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Queen's Bench Guide

6. Preliminary Case Management

6.1 The Practice Master:

6.1.1 On every working day, the Practice Master is available from 10.30a.m. to 1.00p.m. and from 2.00p.m. to 4.30p.m. to answer questions about the practice of the Queen's Bench Division. Usually, one Master takes the Morning Practice, and another Master takes the Afternoon Practice. This will be shown on the Daily Cause List and is also on the notice boards in the Masters' corridors, and on the Listing Notice board outside The Masters Support Unit, Room E16. Also, a board is placed on the door of the Master who is sitting as Practice Master.( NOTE: the Practice Master will finish at 12 noon on those days where the High Court Enforcement Officers Interpleader list is listed- this usually takes place on the first Monday in each month). 

6.1.2 The Practice Master cannot give advice, whether about a given case or about the law generally, s/he is there simply to answer general questions about the CPR and practice governing the work of the Queen's Bench Division, and can deal with any consent order, notwithstanding that the claim in which it is to be made has been assigned to another Master. The Practice Master may grant stays of execution and deal with urgent applications, which do not require notice to be given to the respondent. It is unnecessary to make an appointment to see the Practice Master and litigants are generally seen in order of arrival.

6.2 Assignment to Masters:

6.2.1 A claim issued in the Central Office will normally be assigned upon issue to a particular Master as the procedural judge responsible for managing the claim. The Registry Section of the Action Department will endorse the name of the Assigned Master on the Claim Form. However, assignment may be triggered at an earlier stage, for example, by one of the following events;

1. an application for pre-action disclosure under Rule 31.16,
2. an application for an interim remedy before the commencement of a claim or where there is no relevant claim (Part 25).

It occasionally happens that a claim is assigned to a Master who may have an "interest" in the claim. In such cases the Senior Master will re-assign the claim to another Master.

6.2.2 Where either an application notice or Part 8 Claim Form is issued which requires a hearing date to be given immediately, the Registry will assign a Master and the Masters' Support Unit will give a hearing date.

6.2.3 The Senior Master may assign a particular Master to a class/group of claims or may re-assign work generally. At present Clinical negligence claims are assigned to Master Ungley and Master Yoxall. Claims for Mesothelioma are assigned to Master Whitaker. In the event of an assigned Master being on leave or for any other reason temporarily absent from the Royal Courts of Justice then the Masters' Support Unit may endorse on the appropriate document the name of another Master.

6.2.4 A court file will be opened when a Claim Form is issued. The name of the assigned Master will be endorsed on the Court File and entered on the Claim Forms. Any application notice in an assigned claim for hearing before a Master should have the name of the assigned Master entered on it by the solicitors/litigants making the application.

6.3 Listing before Masters:

6.3.1 The Masters' lists consist of;

1. the Chambers List - short applications in Rooms E102 and E110 ("the Bear Garden lists"),
2. Private Room Appointments, (using the prescribed PRA form) and
3. the High Court Enforcement Officer's Interpleader applications (formerly Sheriffs' applications).

6.3.2 Parties attending on all applications before the Masters are requested to complete the Court Record Sheet (form PF48), which will be used to record details of the claim, representation and the nature of the application. Copies of this form may be found in the writing desks in the Masters' corridors and the Bear Garden. The form will be placed on the file when the hearing is concluded.

6.3.3 Masters will sit each day at 10.30am in the Bear Garden, Rooms E102 and E110 to hear applications in the Chambers Lists (Bear Garden lists). Applications of up to 30 minutes duration are listed at 10.30am, 11.00am and 11.30am. Solicitors and Counsel may attend any application in these lists although the costs of being represented by Counsel may be disallowed if not fully justified. If the Master considers that the application is likely to take longer than 30 minutes s/he may adjourn it to a private room appointment.  The applicant must then complete the PRA form giving details of the parties' availability as fully as possible. Failure to do so may result in the request form being returned for further information thereby delaying the hearing date. The PRA form is available in the Masters Support Unit, Room E16 and available from the Court Service Website.

