CIVIL PROCEDURE BACK TO BASICS 83: PART 18 REQUESTS FOR FURTHER INFORMATION

September 8, 2020 · by · in Case Management, Civil Procedure

Part 18 requests are often misused.  The Practice Direction states “A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet”, yet some requests are akin to old style requests for further and better particulars or interrogatories.

THE RULE

Obtaining further information

18.1

(1) The court may at any time order a party to –

(a) clarify any matter which is in dispute in the proceedings; or

(b) give additional information in relation to any such matter,

whether or not the matter is contained or referred to in a statement of case.

(2) Paragraph (1) is subject to any rule of law to the contrary.

(3) Where the court makes an order under paragraph (1), the party against whom it is made must –

(a) file his response; and

(b) serve it on the other parties,

within the time specified by the court.

(Part 22 requires a response to be verified by a statement of truth)

(Part 53 (defamation) restricts requirements for providing further information about sources of information in defamation claims)

 

Restriction on the use of further information

18.2  The court may direct that information provided by a party to another party (whether given voluntarily or following an order made under rule 18.1) must not be used for any purpose except for that of the proceedings in which it is given.

 

THE PRACTICE DIRECTION

1.1  Before making an application to the court for an order under Part 18, the party seeking clarification or information (the first party) should first serve on the party from whom it is sought (the second party) a written request for that clarification or information (a Request) stating a date by which the response to the Request should be served. The date must allow the second party a reasonable time to respond.

1.2  A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.

1.3  Requests must be made as far as possible in a single comprehensive document and not piecemeal.

1.4  A Request may be made by letter if the text of the Request is brief and the reply is likely to be brief; otherwise the Request should be made in a separate document.

1.5  If a Request is made in a letter, the letter should, in order to distinguish it from any other that might routinely be written in the course of a case,

(1) state that it contains a Request made under Part 18, and

(2) deal with no matters other than the Request.

 

PART 18 REQUESTS REFUSED

In Hegglin -v- Persons Unknown & Google Inc [2014] EWHC 3793 (QB) Mr Justice Edis considered some interesting issues in relation to Part 18 questions.

Google raised 38 questions of the claimant relating to factual issues about his relationship with the jurisdiction.  Google’s application that the claimant reply to these was refused. It is a reminder that general and wide ranging requests which are not necessary or proportionate are unlikely to be permitted.
“i) This is quite an onerous request for detailed information which is predominantly about the Claimant’s business, professional and family life. It is designed to test certain statements he has made about his connection with this jurisdiction and it is argued that the Second Defendant should not have to wait until trial for the answers to be given in cross-examination because it will wish to investigate what is said. There are some other requests which cover other areas.ii) An order will be made under Part 18 only when it is necessary and proportionate to enable the Second Defendant to prepare its case or to understand the case it has to meet.
iii) The significance of this information is that it may be relevant to the discretionary relief which is sought if the Claimant has no real connection with the UK. It is not suggested that the material is relevant to any issue of jurisdiction. Since no claim is made against the Second Defendant for damages, the extent of the distress caused by the publication of the Material on the internet will not require the same level of detailed scrutiny as may otherwise be the case.
iv) As things stand, there is no evidential basis for suggesting that any of the things said by the Claimant in his witness statement and which are the subject of these requests are actually untrue. The Defence at paragraph 1 puts him to proof of his connection with the UK. At paragraph 36 it is denied that any distress occurred in this jurisdiction.
v) It appears to me that on the current state of the evidence the Claimant is bound to establish that he has business and other contacts within the UK and a reputation to protect here. That is what he says, and there is no contrary evidence. I doubt very much if the outcome of this case will be affected by any findings of fact about the precise extent of that reputation. I think it likely that the Trial Judge will permit some limited cross-examination on this issue, but that it is not likely that it will extend as widely as these Requests. No doubt when preparing to give evidence, the Claimant will put himself in a position to provide such further detail as the Trial Judge considers relevant so that this aspect of the trial can be efficiently managed. I doubt for example if the Trial Judge would permit Request 5 to be asked. This would require the Claimant to do a financial analysis of all his business dealings over 4 years to identify the proportion of it which was generated from business contacts living in England and Wales. The trial is due to start in 11 working days and this Request was served on 31st October. The terms of the enquiry it requires are not precisely defined and the results unlikely to be of any real assistance to the Court.
vi) This is not a case where the provision of the information sought would result in a great saving of time or the narrowing of issues.
vii) In these circumstances I am not persuaded that it is necessary and proportionate to order the provision of this information and refuse this application.”

