Ask the judgesOur panel of district judges answers more solicitors' questions on civil procedure

Q My client intends applying for an interim payment in a prospective multi-track claim that does not involve personal injury.

The application will be heard pre-allocation.

We have obtained experts' reports but the time has obviously not yet arisen for the court to decide under the Civil Procedure Rules 1998 (CPR) r.35.4 what permissions to grant in respect of expert evidence.

My opponent is contending that we cannot rely on the experts' reports when an interim payment is considered because r.35.4 permission will not have been given.

Surely r.35.4 only precludes a party from relying, without permission, on expert evidence at trial?A We see no reason why the judge on the application for an interim payment could not, if he thought it appropriate, give the claimant permission to put a report in evidence without deciding the wider question of the expert evidence to be adduced at the trial, though he would have to take a view on the evidence likely to be available to the trial judge in deciding what payment was appropriate.

However, it should be rare for the question to arise since a case management conference is supposed to take place at an early stage and normally an application for an interim payment would be heard at or after the conference.

Q Do the narrow grounds for extending time for service of a claim form after the initial period for service (four months within the jurisdiction) under CPR r.7.6(3) also apply to an application for extension of time for service of the particulars of claim?A The relevant provision is CPR r.7.4 which says that particulars of claim must be served on the defendant no later than the latest time for service of the claim form.

However, judicial opinion differs as to whether the time for service of particulars of claim can be extended ex post facto where service is effected outside the period stipulated in r.7.4(2).

The panel is aware of three decisions, all of circuit judges.

In one, the judge held that, while the requirement under r.7.4(2) was mandatory, there was nothing in the CPR which prevented the court from extending time for service using the court's general powers of case management set out inrr 3.1(2)(a) and 3.10.

R.3.1(2)(a) says that - except where the rules provide otherwise - the court may extend time for compliance with any rule.

The judge adopted a similar line in the second case.

But in the third case it was held that the particulars of claim are an essential part of the claim form and that if the mandatory requirement of service of the particulars of claim within the prescribed period is not met, the validity of the claim form would lapse on the expiry of the four months.

This is one question which will have to await a definitive ruling from the Court of Appeal.

Q My firm is a bulk issuer of traffic accident claims.

It is convenient and cost effective for us - and usually for the solicitors for the defendants' insurers - for case management to be dealt with in the local county court out of which we issue even though it will be appropriate for the claim to be transferred to another court for the actual trial for the convenience of the parties themselves and their witnesses.

Unfortunately, our court is unco-operative in this respect and usually insists on the claim being transferred out before any case management directions are given.

Is this not against the ethos of the CPR?A There are few interim hearings in bulk-issued road traffic cases.

As the trial window or small claim hearing will be fixed on allocation and the arrangements have to be made at the court where the hearing will take place, it is not really practical to retain the cases at another court in the meantime against the possibility that an interim hearing will be required.

If, exceptionally, an application is made which cannot be disposed of on paper or by telephone hearing, it should be possible to make special arrangements if you ask.

The volume of telephone hearings is steadily increasing and if both parties are legally represented and neither objects it is unlikely that the court would decline to direct one, if asked.

Certainly, the expense is not prohibitive.

A three-handed telephone conference lasting 30 minutes through BT works out at 53.20 inclusive of the tape.

Q I am often instructed by an insurer in personal injury claims where liability is not in issue.

I file the usual defence saying that negligence is admitted but the extent of the injury and loss are not.

I find that some district judges immediately give judgment for an amount to be decided by the court and fix a 'disposal' hearing or give directions to lead up to one.

This seems strange, since I am not in default of defence.

Surely allocation questionnaires should be required and the case allocated to a track?A Where a monetary claim is unspecified and the defendant admits liability but makes no offer to pay a specified amount in satisfaction, CPR r.14.6 applies.

It provides for the defendant to file an admission whereupon the claimant may obtain a judgment on filing a request form.

The district judges are responding to what they regard as your breach of r.14.6 by moving the cases forward to the positions they would have reached if you had filed an admission.

It should be acknowledged that some district judges favour a defence being filed in these circumstances even though judgment is to be entered, because the defence provides a convenient place in which the defendant can plead such 'disposal' points as he intended to rely on (whether as to quantum, causation, contributory negligence or failure to mitigate which can all be raised on 'disposal' - Lunnan v Singh and others (1999) The Times, 19 July CA).

Q Why should the court be able to take a written offer to make a money payment under CPR pt 36 into account when exercising its discretion on costs when the offeror could have made a payment into court but has not done so? I do not understand it.A The consequences of a pt 36 offer with payment in follow automatically.

No payment, no automatic consequences.

But in applying the overriding objective, the court takes everything relevant into account.

It may be totally unimpressed by the fact that an offer was not backed up by a payment in, but it may not.

Why should it not consider it and take it into account for what it is worth? At least it raises the question of the claimant's response to the offer.

A claimant who replied 'Yes, where's the cash?' will get a lot of sympathy.

One who said 'Double it and I'll think about it' and then recovered much less might lose his costs as a result.

However, in Amber v Stacey [2000] All ER (D) 1829 the Court of Appeal did say that there were compelling reasons of principle and policy why those prepared to make written offers of monetary settlement should do so by way of pt 36 payments rather than written offers alone.

Pt 36 payments represented greater clarity and certainty about genuineness, ability to pay, whether the offer was open or without prejudice and the terms on which the dispute could be settled.

Written offers should not be treated as precise equivalents.l Questions may be e-mailed to: kim.davies@lawsociety.org.ukThe answers are the view of our panel and should not be considered binding on any court.