Civil Procedure Rules (CPR) - Default Judgment & Summary Judgment - PDF

**SYLLABUS AREA 12. Default judgment and summary judgment** 1. Default judgment 2. Applications to set aside 3. Summary judgment **SYLLABUS AREA 13. Case management, sanctions, striking out and discontinuance** 1. The small claims track, fast track, intermediate track and mulit-track 2...

**SYLLABUS AREA 12. Default judgment and summary judgment** 1. Default judgment 2. Applications to set aside 3. Summary judgment **SYLLABUS AREA 13. Case management, sanctions, striking out and discontinuance** 1. The small claims track, fast track, intermediate track and mulit-track 2. Allocation and assignment 3. Case management 4. Costs management 5. Directions 6. Relief from sanctions 7. Striking out a claim 8. Discontinuance 12 Default Judgment and Summary Judgment 1. default judgment 2. applications to set aside 3. summary judgment ***Examinable Material*** 1\. Examinable material on **default judgment** will consist of meaning of default judgment; *claims in which default judgment may not be obtained; conditions to be satisfied; procedure for obtaining default judgment; nature of judgment where default judgment obtained by filing a request; interest; default judgment in claim against more than one defendant; and default judgment obtained by making an application.* The relevant material is addressed in *CPR 12.1-12.5, 12.7, 12.9 and 12.11(a).* [CPR 12.1 -- Meaning of 'default judgment'] In these Rules, "default judgment" means judgment without trial where a defendant---  [CPR 12.2 -- Claims in which default judgment may not be obtained] A claimant may not obtain a default judgment--- [CPR 12.3 -- Conditions to be satisfied ] (1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered --- (2) Judgment in default of defence (or any document intended to be a defence) may be obtained only--- and, in either case, the relevant time limit for doing so has expired. (Rule 20.4 makes general provision for a defendant's counterclaim against a claimant, and rule 20.4(3) provides that Part 10 (acknowledgement of service) does not apply to a counterclaim made under that rule.) (3) The claimant may **not** obtain a default judgment if at the time the court is considering the issue--- (Part 14 sets out the procedure where a defendant admits a money claim and asks for time to pay.) (Rule 6.17 provides that, where the claim form is served by the claimant, the claimant may not obtain default judgment unless a certificate of service has been filed.) [CPR 12.4 -- Procedure for obtaining Default Judgment ] (1) Subject to paragraph (3), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for--- (2) Where the defendant is an individual, the claimant must provide the defendant's date of birth (if known) where required in the form. (3) The claimant must make an application in accordance with Part 23 if they wish to obtain a default judgment--- (4) Where a claimant--- (5) In civil proceedings against the Crown, as defined in rule 66.1(2), a request for a default judgment must be considered by a Master or District Judge, who must in particular be satisfied that the claim form and particulars of claim have been properly served on the Crown in accordance with section 18 of the Crown Proceedings Act 1947 and rule 6.10. [CPR 12.5 -- Nature of judgment where default judgment obtained by filing a request] (1) Where the claim is for a specified sum of money, the claimant may specify in a request filed under rule 12.4(1)--- (2) Except where paragraph (4) applies, a default judgment on a claim for a specified amount of money obtained on filing a request, will be judgment for the amount of the claim (less any payments made) and costs, to be paid--- (Interest may be included in a default judgment obtained by filing a request if the conditions set out in rule 12.7 are satisfied.) (3) Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for an amount to be decided by the court together with costs. (4) Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be judgment requiring the defendant to--- (Rule 12.8 sets out the procedure for deciding the amount of a judgment or the value of the goods.) (5) The claimant's right to enter judgment requiring the defendant to deliver goods is subject to rule 40.14 (judgment in favour of certain part owners relating to the detention of goods). [CPR 12.7 - Interest] (1) A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if--- (2) In any case where paragraph (1) does not apply, judgment will be for an amount of interest to be decided by the court. (Rule 12.8 sets out the procedure for deciding the amount of interest.) [CPR 12.9 -- Claim against more than one defendant] (1) A claimant may obtain a default judgment on request under this Part on a claim for money or a claim for delivery of goods against one of two or more defendants, and proceed with the claim against the other defendants. (2) Where a claimant applies for a default judgment against one of two or more defendants--- (3) A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for possession of land or for delivery of goods unless--- [CPR 12.11(a) -- Default judgment obtained by making an application] The claimant must make an application in accordance with Part 23 where--- 2\. Examinable material on **applications to set aside** will consist of *cases where the court must set aside default judgment; cases where the court may set aside or vary default judgment; the effect of rule 13.3; 'some other good reason' under rule 13.3(1)(b); the need to act promptly under rule 13.3(2); applications to set aside judgment by a non-party; the effects of the court's approach following implementation of Jackson; and* the procedure for applications to *set aside or vary default judgments.* The relevant material is addressed in *CPR 13.1-13.2, 13.3 and 13.4; and the commentary at paragraphs 13.3.1-13.3.5 of Volume 1 of* **'Civil Procedure' (the White Book) 2024***.* [CPR 13 -- SETTING ASIDE OR VARYING DEFAULT JUDGMENT ] [CPR 13.1 -- Scope of this Part] The rules in this Part set out the procedure for setting aside or varying judgment entered under Part 12 (default judgment). [CPR 13.2 -- Cases where the court **must** set aside judgment entered under Part 12] The court must set aside (GL) a judgment entered under Part 12 if judgment was wrongly entered because--- [CPR 13.3 -- Cases where the court may set aside or vary judgment entered under Part 12 ] (1) In any other case, the court may set aside (GL) or vary a judgment entered under Part 12 if--- (2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly. (Rule 3.1(3) provides that the court may attach conditions when it makes an order.) **Commentary at paragraphs 13.3.1 -- 13.3.5** [Commentary 13.3.1 -- Effect of rule] [Rule 13.3](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255346&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) deals with the setting aside of a regular judgment (contrast [r.13.2](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255345&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category))---cases where the court must set aside). The use of the word "may" shows that the court has a discretion but must act in accordance with Pt 1 (the Overriding Objectives). The defendant applying to set aside the judgment must come within r.13.3(1)(a) or (b). It is not enough to show an "arguable" defence; the defendant must show that they have "a real prospect of successfully defending the claim". - It is essentially the same test as applied to summary judgment applications under Pt 24.  In ED&F Man Liquid Products Ltd v Patel \[2003\] EWCA Civ 472; \[2003\] All E.R. (D)75; \[2003\] C.P. Rep. 51, Potter LJ explained the distinction between the tests:  - "...the only significant difference between the provisions of CPR 24.2 and 13.3(1), is that under the former the overall burden of proof rests upon the claimant to establish that there are grounds for his belief that the respondent has no real prospect of success whereas, under the latter, the burden rests upon the defendant to satisfy the court that there is good reason why a judgment regularly obtained should be set aside.  The discretionary power to set aside is unconditional.  The major consideration on an application to set aside is whether the defendant has shown a real prospect of successfully defending the claim or some other good reason why judgment should be set aside or they should be allowed to defend the claim. The defendant is seeking to deprive the claimant of a regular judgment which the claimant has validly obtained in accordance with Pt 12: this is not something which the court will do lightly.  In De Ferranti v Execuzen Ltd \[2013\] EWCA Civ 592, the Court of Appeal held that the court may not decide not to set aside a judgment or order even if made at a hearing at which the applicant has not, but should have been, given notice. Where a condition with which a party is unable to comply is imposed on an order granting that party's application under r.13.3, the court's decision is tantamount to a refusal and, in effect, a final decision. In Samara v MBI & Partners UK Ltd \[2016\] EWHC 441 (QB), Cox J held that a decision made by a judge under r.13.3 was a final decision and could not be the subject of a second application to set aside judgment or a further challenge by reference to r.3.1(7). - The only way forward for a dissatisfied party is to either seek permission to bring a second appeal out of time under r.52.13, or to reopen the final appeal under r.52.17. [Commentary 13.3.2 -- Rule 13.3.