Ask the judges

Our panel of district judges answer readers' questions on civil practice and procedure

Q When should we use affidavits and when should we use witness statements to put evidence before the court in a civil claim? Even some barristers do not know the answer.A The Civil Procedure Rules 1998 (CPR) introduced the concept of the witness statement, endorsed with a statement of truth, as a more modern and cheaper alternative to the affidavit.

On the other hand, foreign jurisdictions or our legislation sometimes require the use of affidavits and so they have been preserved even by the CPR.

For instance, affidavits are required for applications for committal (see RSC order 52, rule 4 and CCR order 29, rule 1(4A)) and for search orders and freezing injunctions (see part 25PD at paragraph 3.1).

For most standard applications, a witness statement will do nicely but if there is any doubt then a check should be made of the relevant rule and any supplementing practice direction.

But an important warning: if you use an affidavit where a witness statement would have sufficed, you will probably not recover the additional costs incurred if the court has anything to do with assessing your client's costs (rule 32.15(2)).

Q Does an offer to settle made before proceedings are commenced under CPR rule 36.10 carry the same costs consequences as one made after proceedings are commenced under part 36? Therefore, is it necessary or advisable to repeat a pre-action part 36 offer after proceedings have been commenced to ensure that the costs consequences listed in part 36 will apply?A A 'part 36 offer' is one made after proceedings have started (CPR rule 36.2(4)) and the costs consequences only flow from such an offer.

The court is permitted to take into account an offer made before proceedings by rule 36.10 provided it complied with the provisions of the rule when making an order as to costs.

In short, the costs consequences would not be automatic.

Therefore, to ensure that the consequences do apply, the offer should be renewed once proceedings have been commenced and, if a money claim is involved, the defendant should pay into court within 14 days of service of the claim form (rule 36.10(3)).

The claimant will need the court's permission to accept the payment in (rule 36.10(4)).

Q I recently appeared for a defendant in a road accident small claim.

The particulars of claim had been signed by the claimant's solicitor under the usual statement of truth that the claimant believed the contents were true.

No witness statement was served by the claimant.

The claimant turned up, gave oral evidence and surprised all by stating that he disagreed with the particulars of claim.

He said they had never been shown to him let alone approved by him and he had not signed or returned the witness statement drafted for him because he had disagreed with it.

Nevertheless, the defendant's evidence was preferred and the claim dismissed.

My insurance clients are not inclined to take further the matter of the claimant's solicitor's conduct.

Should the court have done so?A Proceedings for contempt may be brought against a person if he makes a false statement in a document verified by a statement of truth without an honest belief in its truth (rule 3.14(1) which catches a statement of truth relating to a claim form and the particulars of claim and the claimant's solicitor who chooses to make the statement of truth).

The machinery for the initiation of proceedings was strengthened by the introduction of PD32 paragraph 27 last February.

The CPR assume that the court can rely on such statements and they are undermined if it cannot.

In the case mentioned, the court could have taken steps to consider whether there had been a contempt by the solicitor and the panel cannot comment on why the judge did not do so.

It is certainly true that many judges believe that statements of truth are being signed by some solicitors without adequate consultation beforehand with the client or witness, and likely that solicitors making a practice of this will find themselves the subject of contempt proceedings before long.

Q The parties complete their allocation questionnaires in a claim involving tree root damage where the sum claimed is less than 15,000.

Both sides ask for fast track allocation.

The court notifies an allocation hearing to which the parties send junior clerks.

At the hearing, the judge considers the defence and decides to enter judgment for the claimant.

Should it be assumed that at an allocation hearing the judge may wish to strike out all or part of a statement of case so that an experienced legal representative should always be sent? If a junior clerk feels out of his depth (having been asked to make representations on a point without prior notice) is it open to him to request an adjournment?A A legal representative who attends an allocation hearing should, if possible, be the person responsible for the case and must in any event be familiar with the case, be able to provide the court with the information it is likely to need to take its decisions about allocation and case management, and have sufficient authority to deal with any issues that are likely to arise.

That is CPR PD26, paragraph 6.5 (and in relation to the multi-track, there is a similar but stricter provision contained in rule 29.3 and applying to all case management conferences and pre-trial reviews).

An allocation hearing would not have been fixed in the first place unless the procedural judge identified some point of difficulty which needed to be resolved.

Whoever does attend an allocation hearing should be in a position to support their pleadings, but it is common practice for the parties to be given advance notice of any intention by the procedural judge to consider whether a statement of case should be struck out, wholly or partially.

Emergencies do happen and so a junior clerk could find himself in the position mentioned.

An adjournment may then be appropriate on his application - it is certainly open to him to seek one - but if it results from a failure to observe the practice direction then costs consequences will follow.

Q Does a judge have the power to order that a county court judgment which would be registrable at the Register of County Court Judgments should not be so registered in a particular case.A No.

Registration is effected under the Register of County Court Judgments Regulations 1985 (SI 85/1807) and is an administrative action with no judicial input.

A judge cannot make an effective order which purports to oust any part of the regulations.

The impact of a registration can be severe and defendants should be mindful of this fact when deciding whether to apply to set aside a default judgment if they will run the risk of the application not being heard until one month has passed from the date of entry in the register.

If it is unsuccessful it will be too late to avoid a cancellation on settlement (although the entry can still be marked as satisfied).

If the claim leading to the judgment was contested, the judgment will be exempt from registration unless and until steps to enforce it are taken, a request is made for an oral examination or an application is made for the payment of the judgment debt by instalments.Questions may be e-mailed to: kim.davies@lawsociety.org.uk The answers are the view of our panel and are not binding on any court.

The panel is unable to enter into personal correspondence.