this may conceivably be the defendant) must show an extremely
strong prima facie case on the merits.
2. That the defendant's acts are causing serious, actual or potential harm to the
claimant's interests.
3. There must be clear evidence that the defendant possesses incriminating evidence
or other material and that there is a serious risk that the defendant may conceal or
destroy it before an inter partes application can be made. Yousif v Salama and
Rank Film Distributors Ltd v Video Information Center
4. This was no set out in Anton Pillar KG v Manufacturing Processes Ltd. The
principle of proportionality. The interference with the defendant’s affairs should
be proportionate to what is required to protect the claimant and the consequences
to the claimant if the order was not made. This is almost like a balance of
convenience. Lock International plc v Beswick and Columbia Picture Industries
Inc v Robinson.
Primarily search orders are made before the trial. However, it is possible to make the
application after trial in aid of execution Distributori Automatici SpA v Holford General
Trading Co Ltd
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PROCEDURE FOR MAKING THE APPLICATION
Form 7
Affidavit evidence
The application should indicate what documents or materials should be seized. It does not
need to be a list (if you do a list you cannot seize anything outside of the list) but rather a
category. The actual list of documents seized is made upon seizure. This category must
extend no further than the minimum necessary to preserve the relevant evidence
Columbia Picture Industries Inc v Robinson. If you seize documents not covered by the
category the claimant may have to pay damages and possibly aggravated damages.
The search order must have various UNDERTAKINGS

1. The undertaking as to damages. This is worded in the same way as injunctions
generally.
2. That an independent attorney will serve the order and the various other
documents. Among the things served is notice of the date of the inter partes
hearing.
3. That the independent attorney's report should be given to the defendant.
4. The proceedings will remain secret until the inter partes hearing.
5. That the seized material will not be used for proceedings other than those for
which the order was sought without having obtained the leave of the court. In the
absence of such an express undertaking there is an implied undertaking as such
Home Office v Harman. This requirement can be relaxed in appropriate cases
Crest Holmes plc v Marks
6. To keep the documents in safe custody and to return them to the defendant or his
attorney within a reasonable time. The court must consider in each case whether
this undertaking should be given with respect to the defendant. The court could
require an undertaking that that which is seized be insured.
The undertakings are within the discretion of the court which may not impose one of the
undertakings if it sees fit. The claimant before leaving out an undertaking should actually
address his failure to include a particular undertaking so that the respondent cannot latter
allege that the failure to include it indicates that is was improperly granted.
The undertakings may be required of the claimant and his attorney and possibly of the
independent attorney. Each person who gives an undertaking is exposed to damages if the
undertaking is not honoured. Universal Thermosensors Ltd v Hibben.
Generally with respect to undertakings, the attorney should only give them over things
that he can control. The undertaking must be meaningful for if not the court will not grant
the order. The undertaking as to damages should be made by the client. The client should
88
be present at the application so that if the court requests an undertaking not covered the
attorney can ask the client on the spot for he should not agree to an undertaking for which
he has no instructions to give.
GENERALLY
THE INDEPENDENT ATTORNEY
The requirement for the independent attorney is settled in the UK, however, this not so
here. We do not have practice direction covering this area. However, Universal
Thermosensors v Hibben had established before the UK rules that there was a
requirement to have an independent attorney present for the service of the order. Should
we follow this case today? For the answer one should look to the overriding objective.
There are no decisions of our jurisdiction to go against this position. If the on application
the court feels that the independent attorney is necessary and the attorney does not
include the undertaking then the order would not be granted as the court would require
information regarding the identity of the independent attorney. In Interserv Ltd v Kong
(pre-CPR) an independent attorney was not used and the court saw no issue there. This
does not support the position that one is not required. If an independent attorney is
required then details of him should be given in the affidavit in support of the application.
When selecting that attorney it should be borne in mind that that person is expected to
exercise a supervisory role and therefore should not come from the firm of the claimant's
attorney. UK authorities suggest that that person should be experienced in executing
search orders. We may be more readily dispense with this.
The independent attorney must:

1. First explain the meaning of the order using ordinary language and in an unbiased
way. Failure to do so gives rise to liability in contempt.
2. He must allow the defendant a short time, usually 2 hours, for the defendant to
obtain legal advice before executing the order.
3. He must be present for the entry and search.
4. He must list the items seized
5. He must prepare a report of the execution of the order. He would supply it to the
claimant's attorney who would supply it to the defendant's attorney.
Police officers should not be present. This is not a search warrant and the defendant
should not be given this impression. If it is a volatile situation then the police should be
informed and therefore be ready.
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Safeguards for the defendant cont'd
1. The defendant can rely on privilege against self incrimination. This is referring to
the self incrimination in criminal proceedings. It only applies where the defendant can
rely on privilege against self incrimination in criminal proceedings. The root for the
defendant is to apply to have the order discharged or varied so that you can rely on the
privilege. Failure to do this may result in the use of the evidence against him at trial and
contempt proceedings Arawak v Inspector of Banks and Trust Companies and Renworth
Ltd v Stephenson
2. Specifications that are required regarding how the order is to be severed.

Universal Thermosensors Ltd v Hibben Donald Nicholls VC These include the following:
1. The order should be served between 9:30 am and 5:30 pm on a week day. It must
be served during working hours giving
2. If it is to be served at a private dwelling and it is likely that a woman would be

alone there the search party must be accompanied by a woman.
3. Unless it is impracticable there should be a lit of the items removed and the order
should state this requirement. The defendant should be given the opportunity to
check the list.
4. The order may restrain the defendant from informing any other person about the
order. The court usually imposes this order for a limited period.
5. If it is to be served at business premises the execution of the order should only

