Procedure for a TCC trial

fred robinson (Account suspended) made this Freedom of Information request to Ministry of Justice

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fred robinson (Account suspended)

Dear Sir or Madam,

Will you confirm or deny that a trial in the TCC court can take place without the filing of form TCC/CM1 by either party.

Yours faithfully,

fred robinson

Leo, Luigi,

1 Attachment

Dear Mr Robinson,

I attach our response to your query.

If you have any queries about your request please do not hesitate to
contact me.

Yours sincerely

Luigi Leo

Regional Governance and Finance Officer

Royal Courts of Justice Group

Room TM8.08

Strand, London

WC2A 2LL

tel: 0207 947 - 6027

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fred robinson (Account suspended)

Dear Leo, Luigi,

I refer you to the TCC procedure and ask that you respond to my request.

Yours sincerely,

fred robinson

fred robinson (Account suspended)

Dear Leo, Luigi,

YOUR DOWNLOAD STATES:

Thank you for your email of 3 December 2008, in which you requested information on whether a trial in the Technology Construction Court, (TCC), can take place without the filing of form TCC / CM1 by either party. Your request has been treated as a request pursuant to the Freedom of Information Act, (FOIA) 2000.

I have made enquiries of the TCC and have been advised that the TCC guidance states that, “all parties are expected to complete a detailed response to the case management information sheet sent out by the Registry”.

The purpose of the form CM1 is to allow the judge to formulate their directions at the Case Management hearing. If no information is received from one or either of the parties then it simply means that the judge would have to extract the required information from the parties at the hearing in order to make directions that suit both of the parties. Further, the rules do not state that a case cannot proceed without form CM1 form being lodged prior to a hearing.

Finally, on this matter, on the reverse of form CM1 it states that, “if you fail to return the form by the date given, the judge may give directions or make any order he thinks fit”.

I hope that this answers your query.

If you are dissatisfied with the handling of your request, you have the right to ask for internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to: Data Access and Compliance Unit, 1st Floor – Area C, 102 Petty France, London, SW1H 9AJ.

If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF

If you have any queries about your request please contact me.

Yours sincerely.
Luigi Leo

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A SOMEWHAT MORE COMPREHENSIVE ACCOUNT OF THE TCC RULES ARE CONTAINED IN THE SECOND EDITION OF THE TECHNOLOGY AND CONSTRUCTION COURT GUIDE BELOW.

Section 1.

1.1.3 In respect of those procedural areas for which specific provision is not made in this Guide, the parties, together with their advisors, will be expected to act reasonably and in accordance with both the spirit of the Guide and the overriding objective at CPR Rule 1.1

1.1.4 It is not the function of the Guide to summarise the Civil Procedure Rules (“the CPR”), and it should not be regarded as a substitute for the CPR. The parties and their advisors are expected to familiarise themselves with the CPR and, in particular, to understand the importance of the “overriding objective” of the CPR. The TCC endeavours to ensure that all its cases are dealt with justly and with proper proportionality. This includes ensuring that the parties are on an equal footing; taking all practicable steps to save expenditure; dealing with the dispute in ways which are proportionate to the size of the claim and cross-claim and the importance of the case to the parties; and managing the case throughout in a way that takes proper account of its complexity and the different financial positions of the parties. The court will also endeavour to ensure expedition, and to allot to each case an appropriate share of the court’s resources.

1.1.5 This new edition of the TCC Guide has been prepared in consultation with the judges of the TCC in, Liverpool.

1.2 The CPR

1.2.1 Proceedings in the TCC are governed by the CPR and the supplementary Practice Directions. CPR Part 60 and its associated Practice Direction deal specifically with the practice and procedure of the TCC.

1.2.2 Other parts of the CPR that frequently arise in TCC cases include Parts 12 and 13 (Default Judgment and Setting Aside); Part 17 (Amendments); Part 24 (Summary Judgment); Part 26 (Case Management); Part 32 (Evidence).

1.3.1 What are TCC Claims? CPR Rules 60.1 (2) and (3) provide that a TCC claim is a claim which (i) involves technically complex issues or questions (or for which trial by a TCC judge is desirable) and (ii) has been issued in or transferred into the TCC specialist list. Paragraph 2.1 of the TCC Practice Direction identifies the following as examples of the types of claim which it may be appropriate to bring as TCC claims –

a building or other construction disputes,

d claims by and against local authorities relating to their statutory duties concerning the development of land or the construction of buildings;

h claims between neighbours, owners and occupiers of land in trespass, nuisance, etc.
It should be noted that this list is not exhaustive and other types of claim may well be appropriate for the TCC.

The Court. Both the High Court and the county courts deal with TCC business. Circuit judges and recorders only have jurisdiction to manage and try TCC cases if they have been nominated by the Lord Chancellor pursuant to section 68 (1) (a) of the Supreme Court Act 1981. “Full time” TCC judges spend most of their time dealing with TCC business, although they will do other work when there is no TCC business requiring their immediate attention.

All of the courts which deal with TCC claims form a composite group of courts. When those courts are dealing with TCC business, CPR Part 60, its accompanying Practice Direction and this Guide govern the procedures of those courts. The High Court judge in charge of the TCC (“the Judge in Charge”), although based principally in London, has overall responsibility for the judicial supervision of TCC business in those courts.

1.3.3 The TCC in London. The principal centre for TCC work is the High Court in London at St Dunstan’s House, 133-137 Fetter Lane, London, EC4A 1HD. The Judge in Charge of the TCC sits principally at St Dunstan’s House together with five full time TCC judges. Subject to paragraph 3.7.1 below, any communication or enquiry concerning a TCC case, which is proceeding at St Dunstan’s House, should be directed to the clerk of the judge who is assigned to that case. The various contact details for the judges’ clerks are set out in Appendix D .

TCC county court cases in London are brought in (or transferred to) the Central London Civil Justice Centre, 13-14 Park Crescent, London W1N 4HT.

1.3.4 District Registries :wherever possible, such claims should be issued in one of the following District Registries: Chester, Liverpool. There are full-time TCC Judges in Liverpool and Salford (Manchester).

In a number of regions a “TCC liaison district judge” has been appointed. It is the function of the TCC liaison district judge:

a. To keep other district judges in that region well informed about the role and remit of the TCC (in order that appropriate cases may be transferred to the TCC at an early, rather than late, stage).

c To deal with any subsidiary matter which a TCC judge directs should be determined by a district judge pursuant to rule 60.1 (5) (b) (ii).

d To deal with urgent applications in TCC cases pursuant to paragraph 7.2 of the Practice Direction (i.e. no TCC judge is available and the matter is of a kind that falls within the district judge’s jurisdiction).

1.3.5 TCC claims may also be brought in those county courts which are specified in the Part 60 Practice Direction. The specified county courts are: Chester Liverpool.

Where TCC proceedings are brought in a county court, statements of case and applications should be headed:

“In the … County Court

Technology and Construction Court”

This heading is important because in TCC cases (subject to the limited exceptions mentioned in paragraph 1.3.4 above) district judges do not have jurisdiction to hear applications or make orders.

1.3.6 As a general rule TCC claims for more than £50,000 are brought in the High Court, whilst claims for lower sums are brought in the county court.

1.4 The TCC Users’ Committees

1.4.1 The continuing ability of the TCC to meet the changing needs of all those involved in TCC litigation depends in large part upon a close working relationship between the TCC and its users.

1.4.2 London. The Judge in Charge chairs two meetings a year of the London TCC Users’ Committee. The judge’s clerk acts as secretary to the Committee and takes the minutes of meetings. That Committee is made up of representatives of the London TCC judges, the barristers and solicitors who regularly use the Court, the professional bodies, such as architects, engineers and arbitrators, whose members are affected by the decisions of the Court, and representatives of both employers and contractors’ groups.

1.4.3 Outside London. There are similar meetings of TCC Users’ Committees in Liverpool. Each Users’ Committee is chaired by the full time TCC judge or the principal TCC judge in that location.

1.4.4 The TCC regards these channels of communication as extremely important and all those who are concerned with the work of the Court are encouraged to make full use of these meetings. Any suggestions or other correspondence raising matters for consideration by the Users’ Committee should, in the first instance, be addressed to the clerk to the Judge in Charge at St. Dunstan’s House or to the clerk to the appropriate TCC judge outside London.

1.5 Specialist Associations

1.5.1 There are a number of associations of legal representatives which are represented on the Users’ Committees and which also liaise closely with the Court. These contacts ensure that the Court remains responsive to the opinions and requirements of the professional users of the Court.

1.5.2 The relevant professional organisations are the TCC Bar Association (“TECBAR”) and the TCC Solicitors Association (“TeCSA”). Details of the relevant contacts at these organisations are set out on their respective websites, namely www.tecbar.org and www.tecsa.org.

Section 2. Pre-Action Protocol

2.1.1 There is a Pre-Action Protocol for Construction and Engineering Disputes. Where the dispute involves a claim against architects, engineers or quantity surveyors, this Protocol prevails over the Professional Negligence Pre-Action Protocol: see paragraph 1.1 of the Protocol for Construction and Engineering Disputes and paragraph A.1 of the Professional Negligence Pre-Action Protocol. The current version of the Construction and Engineering Pre-Action Protocol (“the Protocol”) is set out in volume 1 of the White Book at section C.

2.1.2 The purpose of the Protocol is to encourage the frank and early exchange of information about the prospective claim and any defence to it; to enable parties to avoid litigation by agreeing a settlement of the claim before the commencement of proceedings; and to support the efficient management of proceedings where litigation cannot be avoided.

2.1.3 Proportionality. The overriding objective (CPR rule 1.1) applies to the pre-action period. The Protocol must not be used as a tactical device to secure advantage for one party or to generate unnecessary costs. In lower value TCC claims (such as those likely to proceed in the county court), the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money which is at stake. The Protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation.

2.2 To Which Claims Does The Protocol Apply?

2.2.1 The court will expect all parties to have complied in substance with the provisions of the Protocol in all construction and engineering disputes. The only exceptions to this are identified in paragraph 2.3 below.

2.2.2 The court regards the Protocol as setting out normal and reasonable pre-action conduct. Accordingly, whilst the Protocol is not mandatory for a number of the claims noted by way of example in paragraph 1.3.1 above, such as computer cases or dilapidations claims, the court would, in the absence of a specific reason to the contrary, expect the Protocol generally to be followed in such cases prior to the commencement of proceedings in the TCC.

2.3 What Are The Exceptions ?

2.3.1 A claimant does not have to comply with the Protocol if his claim:

a is to enforce the decision of an adjudicator;
b includes a claim for interim injunctive relief;
c will be the subject of a claim for summary judgment pursuant to Part 24 of the CPR; or
d relates to the same or substantially the same issues as have been the subject of a recent adjudication or some other formal alternative dispute resolution procedure.

2.3.2 In addition, a claimant need not comply with any part of the Protocol if, by so doing, his claim may become time-barred under the Limitation Act 1980. In those circumstances, a claimant should commence proceedings without complying with the Protocol and must, at the same time, apply for specific directions as to the timetable and form of procedure to be adopted. The court may order a stay of those proceedings pending completion of the steps set out in the Protocol.

2.4 What Are The Essential Ingredients Of The Protocol ?

2.4.1 The Letter of Claim. The letter of claim must comply with Section 3 of the Protocol. Amongst other things, it must contain a clear summary of the facts on which each claim is based; the basis on which each claim is made; and details of the relief claimed, including a breakdown showing how any damages have been quantified. The claimant must also provide the names of experts already instructed and on whom he intends to rely.

2.4.2 The Defendant’s Response. The defendant has 14 days to acknowledge the letter of claim and 28 days (from receipt of the letter of claim) either to take any jurisdiction objection or to respond in substance to the letter of claim. Paragraph 4.3.1 of the Protocol enables the parties to agree an extension of the 28 day period up to a maximum of 3 months. In any case of substance it is quite usual for an extension of time to be agreed for the defendant’s response. The letter of response must comply with section 4 of the Protocol. Amongst other things, it must state which claims are accepted, which claims are rejected and on what basis. It must set out any counterclaim to be advanced by the defendant. The defendant should also provide the names of experts who have been instructed and on whom he intends to rely. If the defendant fails either to acknowledge or to respond to the letter of claim in time, the claimant is entitled to commence proceedings.

2.4.3 Pre-action Meeting. The Construction and Engineering Protocol is the only Protocol under the CPR that generally requires the parties to meet, without prejudice, at least once, in order to identify the main issues and the root causes of their disagreement on those issues. The purpose of the meeting is to see whether, and if so how, those issues might be resolved without recourse to litigation or, if litigation is unavoidable, what steps should be taken to ensure that it is conducted in accordance with the overriding objective. At or as a result of the meeting, the parties should consider whether some form of alternative dispute resolution (“ADR”) would be more suitable than litigation and if so, they should endeavour to agree which form of ADR to adopt. Although the meeting is “without prejudice”, any party who attended the meeting is at liberty to disclose to the Court at a later stage that the meeting took place; who attended and who refused to attend, together with the grounds for their refusal; and any agreements concluded between the parties.

2.5 What Happens To The Material Generated By The Protocol?

2.5.1 The letter of claim, the defendant’s response, and the information relating to attendance (or otherwise) at the meeting are not confidential or ‘without prejudice’ and can therefore be referred to by the parties in any subsequent litigation. The detail of any discussion at the meeting(s) and/or any note of the meeting cannot be referred to the court unless all parties agree.

2.5.2 Normally the parties should include in the bundle for the first case management conference: (a) the letter of claim, (b) the response, and (c) any agreed note of the pre-action meeting: see Section 5 below. The documents attached to or enclosed with the letter and the response should not be included in the bundle.

2.6 What If One Party Has Not Complied With The Protocol ?

2.6.1 There can often be a complaint that one or other party has not complied with the Protocol. The court will consider any such complaints once proceedings have been commenced. If the court finds that the claimant has not complied with one part of the Protocol, then the court may stay the proceedings until the steps set out in the Protocol have been taken.

2.6.2 Paragraph 2.3 of the Practice Direction in respect of Protocols (section C of volume 1 of the White Book) makes plain that the court may make adverse costs orders against a party who has failed to comply with the Protocol. The court will exercise any sanctions available with the object of placing the innocent party in no worse a position than he would have been if the Protocol had been complied with.

Section 3.Commencement and Transfer

3.1.1 All proceedings must be started using a claim form under CPR Part 7 or CPR Part 8. All claims allocated to the TCC are assigned to the Multi-Track: see CPR Rule 60.6(1).

3.2 Part 7 Claims

3.2.1 The Part 7 claim form must be marked “Technology and Construction Court” in the appropriate place on the form.

3.4 Service

3.4.1 Claim forms issued in the TCC at St Dunstan’s House in London are to be served by the claimant, not by the Registry. In some other court centres claim forms are served by the court, unless the claimant specifically requests otherwise.

3.4.2 The different methods of service are set out in CPR Part 6 and the accompanying Practice Direction.

3.5.1 A defendant must file an acknowledgment of service in response to both Part 7 claims 14 days after service of the claim form.

3.6.2 A TCC claim may be transferred from the High Court to one of the county courts noted above, and from any county court to the High Court, if the criteria stated in CPR Rule 30.3 are satisfied. In ordinary circumstances, proceedings will be transferred from the TCC in the High Court to the TCC in an appropriate county court if the amount of the claim does not exceed £50,000.

3.7.1 Where a claim has been issued at or transferred to the TCC at St Dunstan’s House in London, the Judge in Charge of the TCC (“the Judge in Charge”) shall with the assistance of court staff classify the case either “HCJ” or “SCJ”.

i If the case is classified “HCJ”, it shall be managed and tried either by the Judge in Charge or by another High Court judge, who will be identified after consultation between the Judge in Charge and the Vice-President of the Queen’s Bench Division.

ii If the case is classified “SCJ”, it shall be managed and tried by one of the senior circuit judges, who is a full time TCC judge in London. Cases in the latter category will either (a) be assigned by the Judge in Charge to a specific senior circuit judge or (b) be assigned to a senior circuit judge by operation of the rota. The assigned judge will have primary responsibility for the management of that case.

3.7.2 When classifying a case “HCJ” or “SCJ”, the Judge in Charge will take into account the following matters, as well as all the circumstances of the case:

1 The size and complexity of the case.
2 The nature and importance of any points of law arising.
3 The amount of money which is at stake.
4 Whether the case is one of public importance.
5 Whether the case has an international element or involves overseas parties.
6 The limited number of High Court judges and the needs of other court users, both civil and criminal.

3.7.5 There are full time TCC judges at Liverpool. TCC cases at these court centres are assigned to judges either

(a) by direction of the full time or principal TCC judge or

(b) by operation of a rota. It will not generally be appropriate for the Judge in Charge (who is based in London) to consider TCC cases which are commenced in, or transferred to, court centres outside London.

3.7.6 When a TCC case has been assigned to a named circuit judge at a court centre other than St Dunstan’s House, all communications to the court about the case (save for communications in respect of fees) shall be made to that judge’s clerk. All communications in respect of fees should be sent to the relevant registry. All statements of case and applications should be marked with the name of the assigned judge.

Section 4.

Access to the Court

4.1.1 There may be a number of stages during the case management phase when the parties will make applications to the court for particular order. There will also be the need for the court to give or vary directions, so as to enable the case to progress to trial.

4.1.2 The court is acutely aware of the costs that may be incurred when both parties prepare for an oral hearing in respect of such interlocutory matters and is always prepared to consider alternative, and less expensive, ways in which the parties may seek the court’s assistance.

4.1.3 There are certain stages in the case management phase when it will generally be better for the parties to appear before the assigned judge.

4.2 Hearings in Court

4.2.1 First Case Management Conference. The court will normally require the parties to attend an oral hearing for the purposes of the first Case Management Conference. This is because there may be matters which the judge would wish to raise with the parties arising out of the answers to the case management information sheets and the parties’ proposed directions: Even in circumstances where the directions and the case management timetable may be capable of being agreed by the parties and the court, the assigned judge may still wish to consider a range of case management matters face-to-face with the parties, including the possibility of ADR.

4.2.2 Whilst the previous paragraph sets out the ideal position, it is recognised that in low value cases the benefits of personal attendance might be outweighed by the costs involved. Ultimately, the question whether personal attendance should be dispensed with at any particular case management conference must be decided by the judge, after considering any representations made and the circumstances of that particular case.

