#16072 - Cpr 1 Notes - BPC Civil Litigation

CPR, rules 1.1-1.4

Rule 1.1 - The Overriding Objective

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable—

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate—

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

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

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

Rule 1.2 – Application by the court of the Overriding Objective

The court must seek to give effect to the overriding objective when it—

(a) exercises any power given to it by the Rules; or

(b) interprets any rule,

subject torules 76.2, 79.2, 80.2, 82.2 and 88.2.

Rule 1.3 – Duty of the Parties

The parties are required to help the court to further the overriding objective.

Rule 1.4 – Court’s duty to manage cases

(1) The court must further the overriding objective by actively managing cases.

(2) ACTIVE CASE MANAGEMENT includes—

(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b) identifying the issues at an early stage;

(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;

(d) deciding the order in which issues are to be resolved;

(e) encouraging the parties to use an alternative dispute resolution(GL) procedure if the court considers that appropriate and facilitating the use of such procedure;

(f) helping the parties to settle the whole or part of the case;

(g) fixing timetables or otherwise controlling the progress of the case;

(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;

(i) dealing with as many aspects of the case as it can on the same occasion;

(j) dealing with the case without the parties needing to attend at court;

(k) making use of technology; and

(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

Practice Direction (Pre-Action Conduct)

Introduction

1. Pre-action protocols: explain conduct & steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. They are approved by the Master of the Rolls and annexed to CPR.

2. This Practice Direction applies to disputes where no pre-action protocol applies.

Objectives of pre-action conduct and protocols

3. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—

(a)understand each other’s position;

(b)make decisions about how to proceed;

(c)try to settle the issues without proceedings;

(d)consider a form of ADR to assist with settlement;

(e)support the efficient management of those proceedings; and

(f)reduce the costs of resolving the dispute.

Proportionality

4. A Pre-Action Protocol/this PD must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.

5. The costs incurred in complying with a pre-action protocol/this PD: should be proportionate; where parties incur disproportionate costs in complying those costs will not be recoverable.

Steps before issuing a claim at court

6. Where there is a relevant pre-action protocol, the parties should comply; where no relevant pre-action protocol, the parties should: exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—

1. C writing to D with concise details of the claim. The letter should include: (1) the basis on which the claim is made, (2) a summary of the facts, (3) what C wants from the D, and (4) if money, how the amount is calculated;

2. REPLY: the D responding within a reasonable time : 14 days in a straightforward case and no more than 3 months in a very complex one.

   1. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether D is making a counterclaim as well as providing details of any counterclaim; and

(c) the parties DISCLOSING key documents relevant to the issues in dispute.

Experts

7. Parties should be aware that the court must give permission before expert evidence can be relied upon, and that the court may limit the fees recoverable. Many disputes can be resolved without expert advice or evidence.

   1. If necessary to obtain expert evidence, particularly in low value claims, the parties should consider using a single expert, jointly instructed by the parties, with the costs shared equally.

Settlement and ADR

8. Litigation should be a last resort. As part of a pre-action protocol/this PD, the parties should consider: whether negotiation or form of ADR might enable them to settle without commencing proceedings.

9. Parties should continue to consider the possibility of reaching a settlement at all times, including after proceedings have been started. Part 36 offers may be made before proceedings are issued.

10. Parties may negotiate to settle a dispute or may use a form of ADR including—

    1. mediation, a third party facilitating a resolution;

    2. arbitration, a third party deciding the dispute;

    3. early neutral evaluation, a third party giving an informed opinion on the dispute; and

    4. Ombudsmen schemes.

11. If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered.

    • [Possible costs sanction if failure to consider ADR]: A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to court ordering that party to pay additional court costs.

Stocktake and list of issues

12. Where a dispute has not been resolved after the parties have followed a pre-action protocol/this PD: they should review their respective positions. They should consider the papers and the evidence to see if proceedings can be avoided and at least seek to narrow the issues in dispute before C issues proceedings.

Compliance with this Practice Direction and the Protocols

13. If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol/this PD.

    • The court will take into account non-compliance when giving directions for the management of proceedings & when making orders for costs.

    • The court will consider whether all parties have complied in substance, and is not likely to be concerned with minor/technical infringements, especially when the matter is urgent (for example an application for an injunction).

14. The court may decide that there has been a failure of compliance when a party has—

1. not provided sufficient information to enable the objectives in paragraph 3 to be met;

2. not acted within a time limit set out in a protocol, or within a reasonable period; or

3. unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

15. Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that

    1. the parties are relieved of the obligation to comply or further comply with the pre-action protocol or this PD;

    2. the proceedings are stayed while particular steps are taken to comply;

    3. sanctions are to be applied.

16. The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—

1. an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;

2. an order that the party at fault pay those costs on an indemnity basis;

3. if the party at fault is a C who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;

4. if the party at fault is a D and the C has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.

Limitation

17. This Practice Direction and the pre-action protocols do not alter the statutory time limits for starting court proceedings.

    • If a claim is issued after the relevant limitation period has expired D will be entitled to use that as a defence to the claim.

    • If proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Practice Direction or the relevant pre-action protocol, the parties should apply to the court for a stay of the proceedings while they so comply.

Burden & Standard of proof – BPTC Evidence Handbook, paras 2.1 & 2.3

Introduction

• Burden of proof

• The law of evidence recognises 2 principal burdens: (a) legal burden; (b) evidential burden.

• Legal burden = obligation on party to prove a fact in issue; to be determined by the tribunal of fact at end of trial [[AKA ‘persuasive burden’ and ‘burden of proof’]]...