The Queen's Bench Guide 2017: Enforcing Judgments and Orders in the English Legal System, Slides of Remedies

Download The Queen's Bench Guide 2017: Enforcing Judgments and Orders in the English Legal System and more Slides Remedies in PDF only on Docsity!

The Queen’s Bench Guide

A Guide to the working practices of the

Queen’s Bench Division within the

Royal Courts of Justice

The Queen’s Bench Guide 2017 Foreword

Foreword

by The Rt Hon. Sir Brian Leveson

President of the Queen’s Bench Division

A year ago, when I provided the foreword for the fourth edition of this guide, I noted the great pace of change in the justice system. Previous editions had been spaced seven years apart. The fourth edition came two years after the third. Now, one year later, there have been fundamental changes to the operation of the Queen’s Bench Division which have led to this new edition; the abolition of the Practice Master and the Chambers List and the introduction of the Urgent and Short Applications List, as well as changes to Part 36 and Part 52. Thus, a new edition is warranted. A great deal of hard work and careful thought has gone into these changes and that effort has been mirrored in the production of this fifth edition of this guide, which continues to be an indispensable resource for all those who seek to litigate in the Queen’s Bench Division of the High Court. Once again, I am delighted to introduce it.

Editorial note

With the support and encouragement of Sir Brian Leveson, the President of the Queen’s Bench Division, this Guide has been prepared for the assistance of all who practise or litigate in the Queen’s Bench Division. This fifth edition of the Guide incorporates changes to the structure of the Action Department, procedural changes made to Practice Direction 2A and other changes to the Rules, changes to the Masters’ listing arrangements and practice all made since the publication of the January 2016 edition. It therefore updates that edition. I am grateful for the contributions of all the Queen’s Bench Masters and Central Office staff, but special thanks must go to Master Cook and retired Master Rose for their work and diligence in the revision of the Guide. Particular thanks also to my PA Elaine Harbert for her hard work and patience in transcribing and correcting the content. However, all errors and omissions are mine and I welcome any comments and suggestions from the Profession and all using this Guide for its improvement. Barbara Fontaine Senior Master December 2016

21.4 Judgment or Order for payment of money on behalf of a child or protected beneficiary

1.5 The Queen’s Bench Division

1. Introduction

1. Introduction

1.1 The Guide

1.1.1 This Guide has been prepared under the direction of the Senior Master, acting under the authority of the President of the Queen’s Bench Division, and provides a general explanation of the work and practice of the Queen’s Bench Division with particular regard to proceedings started in the Central Office, and is designed to make it easier for parties to use and proceed in the Queen’s Bench Division. 1.1.2 The Guide must be read with the Civil Procedure Rules (“CPR”) and the supporting Practice Directions. Litigants and their advisers are responsible for acquainting themselves with the CPR; it is not the task of this Guide to summarise the CPR, nor should anyone regard it as a substitute for the CPR. It is intended to bring the Guide up to date at regular intervals as necessary. 1.1.3 The Guide does not have the force of law, but parties using the Queen’s Bench Division will be expected to act in accordance with this Guide. 1.1.4 It is assumed throughout the Guide that the litigant intends to proceed in the Royal Courts of Justice. For all essential purposes, though, the Guide is equally applicable to the work of the District Registries, which deal with the work of the Queen’s Bench Division outside London, but it should be borne in mind that there are some differences. 1.1.5 The telephone numbers and room numbers quoted in the Guide are correct at the time of going to press.

1.2 The Civil Procedure Rules

1.2.1 The Overriding Objective set out in Part 1 of CPR is central to civil proceedings and enables the court to deal with cases justly and at proportionate cost. To further this aim the work is allocated to one of three tracks - the small claims track, the fast track and the multi-track - so as to dispose of the work in the most appropriate and effective way combined with active case management by the court. Whilst the track regime is of everyday concern in the County Courts, it should be noted that, by a combination of the Rules, both as to jurisdiction and as to procedure, and of practice, all cases proceeding in the Central Office of the Queen’s Bench Division at the Royal Courts of Justice, and in the District Registries of the Queen’s Bench Division outside London, will necessarily be allocated to the multi-track. 1.2.2 The CPR are divided into Parts. A particular Part is referred to in the Guide as Part 7, etc., as the case may be. Any particular rule within a Part is referred to as rule 6.4(2), and so on. Such of the former Rules of the Supreme Court and of the former County Court Rules as are still applicable are scheduled to Part 50.