(1)(b): 'some other good reason'] The failure to serve a response pack could potentially constitute "some other good reason" for the court to exercise its discretion to set judgment aside (Ahmet Erol v Global Fashion Links Ltd \[2014\] EWHC 4687 (IPEC)). There are differing decisions as to whether such failure was regarded, in the circumstances of the case, as sufficient for the court to exercise its discretion: see Gulf International Bank BSC v Ekttitab Holding Company KSCC \[2010\] EWHC B30 (Comm) and Henriksen v Pires \[2011\] EWCA Civ 1720. In S T Shipping & Transport Inc v Vyzantio Shipping Ltd (The "Byzantio") \[2004\] EWHC 3067 (Comm); \[2005\] 1 Lloyd's Rep. 531 (Judge Havelock-Allan QC), where a default judgment was set aside, the judge (1) found that the claimant's failure, after a delay of 18 months, to warn the defendant (D) that a claim form had been issued or to invite D to accept service of it, lulled D into believing that the claim was not being pursued or at least induced him to forget all about it, and (2) held that this was **a factor of some weight** to be taken into account by the court in determining whether there was "some other good reason" (within r.13.3(1)(b)(i)) for setting aside the default judgment (paras 24 and 32). [Commentary 13.3.3 -- Rule 13.3(2): 'need to act promptly'] [\ Rule 13.3(2)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255346&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) gives added emphasis to the need to act promptly in seeking to set aside. Indeed the need to comply with time-limits and generally to act promptly is a feature of the [CPR](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0294884976&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)). In applying to set aside the court has always considered delay and the reasons for it ([Evans v Bartlam \[1937\] A.C. 473](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=1937025136&pubNum=4651&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category))). Promptness will always be a factor of considerable significance and, if there has been a marked failure to make the application promptly, a court may well be justified in refusing relief, notwithstanding the possibility that the defendant may well succeed at trial. However, in certain cases the court may conclude that judgment may be set aside even where there has been excessive delay; see Barons Bridging Finance Plc v Nnadiekwe \[2012\] EWHC 2817 (Comm), where HH Judge Mackie QC allowed a defendant to set aside a judgment entered several years earlier, on the basis that: (i) There were very serious conflicts of evidence between the parties, and the defendant alleged that she was the victim of fraud. - Hussain v Birmingham City Council \[2005\] EWCA Civ 1570; 149 Sol Jo LB 1487; \[2005\] All E.R. (D.) 353 (Nov): defendants and Pt 20 defendants issued applications to set aside default judgments in the main action and the Pt 20 claim only a week before trial. The Court of Appeal allowed the defendant's appeal from the judge's order refusing to set the judgments aside. It was held, inter alia, that a judge's discretionary power was not to be exercised to punish a party for incompetence, but to further the overriding objective. - Cf. Nolan v Devonport \[2006\] EWHC 2025 (QB): a debtor who did nothing until the creditor sought to enforce the judgment, then applied to set aside, was refused permission to set aside, it being held that the debtor's conduct amounted to an abuse of process. An application to set aside must be supported by evidence (see r.13.4(3)). If a defendant has not acted promptly they would be well advised to address the reason for this in their witness statement or affidavit having regard to r.13.3(2). HH Judge Coulson held in Khan that the defendant had not acted promptly, which he described as being "*with all reasonable celerity in the circumstances*". In Standard Bank Plc v Agrinvest International Inc \[2009\] EWHC 1692 (Comm) Field J held that although promptness may not be the controlling factor under CPR r.13.3, it is plainly a very important factor, as is evident from the fact that it is singled-out in the rule as a matter to which the court must have regard. It is a very important factor because there is a strong public interest in the finality of litigation. [Commentary 13.3.4 -- Application to set aside judgment by a non party] In [Humber Work Boats Ltd v Owners of the Selby Paradigm \[2004\] EWHC 1804](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2005391936&pubNum=6821&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) permission was granted to a non party, X, insurers of the defendant, to be joined as a second defendant under [r.19.2](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0115391914&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)), and to set aside the default judgment against the defendant under [r.13.3(1)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255346&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) or [r.61.9(5)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0281796740&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)). - It was held that the default judgment was not a bar to the joinder of X and the question was whether D or X had a defence that had a real prospect of success. In [Latif v Imaan Inc \[2007\] EWHC 3179 (Ch)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2014773471&pubNum=6821&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) a third party was permitted to be joined to proceedings for the purpose of applying to set aside a default judgment, pursuant to [r.40.9](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255627&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) (see Note at [40.9.5](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0458569174&pubNum=228550&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UB&fi=co_pp_sp_228550_6bac74a2-beec-470f-8f04-31cf8344c026&originationContext=document&transitionType=DocumentItem&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)#co_pp_sp_228550_6bac74a2-beec-470f-8f04-31cf8344c026)). Under [r.40.9](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255627&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) a person who is not a party but who is "directly affected" by a judgment or order may apply to have it set aside.  [Commentary 13.3.5 -- Effects of court's approach following implementation of Jackson] Conflicting views as to whether an application under [r.13.3](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255346&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) is an application "for relief from any sanction" within the meaning of [r.3.9](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0375489011&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) thus engaging the three stage test laid down in [Denton v TH White Ltd](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2033751050&pubNum=6448&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) or not have been finally resolved by the Court of Appeal in [FXF v English Karate Federation Ltd \[2023\] EWCA Civ 891](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2075723843&pubNum=6448&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)). - The Court of Appeal held that the [Denton](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2033751050&pubNum=6448&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)) criteria apply in their full rigor to applications under [r.13.3](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255346&pubNum=121175&originatingDoc=I4F3A7B8055AF11E797D3B1B628A5D84C&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=5a64791070c844b0b3d775ed890c13af&contextData=(sc.Category)). In applying the test the court should first consider the specific requirements under r.13.3. The court should then apply the three stage criteria in Denton as a key part of the exercise of its general discretion. - A central part of the exercise of its general discretion will be be whether the breach prevented the court or the parties from conducting the litigation efficiently and at proportionate cost, and the need to enforce compliance with rules and order. 4. Examinable material on **summary judgment** will consist of *types of proceedings in which summary judgment is available; grounds for summary judgment; 'no real prospect of succeeding'; no real prospect of success; no mini-trial; whether evidence can reasonably be expected to be available at trial; short points of law and construction; burdens of proof; 'no other compelling reason why the case or issue should be disposed of at a trial'; effect of a set off or counterclaim; no set off in action on dishonoured bill or cheque; timing of applications and hearing; application notice and evidence;; disposal of applications; orders which the court may make; judgment on the claim or on an issue therein; the striking out or dismissal of the claim; the dismissal of the application; a conditional order; conditional orders for payment into court or security for costs; an order dealing with costs; setting aside order for summary judgment; and case management.* The relevant material is addressed in *CPR 24.1, 24.2, 24.3, 24.4(1), (4) and (5), 24.5 and 24.6; ; and in the commentary at paragraphs 24.3.2, 24.3.2.1, 24.3.2.2 (first sub-paragraph to "... is provided by the decision of the Supreme Court in Okpabi v Royal Dutch Shell..."); 24.3.2.3 (first two sub-paragraphs ending "... it is not enough to say, with Mr Micawber, that something may turn up."), 24.3.2.4, 24.3.3, 24.3.4, 24.3.5, 24.3.6, 24.6.1, 24.6.2 (first two sub-paragraphs to "... until after the trial of the counterclaim"), 24.6.3-24.6.5, 24.6.6 (first sub-paragraph to "5.... most of the sum claimed as a condition of being allowed to defend."), 24.6.7, 24.6.8 (first sub-paragraph to "... whether that party may apply to the court to have the judgment set aside or varied" and from "... it seems that it was assumed that the position was retrieved..." to "... "may make such order as it thinks just"...") and 24.6.9 (first sub-paragraph ending "... as to the future conduct of the case.") of Volume 1 of* **'Civil Procedure' (the White Book) 2024***.* [CPR 24.1 -- SCOPE OF THIS PART ] This Part--- [CPR 24.2 -- TYPES OF PROCEEDINGS IN WHICH SUMMARY JUDGMENT IS AVAILABLE] The court may give summary judgment--- [CPR 24.3 -- GROUNDS FOR SUMMARY JUDGMENT ] The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if--- *[Commentary at paragraphs 24.3.2 -- 'NO REAL PROSPECT OF SUCCEEDING']* The following principles applicable to applications for summary judgment were formulated by Lewison J in [*Easyair Ltd v Opal Telecom Ltd \[2009\] EWHC 339 (Ch)*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2018163288&pubNum=6821&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) at \[15\] and approved by the Court of Appeal in [*AC Ward & Sons Ltd v Catlin (Five) Ltd \[2009\] EWCA Civ 1098; \[2010\] Lloyd's Rep. I.R. 301*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2019687376&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) at \[24\]: i. The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: [*Swain v Hillman \[2001\] 1 All E.R. 91*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=1999234894&pubNum=4660&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)); ii. A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: [*ED & F Man Liquid Products v Patel \[2003\] EWCA Civ 472*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2003244598&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) at \[8\]; iii. In reaching its conclusion the court must not conduct a "mini-trial": [*Swain v Hillman*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=1999234894&pubNum=4660&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)); iv. This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: [*ED & F Man Liquid Products v Patel*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2003244598&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) at \[10\]; v. However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: [*Royal Brompton Hospital NHS Trust v Hammond (No.5) \[2001\] EWCA Civ 550*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2001288811&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)); vi. Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: [*Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd \[2007\] F.S.R. 3*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2009210310&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)); vii. On the other hand it is not uncommon for an application under [[Pt 24]](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0294884919&pubNum=121175&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. [*ICI Chemicals & Polymers Ltd v TTE Training Ltd \[2007\] EWCA Civ 725*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2012416616&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)). A more recent summary can be found in [*Amersi v Leslie \[2023\] EWHC 1368 (KB)*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2074989122&pubNum=6821&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) at \[142\]. [Commentary - 24.3.2.1 -- 'NO REAL PROSPECT OF SUCCESS'] In the context of an appeal against a refusal to permit amendment of particulars of claim, Asplin LJ said in [Elite Property Holdings Ltd v Barclays Bank Plc \[2019\] EWCA Civ 204](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2047591745&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) at \[41\]--\[42\]:  *"41. For the amendments to be allowed the Appellants need to show that they have a real as opposed to fanciful prospect of success which is one that is more than merely arguable and carries some degree of conviction: * *[ED&F Man Liquid Products Ltd v Patel \[2003\] EWCA Civ 472](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2003244598&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)). A claim does not have such a prospect where -* *42. The court is entitled to reject a version of the facts which is implausible, self-contradictory or not supported by the contemporaneous documents and it is appropriate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon."* [Commentary - 24.3.2.2 ] [(]first sub-paragraph to "... is provided by the decision of the Supreme Court in Okpabi v Royal Dutch Shell..."); [ ] [**NO MINI TRIAL** ] Guidance as to what is meant by the inappropriateness of conducting a "mini-trial" is provided by the decision of the Supreme Court in [Okpabi v Royal Dutch Shell Plc \[2021\] UKSC 3; \[2021\] Bus. L.R. 332](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2052958605&pubNum=7640&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)).  [Commentary - 24.3.2.3 ] (first two sub-paragraphs ending "... it is not enough to say, with Mr Micawber, that something may turn up.") [ WHETHER EVIDENCE CAN REASONABLY BE EXPECTED TO BE AVAILABLE AT TRIAL ] In [Okpabi](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2052958605&pubNum=7640&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)), at \[127\]--\[128\] Lord Hamblen JSC stated that the correct approach, when asking whether the position might change from how it appears at the summary judgment stage, was **not to ask** whether there was:  but rather to ask whether there **are reasonable grounds for believing that disclosure may materially add to or alter the evidence** relevant to whether the claim has a real prospect of success. In [King v Stiefel \[2021\] EWHC 1045 (Comm)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2053516741&pubNum=6821&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) Cockerill J held as follows: [Commentary - 24.3.2.4 -- SHORT POINTS OF LAW AND CONSTRUCTION] In respect of points of law and of construction the notion of "shortness" does not appear to relate to the length of the document to be construed or the length of the material passage in that document but may relate to the length of the hearing that will be required and the complexity of the matrix of fact the court will have to consider: see the comments of Chief Master Marsh in [Commerz Real Investmentgesellschaft MBH v TFS Stores Ltd \[2021\] EWHC 863 (Ch)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2053452766&pubNum=6821&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)). In some cases the disputed issues are such that their conclusion by settlement or trial largely depends upon the expert evidence relied on by each side. In such cases, an application for summary judgment will usually be inappropriate unless it is made after the exchange of the experts' reports and, in most cases, after the experts have discussed the case and produced a joint statement (Hewes v West Hertfordshire Hospitals NHS Trust \[2018\] EWHC 2715 (QB), a clinical negligence claim). [Commentary - 24.3.3 -- BURDEN OF PROOF] In [ED&F Man Liquid Products Ltd v Patel \[2003\] EWCA Civ 472](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2003244598&pubNum=6448&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)), it was said that under [r.24.2](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255434&pubNum=121175&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category)) the overall burden of proof rests on the applicant to establish that there are grounds to believe that the respondent has no real prospect of success and that there is no other reason for a trial. The existence of this burden is indicated by para.2(3) of Practice Direction 24; the applicant must: (a) identify concisely any point of law or provision in a document on which they rely; and/or (b) state that the application is made because the applicant believes that, on the evidence, the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates, and in either case state that the applicant knows of no other reason why the disposal of the claim or issue should await trial. If an applicant for summary judgment adduces credible evidence in support of the application, the **respondent** then comes under an evidential burden to prove some real prospect of success **or** other reason for having a trial: Sainsbury's Supermarkets Ltd v Condek Holdings Ltd (formerly Condek Ltd) \[2014\] EWHC 2016 (TCC) at \[13\]. Korea National Insurance Corp v Allianz Global Corporate & Specialty AG (formerly Allianz Marine & Aviation Vershicherungs AG) \[2007\] EWCA Civ 1066; \[2007\] 2 C.L.C. 748: [Commentary - 24.3.4 -- 'NO OTHER COMPELLING REASON WHY THE CASE OR ISSUE SHOULD BE DISPOSED OF AT TRIAL'] In [Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd \[2000\] B.L.R. 522; (2000) 2 T.C.L.R. 308; 73 Con. L.R. 135](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2000463461&pubNum=4924&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category))Buxton LJ ruled that the fact that the claimant company was in liquidation was a compelling reason to refuse summary judgment where there were latent claims and cross-claims between the parties. In AC Ward & Sons Ltd v Catlin (Five) Ltd \[2009\] EWCA Civ 1098, the Court of Appeal upheld a refusal to rule upon a short point of construction of the terms of an insurance contract where those terms were said to be standard terms which were widely used in the insurance market. Pre-CPR, the following circumstances were held to afford "some other reason for trial": - where the claimant's case appears to be "devious and crafty" and not "plain and straightforward" (Miles v Bull (No.1) \[1969\] 1 Q.B. 258; \[1968\] 3 All E.R. 632); - where the defendant is an executor or administrator who can raise facts by reference to the existence or absence of letters, accounts or such like of the deceased which make it reasonable to require full investigation (Harrison v Bottenheim (1878) 26 W.R. 362); - where the claimant's case tended to show that he had acted harshly and unconscionably and it is thought desirable that if he were to get judgment at all it should be in the full light of publicity (per Cairns LJ in Bank fur Gemeinwirtschaft Aktiengesellschaft v City of London Garages \[1971\] 1 W.L.R. 149 at 158; \[1971\] 1 All E.R. 541 at 548). - However, in 2015, a somewhat different view was expressed by the Court of Appeal. In Berntsen v Tait \[2015\] EWCA Civ 1001 the lower court's decision to summarily dismiss a claim was upheld; the lower court had been right to conclude that the claimants had no real prospects of success; thus there was no point in letting this case proceed to trial even though the underlying facts raised matters of considerable concern as to the lending practice of banks. Some caution is needed, however, in considering the pre-CPR cases because the terms of RSC Ord.14 were not the same as CPR r.24.2. Under the RSC the emphasis was different. The court was required to consider whether there was "an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial". In cases of libel, slander, malicious prosecution or false imprisonment the respondent may have a right to trial by jury (see SCA 1981 s.69 and CCA 1984 s.66; see Vol.2, paras 9A-256 and 9A-546, respectively). This right is not a matter of mere procedure and therefore the CPR cannot and does not override it (Safeway Stores Plc v Tate \[2001\] Q.B. 1120; \[2001\] 4 All E.R. 193, CA). - Although summary judgment may be appropriate on issues of law, these statutory provisions entitle a respondent to have material issues of fact decided by a jury.  [Commentary - 24.3.5 -- EFFECT OF A SET OFF COUNTERCLAIM] A claimant may be prevented from obtaining summary judgment, in whole or in part, if the defendant can show that he intends to raise a set off or counterclaim which raises a triable issue, i.e. has some prospect of succeeding ([AIS Pipework Ltd v Saxlund International Ltd \[2017\] EWHC 1523 (TCC)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2041914262&pubNum=6821&originatingDoc=I23BFDD305EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=85d184050ac94dd7812c7b91876ab4b0&contextData=(sc.Category))). In some cases a set off will not prevent the claimant obtaining a summary judgment which is enforceable immediately (see para.16.6.2, "Effect of a contractual "no set off" clause", above, and para.24.2.7, "No set off in action on dishonoured bill or cheque", below). Those cases apart, if the facts relied upon by the defendant amount to a set off, the claimant may obtain summary judgment only to the extent that the value of his claim overtops the value of the set off. - If the claim value is the same as or lower than the alleged value of the set off, the claimant's application for summary judgment will be dismissed (Addax Bank BSC v Wellesley Partners LLP \[2010\] EWHC 1904 (QB)). If the defendant raises a triable counterclaim which cannot be deployed as a set off, the court may grant summary judgment to the claimant but with a stay of enforcement pending the trial of the counterclaim (Morgan & Son Ltd v S Martin Johnson & Co \[1949\] 1 K.B. 107 CA If the claim value overtops the alleged value of the counterclaim, the stay of enforcement may be made conditional upon the defendant