CIVIL ADVOCACY: A PRACTICAL GUIDE

C PCavendish Publishing Limited

London Sydney

CIVIL ADVOCACY: A PRACTICAL GUIDE

Charles Foster, Jacqueline Gilliatt, Charles Bourne and Prashant Popat, practising Barristers in London

C PCavendish Publishing Limited

London Sydney

Second edition first published in Great Britain 2001 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: info@cavendishpublishing.com Website: www.cavendishpublishing.com

Foster, C, Gilliatt, J, Bourne, C and Popat, P 2001 First edition Second edition 1997 2001

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher.

British Library Cataloguing in Publication Data Civil advocacy : a practical guide 2nd ed 1 Civil procedure England 2 Civil procedure Wales 3 Representation in administrative proceedings England 4 Representation in administrative proceedings Wales I Foster, Charles 347.4'2'052 ISBN 1 85941 562 8 Printed and bound in Great Britain

Preface

Advocacy is easily the most exciting way to pay the gas bills. And like everything else which is exciting, colourful, and worthwhile, it is under severe pressure. That pressure has intensied since the rst edition of this book was published. The Civil Procedure Rules do their best to stop cases coming to court in the first place, and then muzzle advocates whose cases do slip through the net. Exciting though it can be, advocacy is not what it was. Even if an FE Smith could grow up in our sound-bite culture, he would not be allowed to make memorable speeches. He would spend his evenings drafting counter-schedules rather than coining aphorisms. He would be much more of an accountant than he was happy being. This book, although it believes passionately that there is a great future for oral advocacy, regretfully acknowledges that it is a dowdier profession than it used to be. The book does not give advice on how to dazzle posterity; it does advise you to get the train to court rather than driving. Of course advocacy is a practical profession. You cannot learn it from a book. You need to go and do it. But you can learn from a book how to avoid the worst humiliations that advocacy has to offer. Because what an advocate can do is increasingly circumscribed by a lot of procedural rules, there is a bit of law in the book. But it is not intended to be a substitute for proper law books. If you leave them at home and rely on the summaries here, you will be negligent. Several members of the Bar have been enormously helpful in the preparation of the second edition. But any mistakes which remain are mine. Malcolm Chisholm, of One Garden Court, took charge of the Family Law chapter, and it wrecked his holiday. From 6 Pump Court, Mark Friston did the Costs chapter, Roger Mallalieu looked after Land Law, and Katie Gollop put me right on lots of things to do with Employment Law. The law is (more or less) as it was in July 2001. Charles Foster, Temple, London EC4

ContentsPreface Table of cases Table of statutes Table of statutory instruments Table of practice directions and notes 1 v xi xiii xv xvii

Travelling and arriving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 The destination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 How to get there . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 On arrival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 Other practicalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Courtroom basics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 Inside the courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 Advocacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Personal presentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 The facts of the case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 The judge/tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 The case papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 Purpose of hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Interim applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Interim applications: general principles . . . . . . . . . . . . . . . . . . . .17 Summary judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23 Interim injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Case management conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Adjournments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

2

3

viii

CIVIL ADVOCACY

4

The trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Preliminaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 Opening speeches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38 Evidence in general: CPR Part 32.1 . . . . . . . . . . . . . . . . . . . . . . . . .39 Examination-in-chief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Cross-examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44 Re-examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Closing speeches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Judgment and afterwards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50 The small claims track . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Family law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Domestic violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62 Ancillary relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72 Children Act applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73 Private law orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81 Care proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .87 Contempt of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Civil contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 What if? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95 Land law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Possession actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Special cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108 Mortgage possession actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115 Unfair dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125 Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 Winding-up petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133 Personal bankruptcy petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . .133 Setting aside the statutory demand . . . . . . . . . . . . . . . . . . . . . . .135

5

6

7

8

9

CONTENTS

ix

10 Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139 Need . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140 Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140 Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141 11 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 When is permission to appeal required? . . . . . . . . . . . . . . . . . . .147 Who do you get permission from? . . . . . . . . . . . . . . . . . . . . . . . .147 The test for permission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 The ambit of appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 Which court hears the appeal? . . . . . . . . . . . . . . . . . . . . . . . . . . .149 In private or in open court? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149 The documents necessary for the appeal . . . . . . . . . . . . . . . . . . .150 What if ...? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152 12 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155 Possible costs orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156 Bases of assessment: the standard basis and the indemnity basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 Assessment of the quantum of the costs . . . . . . . . . . . . . . . . . . .159 Index 163

Table of cases

A & B (Minors) (No 2), Re [1995] 1 FLR 351 . . . . . . . . . . . . . . . . . . . . .87 American Cyanamid v Ethicon [1975] AC 396 . . . . . . . . . . . . . . . . . .28 Ashley Guarantee plc v Zacaria [1993] 1 All ER 254 . . . . . . . . . . . . .112 B (Minors) (Contact), Re [1994] 2 FLR 1 . . . . . . . . . . . . . . . . . . . . . . . .78 Barclays Bank v OBrien [1993] 4 All ER 417 . . . . . . . . . . . . . . . . . . .112 Barrett v Halifax Building Society [1995] NPC 146 . . . . . . . . . . . . . .111 Burrows v London Borough of Brent [1996] 1 WLR 1448 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Cheltenham and Gloucester Building Society v Kraust [1997] 1 WLR 1558 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111 Greenwich LBC v Regan [1996] 28 HLR 469 . . . . . . . . . . . . . . . . . . . .97 Grobbelaar v Sun Newspapers Ltd (1999) The Times, 12 August . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40 Hampshire County Council v S [1993] Fam 158 . . . . . . . . . . . . . . . . .84 Hackney London Borough Council v Porter (1997) 29 HLR 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Midland Bank Plc v McGrath [1996] EGCS 61 . . . . . . . . . . . . . . . . . .112 Palk v Mortgage Services Funding plc [1993] Ch 331 . . . . . . . . . . . .111 Smith v Cosworth Castings Processes Ltd [1997] 1 WLR 1538 . . .148 Target Home Loans Ltd v Clothier [1994] 1 All ER 439 . . . . . . . . . .111 TB (Care Proceedings: Criminal Trial), Re [1995] 2 FLR 801 . . . . . . .87 Thompson v Elmbridge Borough Council [1987] 1 WLR 1425 . . . . .97 Tweeds Garages Ltd, Re [1962] Ch 406 . . . . . . . . . . . . . . . . . . . . . . . .128 Wright v Jess [1987] 2 All ER 1067 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95

Table of statutes

Administration of Justice Act 1970 . . . . . . . . . . . . . .113 s 36 . . . . . . . . . . . . . . . . . . .110 Administration of Justice Act 1973 s 8 . . . . . . . . . . . . . . . . . . . .110 Child Abduction and Custody Act 1985 . . . . . . .56 Children Act 1989 . . . .55, 56, 57, 62, 65, 73, 77, 81, 87, 88 s 1 . . . . . . . . . . . . . . . . . . . . .73 s 1(5) . . . . . . . . . . . . . . . . . .75 s 3 . . . . . . . . . . . . . . . . . . . . .75 s 3(1) . . . . . . . . . . . . . . . . . .75 s 4 . . . . . . . . . . . . . . . . . . . . .75 s 8 . . . . . . . .56, 73, 74, 75, 76 s 8(4) . . . . . . . . . . . . . . . . . .75 s 9 . . . . . . . . . . . . . . . . . . . . .75 s 11(3) . . . . . . . . . . . . . . . . .76 s 25 . . . . . . . . . . . . . . . . . . .147 s 31 . . . . . . . . . . . . . . . . . . . .82 s 31(5) . . . . . . . . . . . . . . . . .82 s 31(10) . . . . . . . . . . . . . . . .82 s 33 . . . . . . . . . . . . . . . . . . . .83 s 34 . . . . . . . . . . . . . . . . . . . .82 s 35 . . . . . . . . . . . . . . . . . . . .83 s 34(11) . . . . . . . . . . . . . . . .82 s 36 . . . . . . . . . . . . . . . . . . . .82 s 37 . . . . . . . . . . . . . . . . .83, 84 s 37(1) . . . . . . . . . . . . . . . . .83 s 43 . . . . . . . . . . . . . . . . . . . .82 s 44 . . . . . . . . . . . . . . . . . . . .82 Sched 1 . . . . . . . . . . . . . . . .65