 

ONCE A COURT MAKES AN ORDER IN RELATION TO PART 18 QUESTIONS  YOU HAVE TO COMPLY

It is highly imprudent to allow an order to be made that replies be given and then attempt to argue, in the replies,  that you don’t need to answer the questions. The decision of the Court of Appeal  in Griffith -v- Gourgey [2017] EWCA Civ 926 shows why.

The petitioners were bringing an application for unfair prejudice. The petitioners made a request for further information in relation to three defences.

  • A month after the requests were served the respondents objected to the requests on the grounds that they were “neither reasonable nor proportionate”.
  • The petitioners made an application that the respondents reply. This was resolved by consent in an order including that the respondents “do provide a full response [to the Part 18 requests]”
  • The respondents failed to respond by the date in the order.
  • An unless order was made on the 4th April 2014.
  • The respondents filed a response.
  • The petitioners applied for an order that the defences be struck out on the grounds that the responses were inadequate.
  • The respondents issued a cross-application for relief from sanctions

THE SUBSEQUENT HEARINGS: (1) THE FIRST APPLICATION FOR RELIEF FROM SNACTIONS

The respondents, having consented to the order that the they respond, could not argue that the requests were excessive.  The respondents obtained relief from sanctions on the first occasion.

8. Following a hearing of those two applications on 13th November 2014, Mr Monty QC (also sitting as a High Court Judge) determined that the First Response was deficient in various respects, and that the reason given by the appellants for the deficiencies (that the nature and extent of the Part 18 Requests was excessive) was one which not having been taken before Mr Hollington QC or Rose J, it was not open to them to take. Nevertheless he was persuaded, in his discretion, to grant relief from the strike-out sanction on strict conditions, including that the appellants would by 4th December 2014 serve a full and complete response to the Part 18 Requests; he so ordered on 13th November 2014 (“the Monty Order”).
9. The appellants served their purported full and complete response on 4th December 2014 (“the Second Response”).
10. The petitioners took issue with the adequacy of the Second Response, and applied on 29th January 2015 for relief on the footing that the defences remained struck out.
11. On 4th February 2015 the appellants applied for a second time for relief from sanctions.

(2) THE SECOND APPLICATION FOR RELIEF FROM SANCTIONS

The second application for relief from sanctions was unsuccessful. This refusal was upheld by the Court of Appeal.

7. Mr Daniel Lightman QC for the appellants (who did not appear below) submitted that it was unnecessary for them to show any change of circumstances since Mr Monty QC made his order and that he could therefore address the court on the basis that Mr Monty QC had applied a new sanction of strike-out or, if he had not, that he could again apply for relief from the sanction of strike-out imposed by Rose J. He then wished to submit that the judge should have relieved the appellants on the facts of the case instead of coming to the disproportionate conclusion he had.
    1. We decided to hear argument on the first submission since, if it failed, the second submission would not arise.
    2. Mr Lightman said that he was relying on CPR 3.9(1):-
“On the application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
a) for litigation to be conducted efficiently and at proportionate cost; and
b) to enforce compliance with rules, practice directions and orders.”
He then submitted that there was nothing in the rule imposing any requirement that there should be any change in circumstances between one application for relief and another.
    1. There might be some force in this argument if the order of Mr Monty QC had applied a new sanction different from the strike-out sanction imposed by Rose J. In fact it did nothing of the sort; it merely activated the original strike-out sanction by declaring that the amended points of defence were to stand struck out subject to the relief application and then providing that, if the appellants filed and served a full and complete response to the request for further information by 4th December 2014, the amended points of defence “shall be reinstated”. That is no new or different sanction from that imposed by Rose J by her order of 4th April 2014. The only sanction from which the appellants could seek relief was thus that of Rose J; that relief they had conditionally achieved but the condition was never satisfied.
    2. The position was, therefore, that the application to Simon J was a second application for relief when the first application to Mr Monty QC had failed. In these circumstances it is axiomatic that a second judge (here Simon J) could not and should not entertain a second application after the application before the first judge (here Mr Monty QC) had failed (or, I would add, only succeeded on conditions that were never fulfilled), unless there has been a material change of circumstances.
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