paying the difference by a specified date. Alternatively, the stay of enforcement may be limited to the alleged value of the counterclaim. [Commentary - 24.3.6 -- NO SET OFF IN ACTION ON DISHONOURED BILL OR CHEQUE] In proceedings on a dishonoured bill of exchange, or cheque or promissory note save in exceptional circumstances or upon strong grounds (per Stephen J in Newman v Lever (1887) 4 T.L.R. 91) a defendant is not allowed to set up a set off or counterclaim for damages for breach of some other contract or the commission of a tort, and the claimant is entitled to judgment for the amount of their claim without a stay of execution. Per Lord Denning MR in Fielding & Platt Ltd v Selim Najjar \[1969\] 1 W.L.R. 357 at 361; \[1969\] 2 All E.R. 150 at 152, CA:  [CPR 24.4(1), (4) and (5) -- TIMING OF APPLICATIONS AND HEARING] (1) A claimant may not apply for summary judgment until the defendant against whom the application is made has filed an acknowledgment of service or a defence, **unless**--- (4) If a party applies for summary judgment before a defendant has filed a defence, the defendant by or against whom the application is made need not file a defence before the hearing. (5) Where a summary judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the court\'s own initiative) must be given at least 14 days\' notice of--- [CPR 24.5 -- APPLICATION NOTICE AND EVIDENCE] (1) The application notice must--- (2) In claims falling within rule 24.4(3), the application notice must also have attached to it the text of the order sought by the claimant and must be served on the respondent not less than 4 days before the hearing of the application. (3) If a party wishes to rely on written evidence at the hearing, other than in a claim under rule 24.4(3), they must file and serve copies of such evidence on every other party at least--- (4) This rule does not require written evidence--- [CPR 24.6 -- DISPOSAL OF APPLICATIONS] When the court determines a summary judgment application it may--- ***[24.6.1 -- Orders which the court may make]*** The orders which the court may make on an application under [Pt 24](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0294884919&pubNum=121175&originatingDoc=I22428C005EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=e000f11c164e48538f3b89f79801345c&contextData=(sc.Category)) include:  - \(a) judgment on the claim or on an issue therein; - \(b) the striking out or dismissal of the claim; - \(c) the dismissal of the application; - \(d) a conditional order; and - \(e) an order dealing with costs. ***[24.6.2 -- Judgment on the claim or on an issue therein]*** ***(first two sub-paragraphs to "... until after the trial of the counterclaim")*** *The judgment given may be the grant of remedies sought, an order for damages to be assessed or an order amounting to declaratory relief finally determining a preliminary issue in the proceedings in favour of the claimant or defendant.* *In some cases the court will give judgment with a stay of enforcement. Where the claimant has succeeded on their claim but the defendant has shown a plausible counterclaim of a value which equals or exceeds the claim, the court may stay enforcement on the claim until after the trial of the counterclaim.* ***[The striking out or dismissal of the claim ]*** ***24.6.3*** *This order will be made in favour of the defendant if the court is satisfied that the claimant's case is unwinnable* ***[The dismissal of the application ]*** ***24.6.4*** *This order will be made if the court is not satisfied that the respondent's case has no real prospect of success OR if the court is not satisfied that there is no other reason why the case or issue should be disposed of at a trial.* ***[A conditional order ]*** ***24.6.5*** *\ This order will be made if it appears to the court that, in respect of some claim or defence or issue, it is possible that the claim, defence or issue may succeed but it is **improbable** that it will do so.* *Paragraph 5.2 of the former Practice Direction supplementing [Pt 24](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0294884919&pubNum=121175&originatingDoc=I22428C005EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=e000f11c164e48538f3b89f79801345c&contextData=(sc.Category))defined a conditional order as an order which requires a party: * *In Huscroft it was held that, before exercising the power, the court should identify the purpose of imposing a condition and should satisfy itself that the condition it has in mind represents a proportionate and effective means of achieving that purpose, having regard to the order to which it is to be attached.* *In summary judgment applications against a defendant the purpose of making a conditional order requiring payment in to court is usually to provide security in respect of a particularly weak defence.* ***[Conditional orders for payment into court or security for costs]*** ***24.6.6 (first sub-paragraph to "5.... most of the sum claimed as a condition of being allowed to defend.")*** In [*Gama Aviation (UK) v Taverelas Petroleum Trading DMCC \[2019\] EWCA Civ 119*](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=2047483202&pubNum=6448&originatingDoc=I22428C005EA711EE8A40E1C21BE627EC&refType=UC&originationContext=document&transitionType=CommentaryUKLink&ppcid=e000f11c164e48538f3b89f79801345c&contextData=(sc.Category)) the Court of Appeal held that the following five principles applied when considering whether a conditional order for payment into court or security for costs should be made on an application for summary judgment: 1. 2. 3. 4. 5. ***[An order dealing with costs ]*** ***24.6.7*** The court may make an order for costs, for example, an order for fixed costs (as to which see [Pt 45](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0294884876&pubNum=121175&originatingDoc=I22428C005EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=ca940ca728f0497bae691a5c98beedb9&contextData=(sc.Category))) or an order for costs, to be assessed by way of summary assessment or detailed assessment (as to which, see [r.44.1](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255644&pubNum=121175&originatingDoc=I22428C005EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=ca940ca728f0497bae691a5c98beedb9&contextData=(sc.Category))). ***[Setting aside order for summary judgment ]*** ***24.6.8 (first sub-paragraph to "... whether that party may apply to the court to have the judgment set aside or varied" and from "... it seems that it was assumed that the position was retrieved..." to "... "may make such order as it thinks just"...")*** Where the applicant or any respondent to an application for summary judgment fails to attend the hearing of the application, the court may proceed in their absence. Where, in the absence of the applicant or any respondent, an order is made at the hearing, [r.23.11](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255432&pubNum=121175&originatingDoc=I22428C005EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=ca940ca728f0497bae691a5c98beedb9&contextData=(sc.Category)) would appear to have the effect of enabling the court on the application of the absent party (or of its own initiative) to re-list the application for further consideration. However if, at the hearing of the application, the court gives summary judgment against the absent party, the question which then arises is whether that party may apply to the court to have the judgment set aside or varied.  However, it seems that it was assumed that the position was retrieved by Practice Direction (Summary Disposal of Claims), para.8.1 which stated that, if an order for summary judgment under Pt 24 was made against a respondent who does not appear at the hearing of the application, the respondent may apply "for the order to be set aside or varied". In this context order includes judgment on the claim (ibid., para.5.1(1)). On the hearing of an application the court "may make such order as it thinks just". ***[Case Management]*** ***24.6.9 (first sub-paragraph ending "... as to the future conduct of the case.")*** *Where the court dismisses the application or makes an order that does not completely dispose of the claim, the court will give case management directions as to the future conduct of the case.* 13 Case Management, Sanctions, Striking Out and Discontinuance ============================================================== 1. the small claims track, fast track, intermediate track and multi-track 2. allocation and assignment 3. case management 4. costs management 5. directions 6. relief from sanctions 7. striking out a claim 8. discontinuance ***Examinable Material*** ***1.*** Examinable material on ***the small claims track, fast track,* intermediate track *and multi-track*** will consist of the *scope of the* *small claims track, fast track,* intermediate track *and multi-track.* The relevant material is addressed in CPR 26.9 (1)(a)(i) and (ii)(cc), 26.9(2), 26.9(4)-(9), 26.9(10)(b)(i) and 26.9 (12) and in the *commentary at paragraph 26.9.1 (first sub-paragraph ending "... in the interests of justice to do so.") of Volume 1 of* **'Civil Procedure' (the White Book) 2024** [CPR 26.9 (1)(a)(i) and (ii)(cc) -- SCOPE OF EACH TRACK] (1) The small claims track is the normal track for--- [CPR 26.9(2)] (2) For the purposes of paragraph (1) \'damages for personal injuries\' means damages claimed as compensation for pain, suffering and loss of amenity and does not include any other damages which are claimed. **[CPR 26.9(4) -- (9)]** (4) Subject to paragraph (1), the small claims track is the normal track for any claim which has a value of not more than £10,000. (Rule 26.12(2) and (3) provides that the court must not allocate to the small claims track certain claims in respect of harassment or unlawful eviction.) (5) Subject to paragraphs (6) and (10), the fast track is the normal track for any claim--- (6) The fast track is the normal track for the claims referred to in paragraph (5) only if the court considers that--- (7) Subject to paragraphs (8), (9) and (10), the intermediate track is the normal track where--- (c) the court considers that--- (d) the claim is brought by one claimant against either one or two defendants, or is brought by two claimants against one defendant. (8) Where the relief sought includes a claim for non-monetary relief, the claim shall not be allocated to the intermediate track unless the court also considers it to be in the interests of justice to do so. (9) Subject to paragraph (10), the court may allocate a claim to the intermediate track where it considers it to be in the interests of justice to do so. [CPR 26.9(1)(b)(i)] (1) The small claims track is the normal track for--- [CPR 26.9(12)] (12) The multi-track is the normal track for any claim for which the small claims track or the fast track or the intermediate track is not the normal track. [Commentary 29.9.1 (first sub-paragraph) -- EFFECT OF RULE 29.6] The four tracks, which are the essence of the [CPR](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0294884976&pubNum=121175&originatingDoc=I24FE50A05EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=01eb9e69a38741b9aa15e5d8444b14b7&contextData=(sc.Category)), are defined by [r.26.9](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255457&pubNum=121175&originatingDoc=I24FE50A05EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=01eb9e69a38741b9aa15e5d8444b14b7&contextData=(sc.Category)). The small claims is the normal track for claims with a monetary value of less than £10,000, for personal injury claims of less than £10,000, less than £5,000 in a claim for personal injuries from a road traffic accident other than in the circumstances specified in [r.26.10](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255458&pubNum=121175&originatingDoc=I24FE50A05EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=01eb9e69a38741b9aa15e5d8444b14b7&contextData=(sc.Category)) and £1,500 in any other claim for personal injuries. The fast track is for claims for which the small claims track is not the normal track and the claim is for monetary relief which is not more than £25,000 and the trial is not likely to last for more than a day and experts are limited to two expert fields and one expert per party.  