CIVIL PROCEDURE – BACK TO BASICS 1: THE HUMBLE APPLICATION: WORDING AND TIMING
Last year I was giving an in-house talk at a very prominent firm of litigation solicitors. The litigation partner present (a person of immense experience) made the point that the firm were continually having talks and education on esoteric and unusual areas of the law. However relatively little was being done in relation to the “basics” of litigation. Those matters that were done daily and taken for granted. Yet it was those basic matters that usually lead to problems. In that case we were considering witness statements. However it formed the germ of an idea for a series on the most basic elements of practice. Things so obvious you don’t think about them (because you don’t believe you need to think about them). The series starts with the “humble” application to the court.
APPLICATIONS: FAMILIARITY BREEDS CONTEMPT
There are hundreds of applications made each date to courts up and down the land. Pausing for a second, how many of those applications are made without the solicitor looking at the rules and Practice Direction relating to making applications. In fact close your eyes (don’t cheat) and name the Rule and Practice Direction that governs applications. Open your eyes now and do the same for the rules governing witness statements that, often, accompany applications. If you can do both then don’t bother reading the rest. If you are reading on then here we look at two very basic things: drafting the application and serving the application and evidence.
[I am examining the process of making an application in much more detail in a talk on the 18th April 2018 at Hardwicke, Lincoln’s Inn. Details available here)
THE RULES: WHAT AN APPLICATION MUST SAY
Part 23 of the Civil Procedure Rules
What an application notice must include
23.6 An application notice must state –
(a) what order the applicant is seeking; and
(b) briefly, why the applicant is seeking the order.
(Part 22 requires an application notice to be verified by a statement of truth if the applicant wishes to rely on matters set out in his application notice as evidence)
“WHAT ORDER THE APPLICANT IS SEEKING”
We can see that this is breached quite often because there are a number of cases where it is clear that the applicant has not stated what it wants and what rule it is applying under. A good example is the recent case of St Clair v King & Anor  EWHC 682 (Ch) where the defendant was successful in an application for summary judgment. The problem was that the defendant had not applied for summary judgment. The judge observed
“In my judgment, it is crucial to the outcome of this procedural ground of appeal that the Master decided to proceed on the basis that what he had before him was an application for summary judgment under Rule 24.2(a)(i) and (b), when what was in fact before him was an application to strike out under Rule 3.4(2) alleging that the Claimant’s statement of case disclosed no reasonable grounds for bringing the claim and/or that it was an abuse of process.
. I proceed on the basis that there was no express oral application made to the Master at the hearing asking him to treat the strike out application as a summary judgment application. Nor does the Master say in his judgment that he was exercising his discretion to proceed on that basis. Nevertheless, in relation to the undue influence claim, it is clear that the Master approached the matter as if an application for summary judgment had been made.”
An identical issue arose in Saeed & Anor v Ibrahim & Ors EWHC 3 (Ch) where Chief Master Marsh refused to treat an application ostensibly made under CPR 3.4. as an application for summary judgment under Part 24.
THE DRAFTING OF THE APPLICATION
The Chief Master considered the wording of the application.
“… seek an order striking out paras 2,3,4,6,7,8,9,10,13,14,15,16,17,31,37,42,48,49,50,51,53,56,57,58 and the claims in the prayer for relief para 1(a)- 6 because the claims are based on claims of a constructive trust/etc and/or are relying on actions which were illegal all of which were statute barred 6 years” [sic]
The draft order provided with the application notice, unhelpfully, refers to slightly different paragraph numbers and asks for them to be struck out “… as the claims are statute barred and/or are unenforceable by virtue of the illegality relied upon by the First Claimant.”
The Chief Master went on
It is possible to discern from the application notice that an order is sought pursuant to the court’s powers under CPR 3.4(2) but no indication is given about which of the three sub-paragraphs of that rule are relied upon. Mr Adair confirmed that the applicants rely on ground (a), namely that there are no reasonable grounds for bringing the claim. They are not relying on grounds (b) or (c). However, Mr Adair said in his skeleton argument the applicants are also relying on CPR 24.2 and seek summary judgement in their favour so as to dismiss the claim. Neither the application notice nor the witness statement in support of the application mentions Part 24 and there has not been compliance with the requirements of the rule and paragraph 2 of PD24 concerning the notifications that must be given to a respondent to a Part 24 application.