Child Support Act 1993 . . . . .65 Civil Evidence Act 1968 s 2 . . . . . . . . . . . . . . . . . . . .109 County Courts Act 1984 s 21 . . . . . . . . . . . . . . . . . . .110 s 38 56, 57 Domestic Proceedings and Magistrates Courts Act 1978 . . . . . . . . . . . .55, 57 Domestic Violence and Matrimonial Proceedings Act 1976 . . . . . . . . . . . . . . . .56, 57 s 16(1) . . . . . . . . . . . . . . . . .57 s 16(2) . . . . . . . . . . . . . . . . .57 s 16(3) . . . . . . . . . . . . . . . . .57 s 16(9) . . . . . . . . . . . . . . . . .58 s 16(10) . . . . . . . . . . . . . . . .57 Employment Rights Act 1996 . . . . . . . . . . . . . .115 s 86(1) . . . . . . . . . . . . . . . .116 s 97(1) . . . . . . . . . . . . . . . .117 s 118 . . . . . . . . . . . . . . . . . .118 s 123(6) . . . . . . . . . . . . . . .`118 s 123 ff . . . . . . . . . . . . . . . .118 s 125 . . . . . . . . . . . . . . . . . .119 s 135 . . . . . . . . . . . . . . . . . .116 Part XI . . . . . . . . . . . . . . . .116 Equal Pay Act 1970 . . . . . . . .115 Family Law Act 1986 . . . .55, 56, 59, 60, 62

xiv

CIVIL ADVOCACY

Housing Act 1980 s 89 . . . . . . . . . . . .97, 104, 105 Housing Act 1985 . . . . . .99, 100 Sched 1 . . . . . . . . . . . . . . .109 Housing Act 1988 . .99, 100, 101 s 20 . . . . . . . . . . .101, 102, 110 Sched 2 para 8 . . . . . . . . .102 Housing Act 1996 . . . . . . . . . .99 s 144 . . . . . . . . . . . . . . . . . . .54 s 148 . . . . . . . . . . . . . . . . . . .54 Insolvency Act 1986 . . . . . . . .127 s 117 . . . . . . . . . . . . . . . . . .127 s 122(1) . . . . . . . . . . . . . . .127 s 122(1)(f) . . . . . . . . . . . . .127 s 264 . . . . . . . . . . . . . . . . . .133 Landlord and Tenant Act 1954 s 25 . . . . . . . . . . . . . . . . . . .100 Part II . . . . . . . . . . . . . . . .100 Licensing Act 1964 . . . . . . . . .139

Matrimonial Causes Act 1973 . . . . . . . . . . . . . . .65 ss 2324 . . . . . . . . . . . . . . . .65 Matrimonial Homes Act 1983 . . . . . . . . . . . . . . .56 s 1(2) . . . . . . . . . . . . . . . . . .56 Protection from Eviction Act 1977 . . . . . . . . . . . . . . .99 Race Relations Act 1976 . . . .115 Rent Act 1977 . . . . . . . . . .99, 100 Sex Discrimination Act 1975 . . . . . . . . . . . . . .115 Supreme Court Act 1981 s 37 . . . . . . . . . . . . . . . . .56, 57

Table of statutory instruments

Children (Allocation of Proceedings) Order 1991 . . . . . . . . . . . . .76, 84 Civil Procedure Rules 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155 r 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 r 1.1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155 r 36.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 r 36.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 r 44.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155 r 25.1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Part 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32 Part 2.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 Part 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Part 3.1(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15, 31 Part 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Part 3.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Part 6.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Part 6.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Part 8.9(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105 Part 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100 Part 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 Part 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Part 24.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Part 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 24 Part 25.3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Part 26.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Part 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Part 27.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159 Part 27.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Part 27.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51 Part 29.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 Part 32.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39 Part 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109 Part 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 Part 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149 Part 39.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 6 Parts 4448 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135

xvi

CIVIL ADVOCACY

Civil Procedure Rules 1998 (Contd) Part 44.4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158 Part 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160 Part 47.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Part 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97, 147, 150 Part 52.3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 Part 52.3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147 Part 52.3(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 Part 52.3(6)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 Part 52.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148 County Court Rules Ord 6 r 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98 Ord 6 r 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110 Ord 6 r 55a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110 Ord 24 (RSC Ord 113) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106, 107 Ord 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Ord 29 r 1(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Ord 29 r 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Ord 29 r 1(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90 Ord 29 r 1(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90, 91 Ord 37.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97 Ord 38 Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105 Family Proceedings Courts (Children Act 1989) Rules 1991 . . . . . . . . . . . . . . . . . . . . . . . . .66, 74 Family Proceedings Courts (Matrimonial Proceedings) Rules 1991 . . . . . . . . . . . . . . . . . . . . .66 Family Proceedings Rules 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . .66, 74 Industrial Tribunals Extension of Jurisdiction Order 1994 . . . . . . .115 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115 Insolvency Rules 198673 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 Part 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127 Part 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133 Part 6.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133 Part 6.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Part 6(5)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 Rules of the Supreme Court Ord 17 r 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Ord 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 Social Security (Claims and Payments) Regulations 1987 Sched 9 para 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104

Table of practice directions and notes

Practice Direction (Allocation of Cases to Levels of Judiciary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Practice Direction (Interim Injunctions: Forms) [1996] 1 WLR 1551 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26 para 4.3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Practice Note [1978] 2 All ER 1056 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54 Practice Note [1987] 1 WLR 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133 Practice Note (Bankruptcy: Statutory Demand: Setting Aside) (No 1/87) [1987] 1 WLR 119 . . . . . . . . . . . . . . . . .135 Practice Direction about Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155

1 Travelling and arriving

The destinationFirst check the brief. Look also for any document from the court such as a summons or notice of hearing. They do not always correspond. Avoid common mistakes like confusing Brentwood with Brentford. Be particularly careful about courts with overspill locations or two buildings and with the Inner London Family Proceedings Court which sits all over London from Balham to Marylebone. Keep an eye on court notice boards which will tell you of any impending moves. Check the listed time and check also to see what time you or the client have been asked to arrive. County courts, Crown Courts and magistrates courts on the southeastern and western circuits are listed in The Court Guide by Andrew Goodman (Blackstone), an annual publication which gives the address, phone number, details of facilities, opening times and directions for those travelling by public transport or car. For all other locations of these courts and for High Court Registries, see Shaws Directory of Courts. Unfortunately, this does not give directions. County court addresses are also given at the back of the Green Book. Check with colleagues, ring the court, or solicitors if local.

