Queen's Bench Guide
2.1.1 Before bringing any proceedings, the intending claimant should think carefully about the implications of so doing. (See paragraph 3 below about steps to be taken before issuing a claim form.)
2.1.2 A litigant who is acting in person faces a heavier burden in terms of time and effort than does a litigant who is legally represented, but all litigation calls for a high level of commitment from the parties. No intending claimant should underestimate this.
2.1.3 The Overriding Objective of the CPR is to deal with cases justly, which means dealing with the claim in a way which is proportionate (amongst other things) to the amount of money involved. However, in all proceedings there are winners and losers; the loser is generally ordered to pay the costs of the winner and the costs of litigation can still be large. The risk of large costs is particularly acute in cases involving expert witnesses, barristers and solicitors. Also, the costs of an interim hearing are almost always summarily assessed and made payable by the unsuccessful party usually within 14 days after the order for costs is made. There may be a number of interim hearings before the trial itself is reached, so the costs must be paid as the claim progresses. (See also paragraph 2.5 Costs below.)
2.1.4 The intending claimant should also keep in mind that every claim must be proved, unless of course the defendant admits the allegations. There is little point in incurring the risks and expense of litigating if the claim cannot be proved. An intending claimant should therefore be taking steps to obtain statements from his prospective witnesses before starting the claim; if he delays until later, it may turn out that he is in fact unable to obtain the evidence that he needs to prove his claim. A defendant faces a similar task.
2.1.5 Any party may, if he is to succeed, need an opinion from one or more expert witnesses, such as medical practitioners, engineers, accountants, or as the case may be. However he must remember that no expert evidence may be given at trial without the permission of the court. If the claim is for compensation for personal injuries, the claimant must produce a medical report with his particulars of claim.
2.1.6 The services of such experts are in great demand, especially as in some fields of expertise there are few of them. It may take many months to obtain an opinion, and the cost may be high. (See paragraph 7.9 below for information about experts' evidence.) The claimant must remember also not to allow the time limit for starting his claim to pass (see paragraph 2.3 below for information about time limits).
2.1.7 Any intending claimant should also have in mind that he will usually be required to give standard disclosure of the documents on which he relies. Although Rule 31.3(2) makes provision for a party not to be required to disclose documents if disclosure would be disproportionate to the value of the claim, in complex cases it may still be necessary to disclose relatively large quantities of documents, and this invariably involves much time, effort and expense. (See paragraph 7.8 below for information about disclosure.)
2.1.8 In many cases the parties will need legal assistance, whether by way of advice, drafting, representation at hearings or otherwise. It is not the function of court staff to give legal advice, however, subject to that, they will do their best to assist any litigant. Litigants in person who need assistance or funding should contact the Community Legal Service through their information points. The CLS are developing local networks of people giving legal assistance such as law centres, local solicitors or the Citizens Advice Bureaux. CLS Information Points are being set up in libraries and other public places. Litigants can telephone the CLS to find their nearest CLS Information Point on 0845 608 1122 or can log on to the CLS website at www.justask.org.uk for the CLS directory and for legal information.
2.1.9 The RCJ Advice Bureau off the Main Hall at the Royal Courts of Justice is open Monday to Friday from 10.00am to 1.00pm and from 2.00pm to 5.00pm. The Bureau is run by lawyers in conjunction with the Citizens Advice Bureau and is independent of the court. The Bureau operates on a 'first come first served' basis, or telephone advice is available on 020 7947 7604 Monday to Friday from 11.00am to 12.00pm and from 3.00pm to 4.00pm.
2.2.1 Intending claimants must not expect to be able to keep the details of a claim away from public scrutiny. In addition to the right of a party to obtain copies of documents in the proceedings to which he is a party from the court record (on payment of the prescribed fee), a claim form when it has been served, and the particulars of claim where they are included in or served with the claim form, may be inspected by anyone simply on payment of the fee. Any judgment or order made in public may also be inspected on payment of the fee. Additionally, other documents may be inspected with the permission of the court .
2.2.2 Witness statements used at trial are open to inspection unless the court directs otherwise. Considerations of publicity are often particularly important in deciding whether to commence proceedings in respect of an alleged libel or slander; such a claim may by its attendant publicity do more damage than was ever inflicted by the original publication. In such proceedings the claimant may decide to serve his particulars of claim separately from the claim form.
2.3.1 There are strict time limits that apply to every claim. First, there are time limits fixed by the Limitation Act 1980 within which proceedings must be brought. There are circumstances in which the court may extend those time limits, but this should be regarded as exceptional. In all other cases, once the relevant time limit has expired, it is rarely possible to start a claim.
2.3.2 Secondly, in order to try and bring the proceedings to an early trial date, a timetable will be set with which all parties must comply. Unless the CPR or a Practice Direction provide otherwise, or the court orders otherwise, the timetable may be varied by the written agreement of the parties. However, there are certain 'milestone' events in the timetable in which the time limits may not be varied by the parties. Examples of these are;
(1) return of the allocation questionnaire
(2) date for the case management conference
(3) return of the listing questionnaire
(4) date fixed for trial.