THE BASIC POINT
A careful applicant would state:
- What they are seeking.
- Quite expressly the Rule or Practice Direction they are making the application under.
SERVICE OF THE APPLICATION
There are, without doubt, some testosterone fuelled litigators who think it appropriate to hold back on service of an application so that their opponents will be disconcerted by the short amount of time they have to reply. There are a few problems with this approach. Firstly it is a breach of the rules
(1) A copy of the application notice –
(a) must be served as soon as practicable after it is filed; and
(b) except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application.
(2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.
(3) When a copy of an application notice is served it must be accompanied by –
(a) a copy of any written evidence in support; and
(b) a copy of any draft order which the applicant has attached to his application
“AS SOON AS PRACTICABLE AFTER IT IS FILED”
Most people are familiar with the three day requirement. However the requirement is clear in the rule. A copy (not a sealed copy) of the application must (note the word “must”) be served as soon as practicable after it is filed.
The applicant need not, indeed should not, wait until the court sends back copies with a date. The obligation in the rules is clear the application, and evidence in support, should be served “as soon as practicable” after it is filed at court. An applicant faced with difficult questions as to why an application is served late may well say – well you had your 3 days – but the court is entitled to ask (indeed should ask) why wasn’t this served “as soon as practicable”. If there is no good reason, and unnecessary costs are incurred as a result , then it may well be the applicant who is paying those costs.
An important point to note is that for an application for summary judgment under Part 24 the time period is 14 days. Further when the application is to be heard by telephone the period of notice is 5 days before the hearing (4.1A of PD32). However all of these are minimum requirements. The Practice Direction makes it clear that “the application notice must be served as soon as possible”.
AND WAITING UNTIL THE LAST MINUTE TO SERVE EVIDENCE IS A GOOD WAY TO MAKE YOURSELF LOOK FOOLISH
A decision to serve an application, or evidence in response to an application, late is one that can lead to difficulties. Take the case of Crown House Technologies Ltd v Cardiff Commissioning Ltd & Anor  EWHC 54 (TCC). The defendant was applying for summary judgment. The claimant served evidence in response, but served it late.
This application was made on 13 November 2017. The second witness statement of Mr Loble was provided at the same time. Mr Loble then sought to reach an agreement with CHT’s solicitors that would have seen the evidence in response being provided by 19 December 2017. That was a sensible proposal, but CHT’s solicitors refused to agree. Instead, they sought to take advantage of the Christmas/New Year vacation.
Furthermore, it is quite clear from the evidence that they sought to ensure that ENP had the minimum amount of time to consider any evidence in response. It seems that CHT’s solicitors were guided by the provision in CPR 24.5 that their evidence in response had to be filed “at least seven days before the summary judgment hearing” (i.e. the last possible date). That would have been the close of business on Wednesday 10 January 2018. Then, having deliberately left it to the last minute, CHT’s solicitors were unable to serve the statement in time. The statement of Ms Saad was served after close of business on 11 January 2018 which means that it was deemed to be served on 12 January 2018, the date that, pursuant to CPR 24.5(b) ENP were supposed to put in their own evidence in response.
The claimant obtained relief from sanctions, but the delay had an impact on the outcome.
“That result is also justified when considered against the backdrop of CHT’s conduct of the case generally, including the delays in the provision of the relevant witness statement in response to this application. In my view, the time has come for the claim against ENP to be put out of its misery”
THE (MANDATORY) REQUIREMENT TO PROVIDE A DRAFT ORDER
Some of the difficulties in these cases could have been resolved if a draft order had been available. This is a requirement set out in the Practice Direction.
12.1 Except in the most simple application the applicant should bring to any hearing a draft of the order sought. If the case is proceeding in the Royal Courts of Justice and the order is unusually long or complex it should also be supplied on disk for use by the court office.
It is worthwhile knowing, and knowing well, the requirements of Practice Direction 32 in relation to evidence.