take place in the presence of a responsible officer or representative of the
business. This is so even if you are within the business hours requirement.
6. Because the order will often be granted where the parties are commercial rivals
the order should ensure that the representatives are not being given carte blanch to
simply search through everything that the defendant has. Lock International plc v
Beswick -the order will usually require that the material not be turned over to the
client but the claimant's attorney. This would protect the business interest of the
defendant. To turn over the material to the claimant himself there would need to
be a separate application.
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VARIATION
This is only useful before the execution of the order or after it is executed the defendant
can apply for the material to be insured or kept in safe keeping.
DISCHARGE
This may be obtained before or after the execution. This however is not a ground to
prevent the execution of the order Wardle Fabrics Ltd v Myritis Ltd The order is
enforceable once served and if the defendant fails to observe it and then gets it discharged
the defendant can still be held in contempt of the order. It is seen as a waste of the court's
time to apply after the execution. Returning the material taken after discharge does not
mean that it cannot be used at the trial. If an application is made for discharge in cases
where it is pointless then the matter will be adjourned until trial. Dormeuil Freres SA v
Nicolan International (Textiles) Ltd In Tate Access Floors Inc v Boswell the court found
that the grant of an anton pillar order should only be revisited if there has been a material
non-disclosure so serious as to demand immediate investigation.
See Simes pp 398-399 - the use of illegally obtained evidence.
JUDICIAL REVIEW
Part 56
What is Judicial Review?
It is the challenge to the decision of a public authority in which the challenge is as to

manner in which the decision was made. It is not an appeal Chief Constable of the North
Wales Police v Evans. Primarily the court is not looking to the merits of the decision and
will not substitute its own view.
The issue involved must be one of public law. It must also involve a member of public
authority. R v Panel of Takeovers ex parte Datafin plc.
Subject to some exceptions when the complaint is of infringement of public law rights the
application to the court ought to be by way of judicial review and not a private law claim.
O'Riley y v McMann
They can strike out a private law claim on the basis that the claimant should have gone
for judicial review Phonographic Performance Ltd v Department of Trading and
Industry
PARTIES
In theory the Crown is only nominal party. The ex parte person that proceeds with the
application but the Crown is saying that the public authority has exceeded its authority
91
and the Crown is bringing the claim on behalf of the aggrieved.
The remedy lies against the body charged with the duty of public authority. It may not
actually be a public authority. It can be an inferior court. Normally JR will be refused if
the applicant has some other way of challenging the decision. R v Epping and Harlow
General Commissioners, ex parte Goldstrong. It also lies against the decision of
tribunals. It also lies against bodies like Ministers, revenue commissioners (don't go by
JR if you can go to the revenue court), immigration officers, local authorities. Police
authorities, disciplinary bodies exercising statutory powers (does not include the GLC
because the LPA provides for appeal to the CA), statutory commissions and regulators.
The ultimate question is whether the body is charged with the performance of a public
duty R v Criminal Injuries Compensation Board ex parte Lane - this case also said that it
must be a body with the obligation to act judicially. This area other case is not good law.
Other persons may apply to make representations at the hearing. The pre-CPR position in
UK was that a person sufficiently affected could make the application. On the success
thereof the person could file affidavit evidence and or could be hear R v Liverpool City
Council ex parte Mundoon. The UK CPR provides specifically for this but our rules are
silent so it is assumed that the Mundoon case applies.
92
JUDICIAL REVIEW cont'd
The Party Making the Application
Rule 56.2
(1) An application for judicial review may be ma by any person, group or body which
has sufficient interest in the subject matter of the application.
(2) This includes:

(a) any person who has been adversely affected by the decision which is the
subject of the application;
(b) any body or group acting at the request of a person or persons who would
be entitled to apply under paragraph (a);
(c) any body or group that represents the views of its members who may have
been adversely affected by the decision which is the subject of the
application;
(d) ay statutory body where the subject matter falls within its statutory remit;
(e) any body or group that can show that the matter is of public interest and
that the body or group possesses expertise in the subject matter of the
application; or
(f) any other person or body who has a right to be heard under the terms of
any relevant enactment or the Constitution.
To apply you must have locus standi CPR 56.2 - the person must have sufficient interest
in the matter. The pre-CPR authorities are instructive. You are looking for:
1. a direct and personal interest. The question is whether someone without a direct
interest can bring an action. Can that other person bring an action based on your
position? Do they have a similar interest.
2. If there is an interest group. Whether a general interest will suffice as a sufficient
interest.
Inland Revenue Commissioners v National Federation of Self-Employed and Small

Businesses Ltd [1982] AC 617 - a group of tax payers sought to take action against the
IRC although they weren't directly affected. The HL held that the sufficient interest is to
be determined by looking at the legal and factual context of the case as a whole.
This includes:
93
1. The relationship between the claimant and the complainant.
2. The duties of the public body.
3. The nature of the complaint.
4. The relief sought.
They held that the group did not have sufficient interest.
R v Inspectorate of Pollution ex parte Greenpeace Ltd. - Greenpeace Ltd, an

environmental group in this environmental matter, was held to have locus standi on the
issue surrounding the disposal of radioactive waste.
The court should take into account:
1. The nature of the claimant.
2. The extent of the claimant's interest in the issues raised.
3. The nature of the relief sought.
The interest group is more likely to succeed on an application for certiorari (to quash a
decision) than mandamus (ordering the body to do something). The reason is that the
latter is more suited to busy bodies. In the former there is already an order in place
something that has been done that needs to be corrected.
If the issue is justiciable (merit in the application) the courts may allow a more generous
approach to having the application heard. The stronger the case the more likely you are to
get over the sufficient interest hurdle Gillick v West Norfolk and Wisbech AHA.
R v Secretary of State ex parte World Development Movement Ltd - the merits of the
challenge is something the court should consider in this area (determining locus standi). It
also listed a number of other circumstances to be considered:
1. The importance of vindicating the rule of law.
2. The importance of the issue raised.
3. The likely absence any other responsible challenger If the issue is important to
the public and there is no one else who is willing to bring to court.
4. The nature of the breach
5. The nature of the relief sought
6. The status of the claimant
R (on the application of Feakins ) v Secretary of State for the Environment - CA observed
that the criteria have been relaxed.
When does the court address the question of locus standi
The action goes by way of fixed date. This one must be made before the first hearing
because you have to first apply for permission.
At which of the hearings should locus standi be considered? It should be considered

before the very first hearing - permission. The cases express the view that it should be
considered twice R v Monopoly ………ex parte Argyll Group plc - locus standi is
94
considered in two stages:
1. At the application stage. Therefore someone who clearly has no interest
whatsoever should be refused application therefore excluding the busy bodies. If
it appears that the person is not a busy body then if the case is otherwise arguable
then the court should grant leave.
2. When the court substantively hears the matter - first hearing or the final hearing.
At the substantive hearing the court will look in a more detailed way. The strength
of the applicant’s interest is one of the factors to be weighed (Donaldson MR in
ex parte Argyll)
GROUNDS FOR JUDICIAL REVIEW
Ultra Vires Anisminc