4.2.3 Pre-trial Review. It will normally be helpful for the parties to attend before the judge on a Pre-trial Review (“PTR”). It is always preferable for Counsel or other advocates who will be appearing at the trial to attend the PTR. Again, even if the parties can agree beforehand any outstanding directions and the detailed requirements for the management of the trial, it is still of assistance for the judge to raise matters of detailed trial management with the parties at an oral hearing. In appropriate cases, e.g. where the amount in issue is disproportionate to the costs of a full trial, the judge may wish to consider with the parties whether there are other ways in which the dispute might be resolved.

4.2.4 Whether or not other interlocutory applications require to be determined at an oral hearing will depend on the nature and effect of the application being made.

4.4 Paper Applications

4.4.2 If a party wishes to make an application to the court, it should ask itself the question: “Can this application be conveniently dealt with in writing?” If it can, then the party should issue the application and make its (short) written submissions both in support of its application and why it should be dealt with on paper. The application, any supporting evidence and the written submissions should be provided to all parties, as well as the court. These must include a draft of the precise order sought.

4.4.3 The party against whom the application is made, and any other interested party, should respond within 3 days dealing both with the substantive application and the request for it to be dealt with in writing.

4.4.4 The court can then decide whether or not to deal with the application in writing. If the parties are agreed that the court should deal with it in writing, it will be rare for the court to take a different view. If the parties disagree as to whether or not the application should be dealt with in writing, the court can decide that issue and, if it decides to deal with it in writing can go on to resolve the substantive point on the basis of the parties’ written submissions.

4.4.6 It is important for the parties to ensure that all documents provided to the court are also provided to all the other parties, so as to ensure that both the court and the parties are working on the basis of the same documentation. The pagination of any bundle which is provided to the court and the parties must be identical.

4.8 Lodging documents.

4.8.1 In general documents should be lodged in hard copy and not sent by email or fax.

Section 5. Case Management and the First CMC

5.1.1 The general approach of the TCC to case management is to give directions at the outset and then throughout the proceedings to serve the overriding objective of dealing with cases justly. The judge to whom the case has been assigned has wide case management powers, which will be exercised to ensure that:

• the real issues are identified early on and remain the focus of the ongoing proceedings;

• a realistic timetable is ordered which will allow for the fair and prompt resolution of the action;

• costs are properly controlled and reflect the value of the issues to the parties and their respective financial positions.

5.1.2 In order to assist the judge in the exercise of his case management functions, the parties will be expected to co-operate with one another at all times. See CPR rule 1.3. Costs sanctions may be applied, if the judge concludes that one party is not reasonably co-operating with the other parties.

5.1.3 A hearing at which the judge gives general procedural directions is a case management conference (“CMC”). CMCs are relatively informal and business-like occasions. Counsel are not robed. Representatives sit when addressing the judge.

5.1.4 The following procedures apply in order to facilitate effective case management:

Upon commencement of a case in the TCC, it is allocated automatically to the multi-track. The provisions of CPR Part 29 apply to all TCC cases.

• The TCC encourages a structured exchange of proposals and submissions for CMCs in advance of the hearing, so as to enable the parties to respond on an informed basis to proposals made.

• The judges of the TCC operate pro-active case management. In order to avoid the parties being taken by surprise by any judicial initiative, the judge will consider giving prior notification of specific or unusual case management proposals to be raised at a case management conference.

5.1.5 The TCC’s aim is to ensure that the trial of each case takes place before the judge who has managed the case since the first CMC. Whilst continuity of judge is not always possible, this remains an aspiration of case management within the TCC.

5.2 The Fixing of the First CMC

5.2.1 Where a claim has been started in the TCC, or where it has been transferred into the TCC, paragraph 8.1 of the Part 60 Practice Direction requires the court to fix the first CMC within 14 days of the earliest of

1 the filing by the defendant of an acknowledgement of service or
2 the filing by the defendant of the defence or
3 the date of the order transferring the case to the TCC.

If some defendants but not others are served with proceedings, the claimant’s solicitors should so inform the court and liaise about the fixing of the first CMC.

5.2.2 This means that the first CMC takes place relatively early, sometimes before the defendant has filed a defence. However, if, as will usually be the case, the parties have complied with the protocol they will have a good idea of each other’s respective positions, and an effective CMC can take place. If, on the other hand, there has been a failure to comply with the protocol, or there are other reasons why the issues are not clearly defined at the outset, then it may be important for the judge to be involved at an early stage.

5.3.1 All parties are expected to complete a detailed response to the case management information sheet sent out by the Registry when the case is commenced/transferred. A copy of a blank case management information sheet is attached as Appendix A . It is important that all parts of the form are completed, particularly those sections (e.g. concerned with estimated costs) that enable the judge to give directions in accordance with the overriding objective.

5.3.2 The Registry will also send out a blank standard directions form to each party. This sets out the usual directions made on the first CMC. The parties should fill them in, indicating the directions and timetable sought. The parties should return both the questionnaire and the directions form to the court, so that the areas (if any) of potential debate at the CMC can be identified. The parties are encouraged to exchange proposals for directions and the timetable sought, with a view to agreeing the same before the CMC for consideration by the court.

5.3.3 If the case is large or complex, it is helpful for the advocates to prepare a Note to be provided to the judge the day before the CMC. If such a Note is provided, it is unnecessary for the claimant also to prepare a Case Summary as well.

5.3.4 In smaller cases, a Case Summary for the CMC, explaining briefly the likely issues, can be helpful. Such Case Summaries should be non-contentious and should (if this is possible without incurring disproportionate cost) be agreed between the parties in advance of the hearing.

5.4.1 The following checklist identifies the matters which the judge is likely to want to consider at the first CMC, although it is not exhaustive:

• The need for, and content of, any further pleadings. This is dealt with in Section 5.5 below.

• The outcome of the Protocol process, and the possible further need for ADR. ADR is dealt with.

• The desirability of dealing with particular disputes by way of a Preliminary Issue hearing.

• Whether the trial should be in stages (e.g. stage 1 liability and causation, stage 2 quantum). In very heavy cases this may be necessary in order to make the trial manageable. In more modest cases, where the quantum evidence will be extensive, a staged trial may be in the interest of all parties.

• The appropriate orders in respect of the disclosure of documents.

• The appropriate orders as to the exchange of written witness statements. It should be noted that, although it is normal for evidence-in-chief to be given by way of the written statements in the TCC, the judge may direct that evidence about particular disputes (such as what was said at an important meeting) should be given orally without reference to such statements.

• Whether it is appropriate for the parties to rely on expert evidence and, if so, what disciplines of experts should give evidence, and on what issues. This may be coupled with an order relating to the carrying out of inspections, the obtaining of samples, the conducting of experiments, or the performance of calculations. The parties must be aware that, in accordance with the overriding objective, the judge will only give the parties permission to rely on expert evidence if it is both necessary and appropriate, and, even then, will wish to ensure that the scope of any such evidence is limited as far as possible.

• In certain cases the possibility of making a costs cap order.

• The appropriate timetable for the taking of the various interlocutory steps noted above, and the fixing of dates for both the PTR and the trial itself. The parties will therefore need to provide the judge with an estimate for the length of the trial, assuming all issues remain in dispute. Unless there is good reason not to, the trial date will generally be fixed at the first CMC (although this may be more difficult at court centres with only one TCC judge). Therefore, to the extent that there are any relevant concerns as to availability of either witnesses or legal representatives, they need to be brought to the attention of the court on that occasion. The length of time fixed for the trial will depend on the parties’ estimates, and also the judge’s own view.

If the parties’ estimate of trial length subsequently changes, they should inform the clerk of the assigned judge immediately.

5.4.2 The fixing of the trial date at the CMC is usually as a provisional fixture. Therefore no trial fee is payable at this stage. The court should at the same time specify a date upon which the fixture will cease to be “provisional” and, therefore, the trial fee will become payable. This should ordinarily be two months before the trial date. It should be noted that:

• if the trial fee is not paid within 14 days of the due date, then the whole claim will be struck out: see CPR rule 3.7 (1) (a) and (4);

• if the court is notified at least 14 days before the trial date that the case is settled or discontinued, then the trial fee, which has been paid, shall be refunded: see fee 2.2 in Schedule 1 to the Civil Proceedings Fees Order 2004.

5.4.3 Essentially, the judge’s aim at the first CMC is to set down a detailed timetable which, in the majority of cases, will ensure that the parties need not return to court until the PTR.

5.5.1 Defence. If no defence has been served prior to the first CMC, then (except in cases where judgment in default is appropriate) the court will usually make an order for service of the defence within a specified period. The defendant must plead its positive case. Bare denials and non-admissions are, save in exceptional circumstances, unacceptable.

5.5.2 Further Information. If the defendant wants to request further information of the Particulars of Claim, the request should, if possible, be formulated prior to the first CMC, so that it can be considered on that occasion. All requests for further information should be kept within reasonable limits, and concentrate on the important parts of the case.

5.5.3 Reply. A reply to the defence is not always necessary. However, where the defendant has raised a positive defence on a particular issue, it may be appropriate for the claimant to set out in a reply how it answers such a defence.

5.5.4 Part 20 Claims. The defendant should, at the first CMC, indicate (so far as possible) any Part 20 claims that it is proposing to make, whether against the claimant or any other party. Part 20 claims are required to be pleaded in the same detail as the original claim. They are a very common feature of TCC cases, because the widespread use of sub-contractors in the UK construction industry often makes it necessary to pass claims down a contractual chain. Defendants are encouraged to start any necessary Part 20 proceedings as soon as possible. It is undesirable for applications to join Part 20 defendants, to be made late in the proceedings.

5.7 Agreement Between the Parties

5.7.1 Many, perhaps most, of the required directions at the first CMC may be agreed by the parties. If so, the judge will endeavour to make orders in the terms which have been agreed, unless he considers that the agreed terms fail to take into account important features of the case as a whole, or the principles of the CPR. The agreed terms will always, at the very least, form the starting-point of the judge’s consideration of the orders to be made at the CMC. If the agreed terms are submitted to the judge 3 days in advance of the hearing date, it may be possible to avoid the need for a hearing altogether.

5.7.2 The approach outlined in paragraph 5.7.1 above is equally applicable to all other occasions when the parties come before the court with a draft order that is wholly or partly agreed.

5.8.1 Unless the court itself draws up the order, it will direct one party (usually the claimant or applicant) to do so within a specified time. That party must draw up the order and lodge it with the court for approval. Once approved, the order will be stamped by the court and returned to that party for service upon all other parties.

5.9.1 In an appropriate case, the judge will fix a review CMC, to take place part way through the timetable that has been set down, in order to allow the court to review progress, and to allow the parties to raise any matters arising out of the steps that have been taken up to that point. This will not, however, be ordered automatically.

5.9.2 Each party will be required to give notice in writing to the other parties and the court of any order which it will be seeking at the review CMC, two days in advance of the hearing..

5.10 The Permanent Case Management Bundle

5.10.1 In conjunction with the judge’s clerk, the claimant’s solicitor is responsible for ensuring that, for the first CMC and at all times thereafter, there is a permanent bundle of copy documents available to the judge, which contains:

• any relevant documents resulting from the Pre-Action Protocol;
• the claim form and all statements of case;
• all orders;
• all completed case management information sheets.

5.10.2 The permanent case management bundle can then be supplemented by the specific documents relevant to any particular application that may be made. Whether these supplementary documents should (a) become a permanent addition to the case management bundle or (b) be set on one side, will depend upon their nature. The permanent case management bundle may remain at court and be marked up by the judge; alternatively, the judge may direct that the permanent case management bundle be maintained at the offices of the claimant’s solicitors and provided to the court when required.

Section 6. Applications after the First CMC

6.1 Relevant parts of the CPR

6.1.1 The basic rules relating to all applications that any party may wish to make are set out in CPR Part 23 and its accompanying Practice Directions.

6.1.2 Part 7 of the Practice Direction accompanying CPR Part 60 is also of particular relevance.

6.2 Application Notice

6.2.1 As a general rule, any party to proceedings in the TCC wishing to make an application of any sort must file an application notice (rule 23.3) and serve that application notice on all relevant parties as soon as practicable after it has been filed (rule 23.4). Application notices should be served by the parties, unless (as happens in some court centres outside London) service is undertaken by the court.

6.2.2 The application notice must set out in clear terms what order is sought and, more briefly, the reasons for seeking that order: see rule 23.6.

6.2.3 The application notice must be served at least 3 days before the hearing at which the Court deals with the application: rule 23.7 (1). Such a short notice period is only appropriate for the most straight-forward type of application.

6.2.4 Most applications, in particular applications for summary judgment under CPR Part 24 or to strike out a statement of case under CPR rule 3.4, will necessitate a much longer notice period than 3 days. In such cases, it is imperative that the applicant obtain a suitable date and time for the hearing of the application from the assigned judge’s clerk before the application notice is issued. The applicant must then serve his application notice and evidence in support sufficiently far ahead of the date fixed for the hearing of the application for there to be time to enable the respondent to serve evidence in response. Save in exceptional circumstances, there should be a minimum period of 10 working days between the service of the notice (and supporting evidence) and the hearing date. If any party considers that there is insufficient time before the hearing of the application or if the time estimate for the application itself is too short, that party must notify the Judge’s clerk and the hearing may then be refixed by agreement.

6.2.5 When considering the application notice, the judge may give directions in writing as to the dates for the provision or exchange of evidence and any written submissions or skeleton arguments for the hearing.

6.3.1 The application notice when it is served must be accompanied by all evidence in support: rule 23.7 (2).

6.3.2 Unless the CPR expressly requires otherwise, evidence will be given by way of witness statements. Such statements must be verified by a statement of truth signed by the maker of the statement: rule 22.1.

6.4.1 Likewise, any evidence in opposition to the application should, unless the rules expressly provide otherwise, be given by way of witness statement verified by a statement of truth.

6.4.2 It is important to ensure that the evidence in opposition to the application is served in good time before the hearing so as to enable:

• the court to read and note up the evidence;
• the applicant to put in any further evidence in reply that may be considered necessary.

Such evidence should be served at least 5 working days before the hearing.

6.5.1 The bundle for the hearing of anything other than the most simple and straightforward application should consist of:

• the permanent case management bundle;
• the witness statements provided in support of the application, together with any exhibits;
• the witness statements provided in opposition to the application together with exhibits;
• any witness statements in reply, together with exhibits.

6.5.2 The permanent case management bundle will either be with the court or with the claimant’s solicitors, depending on the order made at the first CMC. If it is with the claimant’s solicitors, it should be provided to the court not less than 2 working days before the hearing. In any event, a paginated bundle (see paragraph 6.5.4 below) containing any material specific to the application should also be provided to the court not less than 2 working days before the hearing, unless otherwise directed by the judge. A failure to comply with this deadline may result in the adjournment of the hearing, and the costs thrown away being paid by the defaulting party.

6.5.3 In all but the simplest applications, the court will expect the parties to provide skeleton arguments and copies of any authorities to be relied on. The form and content of the skeleton argument is principally a matter for the author, although the judge will expect it to identify the issues that arise on the application, the important parts of the evidence relied on, and the applicable legal principles. For detailed guidance as to the form, content and length of skeleton arguments, please see paragraph 7.11.12 of the Queen’s Bench Guide; Appendix 3 of the Chancery Guide; and Appendix 9 of the Commercial Court Guide.

6.5.4 For an application that is estimated to last ½ day or less, the skeleton should be provided no later than 1 pm on the last working day before the hearing. It should be accompanied by photocopies of the authorities relied on.

6.5.5 For an application that is estimated to last more than ½ day, the skeleton should be provided no later than 4 pm one clear working day before the hearing. It should be accompanied by photocopies of the authorities relied on.

6.5.6 The time limits at paragraphs 6.5.4 and 6.5.5 above will be regarded as the latest times by which such skeletons should be provided to the court. Save in exceptional circumstances, no extension to these periods will be permitted.

6.5.7 Pagination. It is generally necessary for there to be a paginated bundle for the hearing. Where the parties have produced skeleton arguments, these should be cross-referred to the bundle page numbers.

6.6 Hearings

6.6.1 Arbitration applications may be heard in private: see CPR rule 62.10. All other applications will be heard in public in accordance with CPR rule 39.2, save where otherwise ordered.

6.6.2 Provided that the application bundle and the skeletons have been lodged in accordance with the time limits set out above, the parties can assume that the court will have a good understanding of the points in issue. However, the court will expect to be taken to particular documents relied on by the parties and will also expect to be addressed on any important legal principles that arise.

6.6.3 It is important that the parties ensure that every application is dealt with in the estimated time period. Since many applications are dealt with on Fridays, it causes major disruption if application hearings are not disposed of within the estimated period. If the parties take too long in making their submissions, the application may be adjourned, part heard, and the Court may impose appropriate costs sanctions.

6.6.4 At the conclusion of the hearing, unless the court itself draws up the order, it will direct the applicant’s solicitor to do so within a specified period.

6.7 Paper Applications

6.7.1 Contested applications are usually best disposed of at an oral hearing (either in court or by telephone). However, as noted in Section 4 above, some applications may be suitable for determination on paper. The procedure for dealing with paper applications is outlined in paragraph 4.4 above.

6.7.2 In addition, certain simple applications (particularly in lower value cases) arising out of the management of the proceedings may be capable of being dealt with by correspondence without the need for any formal application or order of the court. This is particularly true of applications to vary procedural orders, which variations are wholly or largely agreed, or proposals to vary the estimated length of the trial. In such cases, the applicant should write to the other parties indicating the nature of its application and to seek their agreement to it. If, however, it emerges that there is an issue to be resolved by the court, then a formal application must be issued and dealt with in the normal manner.

6.8.3 As noted above, whilst the parties can agree between themselves the orders to be made either at the Case Management Conference or the Pre-Trial Review, it is normally necessary for the Court to consider the case with the parties (either at an oral hearing or by way of a telephone conference) on those occasions in any event.

6.8.4 Generally, when giving directions, the court will endeavour to identify the date by which the relevant step must be taken, and will not simply provide a period during which that task should be performed. The parties should therefore ensure that any proposed consent order also identifies particular dates, rather then periods, by which the relevant steps must be taken.

6.9.2 The costs of any application which took a day or less to be heard and disposed of will be dealt with summarily, unless there is a good reason for the court not to exercise its powers as to the summary assessment of costs.

6.9.3 Accordingly, it is necessary for parties to provide to the court and to one another their draft statements of costs no later than 24 hours before the start of the application hearing. Any costs which are incurred after these draft statements have been prepared, but which have not been allowed for (e.g. because the hearing has exceeded its anticipated length), can be mentioned at the hearing.