The Queen’s Bench Guide 2017

1. Introduction

1.3 The Practice Directions

1.3.1 Each Part - or almost each Part - has an accompanying Practice Direction or Directions, and other Practice Directions deal with matters such as the Pre-Action Protocols. 1.3.2 The Practice Directions are made pursuant to statute, and have the same authority as do the CPR themselves. However, in case of any conflict between a Rule and a Practice Direction, the Rule will prevail. Each Practice Direction is referred to in the Guide with the number of any Part that it supplements preceding it; for example, the Practice Direction supplementing Part 6 is referred to as the Part 6 Practice Direction. But where there is more than one Practice Direction supplementing a Part it will also be described either by topic, for example, the Part 25 Practice Direction - Interim Payments or, where appropriate, the Part 40B Practice Direction. A convenient abbreviated reference to a particular sub-paragraph of (for example) the Part 40B Practice Direction would be PD40B, para1.1.

1.4 The Forms

1.4.1 The Practice Direction supplementing Part 4 (of which the reader may wish to read paragraphs 1.1 to 1.8 in their entirety) lists the forms to be used under the CPR. 1.4.2 As explained in paragraph 1.2 of the Practice Direction there are annexed to it (a) a list of Court Forms arranged by subject matter, and (b) an alphabetical index. The alphabetical index signposts the reader to the relevant entries in the list. 1.4.3 The forms listed in the Practice Direction are not, for reasons of space, reproduced as an Annex in this Guide. They are however available in the various practitioners’ textbooks, and on the Ministry of Justice website at http://www.justice.gov.uk. Users may access the forms at http://hmctsformfinder.justice.gov.uk and at www.justice.gov.uk/forms. 1.4.4 The forms may be modified as circumstances in individual cases require, but it is essential that a modified form contains at least as full information or guidance as would have been given if the original form had been used. 1.4.5 Where the Royal Arms appear on any listed form they must appear on any modification of that form. The same format for the Royal Arms as is used on the listed forms need not be used. All that is necessary is that there is a complete Royal Arms.

1.5 The Queen’s Bench Division

1.5.1 The Queen’s Bench Division is one of the three divisions of the High Court, together with the Chancery Division and Family Division. A Lord Justice of Appeal, currently Lord Justice Leveson, has been appointed by the Lord Chief Justice to be the President of the Queen’s Bench Division. A High Court Judge is appointed as Judge in charge of the QB Civil List and is currently Mr Justice Foskett.

The Queen’s Bench Guide 2017

1. Introduction enforcement in England and Wales under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Civil Jurisdiction Act 1982, the Judgments Regulation, the Lugano Convention or the 2005 Hague Convention on Choice of Court Agreements, (4) applications for bail in criminal proceedings, (5) registration and satisfaction of Bills of Sale, (6) Election Petitions, (7) applications for orders to obtain evidence for foreign courts. 1.5.6 Regard should also be had to paragraphs 1 and 2 of Schedule 1 to the Senior Courts Act 1981 under which certain matters are assigned respectively to the Chancery Division and the Queen’s Bench Division.

1.6 The Central Office

1.6.1 The information in this and the following sub-paragraph is to be found in Practice Direction 2A para 2; it is reproduced here for the convenience of litigants. The Central Office is open for business from 10 a.m. to 4.30 p.m. on every day of the year except; (a) Saturdays and Sundays, (b) Good Friday, (c) Christmas Day, (d) A further day over the Christmas period determined in accordance with the table specifically annexed to the Practice Direction. This will depend on which day of the week Christmas Day falls. (e) Bank holidays in England and Wales (f) Such other days as the Lord Chancellor, with the concurrence of the Lord Chief Justice, the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division and the Chancellor of the High Court (“the Heads of Division”) may direct. 1.6.2 The Central Office consists of the Action Department, the Queen’s Bench Associates’ Department, the High Court Judges’ Listing Office, the Registry of the Technology and Construction Court, and the Admiralty and Commercial Registry. 1.6.3 The Action Department, which is located as shown by Annex 1 at the end of this Guide, deals with the issue of claims, responses to claims, admissions, undefended and