Breach of natural justice
Rule against bias Ridge v Baldwin
An error on the face of the record R v North Umberland Compensation Tribunal ex parte
Shaw
Associated v Wensbury Corporation - if the decision is so bad its irrational
Improper delegation
Failure to give reasons where there is a requirement that reasons should be given
Even after satisfying a ground you do not necessarily get the relief because public law
remedies remain at the discretion of the court ex parte Goldstrong - relief refused
because alternative remedy available ICW v Financial - relief refused because sequent
events made the argument academic.
TYPES OF RELIEF
Part 56.1
(1) This Part deals with applications:
(a) for judicial review;
(b) by way of originating motion or otherwise for relief under the
Constitution;
(c) for a declaration or an interim declaration in which a party is the State, a
court, a tribunal or any other public body; and
(d) where the court has power by virtue of any enactment to quash any order,
scheme, certificate or plan, any amendment or approval of any plan, any
decision of a minister or government department or any action on the part
of a minister or government department.
(2) In this part such applications are referred to generally as "applications for an
administrative order".
(3) "Judicial review" includes the remedies (whether by way of writ or order) of:
(a) certiorari, for quashing unlawful acts;
(b) prohibition, for prohibiting unlawful acts; and
95
(c) mandamus, for requiring performance of a public duty, including a duty to
make a decision or determination or to hear and determine any case.
(4) In addition to or instead of an administrative order the court may without

requiring the issue of any further proceedings, grant:
(a) an injunction;
(b) restitution or damages; or
(c) an order for the return of any property, real or personal.
1. Injunction - can be ordered against officers of the Crown though not the Crown
Re M. For example if you want an injunction until the hearing of the matter.
2. Prohibition - restrains the body from acting outside its jurisdiction
3. Declaration
4. Certiorari
5. Mandamus
6. Damages or restitution
7. Return of property
PROCEDURE (what must be included in each application and the affidavit evidence)
1. Application for leave.

Rule 56.3(1) A person wishing to apply for judicial review must first obtain leave.
Rule 56.3(2) An application for leave may be made without notice.
Rule 56.3(3) The application must state:
(a) the name, address and description of the applicant and respondent;
(b) the relief, including particular details of any interim relief sought;
(c) the grounds on which such relief is sought;
(d) whether an alternative form of redress exists and, if so, why judicial
review is more appropriate or why the alternative has not been pursued;
(e) details of any consideration which the applicant knows the respondent has
given to the matter in question in response to a complaint made by or on
behalf of the applicant;
(f) whether any time limit for making the application has been exceeded and,
if so, why;
(g) whether the applicant is personally or directly affected by the decision
about which complaint is made; or
(h) where the application is not personally or directly affected, what public or
other interest the applicant has in the matter;
(i) the name and address of the applicant's attorney-at-law (if applicable);
and
(j) the applicant's address for service.
Rule 56.3(4) The application must be verified by evidence on affidavit which must
include a short statement of all the facts relied on.
When given leave a condition of it will be to file and serve the fixed date claim form.
96
Rule 56.4(4) The judge may direct that notice of the hearing be given to the respondent
or the Attorney General.
2. File and serve a fixed date claim form.

Rule 56.9
(1) An application for an administrative order must be made by a fixed date claim
form in form 2 identifying whether the application is for:
(a) judicial review;
(b) relief under the Constitution;
(c) a declaration; or
(d) some other administrative order (naming it),
and must identify the nature of any relief sought.
(2) The claimant must file with the claim form evidence on affidavit.
(3) The affidavit must state:

(a) the name, address and description of the claimant and the defendant;
(b) the nature of the relief sought identifying:
(i) any interim relief sought; and
(ii) whether the claimant seeks damages, restitution, recovery of any
sum due or alleged to be due or an order for the return of property,
setting out the facts on which such claim is based and, where
practicable, specifying the amount of any money claimed;
(c) in the case of a claim under the Constitution, setting out the provision of
the Constitution which the claimant alleges has been, is being or is likely
to be breached;
(d) the grounds on which such relief is sought;
(e) the facts on which the claim is based;
(f) the claimant's address for service; and
(g) giving names and addresses of all defendants to the claim.
3. If the respondent wishes it will file an affidavit in answer 56.12 (does not say
when it has to be filed though it speaks to the application of the rules as to defences)
Rule 56.12
Any evidence filed in answer to a claim for an administrative order must be by affidavit
but the provisions of Part 10 (defence) apply to such affidavit.
4. First hearing
Rule 56.13
(1) At the first hearing the judge must give any directions that may be required to
ensure the expeditious and just trial of the claim and the provisions of Parts 25 to
27 of these Rules apply.
(2) In particular the judge may:

(a) make orders for:
(i) witness statements or affidavits to be served;
97
(ii) cross-examination of witnesses;
(iii) disclosure of documents; and
(iv) service of skeleton arguments;
(b) allow the claimant to:
(i) amend any claim for an administrative order;
(ii) substitute another form of application for that originally made; or
(iii) add or substitute a claim for relief other than an administrative
order;
(c) allow any person or body appearing to have sufficient interest in the
subject matter of the claim to be heard whether or not served with the
claim form;
(d) direct whether any person or body having such interest:
(i) is to make submissions by way of written brief; or
(ii) may make oral submissions at the hearing; and
(e) direct that claims by one or more persons or bodies or against one or
more persons in respect of the same office made on the same grounds be
consolidated or heard together.
Rule 56.14
Wherever practicable any procedural application during a claim for an administrative
order must be made to the judge who dealt with the first hearing unless that judge orders
otherwise.
Powers of the court generally has at first hearings (CM) this is when any procedural
application s should be made. Court will set time for final hearing and whether it should
hear it substantially there and then
5. Final hearing
Rule 56.15
(1) At the hearing of the application the court may allow any person who or body
which appears to have a sufficient interest in the subject matter of the claim to
make submissions whether or not served with the claim form.
(2) Such a person or body must make submissions by way of a written brief unless the
court orders otherwise.
(3) The court may grant any relief that appears to be justified by the facts proved
before the court whether or not such relief should have been sought by an
application for an administrative order.
(4) The court may, however, make such orders as to costs as appear to the court to be
just including a wasted costs order.
(5) The general rule is that no order for costs may be made against an application
for an administrative order unless the court considers that the applicant has
acted unreasonably in making the application or in the conduct of the
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application.
Can be in open court or in chambers though it is usually in open. It can be before a panel
of three judges (full court) or a single judge. Note that this area covers constitutional
cases which must be before a full court.
How the court will address the question of obtaining leave 56.3 and 5
Form 7
Affidavit
Draft Order
Rule 56.4(2) The judge may give leave without hearing the applicant.
Rule 56.4(3) However, if:

(a) the judge is minded to refuse the application;
(b) the application includes a claim for immediate interim relief; or
(c) it appears that a hearing is desirable in the interests of justice,
the judge must direct that a hearing in open court be fixed.
The application for leave can be considered without notice and on paper. However, there
are three options the judge has when the application is made on paper:
1. Give the leave
2. Not give the leave but call for the applicant to be heard
3. Not give the leave and call for the applicant and the respondent to be head
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If there has been delay you may still get leave but the court must then consider the
surrounding circumstances, including whether it would be detrimental to good
administration, harm rights ex parte Jackson
In applications for leave you need not show a causal connection between the delay and
the prejudice but rather you must show the connection between the prejudice and the
ex parte Furno
The court ought to consider what is the merit of the application for judicial review but the
extent of this is limited. The court should look at whether the application has a good
arguable case for the relief sought and it must be considered on the material presented
without going into any great depth. IRC v Small Businesses, ex Begum MR Donaldson
indicated the approach the court should take. If it was clear that there was an arguable
case then permission should be granted. If the judge felt that there was none then the
application should be dismissed. If the judge is in doubt on the papers before him and
finds it difficult to come to a conclusion the appropriate course is to call for the
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respondent to be served and heard on the application.
On the application for leave the court should consider whether the applicant has locus
standi. Unlike the issue of promptness this issue can be dealt with at the final hearing
because traditionally the former issue is one of procedural concern but the latter is
considered to be substantive
Interim relief
Under rule 56.4 the court has the power to order that the grant of permission stand as a
stay. This is limited applications for applications for certiorari and prohibition. In the case
of mandamus nothing has been done. If ultimately injunctive relief is sought, in rule 56.4
the court can grant such interim relief as seems just. If it ultimately seeks this it can also
seek an interim injunction under part 17. So the appropriate remedy would be in this case
to get the interim injunction.
ex parte Hamel. The principles on which the injunction is granted are the principles
applied to injunction cases generally ex parte Vernon's Organizations Limited.
A stay can operate as an injunction. If there is a strong case for any of the grounds of
judicial review the stay may be appropriate R (H) v Ashworth Hospital Authority
Final hearing
What material is to be placed before the court?

This would be what information was before the decision maker in the first place. This
material will depend on what ground is claimed. In ex parte Powis the court noted that
fresh evidence can be considered in some cases. For example, where the evidence shows
that there was misconduct eg bias, fraud or perjury. Where it bears on a decision of fact,
eg whether the decision maker had jurisdiction. Whether the procedural requirements
were observed.
The court is not bound by the grant of permission and can reconsider the issues
considered at permission stage whether or not they were looked at, except promptitude.
Cross-examination is rare and is granted only where the interest of justice require
O'Reilly v McMann. This is because the court is not seeking to consider the merits of the
decision. Though where the clam is on bias there may be disputes on fact therefore cross-
examination is appropriate.
The court can convert a claim for other relief to a judicial review (a claim for an
administrative relief) Rule 56.7
Under rule 56.10 may join administrative claims with private relief.
The can award private law remedies under rules 56.10 and 56.11
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Whether you can amend the claim for judicial review after permission is granted.
The UK specifically provides that the application can be amended with the permission of
the court. Our rules do not address this so can we? There is nothing in part 20 that says
that it does not apply to judicial review claims and part 56 does not exclude part 20. You
can issue a fixed date claim form. There is no authority for this under our rules but we
can because we can amend a fixed date claim form. But do I require the permission of the
court to amend. The rules state that you can amend before the CMC which is our first
hearing.
Disclosure
This tends to be limited IRC v Small Businesses - Lord Scarman - the general principles
discovery should be ordered unless the evidence reveals that there is breach of public
duty
O'Reilly v McMann - discovery order to the extent that justice requires.
Costs
The court is hesitant of the applicant is unsuccessful to award costs against him because
there is a public interest in ensuring the administration of justice. Do not discourage
people. Costs should not be awarded against the applicant unless the claim was frivolous
and without merit. At final hearing.
Generally in the discretion of the court and it is hesitant about setting down rules on this
area.
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CIVIL PROCEDURE & PRACTICE II
Date: March 10th, 2006.
Tutor: Mr. Dave Garcia
Skeleton arguments are by their nature brief. Cite the authority, and possibly page
number but there is no need to quote the judgment.
DISCOVERY
Sime: Ch. 14, 26 – 27

Kodilinye: Ch. 12 – 13
DISCOVERY OF FACTS
CPR Part 34
When is it appropriate to make a request for information?