Section 7. ADR

7.1.1 The court will provide encouragement to the parties to use alternative dispute resolution (“ADR”) and will, whenever appropriate, facilitate the use of such a procedure. In this Guide, ADR is taken to mean any process through which the parties attempt to resolve their dispute, which is voluntary, or (occasionally) early neutral evaluations. In an early neutral evaluation either a judge or some other neutral person receives a concise presentation from each party and then states his own evaluation of the case.

7.1.2 The use of ADR can lead to a significant saving of costs and may result in a settlement which is satisfactory to all parties.

7.1.3 Legal representatives in all TCC cases should ensure that their clients are fully aware of the benefits of ADR and that the use of ADR has been carefully considered prior to the first CMC.

7.2.1 ADR may be appropriate before the proceedings have begun or at any subsequent stage.

7.2.2 The TCC Pre-Action Protocl itself provides for a type of ADR, because it requires there to be at least one face-to-face meeting between the parties before the commencement of proceedings. At this meeting, there should be sufficient time to discuss and resolve the dispute. As a result of this procedure having taken place, the court will not necessarily grant a stay of proceedings upon demand and it will always need to be satisfied that an adjournment is actually necessary to enable ADR to take place.

7.2.3 However, at the first CMC, the court will want to be addressed on the parties’ views as to the likely efficacy of ADR, the appropriate timing of ADR, and the advantages and disadvantages of a short stay of proceedings to allow ADR to take place. Having considered the representations of the parties, the court may order a short stay to facilitate ADR at that stage. Alternatively, the court may simply encourage the parties to seek ADR and allow for it to occur within the timetable for the resolution of the proceedings set down by the court.

7.2. At any stage after the first CMC and prior to the commencement of the trial, the court, will, either on its own initiative or if requested to do so by one or both of the parties, consider afresh the likely efficacy of ADR and whether or not a short stay of the proceedings should be granted, in order to facilitate ADR.

7.3.1 In an appropriate case, the court may indicate the type of ADR that it considers suitable, but the decision in this regard must be made by the parties. In most cases, the appropriate ADR procedure will be mediation.

7.3.2 If at any stage in the proceedings the court considers it appropriate, an ADR order may be made. If such an order is made at the first CMC, the court may go on to give directions for the conduct of the action up to trial (in the event that the ADR fails). Such directions may include provision for a review CMC.

7.3.3 The court will not ordinarily recommend any individual or body to act as mediator or to perform any other ADR procedure. In the event that the parties fail to agree the identity of a mediator or other neutral person pursuant to an order in the terms of the court may select such a person from the lists provided by the parties. To facilitate this process, the court would also need to be furnished with the C.V’s of each of the individuals on the lists.

7.3.4 Information as to the types of ADR procedures available and the individuals able to undertake such procedures is available from TeCSA, TECBAR, the Civil Mediation Council, and from some TCC court centres outside London.

7.4.1 Generally. At the end of the trial, there may be costs arguments on the basis that one or more parties unreasonably refused to take part in ADR. The court will determine such issues having regard to all the circumstances of the particular case. In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576; [2004] 1 WLR 3002, the Court of Appeal identified six factors that may be relevant to any such consideration:

a the nature of the dispute;
b the merits of the case;
c the extent to which other settlement methods have been attempted;
d whether the costs of the ADR would be disproportionately high;
e whether any delay in setting up and attending the ADR would have been prejudicial;
f whether the ADR had a reasonable prospect of success.

7.4.2 If an ADR Order Has Been Made. The court will expect each party to co-operate fully with any ADR which takes place following an order of the court. If any other party considers that there has not been proper co-operation in relation to arrangements for the mediation, the complaint will be considered by the court and cost orders and/or other sanctions may be ordered against the defaulting party in consequence.

7.5.1 An early neutral evaluation (“ENE”) may be carried out by any appropriately qualified person, whose opinion is likely to be respected by the parties. In an appropriate case, and with the consent of all parties, a TCC judge may provide an early neutral evaluation either in respect of the full case or of particular issues arising within it. Such an ENE will not, save with the agreement of the parties, be binding on the parties.

7.5.2 If the parties would like an ENE to be carried out by the court, then they can seek an appropriate order from the assigned judge either at the first CMC or at any time prior to the commencement of the trial.

7.5.3 The assigned judge may choose to do the ENE himself. In such instance, the judge will take no further part in the proceedings once he has produced the ENE, unless the parties expressly agree otherwise. Alternatively, the assigned judge will select another available TCC judge to undertake the ENE.

7.5.4 The judge undertaking the ENE will give appropriate directions for the preparation and conduct of the ENE. This may include a stay of the substantive proceedings whilst the ENE is carried out. The ENE may be carried out entirely on paper. Alternatively, there may be an oral hearing (either with or without evidence). The parties should agree whether the entire ENE procedure is to be without prejudice, or whether it can be referred to at any subsequent trial or hearing.

Section 8. Preliminary Issues

8.1.1 The hearing of Preliminary Issues (“PI”), at which the court considers and delivers a binding judgment on particular issues in advance of the main trial, can be an extremely cost-effective and efficient way of narrowing the issues between the parties and, in certain cases, of resolving disputes altogether.

8.1.2 Some cases listed in the TCC lend themselves particularly well to this procedure. A PI hearing can address particular points which may be decisive of the whole proceedings; even if that is not the position, it is often possible for a PI hearing to cut down significantly on the scope (and therefore the costs) of the main trial.

8.1.3 At the first CMC the court will expect to be addressed on whether or not there are matters which should be taken by way of Preliminary Issues in advance of the main trial. Subject to paragraph 8.5 below, it is not generally appropriate for the court to make an order for the trial of preliminary issues until after the defence has been served. After the first CMC, and at any time during the litigation, any party is at liberty to raise with any other party the possibility of a PI hearing and the court will consider any application for the hearing of such Preliminary Issues. In many cases, although not invariably, a PI order will be made with the support of all parties.

8.1.4 Whilst, for obvious reasons, it is not possible to set out hard and fast rules for what is and what is not suitable for a PI hearing, the criteria set out in Section 8.2 below should assist the parties in deciding whether or not some or all of the disputes between them will be suitable for a PI hearing.

8.1.5 Drawbacks of preliminary issues in inappropriate cases. If preliminary issues are ordered inappropriately, they can have adverse effect. Evidence may be duplicated. The same witnesses may give evidence before different judges, in the event that there is a switch of assigned judge. Findings may be made at the PI hearing, which are affected by evidence called at the main hearing. The prospect of a PI hearing may delay the commencement of ADR or settlement negotiations. Also two trials are more expensive than one. For all these reasons, any proposal for preliminary issues needs to be examined carefully, so that the benefits and drawbacks can be evaluated. Also the court should give due weight to the views of the parties when deciding whether a PI hearing would be beneficial.

8.1.6 Staged trials. The breaking down of a long trial into stages should be differentiated from the trial of preliminary issues. Sometimes it is sensible for liability (including causation) to be tried before quantum of damages. Occasionally the subject matter of the litigation is so extensive that for reasons of case management the trial needs to be broken down into separate stages.

8.2.1 The Significance of the Preliminary Issues. The court would expect that any issue proposed as a suitable PI would, if decided in a particular way, be capable of:

• resolving the whole proceedings or a significant element of the proceedings; or
• significantly reducing the scope, and therefore the costs, of the main trial; or
• significantly improving the possibility of a settlement of the whole proceedings.

8.2.2 Oral Evidence. The court would ordinarily expect that, if issues are to be dealt with by way of a PI hearing, there would be either no or relatively limited oral evidence. If extensive oral evidence was required on any proposed PI, then it may not be suitable for a PI hearing. Although it is difficult to give specific guidance on this point, it is generally considered that a PI hearing in a smaller case should not take more than about 2 days, and in a larger and more complex case, should not take more than about 4 days.

8.3 The following are commonly resolved by way of a PI hearing:

a Disputes as to whether or not there was a binding contract between the parties.
b Disputes as to what documents make up or are incorporated within the contract between the parties and disputes as to the contents or relevance of any conversations relied on as having contractual status or effect.

c Disputes as to the proper construction of the contract documents or the effect of an exclusion or similar clause.

d Disputes as to the correct application of a statute or binding authority to a situation where there is little or no factual dispute.

e Disputes as to the existence and/or scope of a statutory duty .

f Disputes as to the existence and/or scope of a duty of care at common law in circumstances where there is no or little dispute about the relevant facts.

8.4 Other Possible Preliminary Issues The following can sometimes be resolved by way of a preliminary issue hearing, although a decision as to whether or not to have such a hearing will always depend on the facts of the individual case:

8.4.1 A Limitation Defence. It is often tempting to have limitation issues resolved in advance of the main trial. This can be a good idea because, if a complex claim is statute-barred, a decision to that effect will lead to a significant saving of costs. However, there is also a risk that extensive evidence relevant to the limitation defence (relating to matters such as when the damage occurred or whether or not there has been deliberate concealment) may also be relevant to the liability issues within the main trial. In such a case, a preliminary issue hearing may lead to

a) extensive duplication of evidence and therefore costs and
b) give rise to difficulty if the main trial is heard by a different judge.

8.4.3 ‘One-Off’ Issues. Issues which do not fall into any obvious category, like misrepresentation, may be suitable for resolution by way of a PI hearing, particularly if the whole case can be shown to turn on them.

8.5.1 Sometimes parties wish to resolve their dispute by ADR, but there is one major issue which is a sticking point in any negotiation or mediation. The parties may wish to obtain the court’s decision on that single issue, in the expectation that after that they can resolve their differences without further litigation.

8.5.2 In such a situation the parties may wish to bring proceedings under CPR Part 8, in order to obtain the court’s decision on that issue. Such proceedings can be rapidly progressed. Alternatively, if the issue is not suitable for Part 8 proceedings, the parties may bring proceedings under Part 7 and then seek determination of the critical question as a preliminary issue. At the first CMC the position can be explained and the judge can be asked to order early trial of the proposed preliminary issue, possibly without the need for a defence or any further pleadings.

8.6.1 If a party wishes to seek a PI hearing, either at the first CMC or thereafter, that party must circulate a precise draft of the proposed preliminary issues to the other parties and to the court well in advance of the relevant hearing.

8.6.2 If the court orders a PI hearing, it is likely to make such an order only by reference to specific and formulated issues, in order to avoid later debate as to the precise scope of the issues that have been ordered. Of course, the parties are at liberty to propose amendments to the issues before the PI hearing itself, but if such later amendments are not agreed by all parties, they are unlikely to be ordered.

8.7 Appeals

8.7.1 When considering whether or not to order a PI hearing, the court will take into account the effect of any possible appeal against the PI judgment, and the concomitant delay caused.

8.7.2 At the time of ordering preliminary issues, both the parties and the court should specifically consider whether, in the event of an appeal against the PI judgment, it is desirable that the trial of the main action should (a) precede or (b) follow such appeal. It should be noted, however, that the first instance court has no power to control the timetable for an appeal. A first instance court’s power to extend time under CPR rule 52.4 (2) (a) for filing an appellant’s notice is effectively limited to 14 days (see paragraph 5.19 of the Practice direction supplementing Part 52). The question whether an appeal should be (a) expedited or (b) stayed is entirely a matter for the Court of Appeal. Nevertheless, the Court of Appeal will take notice of any “indication” given by the lower court in this regard.

10.2.3 The claimant must include within the claim form an application for permission to appeal . No separate application notice is required.

10.2.4 The claim form and supporting documents must be served on the defendant. The judge will not consider the application for permission to appeal until (a) a certificate of service has been filed at the appropriate TCC registry or court centre and (b) a further 28 days have elapsed, so as to enable the defendant to file written evidence in opposition. Save in exceptional circumstances, the only material admissible on an application for permission to appeal is (a) the award itself and any documents annexed to the award and (b) evidence relevant to the issue whether any identified question of law is of general public importance.

10.2.5 If necessary, the judge dealing with the application will direct an oral hearing with a date for the hearing. That hearing will, ordinarily, consist of brief submissions by each party. The judge dealing with the application will announce his decision in writing or, if a hearing has been directed, at the conclusion of the hearing with brief reasons if the application is refused.

10.2.6 Where the permission has been allowed in part and refused in part:

a Only those questions for which permission has been granted may be raised at the hearing of the appeal.

b Brief reasons will be given for refusing permission in respect of the other questions.

10.2.7 If the application is granted, the judge will fix the date for the appeal, and direct whether the same judge or a different judge shall hear the appeal.

10.3 Appeals where leave to appeal is not required

10.3.1 Parties to a construction contract should check whether they have agreed in the underlying contract that an appeal may be brought without leave, since some construction and engineering standard forms of contract so provide. If that is the case, the appeal may be set down for a substantive hearing without leave being sought. The arbitration claim form should set out the clause or provision which it is contended provides for such agreement and the claim form should be marked “Arbitration Appeal – Leave not required”.

10.3.2 Where leave is not required, the claimant should identify each question of law that it is contended arises out of the award and which it seeks to raise in an appeal under section 69. If the defendant does not accept that the questions thus identified are questions of law or maintains that they do not arise out of the award or that the appeal on those questions may not be brought for any other reason, then the defendant should notify the claimant and the court of its contentions and apply for a directions hearing before the judge nominated to hear the appeal on a date prior to the date fixed for the hearing of the appeal. Unless the judge hearing the appeal otherwise directs, the appeal will be confined to the questions of law identified in the arbitration claim form.

10.3.3 In an appropriate case, the judge may direct that the question of law to be raised and decided on the appeal should be reworded, so as to identify more accurately the real legal issue between the parties.

10.4 The hearing of the appeal

10.4.1 Parties should ensure that the court is provided only with material that is relevant and admissible to the point of law. This will usually be limited to the award and any documents annexed to the award: see Hok Sport Ltd v Aintree Racecourse Ltd [2003] BLR 155 at 160. However, the court should also receive any document referred to in the award, which the court needs to read in order to determine a question of law arising out of the award: see Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] EWHC (TCC).

10.4.2 On receiving notice of permission being granted, or on issuing an arbitration claim form in a case where leave to appeal is not required, the parties should notify the court of their joint estimate or differing estimates of the time needed for the hearing of the appeal.

10.4.3 The hearing of the appeal is to be in open court unless an application (with notice) has previously been made that the hearing should be wholly or in part held in private and the court has directed that this course should be followed.

10.5 Section 68 applications – Serious Irregularity

10.5.1 In some arbitration claims arising out of construction and engineering arbitrations, a party will seek to appeal a question of law and, at the same time, seek to challenge the award under section 68 of the Arbitration Act 1996 on the grounds of serious irregularity. This raises questions of procedure, since material may be admissible in a section 68 application which is inadmissible on an application or appeal under section 69. Similarly, it may not be appropriate for all applications to be heard together. A decision is needed as to the order in which the applications should be heard, whether there should be one or more separate hearings to deal with them and whether or not the same judge should deal with all applications. Where a party intends to raise applications under both sections of the Arbitration Act 1996, they should be issued in the same arbitration claim form or in separate claim forms issued together. The court should be informed that separate applications are intended and asked for directions as to how to proceed.

10.5.2 The court will give directions as to how the section 68 and section 69 applications will be dealt with before hearing or determining any application. These directions will normally be given in writing but, where necessary or if such is applied for by a party, the court will hold a directions hearing at which directions will be given. The directions will be given following the service of any documentation by the defendant in answer to all applications raised by the claimant.

Section 11. Disclosure

11.1.1 The appropriate disclosure and inspection orders to be made will normally be considered and made at the first case management conference. This is governed by CPR Part 31 and the Practice Direction supplementing it. This procedure provides for standard disclosure, being disclosure and inspection in accordance with CPR Part 31 of:

a the documents upon which a party relies;

b the documents which adversely affect his or another party’s case or support another party’s case; and

c the documents which a party is required to disclose by any relevant practice direction.

11.2 Limiting disclosure and the cost of disclosure

11.2.1 In many cases being conducted in the TCC, standard disclosure will not be appropriate. This may for any one or more of the following reasons:

(a) The amount of documentation may be considerable, given the complexity of the dispute and the underlying contract or contracts, and the process of giving standard disclosure may consequently be disproportionate to the issues and sums in dispute.

(b) The parties may have many of the documents in common from their previous dealings so that disclosure is not necessary or desirable.

(c) The parties may have provided informal disclosure and inspection of the majority of these documents, for example when complying with the pre-action Protocol.

(d) The cost of providing standard disclosure may be disproportionate.

In such cases, the parties should seek to agree upon a more limited form of disclosure or to dispense with formal disclosure altogether. Such an agreement could limit disclosure to specified categories of documents or to such documents as may be specifically applied for.

11.2.2 Where disclosure is to be provided, the parties should consider whether it is necessary for lists of documents to be prepared or whether special arrangements should be agreed as to the form of listing and identifying disclosable documents, the method, timing and location of inspection and the manner of copying or providing copies of documents. Thought should also be given to providing disclosure in stages or to reducing the scope of disclosure by providing the relevant material in other forms.

11.2.4 All these matters should be agreed between the parties. If it is necessary to raise any of these matters with the court they should be raised, if possible, at the first CMC. If points arise on disclosure after the first CMC, they may well be capable of being dealt with by the court on paper.

11.3.1 The parties should consult with each other before the first CMC. Where agreement is not possible, the parties should raise these matters for decision at a CMC.

Section 14. The Pre-Trial Review

14.1.1 The Pre-Trial Review (“PTR”) will usually be fixed for a date that is 4-6 weeks in advance of the commencement of the trial itself. It is vital that the advocates, who are going to conduct the trial, should attend the PTR and every effort should be made to achieve this. It is usually appropriate for the PTR to be conducted by way of an oral hearing or, at the very least, a telephone conference.

14.2 Documents

14.2.1 The parties must complete the PTR Questionnaire and return it in good time to the court. In addition, the judge may order the parties to provide other documents for the particular purposes of the PTR.

14.2.2 In an appropriate case, the advocates for each party should prepare a Note for the PTR, which addresses:

2 the issues for determination at the trial;

4 These Notes should be provided to the court by 4 p.m. one clear working day before the PTR.

14.2.3 The parties should also ensure that, for the PTR, the court has an up-to-date permanent case management bundle, together with a bundle of the evidence (factual and expert) that has been exchanged. This Bundle should also be made available to the court by 4 p.m. one clear day before the PTR.

14.3.1 It can sometimes be the case that there are still outstanding interlocutory steps to be taken at the time of the PTR. That will usually mean that one, or more, of the parties has not complied with an earlier direction of the court. In that event, the court is likely to require prompt compliance, and may make costs orders to reflect the delays.

