Bar Training Course (BTC) Civil Litigation, Evidence and Remedies Syllabus

In what circumstances may a claimant obtain default judgment under CPR 12?

Where the defendant has failed to file an acknowledgment of service or a defence within the relevant time, and the time for doing so has expired. Default judgment is not available for Part 8 claims, certain specified claims (e.g. against children/protected parties without permission, certain consumer credit and other excepted claims). It may be obtained by request (for money/goods claims) or by application.

Distinguish mandatory and discretionary grounds for setting aside a default judgment under CPR 13.

Mandatory (CPR 13.2): the court MUST set aside if judgment was wrongly entered (e.g. time had not in fact expired, or the claim was satisfied). Discretionary (CPR 13.3): the court MAY set aside if the defendant has a real prospect of successfully defending the claim, or there is some other good reason; the court also considers whether the application was made promptly.

What is the general procedure for making an interim application under CPR 23, and what evidence is required?

The applicant files an application notice (Form N244) stating the order sought and the grounds, usually supported by written evidence (often a witness statement). The notice must normally be served on the respondent at least 3 clear days before the hearing. Applications may be made without notice only in limited circumstances (e.g. urgency, secrecy, or where permitted by rule).

State the test for summary judgment under CPR 24.

The court may give summary judgment against a claimant or defendant on the whole claim or a particular issue if it considers that the party has no real prospect of succeeding on/successfully defending the claim or issue, AND there is no other compelling reason why the case or issue should be disposed of at trial. ("Real" means more than merely arguable/fanciful — Swain v Hillman.)

Compare summary judgment (CPR 24) with strike out (CPR 3.4).

Summary judgment (CPR 24) examines the merits/evidence to ask whether a claim or defence has a real prospect of success. Strike out (CPR 3.4) targets the statement of case itself: where it discloses no reasonable grounds, is an abuse of process or likely to obstruct just disposal, or there has been a failure to comply with a rule/PD/order. Strike out focuses on the pleading/conduct; summary judgment focuses on the evidential merits. The two are often applied for together.

On what grounds may the court strike out a statement of case under CPR 3.4(2)?

(a) The statement of case discloses no reasonable grounds for bringing or defending the claim; (b) it is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) there has been a failure to comply with a rule, practice direction or court order.

State the three-stage American Cyanamid test for granting an interim injunction.

From American Cyanamid v Ethicon [1975]: (1) Is there a serious question to be tried (i.e. the claim is not frivolous or vexatious)? (2) Would damages be an adequate remedy for either party (would they adequately compensate the claimant if no injunction granted, or the defendant under the cross-undertaking if granted)? (3) If damages are not adequate, where does the balance of convenience lie? If evenly balanced, preserve the status quo.

What is the "cross-undertaking in damages" required for an interim injunction?

An undertaking given by the applicant to the court to compensate the respondent (and sometimes third parties) for any loss caused by the injunction if it later turns out the injunction should not have been granted. It is normally a condition of granting an interim injunction and protects the respondent against wrongful restraint.

What is a freezing injunction (Mareva injunction) and what must an applicant typically establish?

A freezing injunction restrains a respondent from dealing with or dissipating assets (up to a stated value) pending judgment/enforcement. The applicant must show: a good arguable case on the substantive claim; that the respondent has assets (within or outside the jurisdiction); and a real risk that those assets will be dissipated or removed so as to render any judgment unenforceable. Full and frank disclosure is required as it is usually sought without notice.

What is a search order (Anton Piller order) and what are its conditions for grant?

A search order permits the applicant to enter the respondent's premises to search for, inspect, copy or remove evidence/property, to prevent its destruction. Conditions (Anton Piller KG v Manufacturing Processes): (1) an extremely strong prima facie case; (2) very serious actual or potential damage to the applicant; (3) clear evidence the respondent possesses incriminating documents/items and a real possibility they will be destroyed before an inter partes application. A supervising solicitor must oversee execution.

On what grounds may a defendant obtain security for costs against a claimant under CPR 25?

The court may order security if it is just to do so and one of the conditions is met, e.g.: the claimant is resident outside the jurisdiction (and not in a relevant Convention/Hague state in a way that aids enforcement); the claimant is an impecunious company and there is reason to believe it will be unable to pay the defendant's costs if ordered; the claimant has changed address to evade consequences; the claimant has taken steps to make enforcement difficult; or the claimant is a nominal claimant.