6.3.4 Hearing dates for the Chambers Lists (Bear Garden lists) are given by the Masters' Support Unit. The assigned Master gives hearing dates for private room appointments personally. The parties or their legal representatives must inform the Masters' Support Unit of any settlements as soon as possible. All time estimates must be updated as necessary. Any Order made which as a consequence results in a hearing being not required must be notified to the Master by using the Notice of Cancellation form available from the Judgments & Orders Section Room E15 – E17. This should be completed by the parties, and will be sent to the Assigned Master to note in the Diary accordingly.

6.3.5 Applications in the Chambers Lists (Bear Garden list) may, by agreement or where the application notice has not been served, be transferred for a private room appointment on a date to be specified by the Master, or may be re-listed for another date in the Chambers List. In all other cases an application for a postponement of the hearing date must be made to the Master to whom the claim has been assigned. An application may be re-listed in the Chambers List (Bear Garden list) without permission of a Master if for any reason the application has not been heard or has not been fully disposed of.

6.3.6 When an application in the Bear Garden list is adjourned by a Master s/he will specify the date to which it is adjourned.
Adjournments

6.3.7 An application for the adjournment of a private room appointment must be made to the Master who gave the appointment unless the application is by agreement of all parties and the Master approves. The Master will usually require details of parties' availability. Any adjournment will normally be to a new hearing date.

6.3.8 If the application for an adjournment is opposed by any other party, the party seeking the adjournment must issue an application for an adjournment, if time permits, and must give the court, and all other parties as much notice as possible of such application.  Where possible, it is preferable that such application is heard before the date for the hearing. The Master will not grant an adjournment readily where it is opposed by any other party.  Good reason will need to be shown, and if the reason is illness of a party, an original (not a photocopy) medical certificate signed and dated by a medical practitioner, setting out the reasons why attendance at court is not possible, will be required. 

6.3.9 If an adjournment of a hearing is granted, the Master will usually require details of parties' availability. Any adjournment will normally be to a new hearing date.

6.3.10 Where an application for which a Master has given a private room appointment has been settled, it is the duty of the parties or their legal representatives, particularly those who obtained that appointment, to notify the Master immediately.

6.3.11 If the Master hearing an application considers that the result might affect the date fixed for a trial, s/he may refer the application to the Judge in Charge of the List. This possibility should be considered when making an application and a request should be included in the application notice asking the Master to refer the application to the Judge.

6.3.12 If the Master considers that an application should more properly be heard by a Judge, s/he may either during the hearing or before it takes place refer the application to the Interim Applications Judge. Among the circumstances that may make this appropriate are;

1. that the time required for the hearing is longer than a Master could ordinarily make available,
2. that the application raises issues of unusual difficulty or importance, etc. or
3. that the outcome is likely to affect the trial date or window (in which case the referral will be to the Judge in Charge of the Lists).

However, it is emphasised that no single factor or combination of factors is necessarily decisive, and the Master has a complete discretion.

6.3.13 The High Court Enforcement Officer's first return applications are interpleader applications and are listed at monthly intervals before the Practice Master at 12.00pm on the first Monday of each month.

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6.4 Automatic Transfer:

6.4.1 Part 26 requires certain claims to be transferred automatically. Where;

1. the claim is for a specified amount of money,
2. the claim has not been issued in a specialist list,
3. the defendant, or one of the defendants, is an individual, 
4. the claim has not been issued in the individual defendant's home court, and
5. the claim has not already been transferred to another individual defendant's home court,

the claim will, on receipt of the defence, be transferred to the individual defendant's home court.

6.4.2 Where the Claim Form was issued in the Royal Courts of Justice the defendant's home court will be the district registry or county court for the district in which the defendant's address for service as shown on the defence is situated. If there is no such district registry or county court the proceedings will remain in the Royal Courts of Justice. If the claim is against more than one individual defendant, the claim will be transferred to the home court of the defendant who first files his/her defence. (See Section 6.9 below about transfer following an order.)

