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The CPR and the post Jackson approach.
December 14, 2013
It is an increasing trend that many internet forums are reporting more cases being struck out by the Courts for what we may view as trivial matters.
Indeed, while many litigants in person may think that they ought to be given more indulgences when faced with a Claimant who is represented, it seems that the Courts post Jackson are not inclined to give leeway especially where there has been breaches of the CPR which are more than trivial.
It is clear that Litigants in Person need to get smart, they need to play the rules if they are to win their cases. There can of course be no guarantee of victory, but in many of the cases i deal with, there are failings which may be open to be attacked by the Defendant but rarely get challenged due often to the fact that the Defendant is a litigant in person and does not understand the litigation process or the CPR. That really has to change.
People need to be aware of the rules. People need to use the rules. While this will not be popular with many, if you cant understand the rules then speak to a lawyer.
I often see people floundering when a claim has been issued against them. They ask the Claimant for a copy of their credit agreement, and the creditor says havent got it, so they just plod on without any idea of what to do, and either lodge a Defence which is void of all merit, or they lodge nothing and end up with Default judgment!!!!!
However, the CPR is there for all to use, it is the guide for everyone who is engaging in litigation and it is there to be followed. The message coming from the Courts seems to be if you ignore the rules then do so at your peril.
The CPR has a pre action protocol practice direction which sets down how parties should conduct themselves before a claim is issued. At my law firm, it is often the case that people come through the door with a Claim form issued by the Northampton County Court Bulk Centre (CCBC), the Particulars of claim are often rubbish at best, and most claims i see revolve around a credit agreement and breach of contract. However, without exception, the single biggest complaint i get is that the Claimant has been asked for a copy of the agreement which is mentioned in the Claim form and the Claimant has either refused to disclose it, or claims it doesnt have it therefore cannot provide a copy. What normally happens from this point , is the Defendant doesnt apply to the Court, he doesnt ask for an extension under CPR Rule 15.5, he just lodges some tat defence which makes him look silly and lets the Claimant off the hook.
However, lets stop and think about a few things, especially in light of Mitchell -v- News Group Newspapers Ltd [2013] EWCA Civ 1526 , because when a claim is being contemplated, a claimant is expected to serve a letter of claim. The Defendant on receipt of a letter of claim would be entitled to write to the creditor and say ” your claim is based on a written contract, can i have a copy” and of course i agree to pay your “reasonable” copying costs too.
The Claimant ought to provide a copy of the contract he relies upon. Although in most cases he doesnt because he doesnt have it and whats more, he often serves a claim with no documents to rely on at all.
I do not see, especially in light of Mitchell why a Defendant cannot ask for a copy of the documents mentioned in the Claimants statement of case per CPR Rule 31.14, such as the Credit agreement, and then rely on the Claimants duty to comply within the 7 days as set down in CPR rule 31.15 and should the Claimant fail to comply, a letter giving them a further 7 days to either withdraw the Claim or comply and then if non compliance remains after the further 7 days, an application to the Court may well have good prospects for the Claim to be struck out.
Now this may sound quite harsh and maybe over the top, but the Courts are really tightening down on non compliance with the CPR. Indeed LJ Dyson made it clear that the rules must be complied with (see here http://www.litigationfutures.com/new...iance-with-cpr )
There have been many cases, where a party has not complied with the CPR and have suffered the ultimate sanctions as a result.
Cases such as
Venulum Property Investments Ltd v Space Architecture Ltd & Ors [2013] EWHC 1242 (TCC) (22 May 2013)
SC DG Petrol SRL & Ors v Vitol Broking Ltd [2013] EWHC 3920 (Comm) (09 December 2013)
make it clear that relief from sanctions is not something that will be easy to obtain.
so turning back to my point about the CPR and non disclosure under CPR 31.14 etc, well firstly i refer to the judgment of Rix LJ in Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 (11 February 2008)at para 24
The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection
Plainly the above is correct, when a party mentions a document in his claim he must be prepared to allow the opponent the right to inspect that document.
Where a party fails to allow inspection, the disadvantaged party would be more than entitled to apply to the Court and ask for either an order allowing inspection by 4pm on a date which should be no more than 7 days in the future or it may well be open for the Defendant to apply to have the case struck out . Certainly post Mitchell the Courts will not tolerate failures, but that also goes the other way, Defendants who lodge crappy defences which have little or no merit are likely to also be open to strike out applications by Claimants.
