BC BC LEGAL B R I N G I N G C L A R I T Y An Express Guide to s Under the Civil Procedure Rules Current as of 1st July 2015 This is a guide to the time limits under the Civil Procedure Rules that may be relevant to disease practitioners. The rules for computing time limits are also addressed in this Guide. This Guide is arranged alphabetically and contains full references to the CPR.
Acknowledgement of Service Where the defendant is served with a claim form which states that particulars of claim are to follow, the period for acknowledgment of service is In any other case the period for acknowledgement of service is Admission of Documents A party shall be deemed to admit the authenticity of a document disclosed to him under CPR 31 unless he serves a notice that he wishes the document to be proved at trial. The notice must be served Admissions of Fact A party may serve notice on another party requiring him to admit the facts specified in the notice: CPR 32.18. The notice must be served Admissions of Liability to Pay A party may admit the whole or part of a money claim by returning an admission form 14 days after service of the particulars of claim: CPR 10.3(1). 14 days after service of the claim form: CPR 10.3(1). (Where the claim is served overseas, see CPR 6.35). by the latest date for serving witness statements or within seven days of disclosure of the document, whichever is later: CPR 32.19. no later than 21 days before trial: CPR 32.18(2). 14 days after service of the claim form, or where the claim form specifies that particulars of claim will follow, 14 days after service of the particulars of claim: CPR 14.2. (Where the claim is served overseas, see CPR 6.35). Page 2
Appeals See CPR 52 and PD 52A to PD 52E. In particular, PD 52B relates to appeals to County Court and High Court, and PD 52C to appeals to the Court of Appeal. The correct destination for the various routes of appeal can be ascertained from PD 52A, para 3.5. Assessment of Costs (Detailed) Commencement Where the source of the order for detailed assessment is a judgment, direction, order, award or other determination Where the source of the order for detailed assessment is discontinuance under CPR 38 Where the source of the order for detailed assessment is acceptance of an offer to settle under CPR 36 the assessment proceedings must be commenced no later than three months after the judgment, etc., or three months after the lifting of any stay pending appeal: CPR 47.7. the assessment proceedings must be commenced no later than three months after service of notice of discontinuance or three months after dismissal of an application to set aside a notice of discontinuance under CPR 38: CPR 47.7. the assessment proceedings must be commenced no later than three months after the date when the right to costs arose: CPR 47.7. Page 3
Service of points of dispute and reply The paying party and any other party to the detailed assessment may dispute any item by serving points of dispute Where points of dispute are served, the receiving party may serve a reply (c) Application for a detailed hearing Where points of dispute have been served, the receiving party must apply for a detailed assessment hearing (d) Filing the completed bill of costs Where detailed assessment of costs has taken place the time for filing the completed bill is (e) Appeals against detailed assessment by authorised court officers Notice of appeal must be served within 21 days after service of notice of commencement: CPR 47.9. within 21 days after service of the points of dispute: CPR 47.13. within three months of expiry of the period for commencing assessment proceedings: CPR 47.14. 14 days after the end of the detailed assessment hearing: CPR 47.17. within 14 days after the date of the decision: CPR 47.23. Assessment of Costs (Summary) Each party who intends to claim costs must prepare a written statement of the costs in any case where a summary assessment will be made (on which, see PD 44, para 9.2) and must file and serve it as soon as possible and in any event, for a fast track trial, not less than 2 days before the trial, and for all other hearings, not less than 24 hours before the time fixed for the hearing: PD 44, para 9.5(4). Page 4
Claim Form The claimant must complete the step required for the chosen method of service Costs Budget Unless the court orders otherwise, a costs budget must be filed and exchanged Costs Order Where the court makes an order for costs against a legally represented party and the party is not present when the order is made, the party's solicitor must notify his client in writing of the costs order before 12.00 midnight on the calendar day four months after the date of issue of the claim form, or six months where it is to be served out of the jurisdiction: CPR 7.5. For claims served on or after 1 October 2008 the claim can be dispatched on the last day of the period for service (but for claims served before October 1, 2008 the claim must be served within the time for service). For further detailed information on service of the claim form, see BC Legal s Express Guide to Service of the Claim Form in England and Wales in Disease Claims. by the date specified in any notice under CPR 26.3(1) or, if no such date is specified, seven days before the first case management conference: CPR 3.13. not later than seven days after the solicitor receives notice of the order: CPR 44.8. Page 5
