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Civil Procedure

Civil Procedure. Part 36 Allocation. Part 36. Payments by Defendant will specify – what part of the claim it relates to whether or not it takes account of any interest, counterclaims or interim payments that the Claimant has 21 days to accept it Then serves the notice on the Claimant

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Civil Procedure

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  1. Civil Procedure Part 36 Allocation

  2. Part 36 • Payments by Defendant • will specify – • what part of the claim it relates to • whether or not it takes account of any interest, counterclaims or interim payments • that the Claimant has 21 days to accept it • Then serves the notice on the Claimant • If the Claimant accepts the payment he will notify the Defendant and claim the money out of court. The claim will then come to an end.

  3. Part 36 • Refusal • If the Claimant wins but is awarded less in damages than the amount of the Part 36 payment then the court will make a split costs order • This means that the Defendant will pay damages and the Claimant’s costs up to the last date that the payment could have been accepted • But the Claimant will have to pay the Defendant’s costs from this date

  4. Part 36 • By Claimant • In writing • specify – what part of the claim it relates to • whether or not it takes account of any interest, counterclaims or interim payments • that the Defendant has 21 days to accept it (if it is made not less than 21 days before the trial)

  5. Part 36 • The Claimant wins and is awarded more than his own Part 36 offer • Defendant may be penalised for not bringing the matter to an end earlier than he should have • This may take the form of the defendant having to pay additional interest or a costs sanction

  6. Bases of assessing costs • Standard basis of assessing costs – • only costs which have been proportionately incurred can be recovered • any doubt as to an item of costs is to be resolved in favour of the party who is paying • Indemnity basis of assessing costs – • No rule as to proportionality • Any doubt resolved in favour of the party who is receiving

  7. Allocation • fast track, small claims track, multi track • allocation questionnaire (Form N150) • Information given in PD262.2, • parties should co-operate in completing the allocation questionnaire (PD26.2.3) • served when the defendant/last defendant files a defence 26.3(2) • “return day” at least 14 days after service (26.3(6). cannot be varied by agreement (26.3(7).

  8. Consequence of not filing an allocation questionnaire • Neither party – PD 26.2.5 – 3 days or the claim will be struck out. • only one party: (a) allocate on the basis of the questionnaire filed; or (b) order an allocation hearing and make the party in default pay costs • court could also order an allocation hearing of its own motion (26.5(4)) • 7 days notice (PD 26.6.2)

  9. Small Claims Track • financial value of not more than £5,000 • PI claim = not more than £1,000 • Rules in CPR 27 • hearings “will be informal” (27.8(2)) – lay representatives available (PD27.3) • generally no costs awarded on the small claims track (27.14(2)) other than: • fixed costs on commencement (see Table 1 in Part 45) allocation fee if paid; • witness expenses or lost earnings; • costs “to be paid by a party who has behaved unreasonably” (27.14(2) (d))

  10. “unreasonable behaviour” • Martin v Sherwood (9/6/95) • Hayes v Airtour Holidays Ltd (costs) [2001] CL 436 • Snow v Price CC [2003] CL March 59

  11. Fast Track • Cases • - for which the small claims track is not the normal track and which have a financial value of not more then £15,000 • - where the trial is likely to last no longer than one day (could order a split trial PD26.9.1(c) • - where oral expert evidence is limited to one expert per party per field and no more than 2 fields • governed by CPR 28 • standard directions designed to progress matters to trial in 30 weeks (PD 28.3.12 and the appendix to PD28) – these can be varied.

  12. Multi Track • Governed by CPR 29 • Claims for which the other tracks are not the normal track (26.6(7)) • case management conference or pre-trial review or both to (29.2(1)) • parties should co-operate • “prospective costs cap order” – see Leigh v Michelin Tyre plc [2004] 1 WLR 846 and White Book commentary at 3.1.8 • Directions may be varied • PD29.7.4(6) – same on the fast track (PD 28.5.4(1))

  13. Pre-Trial Checklists • N170/N171 sent out no later than 2 weeks before return date • Although the parties don’t have to exchange them it is good practice to (PD28.6.1(4), PD29.8.1(5)). • Part 28.5(3) • (3) If no party files – struck out within 7 days • (4) if only one party files/incomplete info is given: • the court may give such directions as it thinks appropriate • CPR 29.6(3) says something similar.

  14. “The Normal Track” • CPR 26.8; • (a) the financial value • (b) the nature of the remedy sought • (c) the likely complexity of the facts, law or evidence; • (d) the number of parties or likely parties; • (e) the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it; (claims value not aggregated – (PD26.7.7) • (f) oral evidence which may be required; • (g) the importance of the claim to persons who are not parties to the proceedings; • (h) the views expressed by the parties; and (court not bound by their common views) • (i) the circumstances of the parties

  15. “The Normal Track” • (2) the court will disregard • (a) any amount not in dispute; • (b) any claim for interest; • (c) costs; • (d) any contributory negligence.

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