The intermediate track is the normal track where the claim is suitable for neither the small claims track nor the fast track where the value of the monetary relief claimed is not more than £100,000 and the trial will not last for more than three days and oral expert evidence is limited to two experts per party. Subject to [r.26.9(10)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255457&pubNum=121175&originatingDoc=I24FE50A05EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=01eb9e69a38741b9aa15e5d8444b14b7&contextData=(sc.Category)) which provides that certain claims must be allocated to the multi-track, [r.26.9(9)](https://uk.westlaw.com/Link/Document/FullText?findType=Y&serNum=0111255457&pubNum=121175&originatingDoc=I24FE50A05EA711EE8A40E1C21BE627EC&refType=UL&originationContext=document&transitionType=CommentaryUKLink&ppcid=01eb9e69a38741b9aa15e5d8444b14b7&contextData=(sc.Category)) provides that the court may allocate a claim to the intermediate track where it considers it to be in the interests of justice to do so. ***2.*** Examinable material on ***allocation* and assignment** will consist of *allocation and assignment; allocation - general; matters relevant to allocation to a track; notice of allocation and assignment; reallocation and reassignment; allocation and assignment principles; and the fast track - allocation and case management.* The relevant material is addressed in CPR 26.1, 26.7(1)-(2) and (4)-(6), 26.12(1), 26.13, 26.17 and 26.18*; and PD 26 paragraphs 14 and 16.* **[PART 26 -- CASE MANAGEMENT -- PRELIMINARY STAGE]** [Scope of this part ] 26.1 1. This part provides for -- a. Automatic transfer of some defended cases in the HC; b. Circs in which defended cases may be sent from one CC hearing centre to another; and c. Allocation of defended cases to case management tracks and, where applicable, their assignment to a complexity band. [CPR 26.7 Allocation and Assignment] 26.7 1. Subject to r26.8, court shall allocate the claim to a track and, where applicable, assign to a complexity band -- a. After all parties filed directions questionnaires, or b. When giving directions pursuant to rule 26.4(1). 2. If the court has stayed the proceedings under rule 26.5, it shall allocate the claim to a track and, where applicable, assign it to a complexity band at the end of the period of the stay. 3. If -- c. A claim is referred to mediation service, and d. Court has not been notified in writing that settlement has been agreed, The claim shall be allocated to a track and, where applicable, assigned to a complexity band, no later than four weeks from the date on which last questionnaire is filed. 4. Before deciding track or complexity band, or whether to give directions for allocation hearing or an assignment hearing to be fixed -- the court may order a party to provide further information about his case. 5. Court may hold allocation or assignment hearing if it thinks necessary. 6. If a party fails to file questionnaire, court may give any direction it considers appropriate. [CPR 26.13 Matters relevant to allocation to a track] 26.13 **(1)** When deciding the track for a claim, the matters to which the court shall have regard include--- **(2)** It is for the court to assess the financial value of a claim and in doing so it shall disregard--- **(3)** Where--- [CPR 26.17 Notice of allocation and assignment] 26.17 When it has allocated a claim to a track, the court shall serve notice of allocation and, where applicable, assignment on every party. [CPR 26.18 Re-allocation and Re-assignment] 26.18 1. Subject to para (2) and (3), court may on application or on its own initiative subsequently -- a. Reallocate claim to different track, or b. Reassign claim to different complexity band. 2. Where -- c. A claim is allocated to intermediate track, and d. Directions in respect of claim have been given, 3. The court may only re-assign to different complexity band, where -- e. There has been a change in circs since direction was made, and f. Court decides the change in circumstances justifies reassignment. **[PRACTICE DIRECTION 26 -- CASE MANAGEMENT - PRELIMINARY STAGE ]** [Allocation and Assignment Principles ] 26PD.14 1. Rule 26.9 on scope of each track. 2. Rule 26.12 on general rule for allocation. 3. Rule 26.13 matters relevant to allocation to track/complexity band. 4. Paras (5) -- (10) explain court's general approach to some matters in r26.13. 5. Rule 26.13(2) provides it is for court to assess the financial value of a claim. 6. Where court believes amount the C is seeking exceeds what they may reasonably be expected to recover it make order under r26.7(40 directing the C to justify that amount. 7. In deciding, for purposes of r26.13(2)(a), whether an amount is in dispute the court will apply the following general principles -- a. Any amount for which the D does not admit liability is in dispute; b. Any sum in respect of an item forming part of the claim for which judgment has been entered, is not in dispute; and c. Any sum offered by D, accepted by C, in satisfaction of any item which forms a distinct part of claim is not in dispute. 8. It follows from sub-paragraph (7) that if, for a claim above SCT £10,000 limit, D makes -- before allocation -- an admission that reduces amount in dispute to below £10,000, the normal track will be small claims track. 9. The court will treat the views expressed by the parties as an important factor, but decisions on allocation and assignment are for the court, to be taken in the light of all the circumstances, and the court will not be bound by any agreement or common view of the parties. 10. Where the case involves more than one money claim (for example where there is an additional claim or there is more than one claimant each making separate claims) the court will not generally aggregate the claims. Instead, it will generally regard the largest of them as determining the financial value of the claims. [The Fast Track -- allocation and case management ] **[26PD.16]** 1. Where court is decision whether to allocate to FT a claim for which FT is the normal track, it will allocate claim to FT unless it believes it cannot be dealt with justly on that track. 2. Court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether trial likely to last more than a day. 3. a. When it is considering the likely length of trial, court will regard a day as being a period of 4 hour, and consider that is likely to be sufficient for case to be heard; b. Court will also take into account case management directions likely to be given and the court's powers to control evidence and to limit cross-examination; c. Subject to para (3), possibility of trial lasting longer than one day is not necessarily a conclusive reason for court to allocate or to re-allocate a claim to IT or MT; d. Claim may be allocated to FT or ordered to remain on the track although there is a split trial; e. Where case involves a counterclaim or additional claim being tried with the claim, and as a the trial will last more than one day, the court may not allocate it to the fast track. 4. Directions for the case management of claims which have been allocated to the fast track will be given at the allocation stage or at the listing stage (in either case with or without a hearing) or at both or and if necessary at other times ***3.*** Examinable material **on *case management*** will consist of calculating periods of time for doing acts specified by the Civil Procedure Rules, a practice direction, or a judgment or order of the court; variation of time limits by the parties; the court's general powers of management; case management in proceedings where at least one party is unrepresented; the court's power to make orders of its own initiative; judgment without trial after striking out; and the general *power of the court to rectify matters where there has been an error of procedure.* The relevant material is addressed in *CPR 2.8 and 2.11; CPR 3.1, 3.1A, 3.3, 3.5 and 3.10.* [CPR 2.8 - TIME] (1) This rule shows how to calculate any period of time for doing any act which is specified--- (2) A period of time expressed as a number of days shall be computed as clear days. (3) In this rule "clear days" means that in computing the number of days---  (a) the day on which the period begins; and (b) if the end of the period is defined by reference to an event, the day on which that event occurs, **are not included.