6.5 Allocation:

6.5.1 When a defence to a claim is received in the Action Department from all the defendants, or from one or more of the defendants and the time for filing a defence has expired, the Action Department Registry will send an Allocation Questionnaire to all parties to an action, unless it has been dispensed with. If an Allocation Questionnaire is dispensed with the appropriate fee is still payable (CPR 26.3.3)

6.5.2 The Allocation Questionnaire to be used in accordance with Part 26 is form N150. The Allocation Questionnaire will state the time within which it must be filed, which will normally be at least 14 days after the day on which it is deemed served. Where proceedings are automatically transferred to a defendant's home court, notwithstanding that the issuing court will send out the Allocation Questionnaire before transfer, the Allocation Questionnaire should nevertheless be returned to the receiving court, the address for which will be on the covering letter.

6.5.3 Each party should state in his/her Allocation Questionnaire if there is any reason why the claim should be managed and tried at a court other than the Royal Courts of Justice or the trial centre for a particular district registry. Paragraph 2.6 of the Part 29 Practice Direction sets out certain types of claim that are suitable for trial in the Royal Courts of Justice. Form PF52 will be sent out to parties with the Allocation Questionnaire. Parties are encouraged to agree directions for the management of the claim, in the form of PF 52 or similar as prescribed by the Master.

6.5.4 Where a party fails to file his/her Allocation Questionnaire within the specified time the court officer will refer the proceedings to the Master for his/her directions. The Master's directions may include "the standard unless order", that is that unless the defaulting party files his/her Allocation Questionnaire within 7 days, his/her statement of case will be struck out.

6.5.5 Where one but not all of the parties has filed an Allocation Questionnaire the Master may allocate the claim to the multi-track where s/he considers that s/he has sufficient information to do so. Alternatively, the Master may order that an allocation hearing take place and that all or any particular parties must attend. The court officer will then send out a Notice of Allocation Hearing (form N153) giving reasons for the hearing and any other directions.

6.5.6 Parties requesting a stay to settle the proceedings should do so in their Allocation Questionnaire or otherwise in writing. The court encourages parties to consider the use of ADR (see paragraph 6.6 below). The Master will normally direct the proceedings to be stayed for one month, but parties may by agreement seek an extension of the stay. Paragraph 3 of the Part 26 Practice Direction sets out the procedure for seeking an extension.

6.5.7 Parties are reminded that an estimate of costs must be filed and served when the Allocation Questionnaire is filed (paragraph 6.4 of the Costs Practice Direction).

6.5.8 On receipt of the Allocation Questionnaires or on an allocation hearing the Master will allocate the claim to the multi-track or transfer the claim to the appropriate county court.  Rule 26.6 sets out the scope of each track.  By operation of para 2.1 of Part 7A Practice Direction and Rule 26.6(4), claims proceeding in the Royal Courts of Justice must be allocated to the multi-track.

6.6 Alternative Dispute Resolution ("ADR"):

6.6.1 Parties are encouraged to use ADR (such as, but not confined to, mediation and conciliation) to try to resolve their disputes or particular issues. Legal representatives should consider with their clients and the other parties the possibility of attempting to resolve the dispute or particular issues by ADR and they should ensure that their clients are fully informed as to the most cost effective means of resolving their dispute.

6.6.2 The settlement of disputes by ADR can;

1. significantly reduce parties' costs,
2. save parties the delay of litigation in resolving their disputes,
3. assist parties to preserve their existing commercial relationships while resolving their disputes, and
4. provide a wider range of remedies than those available through litigation.

The Master will, in an appropriate case, invite the parties to consider whether their dispute, or particular issues in it, could be resolved by ADR. The Master may also either stay proceedings for a specified period of time or extend the time for compliance with an order, a Rule or Practice Direction to encourage and enable the parties to use ADR. Parties may apply for directions seeking a stay for ADR at any time.

6.6.3 Information concerning ADR may be obtained from the National Mediation Helpline, Tel. 0845 60 30 809 http://www.nationalmediationhelpline.com/.  This is a pilot scheme launched under the auspices of the Ministry of Justice in March 2005.  It is aimed at people with personal injury claims, small claims, business and consumer disputes.