What is an interim payment and what conditions must be satisfied under CPR 25 before the court orders one?

An interim payment is an advance payment on account of damages/debt a defendant may be ordered to pay. The court may order it only if: the defendant has admitted liability; the claimant has obtained judgment for damages to be assessed; OR the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial sum (or, in possession claims, against the relevant defendant). The amount must not exceed a reasonable proportion of the likely final judgment.

What is "standard disclosure" under CPR 31.6, and what is the extent of the duty to search?

Standard disclosure requires a party to disclose: the documents on which it relies; documents which adversely affect its own case, adversely affect another party's case, or support another party's case; and documents it is required to disclose by a relevant practice direction. Under CPR 31.7 the duty is to make a reasonable search, with reasonableness judged by the number of documents, the nature/complexity of proceedings, ease/expense of retrieval, and the significance of any document likely to be found.

What is the difference between "disclosure" and "inspection" of a document?

Disclosure (CPR 31.2) means stating that a document exists or has existed. Inspection means the right of the other party actually to look at and copy the document. A party may disclose a document but withhold inspection where it has a right or duty to do so (e.g. privilege) or where inspection would be disproportionate (CPR 31.3).

Distinguish legal advice privilege from litigation privilege.

Legal advice privilege protects confidential communications between a lawyer and client made for the dominant purpose of giving or obtaining legal advice (no litigation need be contemplated). Litigation privilege protects confidential communications between a lawyer or client and a third party (e.g. an expert or witness) made for the dominant purpose of conducting litigation that is in progress or reasonably in contemplation. Both belong to the client and can be waived.

What is "without prejudice" privilege and its principal exception?

Without prejudice privilege protects communications (written or oral) made in a genuine attempt to settle a dispute, so they cannot be put before the court as evidence of admissions. A key exception is "without prejudice save as to costs" (Calderbank) communications, which may be referred to on the question of costs after judgment. Other exceptions include where the protection is being abused (e.g. to cloak fraud).

What is Practice Direction 57AC and what does it require of trial witness statements?

PD 57AC (in force for the Business and Property Courts) governs trial witness statements. It requires statements to contain only evidence as to matters of fact that the witness could give orally and within their personal knowledge, in the witness's own words where practicable. It restricts commentary on documents and argument, requires identification of documents the witness has referred to, and mandates a confirmation of compliance by the witness and a certificate of compliance signed by the legal representative.

What sanctions may the court impose for non-compliance with PD 57AC?

The court has a range of powers, including: refusing permission to rely on the witness statement (in whole or part); striking out part or all of the statement; ordering it be redrafted; adverse costs orders; and other case management sanctions. The aim is to ensure witness evidence is properly confined to admissible factual evidence.

Under CPR 35, what is the expert's overriding duty, and to whom is it owed?

An expert's overriding duty is to help the court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying the expert. Expert evidence must be restricted to what is reasonably required to resolve the proceedings, and may only be adduced with the court's permission.

What is a single joint expert (SJE), and when will the court typically direct one?

An SJE is one expert instructed jointly by two or more parties to give evidence on an issue (CPR 35.7). The court may direct an SJE where the issue is suitable (e.g. lower-value claims, non-contentious or quantum issues) to save costs and avoid a "battle of experts." Either party may give instructions, and the parties are jointly and severally liable for the SJE's fees.

Define "hearsay" for the purposes of civil proceedings under the Civil Evidence Act 1995.

Hearsay is a statement made otherwise than by a person while giving oral evidence in the proceedings, which is tendered as evidence of the matters stated (s.1(2) CEA 1995). It includes both first-hand and multiple ("second-hand") hearsay. In civil proceedings hearsay is generally admissible and is not excluded merely because it is hearsay.

What notice requirements apply to hearsay evidence under the Civil Evidence Act 1995, and what is the effect of failing to give notice?

Under s.2 CEA 1995 and CPR 33.2, a party intending to rely on hearsay must give notice to the other parties and, on request, particulars. Failure to give notice does NOT make the evidence inadmissible, but the court may take the failure into account when considering the exercise of its powers on case management and costs, and as adversely affecting the weight given to the evidence.

What factors does s.4 of the Civil Evidence Act 1995 list for assessing the weight of hearsay evidence?