** Examples--- (i) Notice of an application must be served at least 3 days before the hearing. (ii) The court is to fix a date for a hearing. (iii) Particulars of claim must be served within 14 days of service of the claim form. (4) Where the specified period--- (a) is 5 days or less; and (b) includes--- Example--- Notice of an application must be served at least 3 days before the hearing. An application is to be heard on Monday 20 October. The last date for service is Tuesday 14 October. (5) Subject to the provisions of Practice Direction 5C, when the period specified--- for doing any act at the court office ends on a day on which the office is closed, that act shall be in time under these rules if done on the next day on which the court office is open. [CPR 2.11 -- TIME LIMITS MAY BE VARIED BY PARTIES] Unless these Rules or a practice direction provide otherwise or the court orders otherwise, the time specified by a rule or by the court for a person to do any act may be varied by the written agreement of the parties. (Rules 3.8 (sanctions have effect unless defaulting party obtains relief), 28.3 (variation of case management timetable---fast track and intermediate track) and 29.5 (variation of case management timetable---multi-track), provide for time limits that cannot be varied by agreement between the parties). CPR 3.1 [Case Management ] 3.1 1. The list of powers in this rule is in addition to any powers given to the court by another other rule or PD/enactment 2. Except where rules provide otherwise, the court may: a. Extend or shorten time for compliance with any rule, PD or court order (even if application for extension made after time for compliance has expired b. Adjourn or bring forward a hearing b. Require that any proceedings in HC be heard by Divisional Court of the HC c. Require party/party's legal rep to attend the court d. Hold a hearing and receive evidence by telephone or other method of direct oral communication e. Direct that part of any proceedings (eg. counterclaim) be dealt with as separate proceedings f. Stay whole/part of any proceedings or judgment either generally or until specified date or event g. Consolidate proceedings h. Try two or more claims on same occasion i. Direct a separate trial of any issue j. Decide the order in which issues are to be tried k. Exclude an issue from consideration l. Dismiss or give judgment on claim after a decision on a preliminary issue ll. order any party to file or exchange a costs budget m. Take any other step/make any other order for purpose of managing the case and furthering the overriding objective, including hearing an Early Neutral Evaluation 3. When the court makes an order, it may -- n. Make it subject to conditions, including condition to pay a sum of money to the court, and o. Specify the consequence of failure to comply with the order or condition. 4. Where court gives directions it will consider whether or not partly has complied with the Practice Direction (Pre-Action conduct) and any relevant pre-action protocol. 5. Court may order a party to pay a sum of money into court if they have, without good reason, failed to comply with a rule, practice direction, or relevant pre-action protocol. 6. When exercising power under (5), court must have regard to -- p. Amount in dispute, and q. Costs which parties have incurred or may incur. (6A) Where party pays money into court following order under (3) or (5), the money shall be security for any sum payable by that party to any other party in the proceedings. 7. Power of court under these Rules to make an order includes a power to vary or revoke the order. 8. Court may contact the parties from time to time in order to monitor compliance with directions. Parties must respond promptly to such enquiries. [CPR 3.1A -- UNREPRESENTED PARTIES (CASE MANAGEMENT) ] (1) This rule applies in any proceedings where at least one party is unrepresented. (2) When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented. (3) Both the parties and the court must, when drafting case management directions in the multi-track, intermediate track, and fast track, take as their starting point any relevant standard directions which can be found online at www.justice.gov.uk/courts/procedure-rules/civil and adapt them as appropriate to the circumstances of the case. (4) The court must adopt such procedure at any hearing as it considers appropriate to further the overriding objective. (5) At any hearing where the court is taking evidence this may include--- [CPR 3.3 -- COURT'S POWER TO MAKE AN ORDER OF ITS OWN INITIATIVE] 3.3  **(1)** Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative. (Part 23 sets out the procedure for making an application.) **(2)** Where the court proposes to make an order of its own initiative--- **(3)** Where the court proposes--- **(4)** The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations. **(5)** Where the court has made an order under paragraph (4)--- **(6)** An application under paragraph (5)(a) must be made--- **(7)** An application under paragraph (5)(a) shall be considered at an oral hearing unless the court decides and states in an order that the application is totally without merit. **(8)** If the court decides under paragraph (7) that the application is totally without merit, an application under paragraph (5)(a) may be made for reconsideration without an oral hearing. **(9)** If the court of its own initiative strikes out a statement of case or dismisses an application (including an application for permission to appeal or for permission to apply for judicial review), and it considers that the claim or application is totally without merit--- [CPR 3.5 -- JUDGMENT WITHOUT TRIAL AFTER STRIKING OUT] (1) This rule applies where--- (2) A party may obtain judgment with costs by filing a request for judgment if--- (3) Where judgment is obtained under this rule in a case to which paragraph (2)(b)(iii) applies, it will be judgment requiring the defendant to deliver goods, or (if the defendant does not do so) pay the value of the goods as decided by the court (less any payments made). (4) The request must state that the right to enter judgment has arisen because the court's order has not been complied with. (5) A party must make an application in accordance with Part 23 if they wish to obtain judgment under this rule in a case to which paragraph (2) does not apply. [CPR 3.10 -- GENERAL POWER OF THE COURT TO RECTIFY MATTERS WHERE THERE HAS BEEN AN ERROR OF PROCEDURE] Where there has been an error of procedure such as a failure to comply with a rule or practice direction--- ***4.*** Examinable material on ***costs management*** will consist of the purpose of costs management; filing and exchanging budgets and budget discussion reports; the effect of failure to file a budget; costs management orders; revision and variation of costs budgets on account of significant developments ('variation costs'); costs management conferences; court to have regard to budgets and to take account of costs; assessing costs on the standard basis where a costs management order has been made; production of costs budgets; documents to be lodged for costs budgeting purposes; budget format and costs management orders. The relevant material is addressed in CPR *3.12-3.18*; and in *PD 3D paragraphs 3-5 and 12.* [CPR 3.12 -- APPLICATION OF THIS SECTION AND THE PURPOSE OF COST MANAGEMENT] (1) This Section and Practice Direction 3D apply to all Part 7 multi-track cases, **except**--- (1A) This Section and Practice Direction 3D will apply to any other proceedings (including applications) where the court so orders. (2) The purpose of costs management is that the court should manage both the steps to be taken and the costs to be incurred by the parties to any proceedings (or variation costs as provided in rule 3.15A) so as to further the overriding objective. [CPR 3.13 -- FILING AND EXCHANGING BUDGETS AND BUDGET DISCUSSION REPORTS ] (1) Unless the court otherwise orders, all parties except litigants in person must file and exchange budgets--- (2) In the event that a party files and exchanges a budget under paragraph (1), all other parties, not being litigants in person, must file an agreed budget discussion report no later than 7 days before the first case management conference. (3) The court--- (a) may, on its own initiative or on application, order the parties to file and exchange costs budgets in a case where the parties are not otherwise required by this Section to do so; (b) shall (other than in an exceptional case) make an order to file and exchange costs budgets if all parties consent to an application for such an order. (4) The court may, in a substantial case, direct that budgets are to be limited in the first instance to part only of the proceedings and extended later to cover the whole proceedings. (5) Every budget must be dated and verified by a statement of truth signed by a senior legal representative of the party. (6) Even though a litigant in person is not required to prepare a budget, each other party (other than a litigant in person) must provide the litigant in person with a copy of that party's budget. [CPR 3.14 -- FAILURE TO FILE A BUDGET] Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees. [CPR 3.15 -- COSTS MANAGEMENT ORDERS] (1) In addition to exercising its other powers, the court may manage the costs to be incurred (the budgeted costs) by any party in any proceedings. (2) The court may at any time make a "costs management order". Where costs budgets have been filed and exchanged the court will make a costs management order unless it is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without such an order being made. By a costs management order the court will--- (3) If a costs management order has been made, the court will thereafter control the parties' budgets in respect of recoverable costs. (4) Whether or not the court makes a costs management order, it may record on the face of any case management order any comments it has about the incurred costs which are to be taken into account in any subsequent assessment proceedings. (5) Save in exceptional circumstances--- (Precedent H is annexed to Practice Direction 3D.) (6) The court may set a timetable or give other directions for future reviews of budgets. (7) After a party's budgeted costs have been approved or agreed, the party must re-file and re-serve the budget--- (8) A costs management order concerns the totals allowed for each phase of the budget, and while the underlying detail in the budget for each phase used by the party to calculate the totals claimed is provided for reference purposes to assist the court in fixing a budget, it is not the role of the court in the costs management hearing to fix or approve the hourly rates claimed in the budget. [Revision and variation of costs budgets on account of significant developments ('variation costs')] 3.15A 1. The revising party must revise its budgeted costs upwards or downwards if significant developments in the litigation warrant such revisions. 2. Any revised budget must be submitted promptly to other parties for agreement and subsequently to the court. 3. Revising party must -- a. Serve particulars of the variation proposed on every other party, in form as per PD 3D b. Confine particulars to additional costs occasioned by the significant development; and c. Certify, per the form in PD 3D, that additional costs are not included in any previous budgeted costs or variation. 4. The revising party must submit the particulars of variation promptly to the court, together with the last approved or agreed budget, and with an explanation of the points of difference if they have not been agreed. 5. The court may approve, vary or disallow the proposed variations, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed, or may list a further costs management hearing. [Cost Management Conferences] 3.16 1. Any hearing convened solely for purpose of cost management (eg. to approve revised budget) is referred as a 'costs management conference'. 