Where parties have extended a time limit by agreement, the party for whom the time has been extended must advise the Masters' Support Unit in writing of the event in the proceedings for which the time has been extended and the new date by which it must be done. For example, if an extension is agreed for the filing of the defence, it is for the defendant to inform the Masters' Support Unit.
2.3.3 The court has power to penalise any party who fails to comply with a time limit. If the court considers that a prior warning should be given before a penalty is imposed, it will make an 'unless' order; in other words, the court will order that, unless that party performs his obligation by the time specified, he will be penalised in the manner set out in the order. This may involve the party in default having his claim or statement of case struck out and judgment given against him.
2.4.1 A party may act in person or be represented by a lawyer. A party who is acting in person may be assisted at any hearing by another person (often referred to as a McKenzie friend) subject to the discretion of the Court. The McKenzie friend is allowed to help by taking notes, quietly prompting the litigant and offering advice and suggestions. The litigant however, must conduct his own case; the McKenzie friend may not represent him and may only in very exceptional circumstances be allowed to address the court on behalf of the litigant under s. 27(2)(c) of the Courts and Legal Services Act 1990.
2.4.2 A written statement should be provided to the court at any hearing concerning the representation of the parties in accordance with paragraph 5.1 of the Part 39 Practice Direction.
2.4.3 At a trial, a company or corporation may be represented by an employee if the company or corporation authorise him to do so and the court gives permission. Where this is to be the case, the permission of the Judge who is to hear the case may be sought informally; paragraph 5 of the Part 39 Practice Direction describes what is needed to obtain permission from the court for this purpose and mentions some of the considerations relevant to the grant or refusal of permission. A further statement concerning representation should be provided in accordance with paragraph 5.2 of the Part 39 Practice Direction.
2.4.4 The practice of allowing experienced outdoor clerks to appear before the Masters will continue.
2.5.1 Costs are dealt with in Parts 43 to 48. There are important new provisions in the costs rules, particularly with respect to;
(1) informing the client of costs orders,
(2) providing the court with estimates of costs,
(3) summary assessment of costs,
(4) interim orders for costs, and
(5) interest on costs.
2.5.2 Solicitors now have a duty under Rule 44.2 to notify their client within 7 days if an order for costs is made against him in his absence. Solicitors must also notify any other person who has instructed them to act in the proceedings or who is liable to pay their fees (such as an insurer, trade union or the Legal Services Commission (LSC)). They must also inform these persons how the order came to be made (paragraphs 7.1 and 7.2 of the Costs Practice Direction).
2.5.3 The court may at any stage order any party to file an estimate of base costs (substantially in the form of Precedent H in the Schedule of Costs Precedents annexed to the Costs Practice Direction) and serve copies on all the other parties (paragraph 6.3 of the Costs Practice Direction). This will both assist the court in deciding what case management directions to make and inform the other parties as to their potential liability for payment of costs.
2.5.4 If a party seeks an order for his costs, in order to assist the court in making a summary assessment, he must prepare a written statement of the costs he intends to claim in accordance with paragraph 13.5 of the Costs Practice Direction, following as closely as possible Form N260. In addition, when an Allocation Questionnaire or a Listing Questionnaire is filed, the party filing it must file and serve an estimate of costs on all the other parties.
2.5.5 If the parties have agreed the amount of costs, they do not need to file a statement of the costs, and summary assessment is unnecessary. Or, where the parties agree a consent order without any party attending on the application, the parties should insert either an agreed figure for costs or that there should be no order for costs in the order (paragraph 13.4 of the Costs Practice Direction).
2.5.6 Unless the court decides not to order an assessment of costs where, for example, it orders costs to be 'costs in the case', it may either make a summary assessment of costs or order a detailed assessment to take place. The court will generally make a summary assessment of costs at any hearing which lasts for less than one day;
(1) 'summary assessment' is where the court, when making an order for costs, assesses those costs and orders payment of a sum of money in respect of them, and
(2) 'detailed assessment' is the procedure by which the amount of costs is decided by a costs officer at a later date in accordance with Part 47.
The provision of summary assessment means that the paying party is likely to be paying the costs at an earlier stage than he would have done under the previous rules (and see paragraph 2.5.15 below).
2.5.7 The court will not make a summary assessment of the costs of a receiving party (the party to whom the costs are to be paid) where he is;
(1) a child or patient within the meaning of Part 21 unless the solicitor acting for the child or patient has waived the right to further costs, or
(2) an assisted person or a person in receipt of funded services under sections 4-11 of the Access to Justice Act 1999.
The costs payable by a party who is an assisted person or a person in receipt of funded services may be summarily assessed as the assessment is not by itself a determination of the assisted person's liability to pay those costs.
2.5.8 Rule 44.3A prevents the court from assessing an additional liability in respect of a funding agreement before the conclusion of the proceedings. At an interim hearing therefore, the court will assess only the base costs. (See paragraph 14.9 of the Costs Practice Direction for assessing an additional liability and Section 19 for information about funding arrangements.)