14.3.2 Sometimes a party will wish to make an application to be heard at the same time as the PTR. Such a practice is unsatisfactory, because it uses up time allocated for the PTR, and it gives rise to potential uncertainty close to the trial date. It is always better for a party, if it possibly can, to make all necessary applications well in advance of the PTR. If that is not practicable, the court should be asked to allocate additional time for the PTR, in order to accommodate specific applications. If additional time is not available, such applications will not generally be entertained.

14.4.1 The parties should, if possible, provide the judge at the PTR with an agreed list of the Issues for the forthcoming trial.

14.4.2 If the parties are unable to agree the precise formulation of the issues, they should provide to the court their respective contentions as to what the issues are, and why.

14.4.3 In order to determine the best way to deal with the trial, it is necessary for the issues to be identified. If the precise formulation of the issues is a matter of dispute between the parties, the judge will note the parties’ respective contentions, but is unlikely to give a ruling on this matter at the PTR.

14.5.1 Much of the PTR will be devoted to a consideration of the appropriate timetable for the trial, and other logistical matters. These will commonly include:

• Directions in respect of oral and written openings.

• Sequence of oral evidence; for example, whether all the factual evidence should be called before the expert evidence.

• Timetabling of oral evidence. (To facilitate this exercise, the advocates should tell the judge which witnesses need to be cross-examined and which evidence can be agreed.)

• Whether any form of time limits should be imposed. (Since the purpose of time limits is to ensure that that the costs incurred and the resources devoted to the trial are proportionate, this is for the benefit of the parties. The judge will endeavour to secure agreement to any time limits imposed.)

• Directions in respect of the trial bundle: when it should be agreed and lodged; the contents and structure of the bundle; avoidance of duplication; whether witness statements and/or expert reports should be annotated with cross references to page numbers in the main bundle (see paragraph 12.3 above); and similar matters.

• Whether there should be a core bundle; if so how it should be prepared and what it should contain.

• Any directions relating to the use of simultaneous transcription at trial (this subject to agreement between the parties).

14.5.2 The topics identified in paragraph 14.5.1 are discussed in greater detail in section 15 below.

The Trial

15.1.1 Prior to the trial the parties’ legal representatives should seek to agree on the following matters, in so far as they have not been resolved at the PTR: the order in which witnesses are to be called to give evidence; which witnesses are not required for cross examination and whose evidence in consequence may be adduced entirely from their witness statements; the timetable for the trial and the length of time each advocate is to be allowed for a brief opening speech. When planning the timetable, it should be noted that trials normally take place on Mondays to Thursdays, since Fridays are reserved for applications.

15.2.1 Opening notes. Unless the court has ordered otherwise, each party’s advocate should provide an opening note, which outlines that party’s case in relation to each of the issues identified at the PTR. Each opening note should indicate which documents (giving their page numbers in the trial bundle) that party considers that the judge should pre-read. The claimant’s opening note should include a neutral summary of the background facts, as well as a chronology and cast list. The other parties’ opening notes should be shorter and should assume familiarity with the factual background. In general terms, all opening notes should be of modest length and proportionate to the size and complexity of the case. Subject to any specific directions at the PTR, the claimant’s opening note should be served two clear working days before the start of the trial; the other parties opening notes should be served by 1 p.m. on the last working day before the trial.

15.2.2 Trial bundles. Subject to any specific directions at the PTR, the trial bundles should be delivered to court at least three working days before the hearing. It is helpful for the party delivering the trial bundles to liaise in advance with the judge’s clerk, in order to discuss practical arrangements, particularly when a large number of bundles are to be delivered. The parties should provide for the court an agreed index of all trial bundles. There should also be an index at the front of each bundle. This should be a helpful guide to the contents of that bundle. (An interminable list, itemising every letter or sheet of paper is not a helpful guide. Nor are bland descriptions, such as “exhibit “JT3”, of much help to the bundle user.) The spines of bundles should be clearly labelled.

15.2.3 As a general rule the trial bundles should be clearly divided between statements of case, orders, contracts, witness statements, expert reports and correspondence/ minutes of meetings. The correspondence/ minutes of meetings should be in a separate bundle or bundles and in chronological order. Documents should only be included, if they are relevant to the issues in the case or helpful as background material. Documents should not be duplicated. Exhibits to witness statements should generally be omitted, since the documents to which the witnesses are referring will be found elsewhere in the bundles. The bundles of contract documents and correspondence/ minutes of meetings should be paginated, so that every page has a discrete number. The other bundles could be dealt with in one of two ways:

• The statements of case, witness statements and expert reports could be placed in bundles and continuously paginated.
• Alternatively, the statements of case, witness statements and expert reports could be placed behind tabbed divider cards, and then the internal numbering of each such document can be used at trial. If the latter course is adopted, it is vital that the internal page numbering of each expert report continues sequentially through the appendices to that report.

The ultimate objective is to create trial bundles, which are user friendly and in which any page can be identified with clarity and brevity (e.g. “bundle G page 273” or “defence page 3” or “Dr Smith page 12”). The core bundle, if there is one (as to which see paragraph 14.5.1 above), will be a separate bundle with its own pagination

15.2.4 Opening speeches. Subject to any directions made at the PTR, each party will be permitted to make an opening speech. These speeches should be prepared and presented on the basis that the judge will have pre-read the opening notes and the documents identified by the parties for pre-reading. The claimant’s advocate may wish to highlight the main features of the claimant’s case and/or to deal with matters raised in the other parties’ opening notes. The other parties’ advocates will then make shorter opening speeches, emphasising the main features of their own cases and/or responding to matters raised in the claimant’s opening speech.

15.2.5 It is not usually necessary or desirable to embark upon legal argument during opening speeches. It is, however, helpful to foreshadow those legal arguments which (a) explain the relevance of particular parts of the evidence or (b) will assist the judge in following a party’s case that is to be presented during the trial.

15.2.6 Narrowing of issues. Experience shows that often that the issues between the parties progressively narrow as the trial advances. Sometimes this process begins during the course of opening speeches. Weaker contentions may be abandoned and responses to those contentions may become irrelevant. The advocates will co-operate in focussing their submissions and the evidence on the true issues between the parties, as those issues are thrown into sharper relief by the adversarial process.

15.3.1 Many trials in the TCC, including the great majority of the longer trials, are conducted with simultaneous transcripts of the evidence being provided. There are a number of transcribing systems available. It is now common for a system to be used involving simultaneous transcription onto screens situated in court. However, systems involving the production of the transcript in hard or electronic form at the end of the day or even after a longer period of time are also used. The parties must make the necessary arrangements with one of the companies who provide this service. The court can provide a list, on request, of all companies who offer such a service.

15.3.2 In long trials or those which involve any significant amount of detailed or technical evidence, simultaneous transcripts are helpful. Furthermore, they enable all but the shortest trials to be conducted so as to reduce the overall length of the trial appreciably, since the judge does not have to note the evidence or submissions in longhand as the trial proceeds. Finally, a simultaneous transcript makes the task of summarising a case in closing submissions and preparing the judgment somewhat easier. It reduces both the risk of error or omission and the amount of time needed to prepare a reserved judgment.

15.3.3 If possible, the parties should have agreed at or before the PTR whether a simultaneous transcript is to be employed. It is usual for parties to agree to share the cost of a simultaneous transcript as an interim measure pending the assessment or agreement of costs, when this cost is assessable and payable as part of the costs in the case. Sometimes, a party cannot or will not agree to an interim cost sharing arrangement. If so, it is permissible for one party to bear the cost, but the court cannot be provided with a transcript unless all parties have equal access to the transcript. Unlike transcripts for use during an appeal, there is no available means of obtaining from public funds the cost of a transcript for use at the trial.

15.4.1 Generally trials in the TCC are conducted under some form of time limit arrangement. Several variants of time limit arrangements are available, but the TCC has developed the practice of imposing flexible guidelines in the form of directions as to the sharing of the time allotted for the trial. These are not mandatory but an advocate should ordinarily be expected to comply with them.

15.4.2 The practice is, in the usual case, for the court to fix, or for the parties to agree, at the PTR or before trial an overall length of time for the trial and overall lengths of time within that period for the evidence and submissions. The part of those overall lengths of time that will be allocated to each party must then be agreed or directed.

15.4.3 The amount of time to be allotted to each party will not usually be the same. The guide is that each party should have as much time as is reasonably needed for it to present its case and to test and cross examine any opposing case, but no longer.

15.4.4 Before the trial, the parties should agree a running order of the witnesses and the approximate length of time required for each witness. A trial timetable should be provided to the court when the trial starts and, in long trials, regularly updated.

15.4.5 The practice of imposing a strict guillotine on the examination or cross examination of witnesses, is not normally appropriate. Flexibility is encouraged, but the agreed or directed time limits should not ordinarily be exceeded without good reason. It is unfair on a party, if that party’s advocate has confined cross-examination to the agreed time limits, but an opposing party then greatly exceeds the corresponding time limits that it has been allocated.

15.4.6 An alternative form of time limit, which is sometimes agreed between the parties and approved by the court, is the “chess clock arrangement”. The available time is divided equally between the parties, to be used by the parties as they see fit. Thus each side has X hours. One representative on each side operates the chess clock. The judge has discretion “to stop the clock” in exceptional circumstances. A chess clock arrangement is only practicable in a two-party case.

15.5.1 Evidence in chief is ordinarily adduced by the witness confirming on oath the truth and accuracy of the previously served witness statement or statements. A limited number of supplementary oral questions will usually be allowed (a) to give the witness an opportunity to become familiar with the procedure and (b) to cover points omitted by mistake from the witness statement or which have arisen subsequent to its preparation.

15.5.2 In some cases, particularly those involving allegations of dishonest, disreputable or culpable conduct or where significant disputes of fact are not documented or evidenced in writing, it is desirable that the core elements of a witness’s evidence-in-chief are given orally. The giving of such evidence orally will often assist the court in assessing the credibility or reliability of a witness.

15.5.3 If any party wishes such evidence to be given orally, a direction should be sought either at the PTR or during the openings to that effect. Where evidence in chief is given orally, the rules relating to the use of witness statements in cross-examination and to the adducing of the statement in evidence at any subsequent stage of the trial remain in force and may be relied on by any party.

15.5.4 It is usual for all evidence of fact from all parties to be adduced before expert evidence and for the experts to give evidence in groups with all experts in a particular discipline giving their evidence in sequence. Usually, but not invariably, the order of witnesses will be such that the claimant’s witnesses give their evidence first, followed by all the witnesses for each of the other parties in turn. If a party wishes a different order of witnesses to that normally followed, the agreement of the parties or a direction from the judge must be obtained in advance.

15.5.6 The coaching of witnesses or the suggestion of answers that may be given, before that witness starts to give evidence, is not permitted. Any prior discussion between the lawyers and the witness about the giving of evidence should be confined to factual information about the evidence-giving process. In short, witness familiarisation is permissible, but witness coaching is not. The boundary between witness familiarisation and witness coaching is discussed by the Court of Appeal in R v Momodou [2005] EWCA Crim 177 at [61] – [62]. Once a witness has started giving evidence, he cannot discusss the case or his evidence either with the lawyers or with anyone else until he has finally left the witness box. Occasionally a dispensation is needed (for example, an expert may need to participate in an experts’ meeting about some new development). In those circumstances the necessary dispensation will either be agreed between the advocates or ordered by the judge.

15.6.1 Submissions and legal argument should be kept to a minimum during the course of the trial. Where these are necessary, (a) they should, where possible, take place when a witness is not giving evidence and (b) the judge should be given forewarning of the need for submissions or legal argument. Where possible, the judge will fix a time for these submissions outside the agreed timetable for the evidence.

15.7.1 The appropriate form of closing submissions can be determined during the course of the trial. Those submissions may take the form of (a) oral closing speeches or (b) written submission alone or (c) written submissions supplemented by oral closing speeches. In shorter or lower value cases, oral closing speeches immediately after the evidence may be the most cost effective way to proceed. Alternatively, if the evidence finishes in the late afternoon, a direction for written closing submissions to be delivered by specified (early) dates may avoid the cost of a further day’s court hearing. In longer and heavier cases the judge may (in consultation with the advocates) set a timetable for the delivery of sequential written submissions (alternatively, an exchange of written submissions) followed by an oral hearing. In giving directions for oral and/or written closing submissions, the judge will have regard to the circumstances of the case and the overriding objective.

15.7.2 It is helpful if, in advance of preparing closing submissions, the parties can agree on the principal topics or issues that are to be covered. It is also helpful for the written and oral submissions of each party to be structured so as to cover those topics in the same order.

15.7.3 It is both customary and helpful for the judge to be provided with a photocopy of each authority and statutory provision that is to be cited in closing submissions.

15.8 Views

15.8.1 It is sometimes necessary or desirable for the judge to be taken to view the subject-matter of the case. In normal circumstances, such a view is best arranged to take place immediately after the openings and before the evidence is called. However, if the subject matter of the case is going to be covered up or altered prior to the trial, the view must be arranged earlier. In that event, it becomes particularly important to avoid a change of judge. Accordingly, the court staff will note on the trial diary the fact that the assigned judge has attended a view. In all subsequent communications between the parties and court concerning trial date, the need to avoid a change of judge must be borne firmly in mind.

15.8.2 The matters viewed by the judge form part of the evidence that is received and may be relied on in deciding the case. However, nothing said during the view to (or in the earshot of) the judge, has any evidential status, unless there has been an agreement or order to that effect.

15.8.3 The parties should agree the arrangements for the view and then make those arrangements themselves. The judge will ordinarily travel to the view unaccompanied and, save in exceptional circumstances when the cost will be shared by all parties, will not require any travelling costs to be met by the parties.

15.9 Judgments

15.9.1 Depending on the length and complexity of the trial, the judge may (a) give judgment orally immediately after closing speeches; (b) give judgment orally on the following day or soon afterwards; or (c) deliver a reserved judgment in writing at a later date.

15.9.2 Where judgment is reserved. The judge will normally indicate at the conclusion of the trial what arrangements will be followed in relation to (a) the making available of any draft reserved judgment and (b) the handing down of the reserved judgment in open court. If a judgment is reserved, it will be handed down as soon as possible. Save in exceptional circumstances, any reserved judgment will be handed down within 3 months of the conclusion of the trial. Any enquiries as to the progress of a reserved judgment should be addressed in the first instance to the judge’s clerk, with notice of that enquiry being given to other parties. If concerns remain following the judge’s response to the parties, further enquiries or communication should be addressed to the judge in charge of the TCC.

15.9.3 If the judge decides to release a draft judgment in advance of the formal hand down, this draft judgment will be confidential to the parties and their legal advisers. Solicitors and counsel on each side should send to the judge a note (if possible, agreed) of any clerical errors or slips which they note in the judgment. However, this is not to be taken as an opportunity to re-argue the issues in the case.

15.10 Disposal of judge’s bundle after conclusion of the case

15.10.1 The judge will have made notes and annotations on the bundle during the course of the trial. Accordingly, the normal practice is that the entire contents of the judge’s bundle are disposed of as confidential waste. The empty ring files can be recovered by arrangement with the judge’s clerk.

15.10.2 If any party wishes to retrieve from the judge’s bundle any particular items of value which it has supplied (e.g. plans or photographs), a request for these items should be made to the judge’s clerk promptly at the conclusion of the case. If the judge has not made annotations on those particular items, they will be released to the requesting party.

16.2 Summary Assessment of Costs

16.2.1 Interlocutory hearings that last one day or less will usually be the subject of a summary assessment of costs in accordance with CPR 44.7 and section 13 of the Costs Practice Direction. The parties must ensure that their statements of costs, on which the summary assessment will be based, are provided to each other party, and the Court, no later than 24 hours before the hearing in question: see paragraph 6.9.3 above.

16.2.2 The Supreme Court Costs Office Guide to the Summary Assessment of Costs sets out clear advice and guidance as to the principles to be followed in any summary assessment. Generally summary assessment proceeds on the standard basis. In making an assessment on the standard basis, the court will only allow a reasonable amount in respect of costs reasonably incurred and any doubts must be resolved in favour of the paying party.

16.2.3 In arguments about the hourly rates claimed, the judge will have regard to the principles set out by the Court of Appeal in Wraith v Sheffield Forgemasters Ltd [1998] 1 WLR 132: i.e. the judge will consider whether the successful party acted reasonably in employing the solicitors who had been instructed and whether the costs they charged were reasonable compared with the broad average of charges made by similar firms practising in the same area.

16.2.4 In addition, when considering hourly rates, the judge in the TCC may have regard to the guideline rates published from time to time by TecSA.

16.2.5 The court will also consider whether unnecessary work was done or an unnecessary amount of time was spent on the work.

16.3.1 In exercising case management powers, the judge may make costs cap orders which, in normal circumstances, will be prospective only. He should only do so, however, where there is a real and substantial risk that, without such an order:

a costs will be disproportionately or unreasonably incurred and
b such costs cannot be controlled by conventional case management and a detailed assessment of costs after a trial, and

c it is just to make such an order.

See CPR rule 3.1 and the notes to that rule in the White Book headed “Prospective costs cap orders”.

16.3.2 The possibility of a costs cap order should be considered at the first CMC. The later such an order is sought, the more difficult it may be to impose an effective costs cap.

Section 17. Enforcement

17.1.1 The TCC is concerned with the enforcement of judgments and orders given by the TCC and with the enforcement of adjudicators’ decisions and arbitrators’ awards. Adjudication and arbitration enforcement have been dealt with in, respectively, sections 9 and 10 above.

17.2.2 Outside London. Where the judgment or order in respect of which enforcement is sought was made by a judge of the TCC out of London, the party seeking enforcement should use the Registry of the court in which the judgment or order was made.

17.2.3 Where orders are required or sought to support enforcement of a TCC judgment or order, a judge of the TCC is the appropriate judge for that purpose. If available, the judge who gave the relevant judgment or made the relevant order is the appropriate judge to whom all applications should be addressed.

17.4.1 Where the application or order is unopposed or does not involve any substantial dispute, the necessary order should be sought by way of a paper application.

Appendix A Case management information sheet

Appendix B Case management directions form

Appendix C Pre-trial review questionnaire

Appendix D Contact details for courts dealing with TCC claims

Appendix E Draft ADR Order

Appendix F Draft directions order in adjudication enforcement proceedings

Appendix A

Case Management Information Sheet

This Appendix is the same as Appendix A to the Part 60 Practice Direction [http://www.dca.gov.uk/civil/procrules_fi....