How to get thereIn general, trains are safer than cars: when they go wrong they are easier to abandon, you do not need to park them, and they usually know where they are going. And, of course, the journey gives you time to read through the case papers (again). Always check train times from an up-to-date British Rail ABC Guide. If it is your rst time to a particular court (and even if it is not), it is a

Notes:

2

CIVIL ADVOCACY

good rule to take the train before the one you think you need, where practicable. If you can afford it, it also makes sense to take a taxi until you know your way around. Next time it is up to you! Arrive in plenty of time to find your way around the court building and to get through the checklist in the next section. Allow at least 30 minutes before the hearing.

On arrivalOn arrival, this basic approach is recommended to start you off. Look at the list. Note the name of the judge or other presiding officer, the court number and the number or position in the list. See whether you are in open court or chambers. Make a mental note of the names of cases before and after you (you will hear them being called out). Go to the advocates room if there is one. You may need a security code to get in, which you will normally get from the usher or the security guard. Robe, if necessary, and collect together what you need, ie case papers and books. Leave the rest of your possessions except valuables. There is a traditional view that advocates are not expected to enter the court carrying briefcases, but this is not always practical. Ask the court staff if there is anywhere else where you can leave your belongings (sometimes you can park them at the back of the court) but be careful not to set off a security alert. Locate the usher (or clerk, etc). Smile! Say who you are and point out which case you are in. The usher may take your name, or send you away, or ask you to ll in a slip. Ask whether the other side have arrived (note the name of their advocate), and whether your client/witnesses are there yet. Ask whether the list is being taken in its written order. If you have a time problem, say so. If you are going to be very quick, say so, you may get on sooner. Do not abuse this. Court staff and other advocates get very annoyed about over-optimistic time estimates and advocates who always expect special treatment. Tell the usher where you will be, eg in a consultation room, in case anything happens.

Notes:

TRAVELLING AND ARRIVING

3

Locate your client and introduce yourself, if necessary. Remember the need to help client/witnesses relax and not worry about the ordeal ahead. Make sure that the client knows what is going to happen in the court room, who will be present, and how they should address the court. If, as is often the case, it looks as if you will all be there for a long time, explain this and nd out whether this causes any problems for the client such as child minding/collecting, signing on for benet, etc and what can be done about it. Make contact with your opponent. Think carefully about what you need to discuss, eg evidence you propose to adduce to which he or she may object, the scope of the dispute, whether a chronology is agreed, whether there are any areas of agreement such as quantum. What else you say to your opponent about your case is difficult to advise on in the abstract. In some situations, for example, you might want to float an idea for compromise with your opponent before taking instructions from your client. You must make it clear whether or not you are speaking with instructions. It may be useful to talk through the basis on which each side is putting their case in general terms so that you know in what order to take things when before the court. Whilst you should avoid the temptation to try to persuade your opponent of the superiority of your case (and do not allow them to bully you either), it is sometimes helpful to suggest points which could assist them in persuading their client to accept a settlement. On other occasions, you may wish to be more circumspect. A great deal may depend on how well you know your opponent and the tribunal. There is a difficult balance to be struck between the modern tendency towards openness and the need to be discreet whilst putting forward the strongest possible case on behalf of your client. Remember that provided you are not making admissions (and you should only make them with the permission of your client), your discussions outside court are confidential and whatever your opponent may have gleaned about your personal condence in your own case cannot be passed on and should not be revealed by your behaviour in the courtroom. It is increasingly common to encounter litigants-in-person as opponents and special care is needed. Try and assess their mood, which will often be very nervous. Explain rst that they do not have to speak to you if they do not want to, but, if appropriate, that there are one or two things which you need to tell them about or documents you need to show them. Emphasise that you are acting for the other side so that you cannot

Notes:

4

CIVIL ADVOCACY

give them legal advice but that you can tell them about procedure in court if there is anything they want to know, such as what to call the judge, and who will be in the courtroom. It may be helpful to nd out whether they have received any legal advice about the case before coming to court and whether they intend to be legally represented in future. After these preliminaries you should be able to judge whether you can go further or whether it would be better to leave matters to the court. Remember that you can always ask the judge to explain things to the litigant or to conrm any points that you have made (such as the effect of giving undertakings). Keep the usher informed of progress; whether you are reaching or have reached an agreement or whether you need extra time to talk. Try and give an accurate estimate of how long your case is going to take once you are ready to go in.

Other practicalitiesYou might need to carry with you: change for phone, tickets, parking meters, coffee machines; mobile phone and/or a BT charge card; spare supplies of notebooks, collar studs, hairgrips, tights; tissues; calculator; highlighter pen; post-it notes for agging pages and documents.

What if ...?You oversleep, get held up or go to the wrong court?If possible, telephone the court and explain, quoting the case number and saying how long you are likely to be; failing that, telephone your clerk/office and ask them to inform the court. What happens then will depend on how late you are. If you can arrive well within office hours, the case is likely to be held up until you arrive. On arrival, make yourself known. Offer fulsome apologies to your client, your opponent, and,

Notes:

TRAVELLING AND ARRIVING

5

when you go into the court, the judge. On the other hand, if you are so late that the case cannot be heard that day, it will be adjourned. Maintain contact with the court until the position is clear; there may be no point in your going to court at all.

You arrive at court but your case is not on any list?Check with the usher as to what is on their list as it is often different from the one pinned up on the board or left with security. If this is fruitless, ask the usher where to go next: this will usually be the court office or enquiry point. Make sure you have the case number with you. If it is a court error, it may be possible to seek compensation from the Lord Chancellors Department. If it is someone elses fault, you may wish to consider whether to charge for your wasted time.

You do not have your robes when you should?Try to borrow some, for example, from someone whose case has just nished. If this is not possible, speak to the usher or clerk who may be able to give you a clue as to the judges likely reaction or may be prepared to ask the judge if he or she will hear you regardless. In court, when you are called upon, stand up and immediately apologise for not being robed (if your opponent would normally open, ask if you can mention it rst). Explain briey why and ask the judge if, in the circumstances, he or she will hear you notwithstanding. If the answer is yes, carry on as normal. Again, in the unlikely event that the answer is no, immediately ask:In the circumstances, would your Honour consent to an adjournment until [such time as you can obtain robes/if no possibility of obtaining robes, to the rst open date].

In the unlikely event of the judge refusing to hear you even to that extent, ask your opponent to request the adjournment for you. If you are robed unnecessarily, simply remove your wig (where applicable) and gown in court. The judge will not mind you wearing neckbands. It is difficult to give definitive guidance about whether a particular hearing will be in open court or in private, despite the provision of CPR Part 39.2 (see below). Matters concerning children and matrimonial nance are likely to be in private, but apart from there, listing officers seem to be creatures of whimsy. CPR Part 39.2 states:

Notes:

6

CIVIL ADVOCACY

(1) The general rule is that a hearing is to be in public. (2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public. (3) A hearing, or any part of it, may be in private if: (a) publicity would defeat the object of the hearing; (b) it involves matters relating to national security; (c) it involves condential information (including information relating to personal nancial matters) and publicity would damage that condentiality; (d) a private hearing is necessary to protect the interests of any child or patient; (e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; (f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased persons estate; or

(g) the court considers this to be necessary in the interests of justice ...

The court refuses to hear you?For example, you are a trainee solicitor in a county court, and the judge believes someone more experienced should have attended. The best you can do is ask for an adjournment to the rst open date. If the judge will not hear you, even for that purpose, again, ask your opponent to assist. If you have no opponent, the judge will simply decide what to do: usually an adjournment.