2.5.9 Interim orders for costs; where the court decides immediately who is to pay particular costs, but does not assess the costs summarily, for example after a trial lasting more than a day, so that the final amount of costs payable has to be fixed by a detailed assessment, the court may order the paying party to pay a sum or sums on account of the ultimate liability for costs.
2.5.10 Interest on costs; the court has power to award interest on costs from a date before the date of the order, so compensating the receiving party for the delay between incurring the costs and receiving payment in respect of them.
2.5.11 Parties should note that where the court makes an order which does not mention costs, no party is entitled to costs in relation to that order.
2.5.12 Rule 44.3 describes the court's discretion as to costs and the circumstances to be taken into account when exercising its discretion. Rules 44.4 and 44.5 set out the basis of assessment and the factors to be taken into account in deciding the amount of costs. (See also Sections 8 and 11 of the Costs Practice Direction.)
2.5.13 The amount of costs to be paid by one party to another can be assessed on the standard basis or on the indemnity basis. The basis to be used is decided when the court decides that a party should pay the costs of another. Costs that are unreasonably incurred or are unreasonable in amount are not allowed on either basis.
2.5.14 The standard basis is the usual basis for assessment, where only costs which are proportionate to the matters in issue are allowed, and any doubt as to whether the costs were reasonably incurred or reasonable and proportionate in amount is resolved in favour of the paying party. On the indemnity basis, any such doubts are resolved in favour of the receiving party.
2.5.15 A party must normally pay summarily assessed costs awarded against him within 14 days of the assessment, but the court can extend that time, direct payment by instalments, or defer the liability to pay the costs until the end of the proceedings so that they can then be set off against any costs or judgment to which the paying party becomes entitled.
2.5.16 Fixed costs relating to default judgments, certain judgments on admissions and summary judgments etc. are set out in Part 45, (see also Section 25 of the Costs Practice Direction). Part 46 relates to fast track costs.
2.5.17 Part 47 and Sections 28 to 49 of the Costs Practice Direction contain the procedure for detailed assessment together with the default provisions. Precedents A,B,C and D set out in the Schedule of Costs Precedents annexed to the Costs Practice Direction are model forms of bills of costs for detailed assessment. Section 43 deals with costs payable out of the Community Legal Service fund, Section 44 deals with costs payable out of a fund other than the CLS fund and Section 49 deals with costs payable by the LSC. Part 48 and Sections 50 to 56 of the Costs Practice Direction deal with Special Cases, in particular;
(1) costs payable by or to a child or patient,
(2) litigants in person, and
(3) wasted costs orders- personal liability of the legal representative.
2.5.18 Costs only proceedings are dealt with in Rule 44.12A and Section 17 of the Costs Practice Direction. They may be brought in the High Court only where the dispute was of such a value or type that had proceedings been brought they would have been commenced in the High Court. Proceedings are brought under Part 8 by the issue of a Claim Form in the Supreme Court Costs Office at Clifford's Inn, Fetter Lane, London EC4A 1DQ. (See also paragraphs 4.1.16 and 6.8.13 below.)
2.6.1 The fees payable in the High Court are set out in Schedule 1 to the Supreme Court Fees Order 1999. Fees (as amended on 25th April 2000 and 2nd May 2000) relating to the Queen's Bench Division are listed in Annex 1 to the Guide.
2.6.2 In the Royal Courts of Justice fees are paid in the Fees Room E01 and are usually stamped on the document to which they relate.
2.7.1 To support the work of the Central Office in operating the provisions of the CPR, and to facilitate effective case management, a computerised system will be introduced to provide a record of proceedings and a search facility, and to produce court forms and orders. The full system is not yet available, but an interim system has been in use since 26th April 1999.
2.7.2 A number of specific applications of information technology have been well developed in recent years; the use of fax, the provision of skeleton arguments on disk and daily transcripts on disk have become more commonplace. Short applications may be dealt with more economically by a conference telephone call, and taking evidence by video link has become more common and the available technology has improved considerably. The CPR contains certain provisions about the use of information technology, for example, Part 6 and the Part 6 Practice Direction deal with service of documents by Fax or other electronic means, the Part 23 Practice Direction refers to telephone hearings and video conferencing, Rule 32.3 allows the use of evidence given by video link and the Part 5 Practice Direction refers to the filing of documents at court by Fax.
2.7.3 Parties may agree to use information technology in the preparation, management and presentation of a case, however the agreement of the Judge or Master should be sought before providing the court with material in electronic form. Where permission has been given, the material for use at a hearing or in support of an application can be provided on a floppy disk. The parties should check with the court which word-processing format should be used. This will normally be Word 6 for Windows or WordPerfect for DOS 5.1.
2.7.4 A protocol has been prepared as a guide to all persons who are involved in the use of video conferencing equipment in civil proceedings in the High Court. It covers its use in courtrooms where the equipment may be installed, and also the situation where the court assembles in a commercial studio or conference room containing video conferencing equipment. Copies of the Video- conferencing Protocol may be obtained from the Bar Council at a charge of £2.50 to cover expenses. A room has now been made available as an audio/video conferencing courtroom for applications to Masters, as a pilot measure. More information may be obtained from the Senior Master through the Masters' Secretary's Department.
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