It is appropriate to make a request when information is needed about a matter in dispute
CPR 34.1(1). The court must be persuaded that the information is needed to dispose
fairly of the claim or to save costs CPR 34.2(2). The court would in this case be
exercising a discretion an as such the overriding objective is to be applied. The court
should consider (CPR 34.2 (3)):
1. the likely benefit of giving the information,
2. the likely costs of giving the order, and
3. the sufficiency of the responding parties resources.
When are requests for information likely to be disallowed: -

1. The court will discourage fishing requests, one should therefore already
have evidence which can support the claim before making such a request see
the case of Best v Charter Medical of England ltd.
2. Requests for information will be disallowed if the information is
considered to be for an unfair purpose. See Lovell v Lovell where a claim for
a debt was statute barred and the creditor sought to make a request for
information and by virtue of the answer, the debtor would have to admit the
debt and as such would start the time running again. This was therefore
disallowed
3. Oppressive requests such as those which ask for an unreasonable amount
of detail. White & Co v Credit Reform ass & Credit Index Ltd.
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4. If a request is not precisely formulated, it would be disallowed, see the
case of Kirkup v British Rail Engineering Ltd. The court in this case may
generally ask that the question be reformulated to make them more precise. It
should be noted that this would only be done if time is not a problem for the
court at the time of making the order
5. I any of the considerations don’t justify the request then the request would
be disallowed such as if the cost of complying to the request for the
information would be prohibitive the request will be denied or is it not
necessary for the justice of the matter.
6. If any of the objection to discovery generally apply then the request should
be disallowed such as privilege against self incrimination, attorney client
privilege etc then the request would be disallowed.
USES
1. To clarify the statement of case. The request for information that we have
in our rules replaces two things for different purposes:
a. A request for further, and
b. better particulars and requests for interrogatories.
There used to be significant differences in the two. Further and better
particulars for instance were a pleading and were signed by the attorney.
Interrogatory answers had to be by affidavit and as such was sworn and was
evidence which could be used at trial. Evidence could be led to contradict the
affidavit. This would allow one to know the answer to questions before one
asks questions in cross examination, one would therefore be able to bring
evidence to contradict a lie told by the witness on the affidavit. Currently, the
discovery is signed by the client and may be used at the trial.
2. To eliminate any surprises which may arise and as such, it may be used to
gather information as to which person gave evidence and the terms and
conditions under which the information was given.
3. One can file to clarify a statement of case, disputes however in this case
should not be used to raise a dispute over the language of the statements of
case. This is because the statement of case is by its nature brief. Only
injustice or prejudice would force an answer to a request for information. The
question can be made to obtain information relevant to the case or to request
admissions. This may be used for instance to ask a person if they signed a
document etc.
4. To confirm information that will be used at trial.
5. The court may be reluctant where the question is likely to be answered by
discovery or the witness statements. This would not be saving costs as the
same questions would be answered twice.
One should therefore on a case by case basis consider whether one needs to make a
request for further information and if so what is the information that you need to ask for
before case management.
PROCEDURE
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1. the request must be in writing
2. the requests are in the forma of questions
3. the questions must be precise
4. the questions must be as short as possible
5. each question must have only one question
6. one should consider the impact of the answer to the question on your
clients case particularly if it might hurt and one does not have evidence to
rebut the answer.
One would first make the request in writing and this is then served on the other party
(CPR 34.1 & 2). The person must be given a reasonable time to answer. If the other
party fails to apply then one can make an application to the court on form 7 with a draft
order and affidavit in (support) reply. The application should be made at case
management or pre-trial review to avoid being penalized in costs. One does not need to
file the request for information. You could write a letter or file and serve it. The answer
to requests for information should however be filed even though the CPR does not
expressly state this. If one makes the request and gets an answer, then one should request
the answers be filed. It may be better to file the request because some persons in answer
may not state the questions asked and simply give answers. To allow the court to see the
questions asked and the response, the best course is to have both filed. Other parties may
have rephrased the question and answered that. CPR 34.4 the answer musty contain a
statement of truth and be signed and it must not conflict with the answering parties
statement of case. See the case of Re Unisoft Group Ltd. (No.3).
OBJECTIONS TO ANSWERING
One may take objection of the answer is privileged or would implicate you, clients etc.
The procedure for making the objections would be: -
1. The rules do not currently state when one should take the objection. One
may therefore take the objection at the time the order is being made or when the
answer is being made. It may be better to make this objection at the time of the
making of the order. The rules might not state when the objection is to be made,
but the earliest time may be the least risky time to make the objection.
DISCOVERY OF DOCUMENTS
Discover is dealt with under Part 28 of the CPR and the word discovery is not actually
used in the rules. The words used are disclosure and inspection. CPR 28.1(3) says
disclosure is for disclosing the existence of a document. Inspection is where the other
part6y is allowed to see it or to take a copy of it. There is a distinction between specific
and standard disclosure. Specific disclosure is an order that a party search for a particular
class of documents or allow you to inspect them. Standard disclosure which is the more
routinely order type requires that the party discloses whatever is relevant to the
proceedings.
What Must be Disclosed
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Disclosure orders relate to documents. A document is defined in CPR 28.1 (2) is
anything on which information is recorded. This may include a dvd, audio cassette or
video cassette, t shirt with logo, anything on which information is recorded. In disclosing
documents it should be noted that a copy which has an obliteration, modification or
marking not present on another copy must be separately disclosed CPR 28.3(2). So if
one does a letter and send out a copy upon which receipt is to be acknowledged, then one
needs to disclose the original and the one which has the acknowledgement of receipt must
be separately disclosed. The documents that are to be disclosed are those that are or have
been within the control of the party to the litigation CPR 28.2. One must therefore
disclose what I “have” as well as what I “had”.
CPR 28.2
(1) A party’s duty to disclose documents is limited to documents which are or have
been in the control of that party.
(2) For this purpose a party has or has had control of a document if –
(a) it is or was in the physical possession of that party;
(b) that party has or has had a right to possession of it; or
(c) that party has or has had a right to inspect or take copies of it.
CPR 28.3
(1) Except where required by paragraph (2), a party need not disclose more than one
copy of a document.
(2) A party must however disclose a copy if it contains a modification, obliteration or
other marking or feature which is not present in the original of any copy of the
document which is being disclosed.
A document comes within being within a parties control if it was in their possession.
This also applies where the party has or had a right to possession of documents. This also
applies where the party has or had a right to inspect or take copies of a document. See
the case of Re Tecnion Investments Ltd where majority shareholder with complete control
was held to have control of the documents of the company. See the case of Lonrhoe Ltd v
Shell Petroleum Ltd where the H of L held that a subsidiary’s documents may be held to
be in the control of a parent company.
The provisions in relation to standard and direct disclosure makes reference to the
documents which are directly relevant.
CPR 28.4
(1) Where a party is required by any direction of the court to give standard disclosure
that party must disclose all documents which are directly relevant to the matters
in question in the proceedings.
CPR 28.6.
(5) An order for specific disclosure may require disclosure only of documents which
are directly relevant to one or more matters in issue in the proceedings.
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The meaning of directly relevant is set out in 28.14 and is important to note. These are
1. documents that the party intends to rely on; or
2. documents that adversely affect that parties case; and
3. documents which support another party’s case
Numbers two and three above, must all be disclosed. Relevance is to be defined by
reference to the statement of case. See the case of PAddic v Associated Newspapers Ltd.
Standard Disclosure
The rules in relation to this are at CPR 28.4 - 28.5 the judge at the case management