2. Where practicable, CMCs should be conducted by telephone or in writing. [Court to have regard to budget and to take account of costs] 3.17 1. When making any case management decision, court will have regard to any available budgets of the parties and will take into account the costs involved in each procedural step. 2. \(1) applies whether CMO made or not 3. Subject to rule 3.15A, the court - a. May not approve costs incurred up to and included the date of any costs management hearing; but b. May record its comments on those costs & take them into account when considering reasonableness and proportionality of all budgeted costs. [Assessing costs on the standard basis where a cost management order has been made] 3.18 Where CMO has been made, when assessing costs on the standard basis, the court will -- a. Have regard to the receiving party's last approved or agreed budgeted costs for each phase of the proceedings; b. Not depart from such approved or agreed budgeted costs unless satisfied that there is good reason to do so; and c. Take into account any comments made pursuant to rule 3.1594) of 3.17(3) and recorded on the face of the order. [PD 3D paras 3, 4, 5, and 12] **[C. Budget format]** 4. **3DPD.3 ** (The wording for a statement of truth verifying a budget is set out in Practice Direction 22.) 5. In deciding the reasonable and proportionate costs of each phase of the budget the court will have regard to the factors set out at Civil Procedure Rules 44.3(5) and 44.4(3) including a consideration of where and the circumstances in which the work was done as opposed to where the case is heard. 6. The table below identifies where within the budget form the various items of work, in so far as they are required by the circumstances of your case, should be included. The time estimated may have to be justified on the budget hearing along with the grade of fee earner doing the work. 7. Allowance must be made in each phase for advising the client, taking instructions and corresponding with the other party/parties and the court in respect of matters falling within that phase. 8. The time spent in preparing the budget and associated material must not be claimed in the draft budget under any phase. The maximum figures permitted under rule 3.15(5) should be inserted once the costs budget has been approved by the court. 9. The 'contingent cost' sections of this form should be used for anticipated costs which do not fall within the main categories set out in this form. Examples might be the trial of preliminary issues, applications to amend, applications for disclosure against third parties or (in libel cases) applications re meaning. Costs which are disputed (such as the need for a particular expert) should be set out in the appropriate phase of the budget and if necessary marked as disputed. Only costs which are more likely than not to be incurred should be included. (Variation of an approved or agreed budget is dealt with in rule 3.15A.) **[D. Assumptions]** 10. 3DPD.4  \(a) The assumptions that are reflected in the table below are not to be repeated. Include only those assumptions that significantly impact on the level of costs claimed such as the duration of the proceedings, the number of experts and witnesses or the number of interim applications envisaged. Brief details only are required in the box beneath each phase. Additional documents should only be prepared in exceptional circumstance and, where they are disregarded by the court, the cost of preparation may be disallowed. \(b) Written assumptions are not normally required by the Court in cases where the parties are only required to lodge the first page.  ***5.*** Examinable material on ***directions*** will consist of *directions questionnaire; stay to allow for settlement of the case; general provisions applying to fast track and intermediate track; variation of case management timetable; directions;* case management conference on intermediate track*;* agreement of directions on intermediate track; directions on the intermediate track*; case management in multi-track cases; case management conference and pre-trial review; steps taken by the parties; variation of case management timetable in multi-track cases; pre-trial checklist (listing questionnaire); pre-trial review; setting a trial timetable and confirming the trial date or week; conduct of trial; general provisions regarding case management in multi-track cases; directions on allocation; case management conferences; variation of directions; failure to comply with case management directions; and the trial.* The relevant material is addressed in *and CPR 26.4(1)-(3), (5)-(9) and (11), CPR 26.5, CPR 28.2, CPR 28.3, CPR 28.7, CPR 28.12, CPR 28.13, CPR 28.14, CPR 29.1-29.9; in PD 29 paragraph 3*.1(1) and (2)(a), 3.2, 3.3 and 3.10(1), paragraph 4.2, 4.3, 4.5 and 4.11, paragraph 5.1, 5.2, 5.3, 5.5 and 5.8, paragraph 6, paragraph 7.1, 7.2, 7.3 and 7.4, and paragraph 10.1 and 10.2; and in the *commentary at* paragraph 28.2.2 of *Volume 1 of* **'Civil Procedure' (the White Book) 2024***.* ***[CPR 26.4(1)-(3), (5)-(9) and (11): DIRECTIONS QUESTIONNAIRE ]*** **(1)** Subject to rule 26.8 , if a defendant files a defence--- **(2)** The court shall serve on any unrepresented party the appropriate directions questionnaire. **(3)** Where there are two or more defendants and at least one of them files a defence, the court shall serve the notice under paragraph (1)--- ( Rule 15.4 specifies the period for filing a defence.) **(5)** If \[rule 15.10\] applies, the court shall not serve a notice under \[26.4(1)\] until the claimant has filed a notice requiring the proceedings to continue. **(6)** If a notice is served under paragraph (1)--- **(7)** The date for complying with a notice served under paragraph (1) may not be varied by agreement between the parties. **(8)** The time when the court serves a directions questionnaire under this rule may be varied by a practice direction in respect of claims issued by the Production Centre. **(9)** If a claim is a claim to which rule 26.3 applies and a party does not comply with the notice served under paragraph (1) by the date specified--- **(11)** Where a case has been struck out under paragraph (9)(b) or an order has been made under paragraph (10), a party who was in default shall, unless the court thinks it unjust to do so, be ordered to pay the costs that the default caused to any other party. ***[CPR 26.5 -- Stay to allow for settlement of the case ]*** **(1)** A party may, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by alternative dispute resolution or other means. **(2)** If all parties request a stay the proceedings shall be stayed for one month and the court shall notify the parties accordingly. **(3)** If the court otherwise considers that such a stay would be appropriate, the court may direct that the proceedings, either in whole or in part, be stayed for one month, or for such other period as it considers appropriate. **(4)** The court may extend the stay until such date or for such specified period as it considers appropriate. **(5)** Where the court stays the proceedings under this rule, the claimant must tell the court if a settlement is reached. **(6)** If the claimant does not tell the court by the end of the period of the stay that a settlement has been reached, the court shall give such directions as to the management of the case as it considers appropriate. ***[FAST TRACK AND INTERMEDIATE TRACK ]*** ***[CPR 28.2 -- GENERAL PROVISIONS]*** **(1)** The court shall give directions for the management of the case and set a timetable for the steps to be taken between the giving of the directions and the trial.  **(2)** When it allocates a case to the fast track, the court shall give directions unless it considers that it is necessary to fix a case management conference. **(3)** When it allocates a case to the intermediate track, the court may give directions or fix a case management conference under rule 28.12. **(4)** When it gives directions, the court shall--- **[*Commentary at* paragraph 28.2.2 -- DIRECTIONS ]** The new r.28.2 (incorporating amendments with effect from 6 April 2024) sets out general provisions for directions in fast and intermediate track cases. In relation to the fast track, para.(2) requires the court to give directions when the case is allocated (echoing the old r.28.2(1)), unless it considers it necessary to fix a case management conference. However, in intermediate track cases, para.(3) gives the court a discretion as to whether to give directions straightaway on allocation or fix a case management conference under r.28.12. Under para.(4), any directions made must include disclosure (previously dealt with under the old r.28.3), and directions for trial (echoing the previous version of the rule which related only to the fast track). ***[CPR 28.3 -- VARIATION of case management timetable ]*** (1) A party must apply to the court if they wish to vary any date which the court has fixed for--- (2) Any date set by the court or these Rules for doing any act may not be varied by the parties if the variation would make it necessary to vary any of the dates mentioned in paragraph (1). (Rule 2.11 allows the parties to vary a date by written agreement except where the rules provide otherwise or the court orders otherwise.) ***[PROVISIONS APPLYING ONLY TO CASES ALLOCATED TO THE FAST TRACK]*** ***[CPR 28.7 -- Directions ]*** **(1)** The matters to be dealt with by directions under rule 28.2(1) include--- ( Rule 26.9(6) deals with limitations in relation to expert evidence and the likely length of trial in fast track cases.) **(2)** Directions to be given under rule 28.2(1) shall be in the form set out at http://www.justice.gov.uk/courts/procedure-rules/civil, unless the court orders otherwise. ***[PROVISIONS APPLYING ONLY TO CASES ALLOCATED TO THE INTERMEDIATE TRACK ]*** ***[CPR 28.12 -- Case Management Conference ]*** *The court may fix a CMC and may fix a pre-trial review.* ***[CPR 28.13 -- Agreement of directions ]*** *The parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court at least 7 days before any CMC.* *Where the court approves agreed directions, or issues its own directions, the parties shall be so notified by the court and the CMC will be vacated accordingly.* ***[CPR 28.14 -- DIRECTIONS]*** **(1)** The matters to be dealt with by directions under rule 28.2(1) include--- **(2)** The following provisions apply in respect of directions in the intermediate track--- **(3)** The following provisions apply in respect of directions in the intermediate track, unless the court orders otherwise--- ***[THE MULTI-TRACK]*** ***[CPR 29.1 -- SCOPE of this Part]*** 1. *This Part contains general provisions about management of cases allocated to the multi-track and applies only to cases allocated to that track.