A vital witness or your client does not turn up?Check, via your office or those instructing you, that the person has been correctly informed of the hearing. Try to have them telephoned. See whether any message has been sent to the court: they may have gone to the wrong building. In a large court building have a good look around

Notes:

TRAVELLING AND ARRIVING

7

or ask for them to be paged. If it is possible to get the person to court fairly quickly, go into court when your case is called, explain and ask for a short adjournment. It is courteous to explain the situation to your opponent beforehand. If there is no prospect of the missing person coming in time for the hearing, ask for an adjournment to the rst open date (preferably having checked that the missing person will have no further availability problem). If it is a witness who is missing, check that your client understands the costs implications of this; they might prefer to go ahead.

You are the instructing solicitor and counsel has not arrived?If you know that counsel is going to attend, but has been delayed, ask the court (either via the usher or in court) for an adjournment until they arrive, explaining, if you can, what the problem is. If you nd out that counsel is not coming or is not likely to get there at a reasonable time, you will have to consider whether you are in a position to conduct the hearing yourself, taking your clients instructions. If you cannot take over, you will have to ask for an adjournment. You will no doubt wish to consider who should be responsible for any costs incurred after the hearing!

The instructing solicitor has not arrived?Strictly speaking, when counsel has been briefed the instructing solicitor should attend unless it has been specifically agreed otherwise. First, nd out whether the solicitor is expected to attend. If not, then you can go ahead, unless you feel you really need to have them there for some reason. If you discover they are expected then you should ask the court to delay the hearing until they arrive; they are your clients as much as the lay client and you should not proceed without their instructions. If the court is keen to go ahead before they arrive, you will have to use your common sense and judgment, depending on the facts of the case, how fully briefed you are, how well you know the solicitor and so on. In many cases, the solicitor is more likely to want to avoid wasting costs and will prefer that you go ahead. You may be able to get authority for this from someone else in the rm by telephone.

Notes:

8

CIVIL ADVOCACY

The other side doesnt turn up?There may be excellent reasons for this. You have no duty to make enquiries, unless you are asked to do so by the court. However, check who was supposed to serve them with notice; this can be particularly confusing in family proceedings. The court will probably want to know about relevant correspondence and telephone conversations with the other side. Otherwise, you are perfectly entitled to, and should, proceed with your application (or ask for the other sides application to be dismissed) in the absence of opposition. Needless to say, you are likely to win (although, if you were expecting them to turn up, the court may very well give them the benefit of the doubt). However, beware any procedural shortcomings in the preparation of your case. Without anyone to take issue, the court may take it upon itself to police such points with vigilance. Be prepared to explain why such a course will not result in injustice. Explain yourself in terms of the CPR overriding objective. Remember too that the court has power to, and is often very ready to, set aside a judgement which is entered in the absence of a party. You should ensure that your client is aware that it is not necessarily the end of the matter.

Notes:

2 Courtroom basics

Inside the courtroomCourtrooms are not as intimidating and formal as they once were. However, there are a few golden rules which, if you observe them, should mean that you do not upset your tribunal before you even open your mouth! On entering or leaving any court sitting in open court (but not, in general, tribunals), bow to whomever is presiding over the court. If the court has a bar in front of which only lawyers go, bow on entering this area. Otherwise bow near the door of the court, at a point where you are visible to the judge. It need not be a deep bow and tends to become merely a nod. However, it is polite to make it a clear gesture from a stationary position, as opposed to letting it simply merge into your progress to or from the door. Once in court, try to sit in the right place. In the High Court and Crown Court (and any higher courts), the front main bench, with lecterns, is reserved for QCs (in the Royal Courts of Justice and in a few places outside London, the very front bench, in front of which there is no table, may be occupied by solicitors). Junior counsel should not sit here, even in a crowded court, unless invited by the judge. The next row is for junior counsel. The row after that is for solicitors. These rules are often applied quite strictly. In a county court or magistrates court, the front bench is for counsel, and the second is for solicitors and parties. The actual practice in these courts is much more exible, especially when they are crowded. Often advocates move to the front row when the time comes for them to address the court. In general, in civil cases (open court and in private), the claimant sits on the judges right (your left). In practice, it may depend on

Notes:

10

CIVIL ADVOCACY

the layout of the court. An usher may tell you where to go, or there may be witness boxes marked Claimant (or more likely, since few courts have caught up with the CPR, Plaintiff) and Defendant, in which case you should sit nearer the applicable one. It is quite all right to move around the courtroom and communicate in whispers with other people (but try not to walk between the judge and the advocates bench). It is often necessary to keep the usher or court clerk updated about developments which may affect the hearing of your case, eg by passing a note. It is not unusual for one advocate to ask to consult a book which another has with him or her. During the hearing of your case, you are free to communicate sotto voce with your opponent, to prompt him as to, say, a name which he is struggling to remember, or to correct a fundamental error which he makes in opening and which might mislead a judge. NB: There is one important exception to the principle that you may move around and talk in court. Whenever someone is taking an oath, you should freeze, and motion to your client to stop talking.

A judge should not be left alone in open court. The last advocate in court should wait for the judge to leave or for the judge to say that it is in order for the advocate to leave. In theory, the same applies in magistrates courts, though many magistrates will not insist on it.

AdvocacyIt has been said that the medium is the message. This may seem to conict with the principle that the point of any court hearing is to ensure that justice is done and that it is seen to be done. However, the job of the advocate is to persuade the tribunal to see things from their clients point of view. It is hoped that some of what follows will help you to do that or at the very least prevent you from obscuring your message.

Personal presentation Even if you do not feel confident, act as if you are you may be surprised how much better this will make you feel. Dont forget that your opponent will not necessarily be as aware of the shortcomings in your case as you are.

Notes:

COURTROOM BASICS

11

However, think through the opposing arguments so that you can deal with them. Identify any irritating mannerisms (eg moving about, ddling with jewellery), you might have and make an effort to eliminate them ask friends and colleagues or watch other people and consider whether you do anything similar. Watch the judges pen as you are speaking and make sure he or she has time to note down what you are saying. Always be polite: even if you think the judge is completely wrong, it should never show apologise, say please, suggest there are other matters which should be taken into account; do whatever it takes to be courteous. Do not express your personal opinions unless specically invited to do so: do not say I think or in my opinion. You must submit or contend or say it was the opinion of the court in that case. As John Mortimer put it: Detachment is all: what is to be aimed at is the state of lucid indifference (Clinging to the Wreckage, 1983, Penguin). Be very careful with your use of the expression my instructions are or I am instructed. If, for example, it is said to contrast your instructions with that of your opponent (My opponents case is that there was no damage to the car after the collision, whereas my instructions are that the front bumper was dented and hanging down), it may be acceptable. However, it can distance you from your client in a way which suggests you do not believe them. Do not make excuses for defects in your case; apologise and ask the court to waive any defect if it has the power to do so pointing out, if you can, why the other side is not prejudiced. For example, if the pleadings are incomplete but the basis of the case is clear from the correspondence, this does not excuse the defect in the pleadings, but it might be good enough to persuade the court to exercise a discretion. Check whether you need to be robed (set out in the following chapters). Some judges still expect robes to be carried everywhere just in case but, fortunately, they are rare. In general, robes are not required in the magistrates courts, tribunals or at hearings in private, but robes are required at all other open court hearings. Check how you should address the court (see Table below).