conference must consider the making of an order for standard disclosure CPR 27.9 (1)(a).
The court or the parties may limit the extent of standard disclosure.
CPR 28.4
(2) The court may dispense with or limit standard disclosure.
(3) The parties may agree in writing to dispense with or limit standard
disclosure.
CPR 28.5
(1) When giving standard disclosure, a party is required to make a reasonable
search for documents falling within rule 28.4.
(2) The factors relevant in deciding the reasonableness of a search include
the following:
a. The number of documents involved;
b. The nature and complexity of the proceedings;
c. The ease and expense of retrieval of any particular document; and
d. The significance of any document which is likely to be located
during the search.
(3) Where a party has not searched for a category or class of document on the
ground that it would be unreasonable to do so, this must be stated in that party’s
list of documents which must identify the category or class of document.
An order for standard disclosure requires disclosure of all documents which are directly
relevant to the question. Once an order for standard disclosure is made, the party is
required to make a reasonable search for the documents see 28.5. I for some reason, you
are unable to make a search because if would be unreasonable for you to do so. Party’s
statements of relevance for the purposes of standard disclosure are generally considered
to be conclusive. See the case of Lutchansky v Times News Papers (No. 1).
Disclosure is not to be used to fish for a case. Disclosure on matters relevant only to the
credibility of the witness is not allowed. Relevance is determined by the statement of
case. See the case of Thorpe v Chief Constable of Greater Manchester Police.
Specific Disclosure
CPR 28.6
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(1) An order for specific disclosure is an order that a party must do one or
more of the following things:
a. Disclose documents or classes of documents specified in the order;
or
b. Carry out a search for documents to the extent stated in the order
and disclose any documents located as a result of that search.
(2) An order for specific disclosure may be made on or without an
application.
(3) An application for specific disclosure may be made without notice at a
case management conference.
(4) An application for specific disclosure may identify documents –
a. By describing the class to which they belong; or
b. In any other manner.
CPR 28.7
(1) When deciding whether to make an order for specific disclosure, the court
must consider whether specific disclosure in necessary in order to dispose fairly
of the claim or to save costs.
(2) It must have regard to –
a. The likely benefits of specific disclosure;
b. The likely cost of specific disclosure; and
c. Whether it is satisfied that the financial resources of the party
against whom the order would be made are likely to be sufficient to enable
that party to comply with any such order.
(3) Where, having regard to paragraph (2)(c), the court would otherwise
refuse to make an order for specific disclosure, it may however make such an
order on terms that the party seeking that order must pay the other party’s costs
of such disclosure in any event.
On an order for specific disclosure a party can be ordered to disclose specific documents
or a particular class of documents or an order to search a specific location or search for a
class of documents. The documents which are to be disclosed must be directly relevant
to the case. See the case of D&G Pension Fund Case.
In addition to relevance, there are other criteria to be disclosed. See CPR 28.7 The cost
of complying may however be a bigger concern in a specific disclosure order than in a
general disclosure order this may be due to the sheer volume of material to go through.
Applications for specific disclosure can be made before, during and after the case
management conference. Disclosure is best done before the Pre trial review. 28.6 An
application is not required the court can make an order on its own initiative and the
application may be made without notice at the case management conference. See 28.17
one may get an order to copy document mentioned in the list of documents, and affidavit,
summary, a witness statement or an experts report.
108
Date: March 17, 2006
SPECIFIC DISCLOSURE
The description of the documents when making the order on application must be
sufficiently precise for the other side to know what is required. Morgans v Needham
An order for this should not be made in relation to matter not set out in the statement of
case. Amoco (UK) Exploration Co v British American Offshore Ltd.
CPR 28.17(1)
A party may inspect and copy a document mentioned in:
a. the claim form;
b. a statement of case;
c. a witness statement or summary;
d. an affidavit; or
e. an expert’s report.
As a party preparing a statement of case and you made reference to a particular document
and the other party has asked for and received a copy, you must still include it in the list
because if you don't you may still not be able to rely on it even though it is in the
statement of case as compliance with the requirement for disclosure is only satisfied if it
is included in the list of documents pursuant to the order for standard disclosure.
CPR 28.8
(4) Each party must make and serve on every other party, a list of documents
in form 12.
(5) The list must identify the documents or categories of documents in a
convenient order and manner and as concisely as possible.
(6) The list must state –
(a) What documents are no longer in the party’s control;
(b) What has happened to those documents;
(c) Where each such document then is to the best of the party’s knowledge,
information and belief.
(7) It must include documents already disclosed.
(8) A list of documents served by a company, firm, association or other
organization must –
(a) State the name and position of the person responsible for identifying
individuals who might be aware of any document which should be disclosed;
and
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(b) Identify those individuals who have been asked whether they are aware of
any such documents and state the position of those individuals.
CPR 28.17 - uses the word "mentioned". This suggests that you are looking for some
specific reference to the document. Where the class is not mentioned but may be inferred
you may apply for specific disclosure. Rigg v Associated Newspapers Ltd - illustrates
what is not meant by mentioning a document in the statement of case. A party quoted
from notes. It was held that this did not fall under mentioning to the notes.
Similarly, if in particular the contents of the letter are set out but what the document is is
not actually stated, this is not mentioning. The other party may go for specific disclosure
of this letter.
Therefore, consider whether what you require is standard disclosure (all the documents
relevant to be disclosed) or specific disclosure (category or documents that are mentioned
in some way).
PROCEDURE
Standard and Specific Disclosure
The order requires that the party making the disclosure make a list of documents
organized in a convenient order CPR 28.8 supra Study Form 12. They could be set out
issue by issue. Some have done it by the date of the document. Where the order says
states a particular date the list of documents must be served by that date
RESPONSIBILITY OF PARTIES INVOLVED
Client
He is required to conduct a reasonable search. CPR 28.5
(1) When giving standard disclosure, a party is required to make a reasonable
search for the documents falling within rule 28.4.
(2) The factors relevant in determining the reasonableness of a search include
the following:
a. The number of documents involved;
b. The nature and complexity of the proceedings;
c. The ease and expense of retrieval of any particular document; and
d. The significance of any document which is likely to be located during the
search.
(3) Where a party has not searched for a category or class of document on the
grounds that it would be unreasonable to do so, this must be stated in that party’s list
of documents which must identify the category or class of document.
The obligation of disclosure is that of the client and the consequences of failure to
disclose is on the client. If the document is material and not disclosed it cannot be relied
on at trial. It should be born in mind that the obligation of disclosure is a continuing one
CPR 28.13 Where a doc comes to the attention of the client after disclosure then a
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supplemental list should be done if a document covered by the order comes to the party's
notice.
CPR 28.13
(1) The duty of disclosure in accordance with any order for standard or
specific disclosure continues until the proceedings are concluded.
(2) Where documents to which that duty extends comes to a party’s notice at
any time during the proceedings, that party must immediately notify every other
party and serve a supplemental list of those documents.
(3) The supplemental list must be served not more than 14 days after the
documents to which that duty extends have come to the notice of the party required
to serve it.
Lawyer
He is required to explain to the client the necessity for good disclosure and the
consequences for failing to disclose. He must certify on the list of documents that these
explanations have been given. CPR 28.9 and the form
The attorney-at-law for a party –
(a) explain to the maker of the list of documents –
i. the necessity of making full disclosure in accordance with the
terms of the order for disclosure and these Rules; and
ii. the possible consequences of failing to do so; and
(b) certify on the list of documents under rule 28.8(2) that the explanation
required by paragraph (1) has been given.
He is also required after being engaged to explain the obligation owed by the client and
as far as possible to ensure that the original documents are preserved Rockwell Machine
Tool Co Ltd v EP Burns Concessionaires Ltd- One must explain in the early stages to the
client the obligations of disclose and the preservation of the docs.
COLLATERAL USE OF THE DOCS