Counterclaims and Additional Claims A defendant may make a counterclaim against a claimant (c) (d) Counterclaims made against nonparties may be made Claims for an indemnity or a contribution from a co-defendant may be made without permission provided Where an additional claim is made without the court s permission it must be served without permission if he files it with his defence, or at any other time with the court s permission: CPR 20.4. by applying to the court for an order that that person be added as an additional party: CPR 20.5. the notice under CPR 20.6 is served with the defence or, if the claim is against a defendant who was joined later, within 28 days after that party files his defence: CPR 20.6(2). in the case of a counterclaim against an additional party only, when the defence is served, or, in the case of any other additional claim, within 14 days after the date of issue of the additional claim form: CPR 20.8(1). This does not apply to claims for a contribution or indemnity made in accordance with CPR 20.6: CPR 20.8(2). Page 6
Discontinuance (c) The claimant may discontinue the proceedings wholly or in part by filing a notice of discontinuance and serving it on every other party Where a defendant is served with a notice of discontinuance without requiring the court s permission, he may apply to set the notice aside Where all or part of a claim is discontinued the claimant is liable to pay the costs of a defendant against whom the claim was discontinued: CPR 38.6. The remainder of the proceedings may be stayed where the claimant is liable to pay those costs and fails to do so Disclosure and Inspection (c) On the fast track disclosure will take place On the multi-track disclosure will take place Where a party has a right to inspect a document that party must give notice of his wish to inspect it and the party who disclosed it must permit inspection at any time, except where the permission of the court is required by CPR 38.2(2): CPR 38.2, 38.3. no later than 28 days after service of the notice of discontinuance on him: CPR 38.4(2). within 14 days of the date on which the parties agreed the costs payable or 14 days of the date on which the court ordered the costs to be paid: CPR 38.8. according to the court s directions but typically four weeks after notice of allocation: CPR 28.2, CPR 28.3 and PD 28, para 3.12. as directed by the court in the exercise of its case management functions: CPR 29.2. not more than seven days after the date on which he received the notice, and the party inspecting may request a copy of the document. If the party so requesting undertakes to pay reasonable copying costs the party who disclosed the document must supply a copy within seven days after the date of the request: CPR 31.15. Page 7
Evidence 1. BY DEPOSITION A party intending to put in evidence a deposition at a hearing must serve notice of intention to do so on every party 2. HEARSAY CIVIL EVIDENCE ACT 1995 (c) Where a party proposes to rely on hearsay evidence and does not propose to call the person who made the original statement to give oral evidence, the court may allow another party to call and crossexamine that person following an application Where a party tenders as hearsay evidence a statement made by a person but does not call the person who made the statement to give evidence, and another party wishes to call evidence to attack the credibility of the person who made the statement Evidence of findings on foreign law Where a party intends to put in evidence a finding on a question of foreign law by virtue of s 4(2) of the Civil Evidence Act 1972, he must at least 21 days before the day fixed for the hearing: CPR 34.11(3). made not later than 14 days after the date of service of the hearsay notice: CPR 33.4(2). the party wishing to attack the credibility of the witness must give notice to the party tendering the hearsay evidence not more than 14 days after the date of service of the hearsay notice: CPR 33.5(2). give any other party notice of his intention not later than the latest date for serving witness statements, if there are to be witness statements, or otherwise not less than 21 days before the hearing at which he proposes to put the finding in evidence: CPR 33.7. Page 8
Interim Payment (c) (d) An application for an interim payment under CPR 25.6 may be made A copy of an application notice for an order for an interim payment must be served A respondent to an application for an order for an interim payment who wishes to rely on written evidence must file and serve the written evidence If the applicant wishes to rely on written evidence in reply he must file and serve the written evidence after then end of the period for filing an acknowledgement of service: CPR 25.6(1). at least 14 days before the hearing of the application: CPR 25.6(3). at least seven days before hearing of the application: CPR 25.6(4). at least three days before the hearing of the application: CPR 25.6(5). Page 9
Judgments 1. DEFAULT JUDGEMENT Judgment in default of acknowledgement of service (where permitted under CPR 12.2) may be obtained Judgment in default of defence (where permitted under CPR 12.2) may be obtained 2. SUMMARY JUDGMENT Summary judgment under CPR 24.2 where there is no real prospect of success on the claim or issue, or the defendant has no real prospect of successfully defending the claim or issue Where a claimant wishes to apply for summary judgment Where a summary judgment hearing is fixed, the respondent (or the parties, where hearing is fixed of the court s own initiative) must be given (c) (d) If the respondent to a summary judgment application wishes to rely on written evidence at the hearing, he must file and serve the written evidence If the applicant wishes to rely on written evidence in reply, he must file and serve it where the defendant has not filed an acknowledgement of service or a defence and the time for doing so has expired: CPR 12.3(1). where the defendant has filed an acknowledgement of service but has not filed a defence and the time for doing so has expired, or where a counterclaim has been made under CPR 20.4 and the defence has not been filed in time: CPR 12.3(2). he may not do so until the defendant has filed an acknowledgment of service or a defence, unless the court gives permission or a practice direction provides otherwise: CPR 24.4(1). For proceedings against the Crown, see CPR 24.4(1A). at least 14 days notice of the date fixed for the hearing and the issues which it is proposed that the court will decide at the hearing: CPR 24.4(3). A practice direction may provide for a different period of notice to be given: CPR 24.4(4). at least seven days before the summary judgment hearing: CPR 24.5(1). at least three days before the summary judgment hearing: CPR 24.5(2). Page 10