Notes:

12

CIVIL ADVOCACY

Modes of address: summary Officer High Court judges, any other judge in High Court, Court of Appeal or House of Lords, circuit judges in the Old Bailey Circuit judges in other courts, recorders in Crown/ county court Masters District judges, magistrates, tribunal chairpersons, coroners ... Justices clerks Direct My Lord/Lady Indirect Your Lordship/ Ladyship

Your Honour

Your Honour

Master Sir/Madam

You You (and your colleagues) Your learned clerk, You

Sir/Madam

The facts of the caseMake a list of the basic facts: names, dates, places and statements/affidavits. If possible, in the time, type out a chronology, cross reference to documents and so on. It is also increasingly common for courts to expect written skeletons, even in relatively simple cases. Use schedules to deal with complex figures. Chronologies should be as neutral as possible and state facts, not make comments. Try to get your opponents agreement to the contents. Even if it is not completely agreed, it may be useful to hand it to the judge and ask him or her to note any disputed areas.

The judge/tribunalKnow your judge: ask colleagues and others at court what the judge is like if you are in front of someone you do not know. Some judges are much more technically minded than others and will spot procedural defects immediately. It is better to deal with these straightaway, apologise

Notes:

COURTROOM BASICS

13

and ask the court to overlook them. Many defects can be got round. We will deal with this in more detail in later chapters. Find out how much the judge knows about the case and/or area of law before you begin speaking. If you think the judge is familiar with the law, for example, the main case on interim injunctions, it will usually be sufficient to refer to the main phrase used in the case, eg balance of convenience, rather than citing the case reference and full facts. You must be prepared to deal in detail with the law, if asked. A recorder, for example, may not have seen a perfectly ordinary running down action for some time. If there is time before your case is called on and the court is in open session, spend a few minutes watching the tribunal: this may alert you to any peculiar local practices or foibles of the tribunal. It may also remind you of a vital question to check with your client.

The case papersAlways check the papers in your instructions as soon as you get them and ask for anything that is missing or check that it will be available at court and/or has been led with the court. Check for obvious procedural defects. Is there, for example, the necessary proof of service? Check whether the judge has the le! It is quite common for the judge to have nothing at all or to have all the old papers but nothing relating to your particular application. Check that he or she has the key statements. Statements verifying service have a particular habit of going missing as they tend to be led very shortly before the hearing. Check whether there is any new material to be filed, in particular, statements in relation to service. Get hold of any forms you need from the office before going into court, eg undertakings forms, order forms, etc.

WitnessesWhen thinking about questions to put to witnesses, rst remember to identify the answer you want to obtain.

Notes:

14

CIVIL ADVOCACY

Check whether a question is leading, ie a question which suggests a particular answer. These are impermissible with your own witnesses. Identify areas to explore with witnesses which are not covered by your instructions or statements and try and get answers before you go into court. Check which witnesses you can speak to. For barristers, this point is dealt with in the Code of Conduct at paragraph 607. In a case where witness statements have been led, try to think of a few introductory questions so that the witness is not thrown in cold to the mercy of your opponents cross-examination. Even in fairly simple cases, a limited examination-in-chief will usually be allowed by the judge. Check whether sufficient time has been allowed for any pre-trial conference. Check that the witness has read over his own statement and any other relevant material before he or she goes into court and specically whether there are any inaccuracies. Check whether the witness has any court experience and, if relevant, any criminal convictions. Do not thank witnesses for answers given in court. This is irritating and wastes time. Also, avoid repeating the last few words of an answer unless you can use them as part of the next question. Do not comment obviously on the witnesss answers; turn the comment into a question. Do not ask the witness to speculate, eg Why do you think he or she did that? (unless you know the witness formed a signicant opinion from what he or she saw or heard). If necessary, ask whether the other person gave any explanation for their actions or statements.

Purpose of hearingIt might seem too obvious for words, but think about the purpose. It is surprising how often this is not clear from the instructions, particularly if the instructions have come to you from a colleague, with little or no update. Clients do not always want what you expect them to want. Make sure you know where the court gets the power to do whatever you or the other side is asking them to do.

Notes:

COURTROOM BASICS

15

Consider whether the hearing can be effective. If you do not think it can, consider what can be salvaged. Remember that even if a hearing is non-effective there may be directions which will progress matters and you may have to deal with costs. In the brave new post-Woolf world, the court is increasingly demanding about keeping to timetables and advocates will have to work harder to persuade the court of the necessity of adjournments especially if they are to avoid sanctions being imposed. Try to anticipate typical problems, eg requests for adjournments, amendments and so on. Check the appeal provisions, or at least know where they are, so that you know how long you have got to think about appealing and whether you need permission.

What if ... ?On arrival at court you realise that there is a procedural aw in your case?The philosophy of the CPR is to discourage the taking of technical, procedural points. CPR Part 3.1 gives the court a number of specific powers to manage cases, which include (3.1(2)(a)) a power to extend or shorten the time for compliance with any rule, practice direction or court order [even if an application for extension is made after the time for compliance has expired]. Failure (without good reason) to comply with a rule, practice direction or pre-action protocol may (but rarely does) result in the court ordering the offending party to pay a sum of money into court. CPR Part 3.10 is crucially important. It states: When there has been an error of procedure such as a failure to comply with a rule or practice direction, (a) the error does not invalidate any step taken in the proceedings unless the court so orders; and (b) the court may make an order to remedy the error. What this boils down to is that the court will bend over backwards to stop technical mistakes torpedoing an action or an application or necessitating an adjournment. The court will try to ensure fairness. If a technical mistake has resulted in prejudice to the non-offending party, the court is likely to prevent

Notes:

16

CIVIL ADVOCACY

the defaulter taking advantage of the mistake. If it has resulted in no prejudice, the court is likely to overlook the mistake if possible and cure it if necessary. If you do not have a copy of the CPR or other relevant text with you, you may be able to borrow one from someone else at court. Some courts have a library facility.

The judge has no papers?If the le cannot be found at all, you will have to see whether between you and your opponent you can come up with enough spare copies for the judge. Most courts have photocopying facilities but these are often scandalously expensive (1 a page) so you may be better off in a local copy shop if there is one.

The other side has not been served?If this is the responsibility of your team, you may have to explain rstly, what went wrong with service and secondly, why the court was not notied and the hearing vacated. You will probably have to ask for an adjournment or make an application for service by an alternative method: see CPR Part 6.8.

Notes:

3 Interim applications

Interim applications are Lord Woolfs (and almost nobody elses) description of interlocutory applications applications made after the issue of a claim form (and sometimes before issue) but before trial. This chapter outlines the legal mechanics of interim applications generally (insofar as it is possible to generalise), and then looks in more detail at three important examples of interim applications: applications for summary judgment, applications for interim injunctions and case management conferences. It concludes by considering applications for adjournments, the principles of which apply just as much to trials as they do to interim stages.

Interim applications: general principlesThere is no way out of it: you have to know your way around CPR Part 23, which is headed General rules about applications for court orders. It is supplemented by a Practice Direction, a large part of which just repeats the rules in Part 23. Generally, if somebody wants the court to make an order, he must le an application notice with the appropriate court. That notice must state what order the applicant seeks and briey why he seeks it. When the applicant receives from the court a time and date for the hearing, he must serve on each respondent a copy of the notice together with any supporting evidence which did not accompany the notice, and a draft order. The application notice must be served on each respondent as soon as practicable and in any event at least 3 days before the court is to deal with the issue (unless the court exercises its power to order a different period of time). If an applicant or respondent fails to attend the hearing of an application, the court can proceed in his absence. If a respondent is not served with the notice before an order is made, he can apply to have the order set aside or varied.