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6.7 Part 8 - alternative procedure for claims:

6.7.1 Paragraphs 4.3.14 to 4.3.16 above deal with issuing a Part 8 Claim Form. The alternative procedure set out in Part 8 ("the Part 8 procedure") may not be used if a Practice Direction provides that it does not apply in respect of a particular type of claim.  A Rule or Practice Direction may require or permit the use of the Pt 8 procedure and may disapply or modify any of the Pt 8 rules in respect of specified types of proceedings.  The Part 8B Practice Direction deals with commencement of proceedings under the Rules of the Supreme Court and the County Court Rules the provisions of which remain in force in Schedules 1 and 2 to the CPR ("the Schedule rules"). The Schedule rules and the Practice Directions supporting them may require certain proceedings to be commenced by the issue of a Part 8 Claim Form with appropriate modifications to the Part 8 procedure.

6.7.2 The main features of the Part 8 procedure are;

1. Part 16 (statements of case) does not apply, but the claimant may be required to file Details of Claim when issuing,
2. Part 15 (defence and reply) does not apply,
3. judgment in default may not be obtained (Rule 12.2),
4. Rules 14.4 to 14.7 (judgment by request on an admission) do not apply,
5. a Part 8 claim shall be treated as being allocated to the multi-track

6.7.3 All Part 8 Claim Forms will be referred to a Master for directions as soon as the Part 8 Claim Form is issued. These may include fixing a hearing date. Where a hearing date is fixed, notice of the hearing date must be served with the Claim Form. Where the Master does not fix a hearing date when the Claim Form is issued s/he will give directions for the disposal of the claim as soon as practicable after the receipt of the acknowledgement of service or as the case may be, the expiry of the period for acknowledging service.

6.7.4 Where a Part 8 Claim Form has been issued for the purpose of giving effect to a consent order for an award of damages to a child or patient or an award of provisional damages as in paragraph 4.1.15 (1) and (2) above, a draft of the order sought should be attached to the claim form. For more information see paragraphs 6.8.1 to 6.8.8 and 9.3.8 to 9.3.10 below about children and patients, and paragraphs 6.8.12, 9.3.11 and 9.3.12 below about provisional damages.

6.7.5 A defendant who wishes to respond to a Part 8 Claim Form should acknowledge service of it and may do so either by using form N210 or otherwise in writing giving the following information;

1. whether s/he contests the claim, and
2. where s/he is seeking a different remedy from that set out in the Claim Form, what that remedy is.

If a defendant does not acknowledge service of the Claim Form within the specified time, s/he may attend the hearing of the claim but may not take part in the hearing unless the court gives permission.

6.7.6 Rules 8.5 and 8.6 and paragraph 5 of the Part 8 Practice Direction (alternative procedure) deal with evidence to be relied on in Part 8 proceedings; the claimant's evidence must be filed and served with the Claim Form, and the defendant's evidence (if any) must be filed with his/her acknowledgement of service. If the defendant files written evidence s/he must at the same time serve it on the other parties. It is helpful to the court if, where the defendant does not intend to rely on written evidence, s/he notifies the court in writing to that effect.

6.7.7 Where a defendant contends that the Part 8 procedure should not be used, s/he should state the reasons for his/her contention on his/her acknowledgement of service. On receipt of the acknowledgement of service, the Master will give appropriate directions for the future management of the claim.

6.8 Specific matters which may be dealt with under the Part 8 procedure:

Settlements on behalf of children and patients

6.8.1 Part 21 and the Part 21 Practice Direction set out the requirements for litigation by or against children and patients. References in Part 21, the Part 21 Practice Direction and in this guide to;

1. "child" means a person under 18, and
2. "patient" means a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his/her own property and affairs.

No settlement or compromise of a claim by or against a child or patient will be binding unless and until the court has approved it. In addition, a party may not obtain a default judgment against a child or patient without the permission of the court, and may not enter judgment on an admission against a child or patient.

