There is an opportunity to request a one month stay (delay) so that an attempt can be made to reach a settlement. Either or both parties can request this. It is the court's decision whether or not to grant a stay if one is requested, but in practice it is very likely to do so. This is because it is policy to encourage the parties to reach a settlement where possible. Unfortunately this means that an unscrupulous defendant may quite cynically take a month's delay without any serious intention of trying to settle. This will not affect the final outcome but the defendant will have bought time. This may be very annoying for the claimant but he will have the consolation that, so long as it has been properly claimed, interest is continuing to run.
This is all very negative and depressing, but in many cases there will be a sincere wish to make an attempt to reach a settlement. It is up to the parties how they do this. The notes refer to ADR which is alternative dispute resolution. The various possibilities include arbitration, conciliation and informal negotiation. Negotiations can take place at any time, including during the trial itself and during an appeal.
At the end of the one month stay either or both parties can request an extension. Again it is the court's decision, but this is much less likely to be granted semi-automatically. A judge will want to know what is happening and that there is a real possibility of success if an extension is agreed.
The notes explain this very well. There is an opportunity to request a particular location and reasons should be given. The convenience of witnesses is an example of a possible reason that could be given.
Lord Woolf in his final 'Access to Justice' Report recommended the development of pre-action protocols. The aims of these are:
A limited number of protocols have been issued, but these do not include one for debt collection cases. The answer to the Part 1 question asking if there is a relevant protocol is therefore 'No'. When there is not an applicable protocol the parties are expected to act within the spirit of them. This includes things such as sending a warning letter before issuing a claim and taking steps to understand the defendant's case. It also includes exchanging documents, evidence and information and a question asks if this has been done. You should be able to answer 'Yes' and if you cannot, it is a good idea to comply as soon as possible.
You are asked if any applications have been made and if so to give details. Two examples of possible applications are given and an application for summary judgment is the most common. The court wants to know about any applications because they may affect the case management directions which will be given. There are questions about proposed witnesses and experts and these should be self-explanatory.
You are asked to state which of the three tracks is the most suitable for the case. The court will decide but may take into account the views of the parties. The starting consideration will be the size of the claim and only exceptionally will a case not be allocated on this basis, but other considerations may be taken into account. These include the expected time that the case will take in court and the complexity of the evidence or legal issues.
You are specifically asked to estimate how long the trial or final hearing will take. This may be relevant to the decision about track allocation and it may be a difficult question to answer. Obviously you should do your best and time will tell how accurate your estimate was. There is an opportunity to give dates when it is difficult for essential witnesses or yourself to attend the trial or final hearing.
Following the allocation of the case to one of the tracks the court will issue directions. The parties will often leave this to the court but there is an opportunity for them to supply proposed directions for the court's consideration. This may be done jointly or by just one of the parties. Any proposed directions should be sent in with the allocation questionnaire.
This is only to be completed by a solicitor and not when the case is stated as being suitable for the small claims track.
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