(e) Where a summary judgment hearing is fixed by the court of its own initiative, any party who wishes to rely on written evidence at the hearing must file and serve it at least seven days before the hearing: CPR 24.5(3). Any party wishing to rely on written evidence in reply must file and serve it at least three days before the date of the hearing: CPR 24.5(3). Litigation Friends Without Court Order A deputy appointed by the Court of Protection under the Mental Capacity Act 2005 with power to conduct proceedings on the protected party s behalf must file an official copy of the order of the Court of Protection which confers his power to act Any other person must file a certificate of suitability stating that he satisfies the conditions specified in CPR 21.4(3) where the deputy is to act as litigation friend for the claimant, at the time the claim is made; or where the deputy is to act as a litigation friend for a defendant, at the time when he first takes a step in the proceedings on behalf of the defendant: CPR 21.5(2). where the person is to act as a litigation friend for the claimant, at the time when the claim is made; or where the person is to act as a litigation friend for a defendant, at the time when he first takes a step in the proceedings on behalf of the defendant: CPR 21.5(3). The litigation friend must serve the certificate of suitability on every person on whom the claim form should be served; and file a certificate of service when filing the certificate of suitability: CPR 21.5(4). Page 11
Litigation Friends On Cessation of Protected Party Status Where a protected party regains or acquires capacity to conduct the proceedings The protected party must then serve a notice complying with CPR 21.9(4) and if he does not do so the litigation friend s appointment continues until ended by court order: CPR 21.9(2). within 28 days after the date on which the litigation friend s appointment ceases, the court may, on application, strike out any claim or defence brought by him: CPR 21.9(5). Statements of Case 1. SERVICE Claim form See Claim Form, above. Particulars of claim must be contained in or served with the claim form, or served within 14 days after service of the claim form, but no later than the latest day for service of the claim form: CPR 7.4. (c) Defence (subject to the circumstances in CPR 15.4(2)) must be filed 14 days after service of the particulars of claim, or 28 days after service of the particulars of claim where the defendant has filed an acknowledgement of service under CPR 10: CPR 15.4(1). (d) Reply must be filed and served when the claimant files the directions questionnaire: CPR 15.8. (e) CPR 20 claims (including counterclaims) See Counterclaims and Additional Claims, above. Page 12
2. AMENDMENT Any party may amend any statement of case of his (c) at any time before it has been served (even if it has been filed): CPR 17.1(1); or if it has been served, with the consent of the parties or the permission of the court: CPR 17.1(2); if a statement of case has been served, an application to amend by removing, substituting or adding a party must be made under CPR 19.4: CPR 17.1(3). Striking Out Where a party is served with an order striking out all or part of a statement of case on the court s own initiative, the party may apply to set it aside Time Calculation Rule 1. DAYS A period of time expressed as a number of days shall be computed as clear days. Clear days means that in computing the number of days: i) the day on which the period begins; and ii) if the end of the period is defined by reference to an event, the day on which that event occurs are not included: CPR 2.8(2), (3). within such period as the court specifies, or if the court does not specify a period, not more than seven days after the date on which the order was served on the party making the application: CPR 3.3(6). Examples (1) Notice of an application must be served at least three days before the hearing. - An application to be heard on Friday 20 October. - The last date for service is Monday 16 October. Page 13
(2) The court is to fix a date for a hearing. - The hearing must be at least 28 days after the date of notice. - If the court gives notice of the date of the hearing on 1 October, the earliest date for the hearing is 30 October. (3) Particulars of claim must be served within 14 days of service of the claim form. - The claim form is served on 2 October. - The last day for service of the particulars of claim is 16 October. (4) An acknowledgement of service must be filed 14 days after service of the particulars of claim. - The particulars of claim are served on 16 October. - The last day for filing the acknowledgement of service is 30 October. Where the specified period is five days or less and includes: i) a Saturday or Sunday; or ii) a Bank Holiday, Christmas Day or Good Friday, that day does not count: CPR 2.8(4). (1) 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. Page 14
(c) (d) Subject to the provisions of PD5C, when the period specified by the CPR or a practice direction, or any judgment or court order, for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open: CPR 2.8(5). (Note that although CPR 2.8(5) refers to PD 5C, PD 5C was in fact omitted from 1 October 2014: White Book 2015, vol 1, para 2.8.6). Where a step has to be taken within a period described as beginning with a specified day, then that day is included in the period; but if the period is described as running from or after a specified day, then that day is not included in the period: Zoan v Rouamba [2000] 1 WLR 1509. (e) CPR 2.8 only applies when calculating the time for doing any act. It does not, therefore, apply for the purposes of calculating the deemed date of service of a document (including the claim form), since no act is to be done; instead the CPR set out how to calculate the deemed date of service: Anderton v Clwyd County Council (No. 2) [2002] EWCA Civ 993, [2002] 1 WLR 3174. Page 15