6.8.2 A patient must have a litigation friend to conduct proceedings on his/her behalf, and so must a child unless the court makes an order permitting the child to act on his/her own behalf. A litigation friend is someone who can fairly and competently conduct proceedings on behalf of the child or patient. S/he must have no interest in the proceedings adverse to that of the child or patient, and all steps s/he takes in the proceedings must be taken for the benefit of the child or patient. Rules 21.5 to 21.8 and paragraphs 2 and 3 of the Practice Direction set out how a person may become a litigation friend.

6.8.3 Applications for the approval of settlements or compromises of claims by or against a child or patient proceeding in the Central Office are heard by a Master. If the purpose of starting the claim is for the approval of a settlement, a Part 8 Claim Form should be issued in accordance with form PF170(A) which must contain a request for approval of the settlement (or compromise) and, in addition to the details of the claim, must set out the terms of the settlement (or compromise) or must have attached to it a draft consent order. The draft consent order should be in form N292, and should include the child's National Insurance Number, so that the child can be subsequently traced.  See paragraph 6 of the Practice Direction for further information which the Master will require.

6.8.4 Where parties reach a settlement (or compromise) in proceedings started by the issue of a Part 7 Claim Form (where the trial has not started) an application must be made to the Master, or if the amount of the proposed settlement exceeds £ 750,000, to the Judge, in accordance with Part 23 for the approval of the settlement. The application notice should be in form PF170(B) and should have attached to it a draft consent order in form N292.  (See CPR 21.10 PD 21 paras 6 & 7) The application notice should be lodged in Room E16. (See Section 7.12 below for information about applications.) If the trial has started, oral application may be made to the trial judge. Applications for approval of a settlement on behalf of a child or patient will normally be heard in public unless the Judge or Master orders otherwise. If a settlement is approved in private, the terms of settlement will be announced in public.

6.8.5 Paragraph 8 of the Practice Direction gives information about control of money recovered by or on behalf of a child or patient. Paragraph 10 deals with investment of money on behalf of a child and paragraph 11 deals with investment on behalf of a patient. Enquiries concerning investment for a child are dealt with in Room E105.

6.8.6 In respect of investment on behalf of a child, the litigation friend or his/her legal representative should provide the Master or a Judge with a completed form PF 172 (request for investment). The child's birth certificate should also be provided.  When investment directions have been given, the PF172 will then be forwarded to the Court Funds Office for their investment managers to make the appropriate investment. The Court of Protection is responsible for the administration of patients' funds (unless they are small). Paragraph 11 of the Practice Direction gives full information about procedure for investment by the Court of Protection. These procedures may also be used for investment of money on behalf of a child or patient following an award of damages at trial.

6.8.7 Damages may also be paid to a child or patient by way of a structured settlement. A Judge or Master must approve a structured settlement on behalf of a child or patient. The Court of Protection must also approve a structured settlement on behalf of a patient. (For more information about structured settlements see the Part 40C Practice Direction – Structured Settlements.)

6.8.8 Control of a child's fund, provided s/he is not also a patient, passes to him when s/he reaches the age of 18 (see paragraph 12.2 of the Practice Direction).

Summary order for possession

6.8.9 In practice such claims are usually dealt with in the appropriate County Court.  Paragraph 1 of Part 55 Practice direction gives details of the limited circumstances where a claim may be brought in the High Court.  High Court claims for the possession of land subject to a mortgage will be assigned to the Chancery Division.

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Settlement of a provisional damages claim

6.8.10 A claim for provisional damages may proceed under Part 8 where the Claim Form is issued solely for the purpose of obtaining a consent judgment. The claimant must state in his/her Claim Form in addition to the matters set out in paragraph 4.4 of the Part 16 Practice Direction that the parties have reached agreement and request a consent judgment. A draft order in accordance with paragraph 4.2 of the Part 41 Practice Direction should be attached to the Claim Form. The claimant or his/her legal representative must lodge the case file documents (set out in the draft order) in Room E16. Once the Provisional damages claim has been approved the documents lodged will be compiled into a file and preserved by the Court. For more information about provisional damages claims and orders see Part 41 and the Part 41 Practice Direction, and section 9.3 below.