The Queen’s Bench Guide 2017

1. Introduction summary judgments, the issue of application notices, drawing up orders, enforcement of judgments and orders, public searches, provision of copies of court documents, enrolment of deeds, the registration of foreign judgments, and the provision of certificates for enforcement abroad of judgments of the Queen’s Bench Division. 1.6.4 For these purposes, the Action Department is divided into sections as follows:- (1) Queen’s Bench Issue and Enquiries Section, which includes the Case Progression team. This Section provides support (a) to the Masters, including assistance on all aspects of case management, and (b) to the Senior Master. (2) Queen’s Bench Masters’ Listing Section, which deals with listing hearings and trials before the Queen’s Bench Masters. (3) the Foreign Process Section, which deals with all aspects of service abroad of proceedings brought here, and of service here of proceedings brought abroad. (4) the Enforcement Section which deals with enforcement of judgments obtained in the Queen’s Bench Division and of foreign judgments which may be enforced here: see section 23 below. (5) the Children’s Funds Section which deals in particular with investment of children’s funds made pursuant to an order of a Judge or a Master: see paragraphs 7.3.12 -7.3.15 and 21.4.1 to 21.4.3 below. (6) The Fees Office which deals with administration of court fees and fee remission. Also one of the staff acts as the Chief Clerk to the Prescribed Officer for Election Petitions, namely the Senior Master: see paragraph 24.2 below. 1.6.5 The Queen’s Bench Associates sit in court with the Judges during trials and certain interim hearings. The Associates draw up the orders made in court at trial and those interim orders that are directed to be drawn by the Court rather than (as is more usual) by the parties themselves. 1.6.6 The High Court Judges’ Listing office lists all trials and matters before the Judges (see Section 20 below). 1.6.7 The Commercial Court (being a constituent part of the Queen’s Bench Division) deals with commercial claims, i.e. any claim arising out of the transaction of trade and commerce. Its proceedings are subject to Part 58 of the Rules and to the Part 58 Practice Direction. The types of claim which may be brought in the Commercial Court are expanded upon in rule 58.1 (2). The commercial list is a specialist list for all claims proceeding in the Commercial Court and one of the judges of that Court is in charge of the commercial list. By PD58 paras 1.4 and 2.1 the Admiralty and Commercial Registry is the administrative office of the court for all proceedings in the commercial list; and all claims in the Commercial Court must be issued in the Admiralty and Commercial Registry.

The Queen’s Bench Guide

2. General as Senior Master/Master respectively. In the District Registries the work of the Masters is conducted by District Judges (addressed in court as Sir or Madam). 1.7.2 Trials normally take place before a High Court Judge (or a Deputy High Court Judge or a Circuit Judge sitting as a Judge of the High Court) who may also hear pre-trial reviews and other interim applications. Wherever possible the judge before whom a trial has been fixed will hear any pre-trial review. A High Court Judge will hear applications to commit for contempt of court, applications for injunctions and most appeals from Masters’ orders. (See the Part 2B Practice Direction: Allocation of cases to levels of Judiciary; and see Sections 12 and 13 below for more information on hearings and applications.) 1.7.3 The Masters generally deal with interim and pre-action applications, and manage the claims so that they proceed without delay. The Masters also have jurisdiction to hear trials and applications for injunctions, with the exception of search and freezing injunctions: (see the Part 2B Practice Direction. The Masters’ rooms are situated in the Masters’ corridor on the first floor of the East Block of the Royal Courts of Justice: see Plan B at the end of this Guide. Hearings take place in these rooms, or, in certain circumstances, in a court. 1.7.4 Cases are assigned on issue by a court officer in the Action Department to Masters on a rota basis, and that Master is then known as the assigned Master in relation to that case. (See paragraph 4.2 below for more information about assignment to Masters) 1.7.5 General enquiries about the business dealt with by the Masters should initially be made in writing to the Queen’s Bench Issue and Enquiries section in Room E07.

The Queen’s Bench Guide

2. General

2. General

2.1 Essential matters to consider before issuing proceedings

2.1.1 Before bringing any proceedings, the intending claimant should think carefully about the implications of so doing. (See Section 3 below about steps to be taken before issuing a claim form.) 2.1.2 A litigant who is acting in person faces a heavier burden in terms of time and effort than does a litigant who is legally represented, but all litigation calls for a high level of commitment from the parties. No intending claimant should underestimate this. 2.1.3 The Overriding Objective of the CPR is to deal with cases justly and at proportionate cost. This means dealing with the claim in a way which is proportionate (amongst other things) to the amount of money involved. However, in all proceedings there are winners and losers; the loser is generally ordered to pay the costs of the winner and the costs of litigation can still be large. The risk of large costs is particularly acute in cases involving expert witnesses, barristers and solicitors. Also, the costs of an interim hearing are almost always summarily assessed and made payable by the unsuccessful party, usually within 14 days after the order for costs is made. There may be a number of interim hearings before the trial itself is reached, so the costs must be paid as the claim progresses. (See also paragraph 2.7 below as to costs which includes reference to important new provisions of the Rules (a) dealing with the court’s powers of managing the costs of a case, and (b) making specific costs capping orders). 2.1.4 The intending claimant should also keep in mind that every claim must be proved, unless of course the defendant admits the allegations. There is little point in incurring the risks and expense of litigating if the claim cannot be proved. An intending claimant should therefore be taking steps to obtain statements from his prospective witnesses before starting the claim; if they delay until later, it may turn out that they are in fact unable to obtain the evidence that he needs to prove his claim. A defendant faces a similar task. 2.1.5 Any party may, if they are to succeed, need an opinion from one or more expert witnesses, such as medical practitioners, engineers, accountants, or as the case may be. However they must remember that no expert evidence may be given at trial without the permission of the court. The services of such experts are in great demand, especially as, in some fields of expertise, there are few of them. It may take many months to obtain an opinion, and the cost may be high. (See paragraph 10.8 below for information about experts’ evidence.) If the claim is for compensation for personal injuries and the claimant is relying on medical evidence they must produce a medical report with their particulars of claim. 2.1.6 A claimant must remember also not to allow the time limit for starting their claim to pass (see paragraph 2.5 below for information about time limits).