In electronic versions of the TCC Guide it is not possible to copy this Appendix. Practitioners should refer either to the Part 60 Practice Direction or to published hard copies of this Guide.

Appendix B

Case Management Directions Form

Action no HT-………….

Delete or amend the following directions, as appropriate to the circumstances of the case.

1 Trial date ……………….. For the purposes of payment of the trial fee, but for no other purposes, this date is provisional. This date will cease to be provisional and the trial fee will become payable on … [usually be 2 months before the trial date].
2 Estimated length of trial ……………….
3 Directions, if appropriate, (a) for the trial of any preliminary issues or (b) for the trial to be divided into stages …
4 This action is to be [consolidated] [managed and tried with] action no … The lead action shall be … All directions given in the lead action shall apply to both actions, unless otherwise stated.
5 Further statements of case shall be filed and served as follows:
• Defence and any counterclaim by 4 p.m. on …
• Reply (if any) and defence to counterclaim (if any) by 4 p.m. on …
6 Permission to make the following amendments …
7 Disclosure of documents by 5 p.m. on … [Standard disclosure dispensed with/ limited/ varied as follows …]. Specific directions in respect of electronic disclosure …
8 There shall be a Scott Schedule in respect of defects/ items of damage/ other …
• The column headings shall be as follows …
• Claimant/ defendant to serve Scott Schedule by 5 p.m. on …
• Defendant/ claimant to respond to Scott Schedule by 5 p.m. on …

9 Signed statements of witnesses of fact to be served by 5 p.m. on …

10 [Supplementary statements of witnesses of fact to be served by 5 p.m. on …]

11 The parties have permission to call the following expert witnesses in respect of the following issues:
• …
• …
• …

12 In respect of any expert evidence permitted under paragraph 10:
• Directions for carrying out inspections/ taking samples/ conducting experiments/ performance of calculations shall be …
• Experts in like fields to hold discussions in accordance with rule 35.12 by …
• Experts’ statements rule 35.12 (3) to be prepared and filed by 5 p.m. on …
• Experts’ reports to be served by 5 p.m. on …

13 A single joint expert shall be appointed by the parties to report on the following issue(s) …. The following directions shall govern the appointment of the single joint expert:
• ….
• ….

14 The following documents shall be provided to the court electronically or in computer readable form, as well as in hard copy …

15 A review case management conference shall be held on … at …a.m./ p.m. Time allowed …

16 The pre-trial review shall be held on … at ... a.m./p.m. Time allowed …

17 The above dates and time limits may be extended by agreement between the parties. Nevertheless:
• The dates and time limits specified in paragraphs … may not be extended by more than … days without the permission of the court.
• The dates specified in paragraph 1 (trial) and paragraph 15 (pre-trial review) cannot be varied without the permission of the court.

18 Liberty to restore.

19 Costs in the case.

20 Claimant’s solicitors to draw up this order by … [Delete if order is to be drawn up by the court.]

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Appendix C

Pre-Trial Review Questionnaire

This Appendix is the same as Appendix C to the Part 60 Practice Direction [http://www.dca.gov.uk/civil/procrules_fi....

In electronic versions of the TCC Guide it is not possible to copy this Appendix. Practitioners should refer either to the Part 60 Practice Direction or to published hard copies of this Guide.

Appendix D

Contact Details for Technology and Construction Court

The High Court of Justice, Queen’s Bench Division,
Technology and Construction Court

St Dunstan’s House
133-137 Fetter Lane
London EC4A 1HD

(a) Management

Court Manager: Mr Steven Gibbon

Case Administration Unit Manager/Registry Manager: Steven Gibbon ([email address])

Registry:
Tel: 020 7947 6022
Fax: 020 7947 7428

Case Administration Unit:
Tel: 020 7947 7156
Fax: 020 7947 6465

(b) TCC Judges

Mr Justice Ramsey
Clerk: Mr David Hamilton ([email address])
Tel: 0207 947 6331
Fax: 0207 073 4701
Mr Justice Jackson (until replaced)
Clerk: Olivia Jay ([email address])
Tel: 0207 947 6484
His Honour Judge Anthony Thornton QC
Clerk: Ms Anne Farrelly ([email address])
Tel: 020 7947 6457
His Honour Judge David Wilcox
Clerk: Ms Pam Gilham ([email address])
Tel: 020 7947 6450
His Honour Judge John Toulmin CMG QC
Clerk: Steven Gibbon ([email address])
Tel:020 7947 6498
His Honour Judge Peter Coulson QC
Clerk: Mr Steve Jones ([email address])
Tel: 020 7947 6547
• The following five High Court Judges will be available, when necessary and by arrangement with the Vice-President of the Queen’s Bench Division, to sit in the TCC:

Mr Justice Burton

Mr Justice Elias

Mr Mr Justice Field

Mr Justice Ouseley

Mr Justice Simon

Mr Justice Christopher Clarke

Mr Justice Teare
• The Case Administration Unit, headed by Steven Gibbon, administers cases classified as “HCJ” (see section 3.7 of guide).

Birmingham District Registry: Birmingham County Court

33 Bull Street
Birmingham
West Midlands
B4 6DS

TCC listing and clerk to HH Judge Kirkham: Peter Duke ([email address])

Tel: 0121 681 3181
Fax: 0121 681 3121

TCC Judges

Her Honour Judge Frances Kirkham (full time TCC Judge)

His Honour Judge Stephen Davies (Half TCC & half County Court)

His Honour Judge Simon Brown QC (Mercantile Judge)

Her Honour Judge Caroline Alton (Mercantile Judge)

His Honour Judge Alastair Norris Q.C (Chancery Judge)

His Honour Judge Charles Purle QC (Chancery Judge)

Other judges in Birmingham who have been nominated to deal with TCC business are: His Honour Judge MacDuff Q.C.

Bristol District Registry: Bristol County Court
TCC Listing Office
The Law Courts
Small Street
Bristol BS1 1DA

TCC Listing officers: Dan Cuthbertson and Priya Patel

Email: [email address]

Tel: 0117 910 6700
Fax: 0117 910 6727

TCC Judges

His Honour Judge Mark Havelock-Allan QC (principal TCC judge)

His Honour Judge Patrick McCahill QC

Cardiff District Registry: Cardiff County Court

Cardiff Civil Justice Centre
2 Park Street
Cardiff CF10 1 ET

Main switchboard: 02920 376 400
Fax: 02920 376 475
Listing office: 02920 376 412

Circuit Judges Listing Manager: Graham Driver

Tel: 02920 376483, [email address]

Specialist Listing Officer: Tracey Davies

Tel: 02920 376412, [email address]

TCC Judges

His Honour Judge Gary Hickinbottom (principal TCC judge)

His Honour Judge Nicholas Chambers QC

Central London Civil Justice Centre

26 Park Crescent,

London WIN 4HT

Listing office for TCC, Chancery and Mercantile Courts

Tel: 0207 917 7932 / 7933

Chancery and Specialist Section Manager: Ms Kathlyn Antoine

Tel: 0207 917 7889/ 7821
Fax: 0207 917 7935

TCC Judges

His Honour Judge Brian Knight QC (principal TCC judge)

His Honour Judge Paul Collins CBE

His Honour Judge Edward Bailey

Chester District Registry: Chester County Court
The Chester Civil Justice Centre
Trident House
Little St John Street
Chester CH1 1SN< br/>

Diary Manager: Julie Burgess

Email: [email address]

Tel: 01244 404200
Fax: 01244 404300

TCC Judge

His Honour Judge Derek Halbert

Exeter District Registry: Exeter County Court
Southernhay Gardens
Exeter Devon
England
EX1 1UH

Tel: 01392 415350
Fax: 01392 415645

TCC Judge

His Honour Judge Jeremy Griggs

Leeds Combined Court Centre
The Courthouse
Oxford Row
Leeds LS1 3BG

High Court Civil Listing Officers: David Eaton and Terence Pendlebury

Tel: 0113 306 2440/2441
Fax: 0113 242 6380

e-mail: [email address]

TCC Judges

His Honour Judge John Cockroft (principal TCC judge)

His Honour Judge John Behrens

His Honour Judge Peter Langan QC

His Honour Judge Simon Grenfell

His Honour Judge Simon Hawkesworth QC

His Honour Judge Kaye QC

Leicester District Registry: Leicester County Court
90 Wellington Street
Leicester LE1 6HG

Tel : 0116 222 5700
Fax: 0116 222 5763

TCC Judge

His Honour Judge David Brunning

Liverpool District Registry: Liverpool Combined Court Centre
Liverpool Civil & Family Courts
35 Vernon Street
Liverpool
L2 2BX

TCC listing officer: Jackie Jones

Tel: 0151 296 2444
Fax: 0151 295 2201

TCC Judges

His Honour Judge David Mackay (full time TCC judge)

His Honour Judge Stephen Stewart QC

His Honour Judge Graham Platt

Mold County Court
Law Courts
Civic Centre
Mold Flintshire
Wales
CH7 1AE

TCC listing officer: Selina Wilkes

Tel: 01352 707405
Fax: 01352 753874

TCC Judges

Will attend from Cardiff when required

Newcastle upon Tyne Combined Court Centre
The Law Courts
Quayside
Newcastle upon Tyne NE1 3LA

Tel: 0191 201 2029

Listing Officer: Mrs Carol Gallagher [email address]

Tel: 0191 201 2047
Fax: 0191 201 2001

TCC Judges

His Honour Judge Christopher Walton

District Judge Atherton

Nottingham District Registry: Nottingham County Court
60 Canal Street
Nottingham NG1 7EJ

Tel 0115 910 3500
Fax: 0115 910 3510

TCC Judge

His Honour Judge Richard Inglis

Salford District Registry: SalfordCounty Court
Prince William House
Peel Cross Road
Salford M5 4RR

TCC clerks: Isobel Rich and David Fernandez

Tel: 0161 745 7511
Fax: 0161 745 7202

e-mail: [email address]

TCC Judges

His Honour Judge David Gilliland QC (full time TCC judge)

His Honour Judge Philip Raynor QC (full time TCC judge)

The following judges at Manchester are nominated to deal with TCC business: His Honour Judge Brendan Hegarty QC, His Honour Judge David Hodge QC, His Honour Judge Mark Pelling QC and His Honour Judge David Waksman QC.

Sheffield Combined Court Centre
The Law Courts
50 West Bar
Sheffield S3 8PH

Tel: 0114 281 2419
Fax: 0114 281 2585

TCC Judge

His Honour Judge John Bullimore

Winchester Combined Court Centre
The Law Courts
Winchester
Hampshire
SO23 9EL

Diary Manager: Mr Wayne Hacking – email [email address]

Tel: 023 8021 3254

Civil Listing Officer: Mrs Karen Hart – email [email address]

Tel: 01962 814 113
Switchboard: 01962 814100
Fax: 01962 814260

TCC Judge

His Honour Judge Iain Hughes QC

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Appendix E

Draft ADR Order
1 By [ ] the parties shall exchange lists of three neutral individuals who have indicated their availability to conduct a mediation/ENE in this case prior to [ ].
2 By [ ] the parties shall agree an individual from the exchanged lists to conduct the mediation/ENE by [ ]. If the parties are unable to agree on the neutral individual, they will apply to the Court in writing by [ ] and the Court will choose one of the listed individuals to conduct the mediation/ENE.

3 There will be a stay of the proceedings until [ ] to allow the mediation/ENE to take place.On or before that date, the Court shall be informed as to whether or not the case has been finally settled. If it has not been finally settled, the parties will:

a comply with all outstanding directions made by the Court;
b attend for a review CMC on [ ].

Appendix F

Draft Directions in Adjudication Enforcement Proceedings

Upon reading the Claim Form, Particulars of Claim, the Claimant’s without notice application dated the day of 200 and the evidence in support thereof

IT IS ORDERED THAT:

1 The Claimant’s solicitor shall [as soon as practicable after receipt of this Order/ by 4pm on day of ] serve upon the Defendant
a The Claim Form and Response Pack
b This Order
c The Claimant’s Application Pursuant to Part 24 and the Claimant’s evidence in support.
2 The time for the Defendant to file its acknowledgement of service is abridged to [ ] days.
3 The Claimant hereby has permission to issue an application pursuant to CPR Part 24 without an acknowledgement of service or Defence having been filed.
4 The Part 24 application will be heard on the day of at am/pm at .Estimated Length of Hearing hours]
5 Any further evidence in relation to the Part 24 Application shall be served and filed
a By the Defendant, [14 days after the service of the documents in Paragraph 1 above/ at least 5 working days before the date fixed for the hearing of the Application] [on day the day of ]
b By the Claimant, in response to that of the Defendant, [at least 3 working days before the date fixed for the hearing of the Application] [on day the day of 200 ]

and in either case no later than 4.00pm upon that day.
6 The Claimant’s solicitor shall file a paginated bundle comprising
a The witness statements provided in support of the application, together with any exhibits;
b The witness statements provided in opposition to the application together with exhibits;
c Any witness statements in reply, together with exhibits;
d Photocopies of relevant authorities.

This bundle is to be provided no later than [2 working days before the hearing of the Application] [on day of ].

7 The parties shall file and serve skeleton arguments by no later than [4.00pm one clear working day before the hearing/ 1pm the last working day before the hearing]* [on day the day of ]
8 The costs of and incidental to these directions are reserved to the Part 24 hearing. Permission to apply in respect of such costs in the absence of such hearing.
9 The parties have permission to apply to the court on 48 hours written notice to the other to seek to set aside or vary these directions.

* Depending whether the hearing is estimated to last in excess of ½ day or not

NOR IF YOU READ THEM CAREFULLY, DOES YOUR LETTER ANSWER THE FOI REQUEST I MADE REGARDING THEM BUT, DOES SUGGEST THAT IN THEIR ABSENCE A "DIRECTIONS HEARING" RATHER THAN A TRIAL WOULD PROCEED.

YOU SEEM TO BE CONFIRMING: THAT WITHOUT THE FORMS BEING FILED, A "TRIAL" COULD NOT TAKE PLACE ???

YOU ALSO SEEM TO BE CONFIRMING THAT THE FORMS WOULD HAVE TO BE ISSUED AND THEN NOT FILED BY THE PARTIES AND,

FOR THE PARTIES TO HAVE SPECIALISED KNOWLEDGE OF THE ABOVE RULES, I.E.

1.1.4. ...The parties and their advisors are expected to familiarise themselves with the CPR and, in particular, to understand the importance of the “overriding objective” of the CPR.

The TCC endeavours to ensure that all its cases are dealt with justly and with proper proportionality.

This includes ensuring that the parties are on an equal footing; taking all practicable steps to save expenditure;

dealing with the dispute in ways which are proportionate to the size of the claim and cross-claim and the importance of the case to the parties; and

managing the case throughout in a way that takes proper account of its complexity and the different financial positions of the parties.

The court will also endeavour to ensure expedition, and to allot to each case an appropriate share of the court’s resources.

Yours sincerely,

fred robinson

fred robinson (Account suspended)

Dear Leo, Luigi,

FOR YOUR INFORMATION:

ALMOST EVERYTHING I HAVE ATTEMPTED TO EXTRACT FROM THE MANY
AUTHORITIES OVER THE PAST 20 YEARS OR SO IS ROOTED IN A FALSE
INSURANCE CLAIM REFERENCED W215732 DATED 1993, A CLAIM ALLEGEDLY
MADE BY ME AGAINST SEFTON COUNCIL FOR THE DEMOLITION OF NONE
EXISTENT BUILDINGS, AND BECAUSE OF THAT FALSE CLAIM, MANY
"AUTHORITIES" HAVE BEEN DRAWN IN AND BECOME INSTRUMENTAL IN
ASSISTING SEFTON IN THE CONCEALMENT OF, OR THE UPHOLDING OF THIS
INANE UNFOUNDED CLAIM, AND THE OTHER FRAUDULENT CLAIMS THAT FLOWED
FROM IT.

THIS IS INEVITABLY DONE BY "AUTHORITIES" EITHER PROVIDING ME WITH
FALLACIOUS INFORMATION WHICH, WILL NOT, EVEN WHEN THE "AUTHORITIES"
ARE CONFRONTED WITH THE EVIDENCE OF ITS UNTENABILITY ADMIT ITS
FALLACIOUS, AND CENSURE ME FOR ATTEMPTING TO HAVE IT DISCLOSED OR
PASS IT AROUND LIKE THE BAD SMELL IT IS IN THE HOPE IT WILL NOT
COME BACK, OR LIKE THE IC AND SEFTON, ACT AS IF IT IS I WHO AM IN
THE WRONG AND VEXATIOUS FOR DARING TO ASK FOR THE INFORMATION AGAIN
AND AGAIN AND AGAIN WITH NO CONSTRUCTIVE RESPONSE BEING GIVEN OR,
BEING TOLD THAT I HAVE BEEN GIVENTHE INFORMATION.

AUTHORISES LIKE THE IC, WHO DENIED ME OF MY RIGHT TO INFORMATION ON
SEFTON'S BEHALF, CULMINATING WITH THE PROVISION OF THE CONTENTION
THAT IT WAS NOT HELD IN A 'RELEVANT FILING SYSTEM' WHEN, SEFTON -
IF NOT THE COMMISSION - KNEW, IT WAS NOT HELD AT ALL AS IT WAS ,
APART FROM A HANDFUL OF MY PERSONAL INFORMATION FROM 1994, NONE
EXISTENT.

THE COVERT INFORMATION PROVIDED TO SEFTON BY THE COMMISSION,
ALLOWED SEFTON TO UPHOLD THE FALLACIOUS CONTENTION THAT I MADE AN
INSURANCE CLAIM AGAINST SEFTON IN 1993 TO REMAIN THE PRIME CAUSE OF
WHY MY HOUSE HAS A CHARGE ON IT BY ROYAL & SUNALLIANCE AND I OWE
TENS OF THOUSANDS OF POUNDS TO SEFTON COUNCIL AND OTHER PARTIES WHO
HAVE AIDED THEM, AGAIN, ALL DUE TO CLAIM W215732 DATED 1993.

IF THE REAL BILL TO THE PUBLIC FOR EVERTHING THAT HAS FLOWED FROM
THAT FALSE CLAIM, POSSIBLE FRAUDULENT SALE OF LAND AND TIME WASTED,
WAS ADDED UP. IT MUST BE IN THE HUNDREDS OF THOUSANDS OF POUNDS BY
NOW WITH NO END IN SIGHT WITHOUT DISCLOSURE OF INFORMATION.