Costs only proceedings

6.8.13 Proceedings may be brought under Part 8 where the parties to a dispute have reached a written agreement before proceedings have been started but have been unable to agree an amount of costs. The costs only proceedings may be started by the issue of a Claim Form in the Supreme Court Costs Office at Clifford's Inn, Fetter Lane, London EC4A 1DQ. The Costs Practice Direction at Section 17 sets out in detail the provisions for issue and proceeding with the claim.

6.9 Transfer:

6.9.1 Part 30 and the Part 30 Practice Direction deal with transfer of proceedings, within the High Court, from the High Court to the County Court and between County Courts. The jurisdiction of the High Court to transfer proceedings to the county courts is contained in s. 40 of the County Courts Act 1984 as substituted by s. 2(1) of the Courts and Legal Services Act 1990. Under that section the court has jurisdiction in certain circumstances to strike out claims that should have been started in a county court.

6.9.2 Rule 30.2 sets out the provisions for the transfer of proceedings between;

1. county courts,
2. the Royal Courts of Justice and a district registry of the High Court, and
3. between district registries.

Rule 30.3 sets out the criteria to which the court will have regard when making an order for transfer.  (See paragraph 6.4 above about automatic transfer.)

6.9.3  The High Court may order proceedings in any Division of the High Court to be transferred to another Division or to or from a specialist list. An application for the transfer of proceedings to or from a specialist list must be made to a Judge dealing with claims in that list

6.9.4 A claim with an estimated value of less than £50,000 may be transferred to a county court, if the county court has jurisdiction, unless it is to proceed in the High Court under an enactment or in a specialist list

6.9.5 An order for transfer takes effect from the date it is made. When an order for transfer is sealed the court officer will immediately transfer the matter to the receiving court. At the same time, the court officer will also notify all parties of the transfer.  An order for transfer to the High Court at the Royal Courts of Justice should state: “Transfer to the Central Office, Queen's Bench Division, [or as appropriate] at the Royal Courts of Justice.”

6.9.6 Paragraph 5 of the Part 30 Practice Direction sets out the procedure for appealing an order for transfer. Where an order for transfer is made in the absence of notice given to a party, that party may apply to the court that made the order to have it set aside.

6.9.7 Where money has been paid into court before an order for transfer is made, the court may direct transfer of the money to the control of the receiving court.

6.10 Part 20 proceedings:

6.10.1 Part 20 deals with (a) counterclaims and (b) other additional claims, being claims for contribution or indemnity and what were formerly called "third party" claims. A Part 20 claim is treated as a claim for the purpose of the CPR with certain exceptions, for which see Rule 20.3.

6.10.2 A defendant may make a counterclaim by completing the defence and counterclaim form provided in the Response Pack. The fee for the Counterclaim will depend on the amount claimed, and will therefore be deemed the same as a fee for Issue of Claim (see Fees Annex 1). If the counterclaim is not filed with the defence, the permission of the court is required. Where a counterclaim brings in a new party, the defendant (Part 20 claimant) must apply to the court for an order in form PF 21A adding the new party as defendant.

6.10.3 A defendant claiming contribution or indemnity from another defendant may do so by filing a notice, in form PF 22, containing a statement of the nature and grounds of his/her claim and serving the notice on the other defendant.

6.10.4 Any other additional claim may be brought by the issue of a Part 20 Claim Form, N211. If the Part 20 Claim Form is issued at a time other than when the defence is filed, the permission of the court is required. Rule 20.8 deals with service of a Part 20 Claim Form and Rule 20.12 sets out the forms, which must accompany the Part 20 Claim Form.