Notes:

18

CIVIL ADVOCACY

The court may order that an application or part of an application is dealt with by a telephone hearing. This power is under-used, but increasingly used, and details of the procedure for telephone hearings are set out in CPR 23 PD 4. Interim remedies have their own part of the CPR: Part 25, which is headed Interim remedies and security for costs. Rule 25.1(1) is an attempt to list all the available interim remedies, but the draftsman, admitting his lack of condence in himself, has put in a general traverse at 25.1(3): The fact that a particular kind of interim remedy is not [in the list] does not affect any power that the court may have to grant that remedy. Of course the law relating to interim remedies has to be read alongside the rest of the CPR. Just like everything else, they are subject to the overriding objective in r 1.1. In the High Court, most short applications for interim remedies are heard by a master (in the Royal Courts of Justice) or a district judge (in a district registry). The jurisdiction of masters and district judges in relation to interim remedies is not unlimited: It is defined in Practice Direction (Allocation of Cases to Levels of Judiciary). The most important provisions relating to the High Court are as follows: (a) search orders, freezing orders and orders authorising a person to enter land to recover, inspect or sample property can only be made by a judge; (b) injunctions and orders relating to injunctions can only be made by a judge, except that masters and district judges may grant injunctions: (a) in terms agreed by the parties (b) in connection with or ancillary to a charging order (c) in connection with or ancillary to an order appointing a receiver by way of equitable execution (d) in relation to proceedings restraining a person from receiving a sum due from the Crown: see RSC Ord 17 r 16. Masters and district judges can make orders varying or discharging an injunction or an undertaking given to the court if all parties to the proceedings have consented to the variation or discharge. Masters and district judges cannot make orders or grant interim remedies:

Notes:

INTERIM APPLICATIONS

19

(a) relating to the liberty of the subject; (b) relating to criminal proceedings or matters except procedural applications in appeals to the High Court; (c) relating to a claim for judicial review (except that interim applications in claims for judicial review can be made to masters of the Queens Bench Division; (d) relating to appeals from masters or district judges; (e) in appeals against costs assessments under Parts 43-48, except on an appeal under rule 47.20 against the decision of an authorised court officer; (f) in any application for permission to start or continue proceedings which is made a person subject to a vexatious litigant order. An important caveat is that, subject to any direction given by the President of the Family Division, district judges have jurisdiction to hear family proceedings and any proceedings in the Family Division except to the extent to which those proceedings can be dealt with in the Chancery Division or the Family Division. There is a long list of things which go on in the Chancery Division which masters and district judges cannot do: see the Practice Direction at 5.1. In the county court, injunctions which the court has jurisdiction to make can only be made by a circuit judge except: where the injunction is to be made in proceedings which the district judge otherwise has jurisdiction to hear; where the injunction is sought in a money claim which has not yet been allocated to a track, where the amount claimed does not exceed the fast track nancial limit. District judges in the county court cannot make an order committing someone to prison unless an enactment specically authorises it, or any order relating to an appeal from a district judge, or any order in an appeal against costs assessments under Parts 4348, (except on an appeal under rule 47.20 against the decision of an authorised court officer). By CPR 23 PD.1, a master or district judge may refer to a judge any matter which he thinks should properly be decided by a judge, and the judge to whom the matter is referred may either dispose of it himself or refer it back to the master or district judge.

Notes:

20

CIVIL ADVOCACY

Summary judgmentThe CPR radically re-write the law relating to summary judgment. The provisions are in Part 24 and the associated Practice Direction. Part 24.2 provides that the court may give summary judgment against either a claimant or defendant (previously only a claimant could obtain summary judgment) on the whole of a claim or on a particular issue if:(a) it considers that: (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.

Note the interplay with Part 3.4, which allows the court to strike out a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim. An applicant for summary judgment cannot rely on oral evidence unless the court so permits, and in practice the court will only very rarely permit it. Generally the applicant relies on written evidence in the claim form, the statement of case, the application notice or in witness statements. The application notice or the evidence annexed to or referred to in it has to set out concisely any point of law or provision in a document upon which the applicant relies and/or 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/defending the claim/issue, and in any event that the applicant knows of no other reason why the claim or issue should be tried. A respondent to an application for summary judgment should le and serve on every other party to the application any written evidence upon which he intends to rely at least 7 days before the hearing, and evidence in reply to that must be filed and served on the respondent at least 3 days before the hearing. The possible orders are: (a) judgment on the claim or issue; (b) striking out or dismissal of the claim or issue;

Notes:

INTERIM APPLICATIONS

21

(c) dismissal of the application; (d) a conditional order (if it appears to the court that it is possible but improbable that a claim, defence or issue might succeed), requiring a party to pay a sum of money into court or to take a specied step in relation to the claim or defence, failing which payment or step the partys claim or defence will be dismissed or the statement of case struck out. (e) an order dealing with costs (eg an order for costs to be assessed summarily or by way of detailed assessment).

The applicationWhere? High Court/county court Who? Master/district judge/judge Robes? No

PreliminariesIf appearing for the applicant, make sure that the evidence in, annexed to or referred to in the application notice, sets out the relevant facts and explains why there is no real prospect of succeeding on the claim or issue/successfully defending the claim, and asserts that there is no other reason why the claim/issue should be tried. If acting for the respondent, consider how you can say with a straight face that you have a real prospect of defending, or what compelling reasons can be put forward for a trial. Is there a dispute on the facts? Is it necessary for disclosure to take place before you can fully consider the strength of the defence? Is it necessary to contact an important witness who could assist with the defence? Note that the Practice Direction notes that an application for summary judgment may be based on a point of law or the evidence which can reasonably be expected to be available at trial, or the lack of it.

Hearing(Defended application before a master in the High Court.) The hearing will take place in the masters room. Parties will be seated. Advocates should sit at the desk closest to the masters desk. Begin by introducing the parties, nature of application and documents.

Notes:

22

CIVIL ADVOCACY

May it please you, master, this is my application for summary judgment. The application notice is dated 1 August 2001. My learned friend Mr Rose appears for the defendant. The claim form was served on 19 June 2001. A defence was led on 15 July 2001. You will see that the claimant is claiming liquidated damages in the sum of 55,000 arising out of the defendants alleged failure to pay for televisions supplied by the claimant to the defendant. The defence alleges that the televisions are incapable of receiving English programmes and, therefore, there is a total, or in the alternative, a partial failure of consideration. Master, the application notice is supported by a statement endorsed with a statement of truth by Mr Rogers on behalf of the claimant company on 5 August 2001 and a similarly endorsed statement in reply was made by Mr Davis of the defendants on 12 August 2001. Have you had an opportunity to consider these statements or would you like me to take you through them?

Refer the master to the chronology if one has been prepared or take him through the history set out in the evidence for the significant dates. Point out any areas of disagreement about the history of events.Master, there are a number of letters exhibited to the documents and a number of transactions alleged to have taken place. I have prepared a chronology and if it would assist I could hand that up. I have shown the document to my friend; whilst we were able to agree the majority of dates there are a couple of disagreements and perhaps I could point these out now. Firstly, the defendant denies that there was any telephone call between the parties on 7 June 2000 and secondly, he asserts that he sent a letter to the claimant on the 9 September, the alleged contents of which are referred to in Mr Davis statement and no doubt we shall come to that later. He cannot produce a copy and the claimant refuses to accept that such a letter was sent and he certainly denies that he received such a letter. Master, would you prefer that I go through the chronology or would you like a moment or two to read it?

Next, the applicant should make submissions referring to the statements and documents. The respondent then makes submissions and the applicant may be invited to respond.