MY PERSONAL INFORMATION HAS BEEN CYNICALLY PASSED FROM ONE
AUTHORITY TO ANOTHER FOR YEARS, INCLUDING PASSING BETWEEN THE IC
AND SEFTON MBC TO MY HUGE DISADVANTAGE AND COST.

THE ONLY WEAPON A CITIZEN HAS IS ACCURATE INFORMATION TO DEFEAT
AUTHORITIES WHO HAVE A HORRIBLE EFFECTS ON HIS HIS LIFE.

IT IS THEREFORE A GRIM IRONY THAT THE BODY CHARGED WITH THE
PROVISION OF INFORMATION, SEEKS TO DENY ITS ACCESS ON THE SAME
BASIS AS SEFTON AND THE COURTS - VEXATION.

NOTWITHSTANDING THE VEXATION I HAVE BEEN PUT TO BY THE ACTIVITIES
OF BOTH "AUTHORITIES NONE DISCLOSURE OF MY PERSONAL DATA AT THE
RELEVANT TIME.

I KNOW ITS HARD FOR A PERSON TO CONTEMPLATE DISMISSLE FROM YOUR JOB
AND PERHAPS CRIMINAL CHARGES, BUT THATS NOT MY FAULT AS THAT PERSON
CHOSE TO DO AS HE, OR SHE DID.

NOR SHOULD IT BE SEEN TO BE BY THE CONSTANT DENIAL OF ONE SIMPLE
TRUTH THAT WILL UNDO THE MATTER.

THAT SIMPLE TRUTH LIES AT THE HEART OF THE MATTER AND IS:

HOW COULD I HAVE MADE A LEGITIMATE CLAIM FOR THE DEMOLITION OF NONE
EXISTENT BUILDINGS WHEN I LIVED IN A MID TERRACE LOCATION IN LIME
GROVE ?

WHICH LEADS TO, THE INVOLVEMENT OF THE LAND REGISTRY PROVIDING ME
WITH FALSE TITLE PLANS AND SUPPORT THAT 19 AND 21 LIME GROVE WERE
ADJOINED AND THE OS DENYING THEIR OWN MAPPING.

TURNING TO YOUR E-MAIL BELOW FEIGNING IGNORANCE OF THE CONSTANT
CORRESPONDENCE WITH THE COMMISSION FOR YEARS:

Thank you for your correspondence dated 24 December, however it is
not clear what further information you are seeking. In your email
you ask how we can conclude that a request can be deemed to be
vexatious under the FOIA without knowing the identity of “an
authority.” In your email of 19 December you had asked us to
“please confirm or deny that a first time request, that has never
been asked before and, therefore, never been answered within the
confines of the Act, can be vexatious under any section of the
Act.” This is a general question about the Act itself and not about
the decision of a particular public authority and thus in answering
it we would not need to know the identity of any authority as the
Act applies the same to all public authorities.

TO ANSWER PART OF THAT QUESTION IN TERMS OF THE FOIA AND DPA:

Two of he "authority" were the "IC's" Mr Andrew Damm's who engaged
in correspondence with the other "authority" Sefton Council
regarding two boxes of my data allegedly from 1994 held by Sefton.

Ultimately Sefton used and passed onto Royal & SunAlliance, the
contention - given to them by Mr Damms - that my information from
1994 fell under the 'Durant' ruling as it was not held in a
relevant filing system and consisting of some 700 documents held by
Sefton's Technical Services and Insurance Sections.

The evidence provided by Mr Damns was referred to by myself in
claim W215732 on April 16th 2005 preventing Sefton from using it
with regard to 'Durant' it in the same manner as Royal &
SunAlliance had done in February 2005 to deny me access to my
personal data held by them regarding another fraudulent claim
RR98XN dated January 17th 1994 and, appear to have persuaded two
District Judge's, to strike out my claims against both Sefton and
Royal & SunAlliance on the basis of 'Durant" and deny me access to
my personal information to the font of my January 1994 'claims'.

I HAVE RECENTLY MADE FIRST TIME FOI REQUESTS TO THE IC, AND SEFTON
REGARDING THE TIME WHEN THE PROPER DISCLOSURE TO ME SHOULD HAVE
BEEN MADE REGARDING THEIR "COVERT CORRESPONDENCE" AND MEETINGS THEM
REGARDING MY DPA APPLICATION - ALLEGEDLY REGARDING 700 DOCUMENTS
DATED 1994.

BOTH THE COUNCIL AND THE IC NOW RELY ON EACH OTHER NOT TO CONFIRM
OR DENY WHAT IN FACT THEY KNOW AND IT WILL COME TO TRANSPIRE THAT
ANY ACTION SEFTON TAKE IN NOT RESPONDING TO MY FOI REQUESTS, NOT
ONLY WILL, BUT MUST, BE SUPPORTED BY THE IC AS IT HAS BEEN IN THE
PAST AND WHO KNOWS - EVEN NOW THERE MAY BE COVERT INFORMATION
FLOWING BETWEEN THE IC AND THE COUNCIL AGAIN IN PREPARATION.

FOR YOUR FURTHER INFORMATION - SOME CORRESPONDENCE FROM 2003 TO
2005 REGARDING THESE 700 DOCUMENTS NOT HELD IN A "RELATIVE FILING
SYSTEM" AND THE PERNICIOUS EFFECT OF THE CONCEALMENT OF WHAT THE IC
AND SEFTON KNEW, AND COLLUDED ABOUT DURING THAT TIME.

As you see below I am reliant on the information being fed to me by
the being true.

LETTER TO SEFTONS MR HUFF APRIL 10TH 2003

I still await a response to my allegations of breaches of the act
which was promised to me by the Councils Legal Director on March
4th 2003. I would point out that there are many letters to and from
the Housing and Environmental Departments missing from my data.
Will you send them? I most especially request a copy of my letter
to the Council dated 17/12/98 and responded to by DSOM/402/98/CG on
22/12/98. RSVP

LETTER TO SEFTONS MR HUFF MAY 25TH 2003

I refer you to past correspondence regarding the assertion by the
Council I am not entitled to data you hold on me. I have been
informed by the information commission today that you are in breach
of the act. I have requested ALL of the information I am entitled
to and this has not been provided. I have also been told my
assertions, you have breached the act, would be addressed, this has
not occurred. I have requested an explanation of this and have
received none. I contend that the information I seek is being
withheld against my right to obtain it with the purpose of avoiding
censure. I formally request you address these matters and inform me
why you believe I am not entitled to the information I have
requested and, to address the matter of breaches of the act.

LETTER TO MR HUFF JUNE 13TH 2003

With regard to my recent application under The Data Protection Act,
I formally request that you provide me with ALL copies of my
correspondence with the following Council Departments between the
dates I now provide. I am told by The Information Commission that
you cannot assume I have my own copies. I request copies of my
correspondence with:

The Planning Department between September 1999 and the present.

The Environmental Protection Department (Mr Cannon) between May
2001 and December 2002.

The Housing Department between December 2001 and December 2002.

Building Control Services (Mr Woods and Mr Edgerton and Mr Heywood
CEO - related to this correspondence) between September and
November 2000 also that to Ms Gillard, Housing Maintenance, Pendle
Drive, Litherland.

I still await a copy of my letter to the Council dated 17/12/98
which was answered by Mr Mc Lennan on December 22nd 1998, ref:
DSMO/402/98/CG.

I look forward to the provision of these copies and a response to
my correspondence with you dated 10/4/03 - 25/5/03 - 15/5/03.

I REMIND YOU THAT THE DATA (MUCH OF IT FALSE) YOU HOLD WITH REGARD
TO MYSELF IS PART OF A 'SET' AND PARTS OF IT CANNOT BE WITHHELD, I
THEREFORE REQUEST ALL OF MY CORRESPONDENCE FROM 1994 TO MR BOARDMAN
AND MR BARR BE COPIES TO ME. [6 items]

NB I would also request any 'fax' messages and memos associated
with the above on the basis that these are also part of a 'set' of
data. I also request ALL documents to and from third parties with
regard to the above.

I wish to complain that some documents sent to me already have been
'cropped', this appears to have been done to remove information
from them. The normal copying process does not reduce the size of
the copy paper.

LETTER TO MR HUFF NOVEMBER 1ST 2003: DATA PROTECTION FORMAL REQUEST
FOR DATA

With regard to my letter to you dated June 31st 2003 I request you
send me the data I requested, and am entitled to. BY LAW.

WITH REGARD TO THE DATA FROM 1994 I REQUEST THAT YOU SEND ME COPIES
OF MY LETTERS TO SMBC WHICH WERE ACKNOWLEDGED ON FEBRUARY 28TH 1994
BY MRB/HMB/HSG1197AR. AND FROM APRIL 6TH 1994 ACKNOWLEDGED BY
MRB/HSG/1197AR DATED APRIL 15TH 1994.

WITH REGARD TO A CLAIM - I ALLEGEDLY MADE IN 1993 AGAINST SMBC
UNDER POLICY: SEFPPL93 WITH AON CLAIMS MANAGERS - AND WHICH IS ALSO
KNOWN BY THE REFERENCE W215732 - ROBINSON. I REQUEST COPIES OF ANY
CORRESPONDENCE WITH AON* BETWEEN AUGUST 1993 AND MARCH 1996 WHICH
REFERS TO CLAIM REFERENCE W215732 - ROBINSON.

I also request details of a claim said - by Mr Barr, ref:
GRB/JBJ/HSG1187 and dated 12th January 2000 - to have been "settled
off" in August 1997, which was made by me against SMBC with regard
to my gable wall related to demolition of a "nib wall."

* Aon/Rollin Hudig Hall.

LETTER FILED AT COURT IN CLAIM LV360271 ROBINSON V SEFTON MBC ON
APRIL 15TH 2005

RELEVANT FILING SYSTEM - INFORMATION COMMISSION

WITH REGARD TO THE DATA REFERRED TO IN THE LETTER WRITTEN TO THE
COURT ON OCTOBER 11TH 2004 BY MR GIBSON. THE DATA THAT THE
INFORMATION COMMISSION AFFIRM IS NOT HELD IN A RELEVANT FILING
SYSTEM IS SOLELY THAT FROM 1994. IT APPEARS THAT THIS DATA HAS
ALLEGEDLY BEEN 'LOST' BY THE COUNCIL IN ANY CASE. THE INFORMATION
COMMISSION CONFIRMS TO ME THAT MY OWN CORRESPONDENCE CANNOT BE
WITHHELD FROM ME - WHICH IS THE CASE REGARDING MY CORRESPONDENCE
WITH THE COUNCIL OF 1994. SEFTON HAVE NOT CONFIRMED TO THE COURT
THEY HAVE THIS CORRESPONDENCE FROM 1994.

THE INFORMATION COMMISSION HAS NOT MADE ANY ASSESSMENT REGARDING
DATA AFTER 1994. THEIR VIEW, WITH REGARD TO THE NUMBERED
DOCUMENTATION I CLAIMED I HAD NOT HAD, IS THAT THE COUNCIL MAY HAVE
PROVIDED IT TO ME IN AN UN-NUMBERED FORM. THIS VIEW IS STATED TO ME
BY THE INFORMATION COMMISSION IN A LETTER DATED NOVEMBER 25TH 2003
AND SEEMINGLY CONFIRMED BY MYSELF, AS DURING THE BUILDING OF THE
FILE FOR THE COURT CASE, I STRIPPED ALL THE HUNDRED OF DOCUMENTS
THAT COMPRISE MY OWN FILES, COMPLAINT FILES AND VARIOUS
CORRESPONDENCES, DURING THE COURSE OF WHICH I DISCOVERED MANY MORE
COPY DOCUMENTS THAT INDEED I DO HAVE IN NUMBERED, TWICE NUMBERED
WITH DIFFERENT NUMBERS, AND UN - NUMBERED FORM. FROM WHAT I NOW
HAVE, IT IS POSSIBLE TO EXTRAPOLATE SOME OF THE NUMBERED DOCUMENTS
I DO NOT HAVE.

THE COUNCIL STATE A LIST OF NUMBERED DOCUMENTS HAD BEEN SENT TO THE
INFORMATION COMMISSION. THIS MAY HAVE CONFIRMED THE COMMISSIONERS
VIEW I HAD COPIES OF THEM. THE DOCUMENTS BETWEEN OCTOBER 1993 AND
JANUARY 1995 ARE NOT NUMBERED.

14 UNDISCLOSED TO ME, DOCUMENTS PRIOR TO AUGUST 1993 ARE NUMBERED.

THE INFORMATION COMMISSIONS LETTER TO ME OF NOVEMBER 25TH 2003, MAY
WELL HAVE BEEN COPIED TO SEFTON MBC AS, ON THAT DATE MR GIBSON
WROTE TO ME STATING THAT, WITH REGARD TO "MY FILE" HE WANTED TO
MEET ME REGARDING LETTERS I HAD WRITTEN TO THE LEGAL AND TECHNICAL
SERVICES DIRECTORS ON NOVEMBER 20TH 2003 - COPIES OF WHICH I
ATTACH.

WITH REGARD TO DATA PROVIDED TO ME BY ROYAL & SUNALLIANCES
HOXWORTH,

COUNCIL DOCUMENTATION REGARDING THE KEPLER STREET DEVELOPMENT,
WHICH I AM NOT ENTITLED TO UNDER THE DATA PROTECTION ACT EMERGED.
IT MAY WELL BE THAT THIS IS THE DATA THAT THE COUNCIL REFER TO AS
THAT OF 1994.

IN SHORT, MY UNDERSTANDING FROM MY CORRESPONDENCE WITH THE
INFORMATION COMMISSION, IS THAT.

NO DATA REGARDING FALSE CLAIMS ALLEGEDLY MADE BY MYSELF ARE
ASSESSED BY THE INFORMATION COMMISSION TO BE EXEMPT UNDER THE ACT.
THIS IS CONFIRMED IN THEIR LETTER TO ME DATED AUGUST 6TH 2002 WHICH
I SUBMITTED TO THE COURT ON DECEMBER 17TH 2003 TO PROVE THE COURT
HAD JURISDICTION IN MY CLAIM.

WITH REGARD TO THE DATA SEFTON HOLD IN THEIR CARDBOARD BOXES IT
APPEARS - AS WITH THE DATA FROM 1994 - THAT THIS DATA FORMS NO PART
OF THE DATA SUPPLIED TO ME UNDER THE ACT BECAUSE IT IS PRIVILEGED
AND NOT NUMBERED.

IT ALSO APPEARS THAT THE COUNCILS MISLEADING ASSERTION THAT THE
INFORMATION COMMISSION ALLEGEDLY ENDORSED THE VIEW THAT 'NO DATA'
WAS HELD IN A RELEVANT FILING SYSTEM - PROVIDED TO THE COURT ON
OCTOBER 11TH 2004 AFTER THE SEFTON AND ROYAL & SUNALLIANCE CASES
HAD BEEN COMBINED - IS THE 'EVIDENCE' ROYAL & SUNALLIANCE RELIED ON
WITH REGARD TO THE 'DURANT CASE' IN MY CLAIM AGAINST THEM.

CLEARLY THIS ALLEGED EVIDENCE WAS NOT, NOR COULD BE, EVIDENCE
RELIED ON IN ANY APPLICATION TO THE COURT PRIOR TO OCTOBER 11TH
2004 BY EITHER DEFENDANT.

SEFTON, BY NEVER MAKING AN APPLICATION OR DEFENCE, HAVE NEVER
STATED ANYTHING THEY RELY ON AS EVIDENCE.

I WILL HAND DELIVER A COPY OF THIS LETTER TO SEFTON MBC.

Yours sincerely,

fred robinson

Leo, Luigi,

Dear Mr Robinson,

I understand that you have requested an internal review of my decision contained in my response to you dated 3 December 2008.

The matter will be dealt with in accordance with our internal review procedures and as such I will have no further involvement with regards your original query.

Accordingly, I will be grateful if you would no longer contact me with regards to your original query and direct any further enquiries to our Data Access Compliance Unit.

Yours sincerely

Luigi Leo
Regional Governance and Finance Officer
Royal Courts of Justice Group
Room TM8.08
Strand, London
WC2A 2LL
tel: 0207 947 - 6027

show quoted sections

fred robinson (Account suspended)

Dear Leo, Luigi,

YOU MUST NEED CONSTRUCTIVE INFORMATION TO CONDUCT YOUR REVIEW PROPERTY - MUSTN'T YOU ?

Yours sincerely,

fred robinson

fred robinson (Account suspended)

Dear Leo, Luigi,

WITH REGARD TO THE INTERNAL REVIEW YOU ARE CONDUCTING, ARE YOU OBLIGED TO ACCEPT FURTHER INFORMATION FROM MYSELF TO ASSIST YOUR DETERMINATION OF MY FOI REQUEST ?

Yours sincerely,

fred robinson

fred robinson (Account suspended)

Dear Leo, Luigi,

YOUR RESPONSE:

12 January 2009

Dear Mr Robinson,

I understand that you have requested an internal review of my decision contained in my response to you dated 3 December 2008. The matter will be dealt with in accordance with our internal review procedures and as such I will have no further involvement with regards your original query. Accordingly, I will be grateful if you would no longer contact me with regards to your original query and direct any further enquiries to our Data Access Compliance Unit.

CAN YOU UNDER THE FOIA CONDUCT AN INTERNAL REVIEW WITHOUT A REQUEST FROM ME TO DO SO ?

WITH REGARD TO THE INTERNAL REVIEW, ARE YOU, AS THE FOI OFFICER, OBLIGED TO ACCEPT FURTHER INFORMATION FROM MYSELF TO ASSIST YOUR DETERMINATION OF MY FOI REQUEST ?

PLEASE NOTE, AS I HAVE NOT APPLIED FOR AN INTERNAL REVIEW I SEE NO REASON FOR YOU TO DISENGAGE YOURSELF FROM MY REQUEST.

IF YOU BELIEVE THAT I AM DISSATISFIED WITH YOUR RESPONSE MY RECOURSE IS TO THE IC, NOT TO ANY INTERNAL COMPLAINT SYSTEM INITIATED BY YOURSELF. A COURSE THAT IS FOR ME TO DECIDE AFTER CLARIFYING WHAT YOUR RESPONSE IS WHICH, SO FAR HAS BEEN A PIECEMEAL SECTION OF THE TCC RULES BEING SENT TO ME.

Yours sincerely,

fred robinson

Leo, Luigi,

Dear Mr Robinson,

Further to your email.

I note that you state that you have not applied for an Internal Review.
However, I am in receipt of a request from our Data Access Compliance
Unit, (DACU), stating that you have applied for internal review of my
decision relating to your request.