CPR 28.18
(1) A party to whom a document has been disclosed may use the document
only for the purpose of the proceedings in which it is disclosed except where –
a. The document has been read to or by the court, or referred to, in open
court; or
b. (i) the party disclosing the document and the person to whom the
document belongs; or
(ii) the court,
gives permission.
(2) The court may make an order restricting or prohibiting the use of a
document which has been disclosed, even where the document has been read to or
by the court, or referred to in open court.
(3) An application for such an order may be made-
a. By a party; or
b. By any person to whom the document belongs.
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This is talking about an attempted use of the documents in proceedings other than the
proceedings in which they were disclosed. This use not permitted against the same
defendant. Breach of this may result in:
 striking out of the subsequent claim,
 restrain of use by way of injunction, or
 contempt.
The limitation under this provision is limited to those documents disclosed under part 28
and does not apply to documents referred to in affidavit or witness statement as they are
treated as voluntarily disclosed by the party making the affidavit or the statement.
Cassidy v Hawcroft
Exceptions to the rule

1. Where the document has been read to or by the court or referred to in open court.
So if you want to use it in other proceedings you just read it in the court. If the
judge reads the document in his chambers then this falls under the exception.
Bearings plc v Coopers and Libran
However, even if the documents have been read the court can give permission to
restrain the use of the documents in subsequent proceedings. The court will need
to have very good reason for doing so because it is presumed that what is read
before the judge is public Lilly Icos Ltd v Pfizer Ltd
2. Consent
3. Court permission.
INSPECTION
CPR 28.12
(1) When a party has served a list of documents on any other party, that party
has a right to inspect any document on the list, except documents –
a. Which are no longer in the physical possession of the party who
served the list; or
b. For which a right to withhold from disclosure is claimed.
The court need not make an order for specific inspection for it to take place. Once served
with the list of documents there is a right of the party to inspect the documents on the list
except for those not in the party's possession or where the party claims a right to withhold
inspection.
Notice of inspection must be given. Once given the party who prepared the list and
received the notice must permit inspection within 7 days of receipt of the notice. Hence
there is no need for the order for inspection. CPR 28.12
(2) The party wishing to inspect the documents must give the party who
served the list written notice of the wish to inspect documents in the list.
(3) The party who is to give inspection must permit inspection not more than
112
7 days after the date on which the notice is received.
Inspection means looking at the documents. Alternatively, on an undertaking to pay the

reasonable cost for copying you can request that the party copy those documents. May
carry copier there and copy yourself.
CPR 28.12(4)
Where the party giving notice undertakes to pay the reasonable cost of copying, the party
who served the list must supply the other with a copy of each document requested not
more than 7 days after the date on which the notice was received.
Normally, in inspection it is the entire document that is inspected, however, there is scope
for blanking out irrelevant passages. Therefore if there is something that is prejudicial but
irrelevant there is scope of blacking out. GE Capital Corporate Finance Group Ltd v
Bankers Trust Co
If there is a dispute then the party wishing to blank out should apply to the court to do so
CONSEQUENCES OF FAILURE TO DISCLOSE
1. Can't rely on it at trial 28.14 (failure to disclose and/ inspect)