* (Part 27 sets out the procedure for claims allocated to the small claims track.) (Part 28 sets out the procedure for claims allocated to the fast track or intermediate track.) ***[CPR 29.2 -- Case MANAGEMENT]*** **(1)** When it allocates a case to the multi-track, the court will--- **(1A)** When giving directions, the court must consider whether to order or encourage the parties to engage in alternative dispute resolution. **(2)** The court will fix the trial date or the period in which the trial is to take place as soon as practicable. **(3)** When the court fixes the trial date or the trial period under paragraph (2), it will--- ***[CPR 29.3 -- Case Management CONFERENCE and PRE-TRIAL REVIEW]*** **(1)** The court may fix--- at any time after the claim has been allocated. **(2)** If a party has a legal representative, a representative--- must attend case management conferences and pre-trial reviews. ***[CPR 29.4 -- STEPS TAKEN by the parties]*** *The parties must endeavour to agree appropriate directions for the management of the proceedings and submit agreed directions, or their respective proposals to the court -- at least 7 days before any Case management conference.* *Where the court approves agreed directions, or issues its own directions, the parties will be so notified by the court and the case management conference will be vacated.* ***[CPR 29.5 -- VARIATION of case management TIMETABLE]*** **(1)** A party must apply to the court if he wishes to vary the date which the court has fixed for--- **(2)** Any date set by the court or these Rules for doing any act may not be varied by the parties if the variation would make it necessary to vary any of the dates mentioned in paragraph (1). (Rule 2.11 allows the parties to vary a date by written agreement except where the rules provide otherwise or the court orders otherwise.) ***[CPR 29.6 -- PRE-TRIAL CHECKLIST (listing questionnaire) ]*** **(1)** The court will send the parties a pre-trial check list (listing questionnaire) for completion and return by the date specified in directions given under rule 29.2(3) unless it considers that the claim can proceed to trial without the need for a pre-trial check list. **(2)** Each party must file the completed pre-trial check list by the date specified by the court. **(3)** If no party files the completed pre-trial check list by the date specified, the court will order that unless a completed pre-trial check list is filed within 7 days from service of that order, the claim, defence and any counterclaim will be struck out without further order of the court. **(4)** If--- the court may give such directions as it thinks appropriate. ***[CPR 29.7 -- PRE-TRIAL REVIEW]*** If, on receipt of the parties' pre-trial check lists, the court decides--- it will serve notice of its decision at least 7 days before the date fixed for the hearing or, as the case may be, the cancelled hearing. ***[CPR 29.8 -- Setting a TRIAL TIMETABLE and confirming the TRIAL DATE OR WEEK]*** As soon as practicable after--- the court will--- ***[CPR 29.9 -- CONDUCT OF TRIAL]*** *Unless the trial judge otherwise directs, the trial will be conducted in accordance with any order previously made.* **[PRACTICE DIRECTION 29 -- THE MULTI-TRACK]** **[*PD 29 paragraph 3*.1(1) and (2)(a), 3.2, 3.3 and 3.10(1)]** Case Management---General Provisions ------------------------------------ 3.1 --- - 29PD.3  1. Case management of a claim which is proceeding at the Royal Courts of Justice will be undertaken there. - \(a) Case management of any other claim which has been allocated to the multi-track will normally be undertaken at a Civil Trial Centre. - \(b) Practice Direction 26 provides for what will happen in the case of a claim which is issued in or transferred to a court which is not a Civil Trial Centre. 3.2 --- The hallmarks of the multi-track are---  - \(1) the ability of the court to deal with cases of widely differing values and complexity, and - \(2) the flexibility given to the court in the way it will manage a case in a way appropriate to its particular needs. 3.3 --- - \(1) On allocating a claim to the multi-track the court may give directions without a hearing, including fixing a trial date or a period in which the trial will take place, - \(2) Alternatively, whether or not it fixes a trial date or period, it may either---  - \(a) give directions for certain steps to be taken and fix a date for a case management conference or a pre-trial review to take place after they have been taken, or - \(b) fix a date for a case management conference. - \(3) Attention is drawn to rule 29.2(2) which requires the court to fix a trial date or period as soon as practicable. 3.10 ---- - (1)Case management will generally be dealt with by---  - \(a) a Master in cases proceeding in the Royal Courts of Justice, - \(b) a District Judge in cases proceeding in a District Registry of the High Court, and - \(c) a District Judge or a Circuit Judge in cases proceeding in the County Court. **[*PD 29* paragraph 4.2, 4.3, 4.5 and 4.11]** **Directions on Allocation** ---------------------------- 29PD.4  4.2 --- The court will seek to tailor its directions to the needs of the case and the steps which the parties have already taken to prepare the case of which it is aware. In particular it will have regard to the extent to which Practice Direction (Pre-Action Conduct) or any pre-action protocol has or (as the case may be) has not been complied with. 4.3 --- At this stage the court's first concern will be to ensure that the issues between the parties are identified and that the necessary evidence is prepared and disclosed. 4.5 --- On the allocation of a claim to the multi-track the court will consider whether it is desirable or necessary to hold a case management conference straight away, or whether it is appropriate instead to give directions on its own initiative. 4.11 ---- If it appears that expert evidence will be required both on issues of liability and on the amount of damages, the court may direct that the exchange of those reports that relate to liability will be exchanged simultaneously but that those relating to the amount of damages will be exchanged sequentially. **[*PD 29* paragraph 5.1, 5.2, 5.3, 5.5 and 5.8]** **Case Management Conferences** ------------------------------- 5.1 --- 29PD.5  The court will at any case management conference---  5.2 --- 5.3 --- **The topics the court will consider at a case management conference are likely to include--- ** 5.5 --- 5.8 --- **[*PD 29* paragraph 6]** **Variation of Directions** --------------------------- 6.1 --- 29PD.6  This paragraph deals with the procedure to be adopted---  6.2 --- 6.3 --- 6.4 --- Where there has been a change in the circumstances since the order was made the court may set aside or vary a direction it has given. It may do so on application or on its own initiative. 6.5 --- Where the parties agree about changes they wish made to the directions given---  1. If rule 2.11 (variation by agreement of a date set by the court for doing any act other than those stated in the note to that rule), rule 3.8(4) (extensions of time by written agreement in circumstances within rule 3.8(3)) or rule 31.5, 31.10(8) or 31.13 (agreements about disclosure) applies the parties need not file the written agreement. **[*PD 29* paragraph 7.1, 7.2, 7.3 and 7.4]** **Failure to Comply with Case Management Directions** ----------------------------------------------------- 7.1 --- 29PD.7  Where a party fails to comply with a direction given by the court any other party may apply for an order that he must do so or for a sanction to be imposed or both of these. 7.2 --- The party entitled to apply for such an order must do so without delay but should first warn the other party of his intention to do so. 7.3 --- The court may take any such delay into account when it decides whether to make an order imposing a sanction or to grant relief from a sanction imposed by the rules or any other practice direction. 7.4 --- **[*PD 29* paragraph 10.1 and 10.2]** **The Trial** ------------- 10.1 ---- 29PD.10  The trial will normally take place at a Civil Trial Centre but it may be at another court if it is appropriate having regard to the needs of the parties and the availability of court resources. 10.2 ---- The judge will generally have read the papers in the trial bundle and may dispense with an opening address. ***6.*** Examinable material **on *relief from sanctions*** will consist of the rule that sanctions have effect unless the defaulting party obtains relief; the court's general discretion to give relief from sanctions imposed for failure to comply with a rule, practice direction or court order; the effect of the rule in general terms; the formulation of the rule since April 2013; the guidance given in *Denton*; the first stage of the guidance: assessment of the seriousness and significance of the breach; the second stage of the guidance: consideration of why the default occurred; the third stage of the guidance: evaluation of all the circumstances of the case so as to enable the court to deal justly with the application; the importance of discouraging opportunism by the non-defaulting party; and the effect of the *Denton* principles on applications to set aside default judgments. The relevant material is addressed in CPR 3.8 and 3.9; and in *the commentary at* paragraphs *3.9.1, 3.9.2-3.9.8 and 13.3.5 of Volume 1 of* **'Civil Procedure' (the White Book) 2024***. Students should also be able to refer to the following specific leading case authority by name: Denton.* [CPR 3.8 -- SANCTIONS HAVE EFFECT UNLESS DEFAULTING PARTY OBTAINS RELIEF] (1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction. (Rule 3.9 sets out the circumstances which the court will consider on an application to grant relief from a sanction.) (2) Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs. (3) Where a rule, practice direction or court order--- 4. In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the **time for doing the act in question may be extended by prior written agreement** of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date. [CPR 3.9 -- RELIEF FROM SANCTIONS ] (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need--- (2) An application for relief must be supported by evidence. ***[Commentary at 3.9.1 - 3.9.8 ]*** [Commentary 3.9.1 -- Effect of rule in general terms] This rule sets out the court's general discretion to give relief from any sanction imposed for failure to comply with any rule, practice direction or court order. The sanction imposed may be: - the entry of judgment against the defaulting party - or the loss of the right to call a witness - or the loss of a right to participate in a hearing etc. Rule 3.9 does not apply where the sanction imposed is an order for the payment of costs; in that instance the party in default may only obtain relief by appealing against the order for costs (r.3.8(2)). It should be noted th