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6.11 Summary Judgment:

6.11.1 The court may give summary judgment under Part 24 against a claimant or defendant;

1. if it considers that (a) the claimant has no real prospect of succeeding on the claim or issue, or (b) the defendant has no real prospect of successfully defending the claim, and
2. there is no other reason why the claim or issue should be disposed of at a trial.

6.11.2 The court may give summary judgment against a claimant in any type of proceedings, and against a defendant in any type of proceedings except (a) proceedings for possession of residential premises against a mortgagor, or a tenant or person holding over after the end of his/her tenancy where occupancy is protected within the meaning of the Rent Act 1977 or the Housing Act 1988, (b) proceedings for an Admiralty claim in Rem, and (c) contentious probate proceedings. For information about summary disposal of defamation claims see Part 53, the Part 53 Practice Direction and paragraph 12.7 below.

6.11.3 An application for summary judgment should be made in accordance with Part 23 and the application notice should contain the information set out in paragraph 2 of the Part 24 Practice Direction (parties may use forms PF 11 and PF 12 as precedents). The application notice should be filed and served on the respondent giving at least 14 days notice of the date fixed for the hearing and the issues to be decided at the hearing. Unless the application notice contains all the evidence on which the applicant relies, the application notice should identify that evidence.

6.11.4 In claims which include a claim for;

1. specific performance of an agreement,
2. rescission of such an agreement, or
3. forfeiture or return of a deposit made under such an agreement,

the application notice and any evidence in support must be served on the defendant not less than 4 days before the hearing. This replaces for such applications the 14 days notice usually required for summary judgment applications (Part 24 Practice Direction paragraph 7).

6.11.5 The application will normally be listed before a Master unless, for example, an injunction is also sought. In that case the application notice should state that the application is intended to be made to a Judge.

6.11.6 Where an order made on an application for summary judgment does not dispose of the claim or issue, the court will give case management directions in respect of the claim or issue.

6.12 Offers to settle and payments into and out of court:

6.12.0 From 6 April 2007 new rules will be in force concerning offers to settle and payments into court, and Parts 36 and 37, which deal with these subjects, will be substituted by new Parts 36 and 37.  The following notes reflect the position as it will be after the new rules come into force.  For the position before 6 April 2007, please see Section 6.12 of the previous edition of the Queen's Bench Guide, and the 2006 Civil Procedure Rules.
 6.12.00 Transitional provisions – the following is a summary.  The full details are set out in  Practice Direction B supplementing Part 36.
A Part 36 offer or payment valid before 6 April 2007 will continue to be a valid Part 36 offer under the new rules afer that date, specifically in relation to costs and the effect of acceptance.  It will have the consequences set out in the new Part 36 after that date.  Where a Part 36 offer is made before 6 April 2007, if permission of the court was required to accept it before 6 April 2007, then permission of the court will still be required after that date.  Any payments into court before 6 April 2007 will be governed by Rule 37.3, and treated as if that payment had been made under a court order (See section 6.12.11 below), except where a Part 36 offer is accepted without needing the court's permission and the defendant agrees that the sum in court may be taken out in satisfaction, in whole or in part, of the offer.

6.12.1 Part 36 deals with offers to settle.  A party may offer to settle a claim at any time, including before commencement of proceedings. . An offer to settle made in accordance with Part 36 will have the costs and other consequences specified in that Part.  It must comply with the following:

1. Be in writing;
2. State on its face that it is intended to have the consequences of Part 36;
3. Specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs in accordance with rule 36.10 if the offer is accepted (not applicable if the offer is made less than 21 days before the start of the trial);
4. State whether it relates to the whole claim or to part of it or to an issue that arises in it and if so which part or issue;
5. State whether it takes into account any counterclaim.

A Part 36 offer may be made using Form N242A.

6.12.2 The offer may only be withdrawn or its terms changed before the expiry of the time given for acceptance (see (3) above), with the court's permission.  After the expiry of that period the party making the offer may withdraw it or change its terms without the court's permission.

6.12.3 A Part 36 offer is made when received by the offeree.  A Part 36 offer is accepted by serving written notice on the offeror.  The notice of acceptance must also be filed with the court.  

