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Unit 7 – Commercial Court Notes

LPC Law Notes > Commercial Dispute Resolution Notes

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Unit 7 - Consolidation CDR?

Commercial court ? part 58 and commercial court guide Only operates out of royal courts of justice in London But number of mercantile courts in district registries of large cities (these are for more modest claims) ? governed by part 59 and mercantile court guides for each court Part of QBD High Court judges are specifically assigned and practiced in the court before becoming judges and therefore experts) court attracts highly complex cases involving vast sums of money CPR and PD 58/Commercial court guide deals with the court Court encourages advance disclosure of information and to provide written summaries which can be read by the judge (disclosure of electronic data and documents) PD 5C - the commercial court can be started and continued electronically CPR 58.1(2)(c) - commercial claim, any claim arising out of transaction of trade and commerce relating to: a) business doc/contract b) export/import of goods c) carriage of goods by land, sea, air, pipeline d) exploitation of oil, gas, natural resources e) insurance and re-insurance f) banking and financial services g) operation of market and exchanges h) purchase and sale of commodities i) construction of ships j) business Agency k) arbitrationApart from arbitration Part 7 claims started using N1(CC) claim form and Part 8 N208(CC) claim form

Transfer: Possible from and to. CPR 30.5 app for transfer to/from a specialist list must be made by judge dealing with claims in that list judge has virtually unfettered discretion in deciding whether case suitable judge can remove claim from court on own initiative or app of another party no rigid financial limit, claim PS200,000 is likely to be transferred out unless a special commercial interest usually will be transferred out to Mercantile courtsHow does CPR relate to Commercial court?
Part 58.3 ? Rules and their practice directions (in cpr) apply to claims in the commercial list unless this part or a practice direction provides otherwise.

CPR 15 - Defence and reply 20 - Counterclaims and additional claims 58 - Commercial court

OUTCOME 2 - Explain steps which C, D and TP must take in commercial court to issue CF up until date C requests for first CMC Commencement of claim in commercial court: Commenced by either part 7 (practice form n1(cc)) or part 8 (practice form n208(cc)) CF (claim form) Statements of case - guidance set out in part c and appendix 4 of the CCG Generally the rules are similar to part 16 of CPR BUTpara 12 appendix 4 CCG - evidence SHOULD NOT be included in statement of casepara c1.1(b) CCG - evidence should be no longer than 25 pages. Court can give permission for longer if good reason toPD58 para 9 - commercial court will not serve docs. Service must be effected by the partiesAll docs verified by statement of truth, original text retained and using foot/margin notes. If extensive amendments then docs should be retyped and accompanied by a copy showing where/when amendments made CCG para C5.1(d) Statements of case and time limits main claim: C files CF - does not need to contain particulars of claim (r58.5)

C should file the response pack with the CF r58.5(1)(b)

This is because there is a good chance D will challenge to jurisdiction using a part 11 app (time limit is 28 days after filing acknowledgement of service 58.7(2))
- C need not serve POC until after jurisdiction hearing
- Cases are more likely to be complex and cost more and therefore will cost more to create POC so logical to see if D even wishes to defence allegations before creating POC

OUTCOME 1 - Explain how to use Part 20 to bring a claim on behalf of a D against another party:
? r20.4 - D counterclaim against C

58.6(1) and (2) ? the defendant
? r20.5 - D counterclaim against a person other than C is obliged to file an
? r20.6
- D additional claim for contribution or indemnity (two D's are blaming each other) acknowledgement ofissues service in form and serves it and the Particulars of Claim on the Defendant. The Claimant claim
? r20.7
- Classic where is being every casecase within 14Ddays ofsued and client joins someone else seeking to pass the claim on

The claim Defendant service of the Particulars of Claim stating an intention of defending the service of the formacknowledges NOT the claim. POC

The Defendant issues a Part 20 Claim Form. (D must not file defence before issuing P20 CF otherwi incur costs involved in applying for permission to joint TP) [usually done at same time]

r58.8 - If D does not do so

The Defendant files a Defence. The Defendant serves the Part 20 Claim on the Part 20 Third Party.

CCG C2.1(iii) ? parties may If D indicates intention Thean Part 20 Thirdto Party acknowledges service of the Part 20 Claim. defend C must serve particulars agree extensions of the period for of claim within 28 days (r58.5(1) serving the particulars of claim. If thisPOC must be evidenced in Deemed service of the claim formdoand notified to the court. D must acknowledge service (without 14 days of writing service and of CF) CPR 58.6(2) Main Additional claim Court can override any D MustClaim serve and file the defence D must file defence within 28 days of service At same time/before filing (See defence must issue agreement. alsoDpd 58 para within 28 days of service of of POC CPR 58(1)

15.4(1)(b) P20 CF (if not then D would have to apply for POC(58.10(2) and 15.4(1)). CCG C3.2(b) period can be permission from the court) -? CPR

20.7(3)(a) extended by agreement between parties by to 28 days. Any Should have athe statement of up truth PD20 para

