#16084 - Part 8 - BPC Civil Litigation

CPR Part 8, Alternative procedure for claims [notes intermingled with PD8A paras 3 & 7]]

8.1, Types of claim in which Part 8 procedure MAY be followed

• A C MAY use the Part 8 procedure where:

  • (a) he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact

  • OR

  • (b) where a rule/PD requires or permits Part 8 procedure re a specified type of proceeding]]. [[See PD8A, includes:

    • settlement by/against child/protected party

    • & settlement of provisional damages]]

• In the County Court, a claim under Part 8 procedure may be made at any County Court hearing centre unless an enactment, rule or PD provides otherwise.

  • [[PD 8A includes further direction re claims which are not made at the appropriate County Court hearing centre in the first instance]].

• The court may at any stage order the claim to continue as if the C had not used the Part 8 procedure; and, if it does so, the court will allocate the claim to a track, and give any directions it considers appropriate.

• Para (2) [[ability to use Part 8 procedure]] does NOT apply if: a PD provides that the Part 8 procedure may not be used re the type of claim in question.

• Where C uses Part 8 procedure, he may not obtain default judgment under Part 12.

• A rule or PD may, in relation to a specified type of proceedings:

  • (a) require or permit the use of the Part 8 procedure; and

  • (b) disapply or modify any of the rules set out in this Part as they apply to those proceedings.

• [[rule 8.9 provides for other modifications to the general rules where Part 8 procedure is being used]].

• [[Part 78 provides procedures for European orders for payment and for the European small claims procedure. It also provides procedures for applications for mediation settlement enforcement orders in relation to certain cross-border disputes]].

• PD8A, 3.4: Where it appears to a court officer that a C is using the Part 8 procedure inappropriately: he may refer the claim to a judge to consider the point.

PD 8A Para 3, Types of claim in which Part 8 procedure MAY be used

Part 8 procedure may be used in:

1. From CPR r8.1: where (a) seeks decision on a question unlikely to involve a substantial dispute of fact; (b) required or permitted by a rule or PD]].

2. a claim by or against a child or protected party, as defined by rule 21.2(2), which has been settled before the commencement of proceedings AND the sole purpose of the claim is to obtain the approval of the court to the settlement.

3. A claim for provisional damages which has been settled before the commencement of proceedings and the sole purpose of claim is to obtain a consent judgment.

4. Those listed in table in Section B

   1. The Part 8 procedure must be used for those claims, petitions and applications listed in the table in Section B

   2. Where a claim is listed in table in Section B and is identified as a claim to which particular provisions of Section C apply, the Part 8 procedure shall apply subject to the additions and modifications set out in the relevant paras in Section C.

5. originating summons/motion/application]]

   1. The Part 8 procedure must also be used for any claim or application in relation to which an Act, rule or PD provides that: the claim/application is brought by originating summons, originating motion OR originating application.

8.2, Contents of the Claim form

• Where C uses Part 8 procedure the claim form must state:

  • (a) that this Part (8) applies;

  • (b)

    • (i) the question which C wants court to decide;

    • OR

    • (ii) the remedy which C is seeking AND the legal basis for the claim to that remedy

  • (c) If the claim is being made under an enactment, what that enactment is;

  • (d) If C is claiming in a representative capacity, what that capacity is;

  • and

  • (e) If D is sued in a representative capacity, what that capacity is.

• (Part 22 provides for the claim form to be verified by a statement of truth)

• (Rule 7.5 provides for service of the claim form)

[8.3 MUST file A/S within 14 days after service of claim form].

• The A/S must state:

  • (a) whether D contests the claim; and

  • (b) if the D seeks a different remedy from that set out in claim form, what that remedy is.

• NB, 8.4, consequences of not filing an A/S: D may attend the hearing of the claim but may not take part unless the court gives permission.

• BUT there is NO DEFENCE stage in part 8 procedure, only A/S

8.5, Filing and serving written evidence

• (1) CLAIMANT must file any written evidence on which he intends to rely on when he files his claim form.

  • (2) C’s evidence must be served on D with the claim form.

• (3) A DEFENDANT who wishes to rely on written evidence must file it when he files his acknowledgment of service (within 14 days of service of claim form).

  • If he does so, he must also, at same time, serve a copy of his evidence on the other parties.

  • NB: can extend the time limit for filing evidence if agreed in writing by the parties, to latest 14 days after files Acknowledge of Service (see PD below)

• (5) C may, within 14 days of service of D’s evidence on him, file further written evidence in reply.

  • If he does so, he must also, within same time limit, serve a copy of his evidence on the other parties.

  • NB: can extend the time limit for filing evidence if agreed in writing by the parties, up to latest 28 days after D serves evidence on C (see PD below)

• (7) C may rely on the matters set out in his claim form as evidence under this rule if the claim form is verified by a statement of truth.

PD8A, Para 7, Evidence (largely repeats above)

• Claimant evidence:

  • A C must file the written evidence on which he relies when his Part 8 claim form is issued (unless the evidence is contained in the claim form itself).

  • Evidence will normally be in the form of a witness statement or affidavit;

  • BUT a C may rely on the matters set out in his claim form provided that it has been verified by a statement of truth.

• Defendant evidence

  • A D wishing to rely on written evidence: must file it with his acknowledgment of service.

• A party may apply to the court for:

  • an extension of time to serve & file evidence under rule 8.5;

  • OR for permission to serve and file additional evidence under rule 8.6(1).

PD8A, extension of time re serving/filing evidence:

• the parties may, subject to the following provisions, agree in writing on an extension of time for serving and filing evidence under rule 8.5(3) [[D filing evidence]] or 8.5(5) [[C filing further written evidence in reply]].

• An agreement extending time for a D to file evidence under rule 8.5(3):

  • (a) must be filed by D at same time he files his acknowledgment of service; and

  • (b) must not extend time by more than 14 days after D files his acknowledgment of service.

• (3) an agreement extending time for a C to file evidence under rule 8.5(5) [[C filing written evidence in reply]]: must not extend time to more than 28 days after service of D’s evidence on the C.

8.6, Evidence—General

• (1) No (further) written evidence may be relied on at the hearing of the claim unless:

  • (a) it has been served in accordance with rule 8.5 [[filed and served with the claim form or A/S or in reply]];

  • OR

  • (b) the court gives permission.

• (2) The court may require or permit a party to give oral evidence at the hearing.

• (3) The court may give directions requiring the attendance for cross-examination (GL) of a witness who has given written evidence.

• [[such oral evidence in part 8 procedure is only suitable to resolve a limited factual dispute]].

• [[Rule 32.1 contains a general power for the court to control evidence]].

8.8, Procedure where D objects to use of the Part 8 procedure

• (1) Where D contends that Part 8 procedure should not be used because:

  • (a) there is a substantial dispute of fact; and

  • (b) the use of the Part 8 procedure is not required/permitted by a rule/PD,

• He must state his reasons when he files his acknowledgment of service.

  • (Rule 8.5 requires a D who wishes to rely on written evidence to file it when he files his acknowledgment of service).

• (2) When the court receives the acknowledgment of service & any written evidence, it will give directions as to the future management of the case.

  • (Rule 8.1(3) allows court to make an order that the claim continue as if C had not used the Part 8 procedure).

8.9, Modifications to the general rules when part 8 is used

• Where the part 8 Procedure is followed:

  • (a): provision is made in this Part for the matters which must be stated in the claim form and the D is not required to file a defence and therefore:

    • (i) ...