Other Parts of the Civil Procedure Rules
| Author | Patricia Pearl/Tim Parker |
| Pages | 87-116 |
Chapter 5
Other Parts of the Civil Procedure Rules
5.1 INTRODUCTION
The small claims procedure is set out in CPR Part 27, but does not exist in isolation from the other Parts of the CPR. Some rules which clash with the objectives of small claims case management are excluded, but some of the others are of particular significance to small claims.
This chapter explains the other rules most often encountered in small claims, and how they are applied in those cases. It also identifies those rules that are specifically excluded.
CPR Parts 1 and 27 appear in Appendices 7 and 8. The full Rules and accompanying practice directions are too extensive to set out in this book, but are all available online.
5.2 THE OVERRIDING OBJECTIVE
CPR Part 1 defines the overriding objective and the court’s duty to manage cases. Part 1 is reproduced at Appendix 7
The CPR are a procedural code with the overriding objective of enabling the court to deal with cases ‘justly and at proportionate cost’ (CPR 1.1).
CPR Part 1 defines and expands on what this means and how the procedural rules achieve it.
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Underpinning every aspect of the rules is the emphasis on keeping things in proportion, and so ensuring that the cost of litigation is in proportion to the matters in dispute. This is achieved by effective case management, for example requiring the parties to set out their case in writing, restricting the hearing to relevant issues, and limiting cross examination. However, the disproportionate use of the court’s resources is not itself a basis for a claim to be struck out; rather, the court will use its case management powers to control the expenditure of time and money by the parties.
The small claims track itself is a proportionate way of dealing with disputes of limited financial value. The fact that there may be a larger claim in the background does not prevent parties from using the small claims track.
The procedures in the rules must be applied by the court ‘expeditiously and fairly’ (CPR 1.1(2)(d)), and the parties are required to assist the court to further the overriding objective (CPR 1.3); this obliges them to co-operate with each other where necessary.
CPR 1.4 requires that the court must actively manage cases, and gives examples of ways in which it can achieve the overriding objective by its case management powers. For example, a judge hearing an application about one particular issue may ask about other aspects of the case to check that it is progressing as it should.
Litigants should therefore be ready to discuss all parts of their case whenever they attend court.
5.3 THE COURT’S CASE MANAGEMENT POWERS
The court has power under CPR Part 3 to:
(a) 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
(b) adjourn or bring forward a hearing;
(c) require a party or a party’s legal representative to attend court;
(d) hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;
(e) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
(f) stay the whole or part of any proceedings or judgment either generally or until a specified date or event;
(g) consolidate proceedings;
(h) try two or more claims on the same occasion;
(i) direct a separate trial of any issue;
(j) decide the order in which issues are to be tried;
(k) exclude an issue from consideration;
(l) dismiss or give judgment on a claim after a decision on a preliminary issue;
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective (CPR 3.1(2)).
5.3.1 When can the judge exercise case management powers?
The judge can make directions about a small claims case at a number of stages. This can be done of the court’s own initiative, unprompted by the parties.
• if the papers are referred to the judge for comment by the court staff soon after issue (CPR 3.2);
• when the judge reviews the claim and defence at the allocation stage;
• at a preliminary hearing (CPR 27.6);
• if any party writes to the court at any stage to bring any matter of procedure to the attention of the judge;
• at any application hearing (CPR Part 23: see paragraph 5.4);
• at the final hearing.
5.3.2 Striking out and unless orders
Claims and defences alike are liable to be struck out if they are plainly hopeless or mischievous. This can happen at an early stage (CPR 3.4 and CPR PD 3A).
A case may be struck out as a whole or in part.
CPR PD 3A sets out some suggestions for claims that might fall into this category, namely:
• a case setting out no facts indicating what the claim is about, for example ‘money owed £5,000’;
• a claim or defence which is incoherent and makes no sense;
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• a claim or defence setting out facts which, even if true, do not amount to a legally recognisable case against the defendant;
• a defence which is a bare denial.
A poorly drafted claim or defence will attract the attention of the judge and may prompt the case to be struck out. To avoid this, litigants must ensure the claim is properly drafted from the outset; the guidance in Chapter 6 will help.
Striking out can also be used as a ‘sanction’ for a party’s failure to obey rules or orders. However, the court’s first response is not usually to strike out, but to make an ‘unless’ order: that is, an order which requires something to be done and sets consequences (a sanction) which will follow automatically
If a case is struck out, it may be reinstated – but this is not necessarily easy to achieve.
5.3.3 Civil restraint orders
The court can stop someone from repeatedly making hopeless applications.
If a judge dismisses an application which they consider to have been totally without merit, their order must record that.
If a party persists with applications without merit, they can be further restrained by an ‘extended civil restraint order’ – these orders are rare, and can only be made by a circuit judge or a judge of higher seniority.
CPR 3.11 and CPR PD 3C contain the rules concerning civil restraint orders.
5.3.4 Other sanctions
As well as striking out and making unless orders (see paragraph 5.3.2), the judge will consider other options for case management to respond proportionately to the problem in hand. For example:
• an order for costs (see paragraph 5.3.5);
• if documents are not sent to the other side before the hearing, and take them by surprise, the judge may prevent the documents from being used in evidence;
• if either party is unprepared at a hearing and as a result requests an adjournment, the sanction may be that they pay the costs thrown away by the adjournment;
• delay in bringing or pursuing a case may result in the party being deprived of interest;
• ordering a party to clarify their case.
5.3.5 Relief from sanctions
A party who breaches a rule or case management order – for example by filing their evidence late – may discover that their case has been struck out, or they have been penalised in some other way. This section considers what can be done to reinstate the case and obtain relief from sanctions. The rules are tough. Litigants who do not comply with court orders because they are busy or overlook deadlines by mistake should not assume that the court will grant relief.
The best thing to do about a sanction is to avoid it taking effect.
If you cannot meet a deadline, you should contact your opponent to agree an extension.
If you receive an unless order (see paragraph 5.3.2) which was made without a hearing, you should consider applying to have it set aside (‘discharged’).
28 days, provided this does not put at risk any hearing date (CPR 3.8(4)).
(see paragraphs 5.3.6 and 11.4, and CPR 3.3(6)).
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sanctions because you have not complied with it, the court will not normally entertain an argument that the unless order was wrongly imposed in the first place.
An application for relief from sanctions is approached in steps, which can be simplified to a sequence of questions, as follows.
Question 1
Was the sanction an order for costs against the...
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