The Queen’s Bench Guide

2. General The PSU Room M

Plan A. The Royal Courts of Justice

Strand WC2A 2LL Tel: 0207 947 7701/3 Fax: 0207 947 7702 email: rcj@thepsu.co.uk or: www.thepsu.co.uk 2.3.2 A representative from the PSU is also in attendance in the Central Office (Room E or as may be otherwise directed) to assist litigants who are without legal representation on each of the half days when the urgent Applications List is sitting. Information as to when a PSU representative will be available in the Central Office will be on the Notice Board outside the QB Masters’ Room E114, or can be ascertained by contacting the QB Issue & Enquiries Section or the QB Masters Listing Section.

2.4 Inspection and copies of documents

2.4.1 Intending claimants must not expect to be able to keep the details of a claim away from public scrutiny. In addition to the right of a party to obtain copies of certain specified documents in the proceedings to which they are a party from the court records (on payment of the prescribed fee: see CPR 5.4B and 5.4D), any person may obtain from the court records a copy of a statement of case, but not of any documents filed with it or attached to it: see CPR 5.4C. Any judgment or order made in public (whether made at a hearing or without a hearing) may also, subject to CPR 5.4C (1B), be obtained from the records of the court on payment of the appropriate fee. Additionally, under CPR 5.4B, 5.4C and 5.4D, other documents, including communications between the court and a party or another person, may be obtained with the permission of the court, upon making an application in accordance with Part 23. 2.4.2 Witness statements used at trial are open to inspection during the course of the trial, unless the court directs otherwise. 2.4.3 CPR 5.4C(5) sets out how the court may, on application by a party or any person identified in a statement of case, restrict inspection and obtaining of copies.

2.5 Time Limits

2.5.1 There are strict time limits that apply to every claim. These will arise, principally, under the Limitation Act 1980 or the Human Rights Act 1996, which lay down time limits within which the proceedings must be brought. There are circumstances in which the court may disapply the time limits, but such disapplication is to be regarded as exceptional and the burden is on the claimant to persuade the court that it is right to do so. In all other cases, once the relevant time limit has expired, it is rarely possible to start a claim. 2.5.2 Secondly, in order to try and bring the proceedings to an early trial date, a timetable

The Queen’s Bench Guide

2. General will be set with which all parties must comply. Unless the CPR or a Practice Direction provides otherwise, or the court orders otherwise, the timetable may be varied by the written agreement of the parties. However, there are certain “milestone” events in the timetable in respect of which the parties may not vary the time limits. Examples of these are; (1) filing a Defence more than 28 days after the period required by the Rules: see CPR 15. (2) return of the Directions Questionnaire, or the Reply to Defence which should be returned together with the Directions Questionnaire: see CPR 26.3 (6A) (3) date(s) for the case management conference(s) (4) return of the Pre-Trial Checklists (5) date fixed for trial: see CPR 29.5(2) Where parties have extended a time limit by agreement, the party for whom the time has been extended must notify the QB Issue & Enquiries Section in writing of the appropriate event in the proceedings for which the time has been extended and the new date by which it must take place. For example, if an extension is agreed for the filing of the defence, it is for the defendant to inform the QB Issue & Enquiries Section. 2.5.3 The court has power to impose a sanction on any party who fails to comply with a time limit. If the court considers that a prior warning should be given before a sanction is imposed, it will make an ‘unless’ order; in other words, the court will order that, unless that party performs their obligation by the time specified, they will be penalised in the manner set out in the order. This may involve the party in default having their claim or statement of case struck out and judgment given against them. An order striking out a claim or statement of case must be applied for after the time specified has expired, as this is not automatic unless the Unless Order so provides.

2.6 Legal Representation

2.6.1 A party may act in person or be represented by a lawyer. A party who is acting in person may be assisted at any hearing by an unqualified person (often referred to as a McKenzie friend) subject to the discretion of the court. The McKenzie friend is allowed to help by taking notes, quietly prompting the litigant and offering advice and suggestions. The litigant however must conduct their own case; the McKenzie friend may not represent them and may only in very exceptional circumstances be allowed to address the court on behalf of the litigant. 2.6.2 A written statement should be provided to the court at any hearing concerning the representation of the parties in accordance with paragraph 5.1 of Practice Direction 39A (the Court Record Form, found outside the Masters’ Rooms or in the Bear Garden). Note particularly the information required by paragraph 5.2 where a company or other