Notes:

INTERIM APPLICATIONS

23

It is impossible to set out a full list of possible submissions but here are some tips: (a) Let your opponent know if you are intending to refer to any cases. If you are going to refer to a lot of cases or anything particularly unusual, give your opponent and possibly the court at least 24 hours notice of the references. Otherwise, take two copies with you to court, one for the court and one for your opponent. (b) Make a note of the page and paragraph numbers to which you will refer the court. (c) Remember that the test is whether there is a real prospect of success in the claim/defence. (d) The longer the argument, the more likely the defendant is to succeed. In the Queens Bench, for example, if an application is expected to last more than half a day it will not be set down without the consent of the defendant or leave from a master. Unless the master reserves judgment, which is unlikely, he will give his decision there and then. The possible orders have already been discussed. Take a careful note of the judgment in case the matter goes to appeal. Then deal with costs. If the claimant wins, the defendant will almost certainly have to pay the defendants costs. Otherwise, the most likely order will be for costs in the case. However, if the claimants application clearly should not have been made and is dismissed, costs will be awarded against the claimant.

What if ...?You are presented at court with evidence which has not been served within the permitted period?If you are not in a position to deal with the new evidence, ask for an adjournment. Seek, and expect to get, costs. If you are in a position to deal with the evidence, point out the other sides default to the court, make a great show of your magnanimity in not insisting on an adjournment, and carry on, safe in the knowledge that you are a couple of points up already.

Notes:

24

CIVIL ADVOCACY

Your witness informs you that there have been further relevant incidents since the supporting statement was made?Tell your opponent the gist of your assertions before you go into court (write them out in list form if there is time) and then tell the court when going through your evidence. If the court requires/allows you to do so, call your witness to give sworn evidence of the developments. Alternatively, write out a short supplemental statement.

The defendant does not attend and is not represented?The court is very likely to order judgment to be entered in favour of the claimant so long as he or she can show that the application notice has been served. A claimant should always prepare a certicate of service (see CPR Part 6.10) if the documents are served personally; this can be led if the defendant does not attend. If there is no certicate of service, look for any other evidence indicating that the defendant has been served, for example, a letter from the defendant referring to the application notice.

Interim injunctionsThe procedure for applying for an interim injunction in both the High Court and the county court is governed by CPR Part 25 and by a Practice Direction devoted to interim injunctions which is annexed to Part 25. Applications for search orders and freezing injunctions also fall within Part 25, but they have their own special rules which are not considered here. An application notice seeking an interim injunction must state the order sought and the date, time and place of the hearing, and must be served, together with any evidence in support, as soon as practicable after issue and in any event not less than 3 days before the court is due to hear the application. The Practice Direction begs for a draft order to be led with the court, and for a disk with the draft order on, in WordPerfect 5.1. Note the rules re the jurisdiction of judges, masters and district judges, outlined above. Applications for interim injunctions must be supported by evidence. This can be set out either in a witness statement, or in a statement of case verified by a statement of truth, or (subject to some exceptions,

Notes:

INTERIM APPLICATIONS

25

unimportant in this context) in the application itself (provided that it is veried by a statement of truth). The evidence must set out all material facts (which of course includes facts which do not support the application.) Where the respondent has not had notice of the application (which will commonly be the case), the evidence in support of the application must detail the reason for no notice having been given. Even where there is no formal service of the application the rules make it clear that, unless secrecy is essential, the claimant should take steps to notify the respondent informally that the application is being made. The Practice Direction gives details of the procedure to be followed in cases of great urgency. It is possible (for example) to make applications for injunctions by telephone. But applications like that are unusual and outside the scope of this book. Unless the court orders otherwise (and it very rarely will), an order for an injunction must contain: a clear statement of what it is the respondent must do or not do; an undertaking given to the court by the applicant to pay damages representing any loss sustained by the respondent or any other party served with or notied of the order, which the court considers the applicant should pay; (in the case of an application made without giving notice to any other party): (a) an undertaking given to the court by the applicant to serve on the respondent as soon as practicable the application notice, evidence in support and any order made; and (b) a return date for a further hearing which the other party can attend; (in the case of an application made before filing the application notice) an undertaking given to the court by the applicant to le the application notice and pay the appropriate fee for that ling on the same or the next working day; (in the case of an application made before the issue of a claim form:) (a) an undertaking given to the court by the applicant to issue the application notice and pay the appropriate fee for that issue on the same or the next working day; or (b) directions for the commencement of the claim.

Notes:

26

CIVIL ADVOCACY

If you are applying on behalf of a claimant, without giving notice to the other side, be prepared for a detailed inquisition as to the reasons for not serving the other side, and note the importance of giving all the material information to the court, including information which cuts against you. If, on the return date for the hearing of the application with the respondent present, you are found to have held back material facts, you can expect to have a thoroughly unpleasant time, and quite right too.

The applicationWhere? High Court/county court Who? Judge; possibly master or district judge (see above) Robes? No, if in Queens Bench Division, applications without notice (unless in the Chancery Division) or other chambers business, eg family cases. Yes in the Chancery Division and in most county court cases (although practice does differ from county court to county court)

PreliminariesIn an application made with notice, check that all the necessary documents have been led with the court and served on the other side. If the other side is present, see if it is possible to reach a settlement or dene some of the issues. Quite often it is possible to compromise with undertakings being offered. If so, you must remember that in a county court the form of the order, including any undertaking, should be recorded on Form N16 and (on N16(1)) and/or N138. In the High Court, use the forms annexed to Practice Direction (Interim Injunction: Forms) [1996] 1WLR 1551, but look out for the new CPR form, which is expected very soon. Undertakings should be recorded on Form N117.

HearingApplication without notice before a judge in the High Court

Introduce yourself and explain what your are applying for. Explain who the parties are and say what documents have been led or hand them up.

Notes:

INTERIM APPLICATIONS

27

May it please your Lordship, I appear on behalf of Eezy Fashions Limited. My Lord this is an application made without notice for an interim injunction to restrain a company called Denim Diamonds Limited from launching a range of denim jeans called Colour Casuals. Denim Diamond intend to launch these jeans at a fashion launch at the Harrovian hotel tomorrow morning and the applicant seeks to restrain them from doing so on the grounds that the design of this particular type of jean is patented by them, and such a launch would make their patent worthless. No claim form has yet been issued but I give an undertaking that one will be issued forthwith. A statement in support of this application has been prepared by the managing director of the Applicant, a Mr James Boyle, verified today with a statement of truth. That statement along with a draft of order both on paper and on disk, written in WordPerfect 5.1, should now be before your Lordship.

Then go through the background in greater detail, referring to the statement and chronology, if prepared. Otherwise, summarise the background history and give the court the main dates.Has your Lordship had an opportunity to read the statement? May I briey run through the background to this case. Paragraph 3 of Mr Boyles statement explains the businesses of the two companies involved. The applicants make jeans for both sexes. They were only incorporated two years ago. The respondents make various denim fashions but concentrate on the jeans market. They have been in business for over 12 years. Last year, the applicant designed a new type of jeans: a denim jean that was able to change colour according to the weather. This design was patented in December of last year. It is this design that the applicants are alleging the respondent has copied.

Next, explain the reasons for the urgent application.This application is made without notice because the launch takes place tomorrow and in the circumstances it was impossible to give the respondent the requisite notice. Unfortunately, the applicant only discovered the details of the launch this morning. It has been highly secret up until today. However, this morning an article was published in the Daily Dodge newspaper stating that tomorrows event was to launch a new hyper-colour jean similar to the one on the market produced by Eezy Fashions.