Therefore, under current procedure, the internal review is required to be
conducted by an officer who has had no previous dealings in this matter.
For that reason I am required to "disengage" myself from dealing with your
request and will not communicate with you further on this matter.

You are not correct in stating that if you are not satisfied with my
response your recourse is to the ICO. You have the option of requesting an
internal review of the decision. I refer you my letter of 23 December
2008 which clearly states:

If you are dissatisfied with the handling of your request, you have the
right to ask for internal review. Internal review requests should be
submitted within two months of the date of receipt of the response to your
original letter and should be addressed to: Data Access and Compliance
Unit, 1st Floor - Area C, 102 Petty France, London, SW1H 9AJ. If you are
not content with the outcome of the internal review, you have the right to
apply directly to the Information Commissioner for a decision. The
Information Commissioner can be contacted at: Information Commissioner's
Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.

If, as you state, you have not applied for an internal review then I will
contact DACU and clarify the matter with them.

Finally, in view of the fact that I have dealt with your request I am not
in a position to accept any further information from you regarding your
request. Any additional requests that are made pursuant to the Freedom of
Information Act will be treated as "new" requests and as such should be
made to DACU, who will process and deal with the same in accordance with
FOIA regulation and procedure.

Alternately, you may consider contacting the TCC direct and speaking with
staff at that office, who will advise and guide you on procedure therein.

Yours sincerely

Luigi Leo

Regional Governance and Finance Officer

Royal Courts of Justice Group

Room TM8.08

Strand, London

WC2A 2LL

Tel: 0207 947 - 6027

show quoted sections

Richardson, Keith,

1 Attachment

Dear Mr Robinson

Following an Internal Review of your
recent request under the Freedom of Information Act, please see the
attached letter.

Regards

Keith Richardson

RCJG Head of Finance

HMCS

This e-mail (and any attachment) is intended only for the attention of the
addressee(s). Its unauthorised use, disclosure, storage or copying is not
permitted. If you are not the intended recipient, please destroy all
copies and inform the sender by return e-mail.

Internet e-mail is not a secure medium. Any reply to this message could be
intercepted and read by someone else. Please bear that in mind when
deciding whether to send material in response to this message by e-mail.

This e-mail (whether you are the sender or the recipient) may be
monitored, recorded and retained by the Ministry of Justice. E-mail
monitoring / blocking software may be used, and e-mail content may be read
at any time. You have a responsibility to ensure laws are not broken when
composing or forwarding e-mails and their contents.

show quoted sections

Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

fred robinson (Account suspended)

Dear Leo, Luigi,

YOUR RESPONSE:

You are not correct in stating that if you are not satisfied with my
response your recourse is to the ICO. You have the option of requesting an internal review of the decision. I refer you my letter of 23
December 2008 which clearly states:If you are dissatisfied with the handling of your request, you have the
right to ask for internal review. Internal review requests should be
submitted within two months of the date of receipt of the response to
your original letter...If you are not content with the outcome of the internal review, you have the right to apply directly to the Information...If, as you state, you have not applied for an internal review then I will contact DACU and clarify the matter with them.

I DID NOT REQUEST AN INTERNAL REVIEW ON DECEMBER 3RD 2008 AND, APART FROM THE FALLACIOUSNESS OF THAT ASSERTION AND THE RESPONSE BELOW BEING NEGATED

MY FOI REQUEST REMAINS UNANSWERED:

"ROYAL COURTS OF JUSTICE GROUP

Date: 14 January 2009
Our Ref: FOI / 57107 / KR

Dear Mr Robinson

Request for Internal Review

On 23 December 2008 you made a request for an Internal Review of the decision contained in Mr Leo’s letter to you dated 22 December 2008 and emailed to you on the same day.

Yours sincerely

Keith Richardson
Head of Finance
Royal Courts of Justice Group"

YOUR LETTER RESPONDING TO MINE (BELOW) OF DECEMBER 3RD 2008 MAKES SEVERAL ASSERTIONS AND PIECEMEAL COMMENTS AND,

I WOULD REMIND YOU THAT THE TCC COURT IN LONDON REFUSES TO EVEN ACKNOWLEDGE MY CORRESPONDENCE ON THE MATTER AND THE TCC JUDGE AT LIVERPOOL REFUSES TO RESPOND TO MY CORRESPONDENCE - FURTHER - NO TCC FORMS WERE ISSUED BY THE TCC COURT IN THE "CLAIM" WHATSOEVER,

NOR WAS THE CLAIM MADE IN THE TCC COURT BY MYSELF, BUT TRANSFERRED THERE WITHOUT ANY APPLICATION BY ANYBODY TO DO SO: AND THERE IT WAS JUDGED BY MEANS OF UN FILED AND UNREAD DOCUMENTS HANDED TO ME IN COURT WHICH THE JUDGE GAVE ME 30 MINUTES TO READ AND DIGEST, FOLLOWED BY PERJURY AND CONTEMPT OF COURT BY THE DEFENDANT BARRISTER IN THE FACE OF THE COURT AND A VERDICT GIVEN WITHOUT ANY REGARD TO MY EVIDENCE.

FURTHER YET, AFTER A SO CALLED APPLICATION BY ME (WHICH WAS NEVER MADE) FOR AN ORAL EXAMINATION IN THE CROWN COURT, THE MATTER OF WHETHER OR NOT I CAN APPEAL THE JUDGEMENT OF THIS "CLAIM" STILL AWAITS AN ANSWER BECAUSE THE JUDGE COULD NOT DEFEAT MY ARGUMENT, SUBSEQUENTLY THE COURT (WHO HAD THE HEARING TRANSCRIBED) WOULD NOT RELEASE A COPY OF THE TRANSCRIPT TO ME.

"Thank you for your email of 3 December 2008, in which you requested information on whether a trial in the Technology Construction Court, (TCC), can take place without the filing of form TCC / CM1 by either party. Your request has been treated as a request pursuant to the Freedom of Information Act, (FOIA) 2000. I have made enquiries of the TCC and have been advised that the TCC guidance states that, “all parties are expected to complete a detailed response to the case management information sheet sent out by the Registry”. The purpose of the form CM1 is to allow the judge to formulate their directions at the Case Management hearing. If no information is received from one or either of the parties then it simply means that the judge would have to extract the required information from the parties at the hearing in order to make directions that suit both of the parties. Further, the rules do not state that a case cannot proceed without form CM1 form being lodged prior to a hearing. Finally, on this matter, on the reverse of form CM1 it states that, “if you fail to return the form by the date given, the judge may give directions or make any order he thinks fit”. I hope that this answers your query. If you are dissatisfied with the handling of your request, you have the right to ask for internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to: Data Access and Compliance Unit, 1st Floor – Area C, 102 Petty France, London, SW1H 9AJ. If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF

If you have any queries about your request please contact me.

Yours sincerely.
Luigi Leo"

Yours sincerely,

fred robinson

fred robinson (Account suspended)

Dear Sir or Madam,

FOR INFORMATION 

I REFER YOU TO THE "EQUAL TREATMENT BENCH BOOK"



Chapter 1.3 Unrepresented parties - Key points

The ‘litigant in person’

Most unrepresented parties are stressed and worried, operating in
 an alien environment in what for them is a foreign language.

They
 are trying to grasp concepts of law and procedure about which they
may be totally ignorant. They may well be experiencing feelings of
fear, ignorance, frustration, bewilderment and disadvantage,
especially if appearing against a represented party.

The outcome of
the case may have a profound effect and long-term consequences upon
their life.

They may have agonised over whether the case was worth
 the risk to their health and finances, and therefore feel 
passionately about their situation.



Role of the judge



Judges and those who chair tribunals must be aware of the feelings 
and difficulties experienced by unrepresented parties and be ready 
and able to help them, especially if a represented party is being
 oppressive or aggressive.

Maintaining patience and an even-handed
approach is also important where the unrepresented party is being
 oppressive or aggressive towards another party or its
 representative or towards the court.

The judge should, however,
 remain understanding so far as possible as to what might lie behind
their behaviour.

Maintaining a balance between assisting and 
understanding what the unrepresented party requires, while
 protecting their represented opponent against the problems that
can be caused by the unrepresented party ’s lack of legal and
procedural knowledge, is the key.



1.3.1 Introduction



There are a number of reasons why individuals may choose to
 represent themselves rather than instruct a lawyer.

Many do not
 qualify for public funding, either financially or because of the 
nature of their case.

Some cannot afford a solicitor and even
 distrust lawyers.

Others believe that they will be better at
 putting their own case across.



This section aims to identify the difficulties faced (and caused)
 by litigants in person before, during and after the litigation
 process, and to provide guidance to judges with a view to ensuring
that both parties receive a fair hearing where one or both is not
represented by a lawyer.

This chapter supplements and should be
 read in conjunction with Chapter 1.1.

Subject to the law relating to vexatious litigants, everybody of
full age and capacity is entitled to be heard in person by any
 court or tribunal which is concerned to adjudicate in proceedings
in which that person is a party.

But on the whole those who 
exercise this personal right find that they are operating in an
alien environment.

The courts and tribunals have not traditionally
 been receptive to their needs.

All too often the litigant in person 
is regarded as a problem for judges and for the court system rather 
than a person for whom the system of civil justice exists.



Lord Woolf, Access to Justice, Interim Report June 1995



It is curious that lay litigants have been regarded … as problems,
almost as nuisances for the court system. This has meant that the 
focus has generally been upon the difficulties that litigants in 
person pose for the courts rather than the other way around.



Prof. John Baldwin, Monitoring the Rise of the Small Claims Limit



Unrepresented parties are likely to experience feelings of fear,
ignorance, anger, frustration and bewilderment.

They will feel at a
profound disadvantage, despite the fact that the outcome may have a 
profound effect and long-term consequences on their lives.

The aim
 of the judge or tribunal chair should be to ensure that the parties 
leave with the sense that they have been listened to and had a fair
hearing – whatever the outcome.

In what follows, the term ‘unrepresented party’ encompasses those 
preparing a case for trial, those conducting their own case at
 trial and those wishing to enforce a judgement or to appeal.



Disadvantages faced



The disadvantages faced by unrepresented parties stem from their 
lack of knowledge of the law and court procedure.

For many
 their perception of the court environment will be based on what 
they have seen on the television and in films.

They tend to:

be unfamiliar with the language and specialist vocabulary of legal 
proceedings;

have little knowledge of the procedures involved and
 find it difficult to apply the rules even if they do read them;


lack objectivity and emotional distance from their case;

be 
unskilled in advocacy and unable to undertake cross-examination or 
test the evidence of an opponent;

be ill-informed about the 
presentation of evidence;

be unable to understand the relevance of
 law and regulations to their own problem, or to know how to
 challenge a decision that they believe is wrong.



All these factors have an adverse effect on the preparation and
presentation of their case.

Equally, there are other unrepresented
parties who are familiar with the requirements of the process.



Numbers



Increasing numbers of people are now also representing themselves 
in the civil and family courts.



The small claims procedure in the county court is designed
specifically to assist the public to pursue claims without recourse 
to legal representation and has created a huge increase in the 
number of unrepresented parties.

The vast majority of defended
civil actions in the county court are dealt with under this procedure
dure and it is a sign of its success that its jurisdiction was 
increased (subject to certain exceptions in personal injury cases) 
from claims of up to £1,000, to claims of up to £5,000.

With the 
consent of the parties, cases of a certain type can encompass
substantially greater claims.

Public funding has never been 
available for small claims.



Unrepresented parties also appear with increasing frequency in the
Court of Appeal in criminal, civil and family cases.

Some have represented themselves at first instance.

Others, having had lawyers
 appear for them in the court below, take their own cases on appeal,
often through a withdrawal of public funding after the first
 instance hearing.



Ways to help



The aim is to ensure that unrepresented parties understand what is
going on and what is expected of them at all stages of the
proceedings – before, during and after any attendances at a
hearing.



This means ensuring that: the process is (or has been) explained to
them in a manner that they can understand; they have access to
appropriate information (e.g. the rules, practice directions and
guidelines – whether from publications or websites); they are
 informed about what is expected of them in ample time for them to
 comply; wherever possible they are given sufficient time according
to their own needs.

1.3.2

Particular areas of difficulty



Those who are involved in legal proceedings without legal
representation may face a daunting range of problems of both
knowledge and understanding...

...

Information



...

Many unrepresented parties believe that the court staff are there 
to give legal advice.

Under the Courts Charter court staff can only
 give information on how a case may be pursued; they cannot give
 legal advice under any circumstances.



1.3.3 Before the court appearance



Statements of case and witness statements

Unrepresented parties may make basic errors in the preparation of
civil cases by:

failing to choose the best cause of action or
defence; overlooking limitation periods;

not appreciating that they 
are witnesses in their own cases;

failing to file their own witness
s statements in advance of trial (and not understanding that in
consequence they may not be able to give evidence).



The individual’s level of knowledge should be taken into account in
 civil cases when deciding whether to make allowances for such 
failures.

A flexible approach ought to be adopted where possible,
even if this involves an adjournment.



Some of these problems are addressed in the Protocols of the Civil
Procedure Rules (CPR).

The Court Service has produced a new series
 of leaflets for unrepresented parties in the light of the CPR.



Directions and court orders



Unrepresented parties often do not understand pre-hearing
 directions (in particular those imposing time deadlines and ‘unless
 orders’) or the effect of court orders so:



ensure that they leave a directions hearing appreciating exactly 
what is required of them;

involve them in the process of giving 
those directions (e.g. asking them how much time they need to take
a particular step and why) so that they realise that the directions
 relate to the conduct of their own case;

explain fully the precise
meaning of any particular direction or court order.



Sometimes they believe that if the other side has failed to comply 
with such directions, that in itself is evidence in support of 
their own case, or the opponent should be prevented from defending
 or proceeding further.

They often feel upset at what they regard as 
an over-tolerant attitude by the courts to delays by solicitors.



Documentary evidence



A common problem is lack of understanding about the use and
application of documents and bundles.

Experience shows that
 unrepresented parties:



tend not to make sufficient use of documentary or photographic
evidence in their cases;

fail to appreciate the need for maps and
plans of any location relevant to the case.



Preliminary hearings represent an opportunity to give guidance on 
these matters.



Disclosure of documents



The duty to disclose documents is frequently neglected by
unrepresented parties.

Some will have little or no appreciation
that they should adopt a ‘cards on the table’ approach.


Consequently there can be delay, either because of the need to 
adjourn or because the judge or the other side requires time at the 
hearing to read recently disclosed documents.

When a pre-trial 
hearing takes place, a short clear explanation of the duty of
 disclosure and the test as to whether or not a document needs to be 
disclosed helps both parties and the court in terms of time saved.



Preparing bundles



Many unrepresented parties do not have access to office facilities
 and have difficulties in photocopying documents, preparing bundles
 and typing witness statements.

They have little concept of the need
 for documents to be in chronological order and paginated.

Putting 
the case back is often the sensible course to take, in the event of 
litigants coming to court with their bundles in other than proper
order.



Producing documents



All too often unrepresented parties do not bring relevant documents
with them to the hearing.

The court or tribunal is faced with the
comment:

‘I can produce it – it is at home’, but it is then too
 late and an adjournment is likely to be expensive and will usually 
be refused.



The party should have been warned in advance not only to disclose
relevant documents to the other side but to produce the originals 
at the hearing.



Sources of law



Most unrepresented parties do not have access to legal textbooks or
libraries where such textbooks are available and may not be able to
down-load information from a legal website.

Why not let an
 individual, accompanied by a member of the court staff, have access
to the court library or to a particular book?



Sometimes unrepresented parties do not understand the role of case
law and are confused by the fact that the judge or tribunal appears
 to be referring to someone else’s case.



A brief explanation of the doctrine of precedent will enable an
unrepresented party to appreciate what is going on and why.

A
re presented party’s lawyer should be told to produce any
 authorities to be relied on at the outset.

An unrepresented party
 must be given proper opportunity to read such authorities and make
 submissions in relation to them.



Live evidence



Judges and tribunal chairs are often told: ‘All you have to do is
 to ring Mr X and he will confirm what I am saying.’

When it is
 explained that this is not possible, unrepresented parties may 
become aggrieved and fail to understand that it is for them to
prove their case.



They should be informed at an early stage that they must prove what
they say by witness evidence so may need to approach witnesses in
advance and ask them to come to court.

The need for expert evidence
 should also be explained and the fact that no party can call an
 expert witness unless permission has been given by the court, 
generally in advance.



When there is an application to adjourn, bear in mind that
unrepresented parties may genuinely not have realised just how
important the attendance of such witnesses is.

If the application
is refused a clear explanation should be given.



Adjournments



Un represented parties may not appreciate the need to obtain an
adjournment order if a hearing date presents them with
 difficulties.



It is a common misconception that it is sufficient to write to the 
court without consulting the other side, merely asking for the case
to be put off to another date, or that no more than a day’s notice
of such a request is required.

Conversely, unrepresented parties 
may find it difficult to understand why cases need to be adjourned
 if they over- run because of the way in which they or others have
 presented their cases, or why their cases have not started at the
time at which they were listed.

..

...The hearing



The judge or chair of a tribunal is a facilitator of justice and
may need to assist the unrepresented party in ways that are not
 appropriate for a party who has employed skilled legal advisers and 
an experienced advocate.

This may include:



attempting to elicit the extent of the understanding of that party
 at the outset and giving explanations in everyday language;

making
clear in advance the difference between justice and a just trial on
 the evidence (i.e. that the case will be decided on the basis of
 the evidence presented and the truthfulness and accuracy of the 
witnesses called).



Explanations by the judge



Basic conventions and rules need to be stated at the start of a 
hearing.

The judge’s name and the correct mode of address should be
clarified. Individuals present need to be introduced and their
 roles explained... An unrepresented party who does not understand
 something or has a problem with any aspect of the case should be
 told to inform the judge immediately so that the problem can be 
addressed.

The purpose of the hearing and the particular matter or
 issue on which a decision is to be made must be clearly stated.

A
 party may take notes but the law forbids the making of personal
tape-recordings. If the unrepresented party needs a short break for
personal reasons, they only have to ask. The golden rule is that 
only one person may speak at a time and each side will have a full
opportunity to present its case.

..

...1.1.

Purpose of hearing



The purpose of a particular hearing may not be understood. For
example, the hearing of an application to set aside a judgement may
be thought to be one in which the full merits of the case will be 
argued.

The procedure following a successful application should be 
clearly explained, such as the need to serve the proceedings on the
defendant, for a full defence to be filed and directions which may
be given thereafter so that the parties know what is going to
 happen next.