6.12.4 The times for accepting a Part 36 offer is set out in Rule 36.9.   The general rule is that a Part 36 offer or Part 36 payment made more than 21 days before the start of the trial may be accepted at any time without the permission of the court unless the offeror serves notice of withdrawal on the offeree.,.In certain circumstances the permission of the court must be obtained to accept a Part 36 offer, for example where the trial has started, or where the claimant is a child or patient.  Rule 36.9(3) sets out all the circumstances where permission is required.

6.12.5 If the court's permission is required to accept a Part 36 offer, an application must be made in accordance with Part 23 (see Section 7.12 below), which must be dealt with by a judge other than the judge allocated to conduct the trial, unless the parties agree that the trial judge may hear the application.

6.12.6  When a Part 36 offer is accepted within the relevant period (as defined by Rule 36.3(1)(c)), the general rule is that the claimant will be entitled to his/her costs up to the date of service of the notice of acceptance.  Where a Part 36 offer is made less than 21 days before the start of trial, and is accepted, or a Part 36 offer is accepted after expiry of the period given for acceptance, then unless the parties agree the liability for costs, the court will make an order as to costs.

6.12.7 If a Part 36 offer is accepted, the claim will be stayed, but if approval of the court is required, the stay will take effect only when that approval has been given.  Rule 36.11(5) sets out the powers that the court retains after such a stay is in place.

6.12.8 Rule 36.13 provides that a Part 36 offer will be treated as 'without prejudice except as to costs'.  The fact that such an offer has been made must not be communicated to the trial judge, except in certain circumstances set out in Rule 32,13(3).  In the Action Department a Part 36 offer, if not accepted, will be kept in a separate file held by the Manager of the Registry Section and not made available to the trial judge until after determination.

6.12.9  Where a Part 36 offer is not accepted and a trial of the claim takes place, Rule 36.14 sets out the costs consequences where a claimant fails to do better than the Part 36 offer, where a claimant does as well as or better than s/he proposed in his/her Part 36 offer.

6.12.10  Note that Rule 36.5 contains special provisions relating to claims for damages for personal injury where such a claim includes a claim for future pecuniary loss, and Rule 36.6 contains provisions relating to  a claim which includes a claim for provisional damages.  Rule 36.15 applies where a payment to a claimant following a Part 36 offer would be a compensation payment under section 1 of the Social Security (Recovery of Benefits) Act 1997, (usually personal injury claims).  For the situation where a Part 36 offer is made by one or more, but not all, of a number of defendants, see Rule 36.12.

6.12.11 Part 37 deals with payments into and out of court, which are now confined to certain limited circumstances (except where any relevant transitional provisions apply):

1. Money paid into court under a court order – a party making such a payment must serve notice of this on every other party and file a certificate of service in respect of each such notice.
2. Where a defendant wishes to rely on a defence of tender before claim he must make a payment into court of the amount s/he says was tendered.
3. Payments into court under enactments – see the Practice Direction to Part 37 at 37PD.4 to 8.

6.12.12 Money paid into court should be paid by cheque payable to the Accountant General of the Supreme Court.  It must be accompanied by a sealed copy of the order providing for the payment in, or of the defence, whichever is applicable, and the Court Funds Office form 100.

6.12.13 Money into court under a court order or in support of a defence of tender may not be paid out without the court's permission except where a Part 36 offer is accepted without needing the permission of the court and the defendant agrees that a sum paid into court by him or her should be used to satisfy the offer in whole or in part.

6.12.14 Where permission is required to take funds out of court an application must be made in accordance with Part 23 (see Section 7.12 below).  If the court's permission is not required, the requesting party should file a request for payment in Court Funds Office form 201 with the Court Funds Office, accompanied by a statement that the defendant agrees that the money should be used to satisfy the Part 36 offer in Court Funds Office form 202.  See the Practice Direction at 37PD.3.5 for the details required to be provided on the form.  A party is obliged to notify the court whether s/he is or has been in receipt of Legal Funding by the Legal Services Commission.