All civil claims should be made under the CPR unless legislation expressly requires or authorises an alternative procedure. A civil claim may be issued under Part 7 or Part 8 of the CPR.
The person issuing the proceedings is called the claimant and the person against whom the claim is made, the defendant.
19.27 Issuing a claim – Part 7 procedure
A claimant would usually issue proceedings under Part 7 of the CPR where there is a substantial dispute of fact.
Normally, claims follow what is known as a “Part 7” procedure through the court system in cases where there is a dispute over facts.
Sometimes, a special process is used where there is no dispute of fact, but only questions of law to be decided, and in such cases, it is possible to use what is known as a “Part 8” procedure. This article will focus only on Part 7 claims as these are, by far, the most common type.
Under Part 7, proceedings are started when the claimant asks the court to issue a claim form (the claim form, N1)
Part 8 claims
One of the benefits of using the Part 8 procedure is that the preparation of costs budget can often be avoided. The costs budgeting process not only adds an additional layer of costs in terms of preparing, reviewing and seeking approval of the costs budgets but it also presents a risk to a party to proceedings, as once the costs budgets are approved, except in exceptional circumstances, it will act as a cap on the level of recoverable costs upon success.
The Part 8 process tends to be much quicker than the Part 7 process. A notable disadvantage to using Part 8 however, is the need to provide your supporting evidence for the claim when issuing proceedings.
This is not necessary when using Part 7.
The legal fees incurred therefore tend to be front loaded if a Part 8 claim is pursued.
When can the Part 8 procedure be used?
Part 8 of the CPR sets out when the Part 8 procedure may be used. Other parts of the CPR covering specific claims may also clarify whether a Part 8 claim can or, in some cases, must be used.
Part 8 claims are typically used for simpler claims which involve minimal dispute and no overly complex facts.
Objecting to Part 8 claims
It is possible for a defendant to object to a claimant using the Part 8 procedure, once the claim has been issued.
Such an objection can only be raised when the defendant believes there is a substantial dispute of fact and there is no provision of the CPR restricting the claim to the Part 8 procedure only.
The advantage to objecting to the claim being made by Part 8 (if a defendant wishes to frustrate the Court Proceedings as far as possible) is that it may result in the claim being transferred to the Part 7 process which will likely delay matters.
Defendants willing to object to the use of the Part 8 procedure should raise this when acknowledging service of the claim. Their reason for objecting should be noted in the acknowledgement of service. The Court will decide on the future of the case and how this may be managed, which may include transferring the claim to be the Part 7 procedure. Parties are also able to agree to any necessary steps prior to a Judge making a decision.
The case of Kershaw v Roberts (Representative of the Estate of Jones) established that Judges should consider the below when deciding on any Part 8 objections:
- Should the claim proceed as a Part 8 claim or would the Part 7 procedure be more appropriate, due to there being a significant dispute of fact;
- If the claim remains as a Part 8 claim, should it be specifically allocated to a specific part of the Court, such as the small claim track, fast track or multi-track;
- If it remains unallocated, should any directions be given; and
- If a hearing is necessary, what is the nature and scope of that hearing.
This suggests that it is at the Judge’s discretion as to whether a claim should be transferred to the Part 7 procedure. They also have the ability to order directions and hold any hearings if necessary, so that a claim can remain as a Part 8 claim.
It should be noted that a Judge also has power to transfer Part 8 proceedings to Part 7 at any time it appears to be suitable.
Part 8 of the Civil Procedure Rules (CPR) provides an alternative, streamlined procedure to the usual Part 7 method of conducting civil litigation.
It is perhaps underappreciated that the Part 8 procedure contains its own disclosure regime which envisages much more limited information exchange than under the
Part 7 procedure.
Part 7 claims commence with formal pleadings setting out the claim and defence in law.
Disclosure, inspection and witness evidence follow.
In contrast, Part 8 claims begin with the parties’ witness evidence. The claimant “must file any written evidence on which he intends to rely when he files his claim form” (CPR 8.5(1)); and the defendant “who wishes to rely on written evidence must file it when he files his acknowledgment of service” (CPR 8.5(3)).
Given the assumption that Part 8 claims do not concern substantial disputes as to fact,
it follows that information exchange should be front-loaded and the level of information exchange thereafter required by Part 8 should be much more limited.
Practitioners’ own experience may cast doubt on the accuracy of the assumption.
For instance, practitioners advising on the eligibility of an applicant under the Inheritance (Provision for Family and Dependants Act) 1975 – which is a claim that must be brought under Part 8 (CPR 57.16(1)) – may find themselves grappling with firmly disputed factual matrices.
Unsurprisingly, the parties’ self-serving witness evidence may not reveal the material
information (adverse documents) that would allow the court to justly determine the claim.
Fortunately, CPR 8.6(1)(b) mitigates the inflexibility of that front-loading. A party
may rely on additional written evidence with the permission of the court. In other words, a
party can apply for sequential disclosure and then additional witness evidence.