4.1 C can serve a reply within 21 days of such agreement must be the defence, r58.10(1) - this could not If a counterclaim then defence andand counterclaim evidenced in writing notified be done in ordinary QBD cases should be in the same doc PD20 r6.1 to the court. (See also pd 58 para
- Ifwithin longer14 is necessary then C should C days of service of the defence Within 14 days of issuing P20 claim, D must serve make an app to court as CMC will be must: it on TP - CPR 20.8(1)(b) with: postponed CCG F4) for the CMC - a) apply to(procedure the courtinfor a date a) POC of P20 claim - CPR 20.7(4) PD 58 para 10.2 b) Response pack + copy of every statement b) serve a defence to any counterclaim
- CPR of para case10.2 already served - CPR 20.12(1) C must then apply for CMC within 14 days of defence PD58


- If C fails to do so any other party may apply PD58 para 10.5 And D must a copy ofD3.3(b) the P20 CF on C - CPR
- If nobody has applied within 28 days, court may fix a date PD58serve para 10.6/CCG

20.12(2) Mandatory CMC will take place on first available 6 weeks have filed andP20 served Within 21 days of service of the defence C date Within 14 after daysall forD's service of the CF, defence TP must CCG D3.1 may file a reply to the defence - CPR 58.10(1) acknowledge service - CPR 20.3(1) & 58.6(2)
- r58.13(2) means that r29.4(2) applies - legal rep familiar case of and authority Within with 28 days P20 CF, TPmust mustattend serveCMC its and PTR defence to P20 claim - CPR 20.3(1) & 58.10(1) &
- If party wants to vary CMC dates, must make an app to court r29.5

15.4(1)(b) CMC will deal with directions for trial for both the main action and additional claim - CPR 20.13 &
PD 58 para 12/CCG D10.5/6 AllocationThere is no directions questionnaire, all cases treated as allocated to the multi track r58.13(1)/CCG D1.2 BUT parties must provide info about case on CMIS 7 days before CMC PD58 10.7

Case management: r1.4 is courts duty to manage cases (1) Court must further OO by actively managing cases (2)Active case management includes:
- r3.1 Courts case management powers (stay proceedings, consolidate proceedings, set pretrial timetable etc)

Case management in CMC: All cases must have a CMC For applying for CMC/when it is see above CCG D2 sets out key features of case management

1. Statements of case exchanged within fixed/monitored time periods

2. 4.

Case memorandum, list of issues and case management bundle produced at early stage Case management bundle amended on running basis and list of issues used to determine what evidence needed Court will approve/settle list of issues

5. CMC will be held shortly after statements of case have been served

6. CMC court sets pre-trial timetable and gives other directions

7. After statements of case served, parties serve disclosure schedule. At CMC court discusses searches for docs and whether they are proportionate Before progress monitoring date parties report to court using a progress monitoring info sheet On/before progress monitoring date judge will give

3. 8.

9. 10. If parties ready at progress monitoring date then all complete pre-trial checklist

11. In many cases there will be PTR, parties prepare timetable

12. Throughout case regular reviews of estimated length of trial and pre-trial reading time for judge

OUTCOME 3 - Identify the docs parties are requires to prepare in advance of CMC in the commercial court CCG

Once defence and reply served, parties' lawyers should agree this. D5.2 - case memorandum
- Must be lodged at court prior to CMC
- should contain: i) short, uncontroversial description of what case is about ii) short, uncontroversial summary of material procedural history of case D5.3 - C sol responsible for this D5.5 - parties should agree what is put in it
- This is the first doc the commercial court judge looks at D6 - list of issues - Exam likely to ask for list of issues but NOT the agrees list - just one party's point of view D6.1 - each party prepares their own, main issues of fact and law. Principle issues in a structured manner, such as by ref to headings or chapters. Long lists of detailed issues should be avoided D6.2(c) - in most cases parties should be able to agree the list of issues, if this isn't possible then C must draft and send to D who can provide their own comments or suggests alternative list to court (must send copy to C also) D6.2(a) - list of issues intended to be a neutral claim, neither party should try to advance their case Separate section should list the common ground
** At CMC, parties must co-operate in keeping both docs up to date D7 - case management bundle D7.1 - prepared by C sol D7.2 - lists everything that should be in the bundle (CF, case memorandum, list of issues, pre-trial timetable or CMIS, statements of case, all principle orders, written agreement relating to disclosure) D7.5 - Must be lodged 7 days before CMC and update court bundle as follows: a) Pre-trial timetable, revised case memorandum and other order at CMC within 10 days of CMC b) Any significant order must be added to case memo within 10 days of making it c) Replace original statements of case with amended one within 14 days of service d) If case memo or list of issues revised do so within 10 days D7.6/ PD58 para 10.9 - C must constantly update the courts bundle as the case progresses D8.5 - case management information sheet D8.5(a) - each party must complete their own ones of these Must file and serve at least 7 days before the CMC PD58 10.7 Gives judge info on parties positions Also forewarns the other parties of directions likely to be sought by other party at CMC E2.3 - disclosure schedule - produced by each party (category, location, period of time of docs limits on search) What docs do you have, where are they, and any arguments as to why its disproportionate to search for certain docs Must also file Precedent H with the court and serve it on the other side 7 days prior to CMC (r3.13) r3.14 - if you don't, party which fails to file a budget will be treated as filing a budget comprising only the applicable court fees

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