Notes:

28

CIVIL ADVOCACY

Immediately upon reading that article, Mr Boyle telephoned the respondent company for an explanation. As he states at paragraph 5, he spoke to Mr Howe, the respondent companys managing director who confirmed that a similar jean to that currently produced by the applicants was to be launched but denied that it infringed the patent and refused to call off the launch. Consequently, the applicant had no option but to make this urgent application without notice. The applicant has complied with the Practice Direction on Interim Injunction paragraph 4.3(3) by telling the respondent that the application was to be made. These amount, in my submission, to good reasons for not giving notice within the meaning of CPR Part 25.3(1).

Then take the judge through the statement and make your submissions. These should be based on the principles of American Cyanamid v Ethicon [1975] AC 396 and other relevant cases and show that: (a) there is a serious issue to be tried; (b) the loss likely to be incurred is more than nancial loss; (c) should the claimant fail, ultimately, the defendant will be adequately compensated in damages; (d) the balance of convenience lies in the claimants favour. Then assure the judge that the statement of facts you have given is a statement of all the facts you consider to be material to his consideration of whether or not to grant the injunction. After explaining the reasons why there should be an order, go through the terms of the order you are asking for. If the order is granted costs are normally reserved. If the court is not prepared to grant an order but accepts that there is some urgency you should ask that time for service of the application notice for the with notice hearing be abridged and for the application to be listed for hearing within a short period of time.

What if ...?You are instructed by a party who has had a without notice order made against them?It is always possible to apply to vary or discharge an order, on either a with or without notice basis. A statement in support must be led and

Notes:

INTERIM APPLICATIONS

29

for all other purposes the same rules as apply to the application for an injunction apply to this form of application. If the other side knew facts which have not been disclosed, you should consider asking for costs on an indemnity basis or even a wasted costs order, depending on the circumstances.

Case management conferencesCase management conferences (CMCs) are a crucial part of the grand Woolan scheme of civil litigation. They exemplify the proactive role of the judge managing the pre-trial stages of litigation. CPR Part 29.3 (which deals with multi-track cases) the court may x a CMC (or a pre-trial review) at any time after the claim has been allocated to the multi-track. The rule provides that: If a party has a legal representative, a representative (a) familiar with the case; and (b) with sufficient authority to deal with any issues that are likely to arise must attend case management conferences and pre-trial reviews. If someone inadequate or inadequately instructed is sent along, and an adjournment results, expect a wasted costs order. The Practice Direction to Part 29 gives guidance about CMCs. 29 PD 5.6 says that the parties and their legal advisers should ensure that all documents which the court may want to see should be at court (a paginated bundle of the pleadings and witness statements/expert reports (if available) would be much appreciated by the judge). You should also consider whether the parties should attend (particularly important if there is a prospect of settling the claim at the CMC) and whether a case summary would be helpful. A case summary is often extremely useful. Agree it with the other side if possible. It should contain a brief chronology of the claim, a statement of the issues which are agreed and still in dispute and the evidence needed to resolve outstanding issues, and should not normally exceed 500 words. 29 PD 5.3 says that the topics which the court will consider at the CMC are likely to include:(1) Whether the claimant has made clear the claim he is bringing, in particular the amount he is claiming, so that the other party can understand the case he has to meet.

Notes:

30

CIVIL ADVOCACY

(2) Whether any amendments are required to the claim, a statement of case or any other document. (3) What disclosure of documents, if any, is necessary. (4) What expert evidence is reasonably required in accordance with rule 35.1 and how and when that evidence should be obtained and disclosed. (5) What factual evidence should be disclosed. (6) What arrangements should be made about the giving of clarication or further information and the putting of questions to experts. (7) Whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.

A timetable will be set at the CMC for all steps which the court thinks are necessary. In order to comment usefully on the timetable you will need to know about professional commitments and the availability of witnesses. If you want a direction which is not normally given at a CMC (ie something other than directions about evidence, run of the mill disclosure, and timetabling), you should serve a notice of application in the usual way in time for it to be dealt with at the CMC. It is difficult to give general guidance about what goes on in a CMC. Anything can happen. The hearing is held in private. No robes are needed. The hearing is usually before a master (in the RCJ) or a district judge, but in bigger or more difficult case a circuit judge or a High Court judge might assume all the case management responsibility. The courts take very seriously the requirements of familiarity with the case and authority to deal with any issues arising. If you are attending a CMC as an advocate it is vital that you know the case inside out. A knowledge merely of the pleaded case and the relevant law is not enough. You should call for the correspondence and know what, if anything, has been said about settlement. The master, district judge or judge dealing with the CMC will often apply considerable pressure to settle, sometimes intimating his own ideas about merits. You will be expected to know what witnesses of fact you want to call and what experts you want to call. Be prepared for considerable judicial pressure to use a single joint expert. If you want separate experts, think long and hard how you are going to justify that wish.

Notes:

INTERIM APPLICATIONS

31

Get to the hearing early. Meet with your opponent beforehand. Try to agree directions. If you have not agreed directions you will be criticised mightily when you get into the judges room. But do not present directions to him as agreed. All directions have to be endorsed by him, and he will think you very presumptuous if you just present him with a set of agreed directions and expect him to rubber stamp it. Often the judge will seem to disagree with your carefully considered, agreed directions just to show you that he, not you, is the case manager. It is the experience of many advocates that hugely expensive and lengthy case management conferences have taken the place of cheap and amicable agreement by post of perfectly adequate directions. But the rules are the rules, and Lord Woolf says that they save money. In London, several of the masters have their own form of approved directions in particular types of cases. Find out if that applies to your case and, if so, model your own draft directions around the approved form.

AdjournmentsA case may need to be adjourned at virtually any stage. If, for some reason, a hearing whether interim or nal cannot proceed, it may be adjourned even if it has already begun. Common reasons for needing an adjournment are: (a) a witness is not available or has not turned up; (b) the other side has not served an expert report or witness statement until shortly before the start of the trial; (c) the expert cannot get the report ready in time; (d) further time is needed to assess the progress of recovery from injuries, or the success of repairs carried out; (e) there is a need to amend the pleadings signicantly or respond to amended pleadings; (f) the client has only just put solicitors in funds and necessary preparatory steps have not been taken. Do not make the mistake of regarding a request for an adjournment as a pure formality. As with any other application, the court will consider whether, on the law and the facts, you are entitled to your adjournment, and what order if any should be made as to costs. Under CPR Part 3.1(2)(a), the court may, in the exercise of its general court management power, adjourn a hearing (except where the rules specically provide

Notes:

32

CIVIL ADVOCACY

otherwise an exception which for most practical purposes can be forgotten). In applications for adjournments you will probably find yourself wielding very often the words of the overriding objective in CPR Part 1.1. But although the language of the CPR will alter the way that applications for adjournments are framed, the principles underlying such applications will be the same as they always have been. The crucial question is usually whether one party would be unfairly prejudiced by the grant or refusal of an adjournment. If the prejudice to the party resisting the adjournment can be compensated by an award of costs, the adjournment will be granted with costs against the party applying for it. So, if you go to court intending to seek an adjournment, make sure that you have worked out what the consequences of the adjournment would be to both parties, and be prepared to argue that the balance falls in your favour. You should also be prepared to proceed with the hearing in the event that your application to adjourn fails. Quite a few courts are now adopting the practice of listing a nal directions hearing shortly before the nal hearing and if an application to adjourn has not been made at this stage the court is going to take a lot of convincing before granting an adjournment. You should also consider whether it is practical for the court to hear part of the case even if it cannot all be heard, eg liability but not quantum. Finally, remember that adjournments can be made conditional. For example, a claim for possession of land where a tenant has not paid the rent may be adjourned on condition that the tenant pays the arrears. Advocates should be prepared t