2. Statement of case can be struck out 28.14(2)
3. An unless order may be made 28.14(5)
CPR 28.14
(1) A party who fails to give disclosure by the date ordered or to permit
inspection may not rely on or produce any document not so disclosed or made
available for inspection at trial.
(2) A party seeking to enforce an order for disclosure may apply to the court
for an order that the other party’s statement of case or some part of it be struck
out.
(3) An application under paragraph (2) relating to an order for specific
disclosure may be made without notice but must be supported by evidence on
affidavit that the other party has not complied with the order.
(4) The general rule is that the court will deal with such an application
without attendance but the court may –
a. Require the applicant to attend to support the application; or
b. Direct that a hearing be fixed and that notice of the date, time and
place of such hearing be given to the respondent.
(5) On an application under paragraph (2) the court may order that unless
the party in default complies with the order for disclosure by a specific date that
party’s statement of case or some part of it be struck out.
CLAIMS TO WITHHOLD INSPECTION OR DISCLOSURE
Claiming a right to withhold disclosure or inspection it must be made in the list of

documents or in writing to the other party. This means that reference to it must be
included in the list of documents and statement etc. If the other party claims that there is
113
no such right then the other party may apply to the court.
The public interest immunity - one can claim the right to withhold by an ex parte
application to the court. Generally, the order made thereon would not be served and
should not be made available for inspection by anyone. This may be a case where it
would be best for the party not to even know that the document exists so there is need to
withhold disclosure, knowledge of the application and the order.
Save for the above, any document for which you are claiming a right to withhold
inspection must be listed in the schedule to the list of documents and then or later state
that inspection is being withheld.
Grounds on which withhold
1 Public interest immunity This is different from the others because it is really the state
and the national interest concerned and not so much the interest of the party.
Documents are withheld form disclosure if injurious to the public interest. There are
two categories:
1. fall within the class that requires protection including cabinet minutes;
2. documents which require protection because the contents of the
documents are sensitive, for example, documents relating to national security
and diplomatic material.
If the contents are material and there are grounds to doubt whether public interest
immunity is properly claimed, it can review the claim. In doing so the court is to
balance the public interest in view of the administration of justice against the public
interest immunity that has been claimed. Verma Oil Co Ltd v Bank of England and
Air Canada v The Secretary of State for Trade
2 Privilege against self incrimination Blunt v Park Lane Hotel Ltd - Goddard LJ - no
one is bound to answer a question if the answer to the question is in the judge's
opinion would tend to expose the person to a criminal charge or penalty or forfeiture
which is reasonably likely to occur.
The privilege can be relied on once the criminal charge is more than a contrived
fanciful or remote possibility Rank Film Distributors Ltd v Video Information Centre
- The risk of the criminal charge must be real and appreciable. A mere assertion
thereof is insufficient. This is not limited here you have been charged but also where
the prosecutor is thinking about charging you. Evidence prosecutor might use to
establish the client of the party - Den Norse Bank Asa v Antonatos
114

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CIVIL PROCEDURE AND PRACTICE II

Date: September 23, 2005

THE OVERRIDING OBJECTIVE

For an argument on this area see Kodilinye

Dealing justly with a case includes:

(b) saving expense;

(c) dealing with it in ways which take into consideration:

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court’s resources, while taking

Date: September 30, 2005

OVERRIDING OBJECTIVE Cont'd

The Role of the Inherent Jurisdiction

a). exercises any jurisdiction given to it by the Rules; or

The court is under an obligation to further the overriding objective.

Case Management Conference

Attendance at Case Management Conference

Rule 27.8(1) Where a party is represented by an attorney-at-law, that attorney-at-law

Adjourn and award costs

Date: October 4, 2005

THE INHERENT JURISDICTION OF THE COURT

The Supreme Court

The Lower Courts

QUESTION 2 : What is meant by “dealing justly with a case”?

NATURAL MEANING OF WORDS

Overriding Objective as a Guide to Interpretation

Date: October 4, 2005

What is the procedure prior to Case Management Conference?

Date: October 7, 2005

There the length of the trial is determined, date thereof.

Rule 38.5 - Parties to prepare pre-trial memorandum

(4) The pre-trial memorandum must be accompanied by a copy of such documents

Rule 38.6 - Scope of Pre-Trial Review

Rule 38.7 - Directions at pre-trial review

Deals with ways in which a matter can be determined without a trial.

Formal vs Informal Admissions.

Part 14 - deals with the making of admissions

Rule 14.9 - Requests for time to pay

The defendant may admit and ask for time to pay.

Rule 14.4 - Admission by notice in writing - application for judgment

Application to be in Form 7. It does not apppear that a judge at hearing is necessary. In

Importance of notice to admit.

Amending and withdrawing admissions.

Rule 26.2 - Court's power to make orders of its own initiative

The hearing is an inter parte hearing.

Rule 26.3- Sanctions - striking out statement of case

Rule 26.4 - Court's general power to strike out statement of case

Rule 26.6 - Setting aside judgment entered after striking out

Relief from sanctions 26.8 The idea of moving quickly.

Date: October 11, 2005

*Proportionality actually means - the factors against which proportionality are to be

Date: October 14, 2005

STRIKING OUT CONTINUED

This is not any minor failure to comply.

Morgans (a Firm) v Needham - it is inappropriate to strike out on the basis of a failure to

Relief from sanction

Ashmore v British Coal Corporation - vexatious - depends on the circumstances of the

Rassam v Budge - Lack of clarity in defence is an obstruction to a fair trial.

Date: October 18, 2005

Department of Transport v Chris Small [1989] 1 All ER 897

Notice to Admit Facts

Dealing with a case justly

Dealing with cases expeditiously, fairly and saving expense

Allotting an appropriate share of the court's resources

Date: October 25, 2005