Factors include: whether it would have been reasonable and practicable to call the maker of the original statement; whether the statement was made contemporaneously with the matters stated; whether it involves multiple hearsay; whether any person had a motive to conceal or misrepresent; whether the original statement was edited or made in collaboration for a particular purpose; and whether the circumstances suggest an attempt to prevent proper evaluation of its weight.

What is the purpose and required contents of the trial bundle, and when must it be filed?

The trial bundle is a paginated, indexed collection of the documents needed for trial (e.g. claim form, statements of case, case summary, directions orders, witness statements, expert reports, and relevant documentary evidence). Under CPR 39.5/PD 32, the claimant must file it not more than 7 and not less than 3 days before the start of the trial. Its purpose is to give the court and parties a common, organised reference set of documents.

Distinguish the standard basis and the indemnity basis of costs assessment, including who bears the burden on proportionality and doubt.

On the STANDARD basis, the court allows only costs that are proportionate to the matters in issue and resolves any doubt about whether costs were reasonably incurred/reasonable in amount in favour of the PAYING party; proportionality applies. On the INDEMNITY basis, there is NO proportionality requirement and doubt is resolved in favour of the RECEIVING party. Indemnity-basis costs are therefore generally more generous to the receiving party.

State the general rule on liability for costs (the "costs follow the event") and the court's discretion under CPR 44.2.

The general rule is that the unsuccessful party pays the successful party's costs ("costs follow the event"). However, the court has a discretion to make a different order, having regard to all the circumstances including the conduct of the parties, partial success, and any admissible offers to settle (e.g. Part 36 or Calderbank offers). The court may order a party to pay a proportion of costs, costs from a certain date, or costs of certain issues only.

What are the cost consequences under CPR 36.17 where a CLAIMANT obtains judgment at least as advantageous as its own Part 36 offer that the defendant did not accept?

The court will (unless unjust) order, from the end of the relevant period: (a) interest on the sum awarded at up to 10% above base rate; (b) costs on the indemnity basis; (c) interest on those costs at up to 10% above base rate; and (d) an additional amount of up to £75,000 (10% of the first £500,000 awarded plus 5% of any amount above that, capped at £75,000).

What are the cost consequences under CPR 36.17 where a defendant's Part 36 offer is not beaten by the claimant at trial?

Where the claimant fails to obtain a judgment more advantageous than the defendant's Part 36 offer, the court will (unless unjust) order the claimant to pay: (a) the defendant's costs from the end of the relevant period; and (b) interest on those costs. This shifts the costs risk onto a claimant who pressed on and did no better than the offer.

What is the "relevant period" for a Part 36 offer, and what happens if it is accepted within that period?

The relevant period is the period specified in the offer for acceptance, which must be at least 21 days (or, if the trial starts sooner, up to the start of trial). If a defendant's money offer is accepted within the relevant period, the claimant is automatically entitled to its costs up to the date of acceptance (CPR 36.13), and the claim is stayed on the agreed terms.

List the principal methods of enforcing a money judgment.

Taking control of goods (writ/warrant of control via enforcement agents); third party debt order (attaching money owed to the debtor, e.g. bank accounts); charging order over land or securities (and possible order for sale); attachment of earnings order; appointment of a receiver by way of equitable execution; and insolvency proceedings (bankruptcy/winding-up petition). The judgment creditor chooses according to the debtor's assets.

How are non-money judgments (e.g. to do or refrain from an act, or to deliver goods) typically enforced?

By methods such as: committal for contempt (where a person breaches an injunction or undertaking); a writ/warrant of possession (for orders for possession of land); a writ/warrant of delivery (for delivery of goods); a writ of sequestration (against assets for contempt); or the court ordering the act to be done by another at the defaulting party's expense (CPR 70 and related rules).

When is permission to appeal required, and what is the test for granting it under CPR 52?

Permission is generally required for most appeals (e.g. to the County Court, High Court and Court of Appeal), sought first from the lower court and, if refused, from the appeal court. Permission will be granted only where (a) the appeal has a real prospect of success, OR (b) there is some other compelling reason for the appeal to be heard (CPR 52.6).

On what grounds may an appeal be allowed under CPR 52.21, and is an appeal normally a rehearing or a review?

An appeal is normally limited to a REVIEW of the lower court's decision (not a rehearing), unless a practice direction provides otherwise or the court considers a rehearing is in the interests of justice. The appeal court will allow an appeal where the decision of the lower court was (a) WRONG (in law, fact, or exercise of discretion), or (b) UNJUST because of a serious procedural or other irregularity in the proceedings.