(f) As to deemed service of a claim form served in the jurisdiction, a claim form is deemed irrefutably to be served on the second business day after completion of the relevant step under CPR 7.5(1): CPR 6.14. (1) A claim form posted on a Friday is deemed to be served on the following Tuesday (if the following Monday and Tuesday are both business days). i) The step required under CPR 7.5(1) for each method of service appears in the table below and must be completed before 12.00 midnight on the calendar day four months after the date of issue of the claim form. Method of service Step required First class post, document exchange or other service which provides for delivery on the next business day Delivery of the document to or leaving it at the relevant place Personal service under rule 6.5 Fax Other electronic method ii) Posting, leaving with, delivering to or collection by the relevant service provider Delivering to or leaving the document at the relevant place Completing the relevant step required by rule 6.5(3) Completing the transmission of the fax Sending the e-mail or other electronic transmission When there is no corresponding date in the month in which the period ends it will end on the last day of the month: Dodds v Walker [1981] 1 WLR 1027. (1) For a claim form issued on 10 July 2014, the relevant step must be taken before midnight on 10 November 2014. (2) For a claim form issued on 31 July 2014, the relevant step must be taken before midnight on 30 November 2014: Blackstone s Civil Practice 2013: The Commentary, para 15.25. Page 16
(g) As to deemed service of documents other than the claim form served in the jurisdiction, documents are deemed irrefutably to be served on the day shown in the following table: CPR 6.26. Method of service 1. First class post (or other service which provides for delivery on the next business day) 2. Document exchange 3. Delivering the document to or leaving it at a permitted address Deemed date of service The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day. The second day after it was left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day. If it is delivered to or left at the permitted address on a business day before 4.30p.m., on that day; or in any other case, on the next business day after that day. 4. Fax If the transmission of the fax is completed on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was transmitted. (1) Where the document is posted (by first class post) on a Monday (a business day), the day of deemed service is the following Wednesday (a business day): PD 6A, para 10.2. (2) Where the document is left in a numbered box at the DX on a Friday (a business day), the day of deemed service is the following Monday (a business day): PD 6A, para 10.3. (3) Where the document is sent by fax on a Saturday and the transmission of that fax is completed by 4.30pm on that day, the day of deemed service is the following Monday (a business day): PD 6A, para 10.4. (4) Where the document is served personally before 4.30pm on a Sunday, the day of deemed service is the next day (Monday, a business day): PD 6A, para 10.5. (5) Where the document is delivered to a permitted address after 4.30pm on the Thursday (a business day) before Good Friday, the day of deemed service is the following Tuesday (a business day) as the Monday is a bank holiday: PD 6A, para 10.6. Page 17
5. Other electronic method 6. Personal service If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent. If the document is served personally before 4.30p.m. on a business day, on that day; or in any other case, on the next business day after that day. (6) Where the document is posted (by first class post) on a bank holiday Monday, the day of deemed service is the following Wednesday (a business day): PD 6A, para 10.7. (h) For the purpose of CPR 6 business day means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day: CPR 6.2. (i) A deemed date of service is not rebuttable by evidence of actual receipt of a document on a day before or after the deemed day; the deemed day is decisive: Godwin v Swindon Borough Council [2001] EWCA Civ 1478, [2002] 1 WLR 997. 2. MONTHS Where month occurs in any judgment, order, direction or other document, it means calendar month: CPR 2.10. Page 18
3. VARIATION Unless the CPR or a practice direction provides otherwise or the court order 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: CPR 2.11. (CPR 3.8, 28.4 and 29.5 provide for time limits that cannot be varied by agreement between the parties). Trial Arrangements Unless the court orders otherwise, the claimant must file a trial bundle containing documents required by a relevant practice direction and any court order Witness Summons A witness summons may not be issued without leave if the party issuing it wishes: i) the witness to attend court to give evidence or to produce documents on any date except the date fixed for the trial, or at any hearing except the trial, or ii) to have the summons issued less than The witness summons will be binding if it is served not more than seven days and not less than three days before the start of the trial: CPR 39.5(2). (See also PD 39). seven days before the date of the trial: CPR 34.3(2). at least seven days before the date on which the witness is required to attend, unless the court directs a shorter period: CPR 34.5(1), (2). Page 19
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