The judge’s role 

It can be hard to strike a balance in assisting an unrepresented
 party in an adversarial system. An unrepresented party may easily
 get the impression that the judge does not pay sufficient attention
 to them or their case, especially if the other side is represented
 and the judge asks the advocate on the other side to summarise the 
issues between the parties.



Explain the judge’s role during the hearing.

If you are doing
 something which might be perceived to be unfair or controversial in
 the mind of the unrepresented party, explain precisely what you are
 doing and why.

Adopt to the extent necessary an inquisitorial role
 to enable the unrepresented party fully to present their case (but
 not in such a way as to appear to give the unrepresented party an
undue advantage).



The real issues



Many unrepresented parties will not appreciate the real issues in
 the case. For example, a litigant might come to court believing
 that they are not liable under a contract because it is not in 
writing, or that they can win the case upon establishing that the
 defendant failed to care when the real issue in the case is whether
or not the defendant’s negligence caused the loss.



At the start of any hearing it is vital to identify and if possible
 establish agreement as to the issues to be tried so that all
 parties proceed on this basis. Time spent in this way can shorten 
the length of proceedings considerably.



Compromise



Unrepresented parties may not know how to compromise or even that
they are allowed to speak to the other side with a view to trying
to reach a compromise.



Tell them, particularly in civil proceedings, that the role of the 
court is dispute resolution – explanations as to forms of 
alternative dispute resolution (ADR) may be appropriate.

Ask them
 whether they have tried to resolve their differences by negotiation 
and, if possible, spell out the best and worst possible outcomes at 
the outset.

This can lead to movement away from the idea that to 
negotiate is a sign of weakness.

Remind them to tell the court in 
advance if their case has been settled.



Advocacy



Often unrepresented parties phrase questions wrongly and some find
 it hard not to make a statement when they should be
cross-examining.

Explain the difference between evidence and
 submissions, and help them put across a point in question form.



Unrepresented parties frequently have difficulty in understanding
 that merely because there is a different version of events to their
 own, this does not necessarily mean that the other side is lying.


Similarly, they may construe any suggestion from the other side
 that their own version is not true as an accusation of lying.

Be 
ready to explain that this is not automatically so.



Where one party is represented, invite this advocate to make final
submissions first, so that an unrepresented party can see how it
 should be done.



Criminal cases

Under Article 6(3) of the European Convention of Human Rights,
everyone charged with a criminal offence has the right to defend
him or herself in person or through legal assistance of his or her
 own choosing or, if he or she has not sufficient means to pay for 
legal assistance, to be given it free where the interests of
 justice so require.



Those who dispense with legal assistance do so, almost always,
because they decline to accept the advice which they have been
 given, whether as to plea or the conduct of the trial.

A firm hand 
almost always persuades such defendants that they are much better 
advised to retain their representatives.

If this does not work the 
problem for the judge is to do with retaining control over the 
proceedings rather than sensitive explanation to the defendant of
 the rules of procedure and evidence.



Cross-examination



Throughout a trial a judge must be ready to assist a defendant in
 the conduct of their case.

This is particularly so when the
 defendant is examining or cross-examining witnesses and giving 
evidence:



always ask the defendant whether they wish to call any witnesses;


be ready to restrain unnecessary, intimidating or humiliating 
cross-examination;

be prepared to discuss the course of proceedings
with the defendant in the absence of the jury before they embark on 
any cross-examination;

note the statutory prohibitions on
 cross-examination by an unrepresented defendant.



Conduct of the defence



Paragraph 5 of the Practice Direction Crown Court (Defendant’s
Evidence) [1995] 2 Cr App R 192 puts a duty on a judge to address 
an unrepresented defendant at the conclusion of the evidence for
 the prosecution and in the presence of the jury as follows:



You have heard the evidence against you. Now is the time for you to
make your defence.

You may give evidence on oath, and be
 cross-examined like any other witness.

If you do not give evidence
 or, having been sworn without good cause, refuse to answer any
 question, the jury may draw such inferences as appear proper.

That 
means they may hold it against you.

You may also call any witness
or witnesses whom you have arranged to attend court.

Afterwards you 
may also, if you wish, address the jury by arguing your case from 
the dock.

But you cannot at that stage give evidence.

Do you now
 intend to give evidence?



Summing up



In the course of summing up a case to a jury in which the defendant
is unrepresented, tell the jury that it was always open to
 defendants to represent themselves and that the jury should bear
 in mind the difficulty for defendants in properly presenting their 
case.

In some cases, such comments may be more appropriate at the
outset.



Adjournments



Sometimes a defendant in a criminal case becomes an unrepresented
party during the case either by reason of the defendant’s
representatives withdrawing or because they are dismissed by the
defendant.



Bear in mind that you may exercise your discretion in deciding
 whether or not to grant an adjournment to enable fresh legal
representatives to be instructed.

That decision should be based on
 what is in the interests of justice having regard to the interests
 of the witnesses, the public and the defendant, the stage reached
 in the trial and the likely ability of the defendant to conduct the 
defence case properly.

Bear in mind also the duty to warn a 
defendant against any course that might not be in that defendant’s 
best interests, but if the defendant decides to go on alone, allow
t hem to do so.



1.3.5 Assistance and representation



A party to civil or family proceedings may wish to be assisted by a
‘friend’ at a hearing or even represented by a person without
 rights of audience.



In a climate where legal aid is virtually unobtainable and lawyers
disproportionately expensive, the McKenzie friend and lay
representative make a significant contribution to access to
 justice.

But reported cases tend to concentrate upon reasons why 
they should not be allowed rather than circumstances where they may
be of assistance to a party and the court.

The judge has to 
identify those situations where such support is beneficial and
 distinguish circumstances where it should not be allowed.



In addition the need for a litigation friend must be recognised and 
this has changed with the introduction of a new mental capacity
 jurisdiction (see further Chapter 5.4, section 5.4.3).



‘McKenzie friend’



This term refers to an assistant or friend (whether lawyer or not) 
who assists in presenting the case by taking notes, quietly making
suggestions or giving advice.

The role differs from that of the 
advocate in that the McKenzie friend does not address the court or 
examine any witnesses and is generally permitted at trials or full
 hearings although the ‘friend’ can be excluded if unsuitable (e.g.
someone who is pursuing their own or an unsuitable agenda).

It may
be less appropriate to allow such assistance in private (chambers) 
hearings because the judge generally then provides more assistance 
to an unrepresented party.



A McKenzie friend may not act as the agent of the litigant in
 relation to the proceedings nor manage the case outside court (e.g.
by signing court documents).



The Court of Appeal summarised the principles in Paragon Finance
plc v Noueiri [2001] EWCA Civ 1402, [2001] 1 WLR 2357, as follows:



A McKenzie friend had no right to act as such: the only right was
 that of the litigant to have reasonable assistance.



A McKenzie friend was not entitled to address the court: if he did
 so, he would become an advocate and require the grant of a right of
audience.



As a general rule, a litigant in person who wished to have a 
McKenzie friend should be allowed to do so unless the judge was
 satisfied that fairness and the interests of justice did not so
 require.

However, the court could prevent a McKenzie friend from
 continuing to act in that capacity where the assistance he gave
 impeded the efficient administration of justice.



See also R v Bow County Court ex p Pelling [1999] 1 WLR 1811 and Re
G (Chambers proceedings: next friend) [1999] 2 FLR 59, CA.



A differently constituted Court of Appeal in Re O (Children): Re
W-R (A Child): Re W (Children) [2005] EWCA Civ 759; [2005] 2 FLR
967 (Thorpe LJ, Wall LJ) has since offered this guidance in family
proceedings:



There is a strong presumption in favour of a litigant in person
 being allowed the assistance of a McKenzie friend.

A request should
 not be refused without compelling reasons, even where the
 proceedings relate to a child and are being heard in private.

The
fact that the unrepresented party appears to be capable of
conducting his case does not begin to outweigh the strong
presumption in favour of allowing such assistance.

The fact that a
 proposed McKenzie friend belongs to an organisation that promotes a 
particular cause is no reason for not allowing him to undertake the
 role.

It was not for the litigant in person to justify his desire 
to have a McKenzie friend but for the objecting party to rebut the 
presumption in favour of allowing it.

There is no justification for 
refusing to allow a McKenzie friend simply because it is a 
directions hearing.

Proposed McKenzie friends should not be
 excluded from the courtroom or chambers whilst the application for
 assistance is being made.

The proposed McKenzie friend should 
produce a short CV or statement about himself confirming that he
 has not interest in the case and understands his role and the duty
 of confidentiality.



In February 2005, the President of the Family Division produced
guidance to judges in family proceedings and this is reproduced in
 the following pages.



Rights of audience

The Courts and Legal Services Act 1990, section 27 regulates the
 right to appear in court.

General rights of audience (advocacy 
rights) are granted to duly qualified barristers or solicitors (and
certain others) and employees of solicitors may appear at hearings
in ‘private’.

In addition:

 the court may refuse to hear a person (for reasons which relate to
 him as an individual) who would otherwise have a right of audience 
but must give reasons;

a court has discretionary power to grant an
 unqualified person a right of audience in relation to particular 
proceedings before that court;

a special provision is made for lay 
representatives in the small claims track of the county court.


There is a right of audience in the presence of the party at the
 hearing itself but the court may in its discretion hear a lay 
representative in the absence of the party – Civil Procedure Rules
1998, PD27 para. 3.2;

Lay Representatives (Right of Audience) Order
1999.



Lay representative



The term ‘lay representative’ relates to a person who does not
 possess advocacy rights and may not even be a lawyer, but to whom
 the court grants a right of audience on behalf of a party in
 relation to the proceedings before that court.

The party must apply 
at the outset of a hearing if he wishes an unqualified individual to
 be granted a right of audience, and parties cannot consent to an
 unqualified person exercising a right of audience – Clarkson v
Gilbert [2002] 2 FLR 839 (CA);

D v S (Rights of Audience) [1997] 2
FCR 206; [1997] 1 FLR 724 (CA).



It may, however, be appropriate to grant a right of audience on a 
one-off basis (e.g. where a party is inform and cannot afford the
 services of a lawyer).

The following guidance was offered by Lord 
Woolf in Clarkson v Gilbert & ors (see above):



“Now that legal aid was not available as readily as it had been in
the past, there were going to be situations where litigants were
 forces to bring proceedings in person where they would need 
assistance. ... litigants in person had to indicate why they needed
some other person who was not qualified to act on their behalf. ...
it would be for them to satisfy the court that it was appropriate. 
If somebody’s health did not, or might no enable them to conduct
 proceedings themselves, and if they lacked means, those were the 
sort of circumstances that could justify a court saying that they
 should have somebody who could act as an advocate on their behalf.
... the objections to someone setting themselves up as an
 unqualified advocate did not exist where a husband was merely
 seeking to assist his wife.

”

But the party should still be present unless there is a justifiable 
reason for absence. It may even in some circumstances be helpful to
 a court or tribunal to recognise the representative as Neuberger J.
pointed out in Izzo v Philip Ross & Co (2001) The Times, 9 August
2001:



“In some circumstances common sense and experience suggests that a
relatively inarticulate and unknowledgeable litigant prompted at
 every turn results in the case taking far longer than if the friend
 speaks directly for him. Every time the court raises a point or 
puts a point to the litigant in person it has to be explained to
 the litigant which often takes longer than explaining it to his 
friend. Then the litigant has to have the answer explained to him
 by the friend, where after the litigant passes the answer to the
court. This is a process which self-evidently prolongs the hearings
and, like chinese whispers, is fraught with potential
 misunderstanding.”



Once the privilege has been granted it is difficult to withdraw it 
even if the representative turns out to be unsuitable.

Problems 
arise where an unqualified person is seeking to provide general
 advocacy services, or appears to be pursuing a separate agenda.

In
Paragon Finance plc v Noueiri (see above) the Court of Appeal
 offered guidance:



The discretion to grant rights of audience to individuals who did
 not meet the stringent requirements of the 1990 Act were only to be
exercises in exceptional circumstances and after careful
 consideration.

The courts had to consider carefully whether to
 grant rights to individuals who made a practice of seeking to 
represent otherwise unrepresented litigants.

The person to be 
represented should normally justify the request and be present at
 the hearing when personal interests are involved.



Conducting litigation



There is a distinction between the conduct of litigation on behalf 
of a party and advocacy at hearings.

The former relates to the 
claim form, statement of case and any applications made during the
course of the hearing.

A ‘statement of truth’ will generally be
required to support such documents and must be signed by the party
(or litigation friend) or the legal representative – CPR
r.22.1(6)(a).

Special provision is made in respect of companies –
see PD 22 para 3 and r.39.6.



The Courts and Legal Services Act 1990, section 28 regulates the
 right to conduct litigations.



In Paragon Finance plc v Noueiri (see above) the Court of Appeal
 also offered the following guidance as to right of an unqualified
person to conduct litigation in the courts on behalf of a party:


the existence of such right is determined solely in accordance with 
Part II of the 1990 Act; section 28(2)(c) permits a court to grant
 an otherwise unqualified person the right to conduct litigation in
 relation to particular proceedings and to remove that right if it
 is being abused;

the grant of the right should be carried out 
having regard to the same considerations as the grant of a right of 
audience.



Attorneys

The court controls its own procedures and principles for agency do
 not apply, so a power of attorney cannot confer a right to conduct
 litigation or of audience – Gregory v Turner, R (on application of
 Morris) v North Somerset Council [2003] EWCA Civ 183; [2003] 1 WLR
1149 (CA).



Official Solicitor



The Official Solicitor represents parties prior to proceedings who 
are without capacity, deceased or unascertained when no other 
suitable person or agency is able and willing to do so.

The purpose
is to prevent a possible denial of justice and safeguard the
welfare, property or status of the party.



He usually becomes formally involved when appointed by the Court,
and may act as his own solicitor, or instruct a private firm of 
solicitors to act for him.

The vision statement of the Official
 Solicitor’s Office is:

“...

to be an organisation delivering high quality customer focused
 legal services for vulnerable persons, where those services need to
be provided by the public sector ...

”

Enquiries are frequently made by the judiciary and members of the
legal profession and the Official Solicitor can be contacted at:

81 Chancery Lane London WC2A 1DD DX 141150 London/Chancery Lane WC2
Tel.: 020 7911 7127 Fax.: 020 7911 7105 Email:
[email address] Website: www.offsol.demon.co.uk



Representing adults who lack capacity



An order directing the Official Solicitor to act as a legal
representative in a civil court for an incapacitated party will
 either be made with his prior consent or only take effect if his 
consent is obtained.

The Official Solicitor needs to be satisfied 
that his involvement will be consistent with the Vision Statement
 and in appropriate cases he will also require security that his 
charges and expenses will be met before agreeing to act.



Assisting the civil courts



The Official Solicitor may also be called on to give confidential 
advice to judges, to instruct counsel to appear before a judge to 
assist the court as advocate to the court, or to investigate any
 matter on which the court needs a special report...

...Personal Support Unit & Citizens’ Advice Bureau



Litigants in person should also be aware of the services provided
 by local Personal Support Units and Citizen’s Advice Bureaux. The
PSU at the Royal Courts of Justice in London can be contacted on
 020 7947 7701, by email at [email address] or at the enquiry desk.


The CAB at the Royal Courts of Justice in London can be contacted 
on 020 7947 6880 or at the enquiry desk.

1.3.6

After the hearing



Having won or lost the case, the unrepresented party will need to
understand what has happened and the options available or steps 
that can still be taken.



Explaining the decision



Unrepresented parties often do not understand the outcome of the 
case and the reasons for it.

The following guidance is particularly
 important, therefore, if they have lost.



Always set out clearly the reasons for the decision.

If possible,
provide an unrepresented party with a copy of the order before
 leaving the court.

If judgement is reserved, or the order is to be
 sent on, tell the unrepresented party approximately when they can
 expect to hear further from the court and why there may be a delay.



Costs



Unrepresented parties are frequently unaware that they may recover
costs, either from public funds in criminal matters or from the 
losing side in civil cases.

If such party is entitled to costs but
 says nothing, consider drawing the question of costs to their 
attention, without offering advice, so that any relevant costs 
application can be made.

If an application is made that an
unrepresented party pays the costs, an explanation must be given
 with an opportunity to argue against this.



Appeal



Unless the unrepresented party has been wholly successful in the
case, explain the requirement to seek leave to appeal, if 
applicable. Tell the unrepresented party to consider their rights
 of appeal, but explain that the court cannot give any advice as to
the exercise of those rights.



Enforcement



An unrepresented party may be wholly unaware of the fact that
although a civil judgement has been secured, it still has to be 
enforced.

It is important, therefore:

to explain this in general terms at the end of the case and to make
it clear that the court cannot advise on enforcement, but that
 leaflets are available at the court office; to explain the 
alternatives and that, short of giving advice, the court staff are 
always willing to try to help on matters of enforcement.

I HOPE THIS ASSISTS

Yours sincerely,

fred robinson

Mr fred robinson (Account suspended) left an annotation ()

I am the applicant formally known as fred robinson.

With regard to my 19 FOI Requests dated between February 19th and March 13th 2009. I have received the following letter from The Access & Data Compliance Unit at Petty France dated July 7th 2009 regarding a DPA Subject Access Request in a letter received on June 1st 2009.

I have not made such a request as I have never address any written correspondence to the Unit at any time, the Unit states:

“Thank you for your letter of June 1st 2009 in which you made a Subject Access Request (SAR) for information held by the Ministry of Justice (MoJ) relating to yourself. Under the Data Protection Act 1998 (DPA), the MoJ must comply with the request within 40 days of its receipt, or if later within, within 40 calendar days of receipt of the necessary information such as proof of identity or the prescribed fee. The MoJ charge a fee of £10 for this service in line with the provisions of the DPA. The fee can be paid either by cheque or postal order and should be made payable to Her Majesty’s Paymaster General or HMPG. Proof of identity can be confirmed by providing a copy of a recent utility bill or a copy of the photograph page of your passport or driving licence. Unfortunately, we cannot currently process your request due to the requirements of the outstanding charge. It should also be noted that I can see several specific requests in your letter relating to information held by the Information Commission but have been unable to identify exactly what information you are requesting from the MoJ. Due to the size of the Department, it is not possible to conduct a general search of each MoJ location. I would be grateful if you could let me know which parts of the Department you wish me to conduct the searches, eg such as a specific office of the Tribunal Service or court in Her Majesty’s Court Service. Wherever possible please also supply a timescale over which you believe the information would be held.”

Mr fred robinson