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December 14, 2013
It is an increasing trend that many internet forums are reporting more cases being struck out by the Courts for what we may view as trivial matters.
Indeed, while many litigants in person may think that they ought to be given more indulgences when faced with a Claimant who is represented, it seems that the Courts post Jackson are not inclined to give leeway especially where there has been breaches of the CPR which are more than trivial.
It is clear that Litigants in Person need to get smart, they need to play the rules if they are to win their cases. There can of course be no guarantee of victory, but in many of the cases i deal with, there are failings which may be open to be attacked by the Defendant but rarely get challenged due often to the fact that the Defendant is a litigant in person and does not understand the litigation process or the CPR. That really has to change.
People need to be aware of the rules. People need to use the rules. While this will not be popular with many, if you cant understand the rules then speak to a lawyer.
I often see people floundering when a claim has been issued against them. They ask the Claimant for a copy of their credit agreement, and the creditor says havent got it, so they just plod on without any idea of what to do, and either lodge a Defence which is void of all merit, or they lodge nothing and end up with Default judgment!!!!!
However, the CPR is there for all to use, it is the guide for everyone who is engaging in litigation and it is there to be followed. The message coming from the Courts seems to be if you ignore the rules then do so at your peril.
The CPR has a pre action protocol practice direction which sets down how parties should conduct themselves before a claim is issued. At my law firm, it is often the case that people come through the door with a Claim form issued by the Northampton County Court Bulk Centre (CCBC), the Particulars of claim are often rubbish at best, and most claims i see revolve around a credit agreement and breach of contract. However, without exception, the single biggest complaint i get is that the Claimant has been asked for a copy of the agreement which is mentioned in the Claim form and the Claimant has either refused to disclose it, or claims it doesnt have it therefore cannot provide a copy. What normally happens from this point , is the Defendant doesnt apply to the Court, he doesnt ask for an extension under CPR Rule 15.5, he just lodges some tat defence which makes him look silly and lets the Claimant off the hook.
However, lets stop and think about a few things, especially in light of Mitchell -v- News Group Newspapers Ltd [2013] EWCA Civ 1526 , because when a claim is being contemplated, a claimant is expected to serve a letter of claim. The Defendant on receipt of a letter of claim would be entitled to write to the creditor and say ” your claim is based on a written contract, can i have a copy” and of course i agree to pay your “reasonable” copying costs too.
The Claimant ought to provide a copy of the contract he relies upon. Although in most cases he doesnt because he doesnt have it and whats more, he often serves a claim with no documents to rely on at all.
I do not see, especially in light of Mitchell why a Defendant cannot ask for a copy of the documents mentioned in the Claimants statement of case per CPR Rule 31.14, such as the Credit agreement, and then rely on the Claimants duty to comply within the 7 days as set down in CPR rule 31.15 and should the Claimant fail to comply, a letter giving them a further 7 days to either withdraw the Claim or comply and then if non compliance remains after the further 7 days, an application to the Court may well have good prospects for the Claim to be struck out.
Now this may sound quite harsh and maybe over the top, but the Courts are really tightening down on non compliance with the CPR. Indeed LJ Dyson made it clear that the rules must be complied with (see here http://www.litigationfutures.com/new...iance-with-cpr )
There have been many cases, where a party has not complied with the CPR and have suffered the ultimate sanctions as a result.
Cases such as
Venulum Property Investments Ltd v Space Architecture Ltd & Ors [2013] EWHC 1242 (TCC) (22 May 2013)
SC DG Petrol SRL & Ors v Vitol Broking Ltd [2013] EWHC 3920 (Comm) (09 December 2013)
make it clear that relief from sanctions is not something that will be easy to obtain.
so turning back to my point about the CPR and non disclosure under CPR 31.14 etc, well firstly i refer to the judgment of Rix LJ in Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 (11 February 2008)at para 24
The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection
Plainly the above is correct, when a party mentions a document in his claim he must be prepared to allow the opponent the right to inspect that document.
Where a party fails to allow inspection, the disadvantaged party would be more than entitled to apply to the Court and ask for either an order allowing inspection by 4pm on a date which should be no more than 7 days in the future or it may well be open for the Defendant to apply to have the case struck out . Certainly post Mitchell the Courts will not tolerate failures, but that also goes the other way, Defendants who lodge crappy defences which have little or no merit are likely to also be open to strike out applications by Claimants.
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