Newcastle Solicitors

What are the Civil procedure rules ?

The Civil Procedure Rules (CPR) are important technical procedural requirements as to how a court case must be dealt with. Many of the rules have timescales attached and these may be strictly interpreted and severe penalties such as costs orders or striking out of a case can occur if the rules are not adhered to.

There are 74 parts in the CPR  with each part broken down into several rules and practice directions, creating may hundreds of technical rules which are frankly difficult to decipher if you are not a trained and experienced litigator.

By far the most important rule which impacts all the other rules is CPR Part 1 Rule 1, which is the Overriding Objective rule. This states that the overriding objective of the court in dealing with cases is to deal with the cases justly taking into account :-

• relative equality of the parties to the dispute
• where possible to save unnecessary costs
• proportionality
• taking into account the complexity and type of case, that it is dealt with fairly and expeditiously.
• Appropriate resources are allocated to each case.

What is the test for obtaining summary judgment and is it easy to obtain ?

In short, whilst it is tempting and an understandable consideration to apply for summary judgment, the legal test is not easy to satisfy, so such an application is generally quite risky. Each case should be looked at on it’s own merits, with the advice of an experienced litigator, as it is always important to be aware that failure of such an application may well mean not only incurring court fees, own solicitor costs but also can result in being ordered to pay the other party’s costs of defending the application.

The legal test is essentially to satisfy the court that :-

1. The defendant has no real prospect of successfully defending the claim or issue, and

2. There is no other reason why the case or issue should be decided by a trial.

Important to note that summary judgment cannot be applied for until the defendant has either submitted the acknowledgment of service form or a defence. In addition, the court can stop short of making a full summary judgment order but can make an order that the opponent pays money into court and this can constitute a “knock out” blow in some circumstances. Summary judgment cannot be applied for in residential property possession claims.

What’s the story regarding Setting Aside Judgment ?

There are many cases in which a claim is issued, no defence is filed, and the claimant then enters judgment in the belief that, thankfully, on this occasion, a long drawn out and expensive claim has been avoided. However, some time later, a short period or perhaps even a few months later, an application is submitted to set aside the judgment. Such applications are based on the Defendant claiming not to have received the Claim.

In such circumstances the court will need to be convinced by the Defendant that :-

• The claim form was not received
• An application to set aside the judgment has been made promptly after the Defendant became aware of it.
• That the defendant has a reasonable chance of successfully defending the claim

These types of application are often hard fought, with much at stake for both parties. In addition to filing and serving evidence on the above issues, the Defendant is usually expected to file a draft defence.

If the Claimant is in any way aware that the particulars of claim may not or did not reach the Defendant, due for example to a change of address, the claimant ask the court to set aside the judgment or could face cost penalties down the line.

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