#16071 - Further Information - BPC Civil Litigation

Further Information

CPR 18.1-18.2

18.1, Obtaining further information

• (1) the court may at any time order a party to [[(a) clarification; (b) information]]:

  1. clarify any matter which is in dispute in the proceedings; or

  2. give additional information in relation to any such matter

     • whether or not the matter is contained/referred to in a statement of case.

• (2) para (1) is subject to any rule to the contrary.

• (3) where court makes order under (1) above, the party against whom the order is made must, within the time specified by the court:

  1. file his response; and

  2. serve it on the other parties.

• Part 22: requires a response to be verified by statement of truth. (PD 18, para 3 note definition of statement of case in Part 2).

• Part 53: further info re defamation.

18.2, Restriction on the use of further information

• The court may direct that info provided by a party to another party (whether given voluntarily OR following an order under rule 18.1) must not be used for any purpose except for that of the proceedings in which it is given.

PD 18 (further information), paras 1-5

Preliminary Request for Further Info or Clarification [Para 1]

• Before making an application to court for an order under Part 18: the party seeking clarification or information (the first party) should FIRST serve on the party from whom it is sought (the second party) a written request (‘a Request’) for that clarification/information

  • The request should: stating a date by which the response to the Request should be served.

  • The date must allow the 2^nd party a reasonable time to respond

• a Request should be: concise; and strictly confined to the matters which are reasonably necessary & proportionate to enable the first party to prepare his own case or understand the case he has to meet.

• Requests must be made as far as possible in a single comprehensive document; not piecemeal.

• A Request may be made by letter IF the text is brief and the reply is likely to be brief; if not brief Request should be made in a separate doc.

• If the Request is made in a letter, in order to distinguish it from any other letter that might routinely be written in course of a case, the letter should:

  • state that it contains a Request made under Part 18; and

  • deal with no other matters than the Request.

• A Request (whether by letter or separate doc) MUST:

  • be headed with name of court and the title & number of claim;

  • in its heading, state that it is a Request made under Part 18; identify the first and second party; and state the date;

  • set out each request for information/clarification in a separate numbered paragraph;

  • where a Request relates to a document, identify that doc and (if relevant) the paragraph/words to which it relates;

  • state date by which first party expects a response.

• A request which is not in the form of a letter (i.e. is a separate doc), MAY, if convenient: be prepared in such a way that the response may be given on the same document.

  • To do this: the numbered paras of the Request should appear on the left hand half of each sheet so that the paragraphs of the response may then appear on the right.

  • Where a request is prepared in this form, an extra copy should be served for the use of the second party.

• A request should be served by email if reasonably practicable, subject to r6.23(5) and (6), and PD 6A paras 4.1-4.3.

Responding to a request (para 2)

• A Response to a Request must be:

  • (1) in writing;

  • (2) dated;

  • (3) signed by the Second Party or his legal rep.

  • (& verified by statement of truth).

• Where the request is made in a letter, the response may be: in a letter or separate doc (‘formal reply’) .

  • Such a letter should identify itself as a response to the Request, and deal with no other matters than the response.

• A response must (Unless the Request is prepared in a way allowing response on same document and the second party uses that method for responding):

  1. be headed with name of court, and title & number of claim;

  2. in its heading identify itself as a response to that Request

  3. repeat the text of each separate para of the Request and set out the response under each para;

  4. refer to, and have attached, a copy of any doc not already in possession of the First Party which forms part of the response.

• A second/supplementary response to a Request must identify itself as such in its heading.

• The second party must, when he serves his response on the first party, serve a copy of the Request and response on: every other party, and file with the court.

  • [So the response (with a copy of the request) must be served on every other party & filed with the court] (but the request itself need not be filed with court by the party requesting the info]

Statements of Truth (para 3)

• A response should be verified by a statement of truth.

General matters (para 4)

• If the second party objects to complying with the Request, or part of it; or is unable to do so at all or within the time stated in the Request

  1. he must inform the first party promptly, and in any event within that time stated in the Request.

  2. He may inform the first party of such in a letter OR a separate doc (a ‘formal response’) but in either case, must give reasons and (where relevant) give a date by which he expects to be able to comply.

  3. The second party does not need to apply to the court if he objects/unable to comply with a Request. He need only comply with the above.

  4. Where a second party considers a Request could only be complied with at disproportionate expense, and objects to comply for that reason: he should say so in his reply and explain briefly why he takes that view.

Applications for Orders under Part 18 (para 5) (i.e. should only apply for a court order for further info after having made a preliminary Request, as detailed above)

• Part 23 process

• An application notice for a part 18 order should:

  1. set out, or have attached to it, the text of the order sought;

  2. and in particular should specify the matter(s) re which the clarification or information is sought.

  3. If a preliminary ‘Request’ (see above) for the info/clarification has not been made beforehand, the application notice explain why not.

  4. If a preliminary ‘Request’ has been made: the application notice or supporting evidence should describe the response, if any.

• Both the first and second parties should consider whether evidence in support of, or in opposition to, the application is required.

• [5.5] Where the second party has made no response to a preliminary ‘Request’ served on him:

  1. (1) the first party need not serve the application notice on the second party;

  2. and (2) the court may deal with the application without a hearing.

  • [[however, the above only applies if:

    • (1) at least 14 days have passed since the Request was served;

    • AND (2) the time stated in it for a response has expired.

• [5.6] unless 5.5 applies [[a Request made and no response served within 14 days and time limit expired]], the application notice must be served on: the second party and all other parties to the claim.

• an order made under Part 18 must be served on all parties to the claim.

• COSTS:

  • Note PD 44-48 on costs; particularly subsection 8 & 9 PD 44, which relates to court’s power to make summary assessment of costs.

  • Attention drawn to r44.10(1): the general rule is that if an order does not mention costs, no party is entitled to costs relating to that order.

Commentary, para 18.1.5 –court’s discretion re making Part 18 orders

• When considering whether to make an order (for further information), court must have regard:

  • (a) to the likely benefit which will result if the info is given;

  • (b) to the likely cost of giving it;

  • (c) to whether the financial resources of the party, against whom the order is sought, are likely to be sufficient to enable it to comply with such an order.

• These considerations are consistent with the overriding objective (r1.1) [[although they are not stated in 18.1]]. Court is obliged to give effect to OO when exercising any power under the CPR.

  • Eg Toussaint v Mattis, CA: specific reference made to overriding objective re an application for further information.

• In ...