CIVIL PROCEDURE & PRACTICE I Trinidad and Tobago Petty Civil Courts Act Chap. 4:21 E.

NEW TERMINOLOGY UNDER THE CPR ex parte without notice; to be served with notice; leave permission; liquidated sum specified amount of money damages to be assessed amount to be decided by court pleadings statements of case; subpoena witness summons; plaintiff claimant.

ORIGINATING PROCESS CLAIM FORM DOCUMENTS TO BE SERVED WITH CF: 8.15 (TT) Statement of Case; Documents claimant considers necessary to his case 8.6 (2); In claims for personal injuries - schedule of special damages and medical report o n which he will rely 8.10; Acknowledgement of Service/Entry of Appearance; Application to pay by instalments; Defence form; Notes for the defendant; Copy of order made under rule 8.2 or 8.14 SPECIAL PROVISIONS RELATING TO FIXED DATE CLAIMS: TT - 8.1 (4); 1. Upon a fixed date claim being issued: Court must fix a date for the first hearing (before the judge to whom the matter w as assigned); Court shall have all powers of CMC at hearing; Court may treat first hearing as the trial if i. Claim is not defended; ii. Considers that claim be dealt with summarily Court must give at least 14 days notice of first hearing with discretion to give shorter period when appropriate. SERVICE AREAS TO BE COVERED Personal Service Alternative Service Substituted Service Ordinary Service Service Out of the Jurisdiction Fundamental Concepts Jurisdiction of the Court Discretion of the Court Methods of Service Documentation A. PERSONAL SERVICE A. Documents of which Personal Service is required include the following:(i) Claim form and Statement of Claim; (ii) Amended Writ of Summons without leave and before service unless Court other wise directs; (iii) Claim form outside jurisdiction unless court otherwise directs; (iv) Third Party Notice to person not a party to the action; (v) Defence counterclaim against a person not a party to the action; (ix) Notice of Judgment or Order unless Court otherwise directs; (x) Notice of Motion for committal unless Court dispenses with service;

(xi) Writ of Habeas Corpus where personal service possible. B. How Effected Trinidad & Tobago Part 5.3 (i) By handing to and leaving with the person to be served a copy of such docum ent; if he refuses to take the copy, by leaving it as near as possible within hi s possession and informing him at the same time of the contents thereof. If so r equested by the person to be served, showing him at the time it is left the orig inal in the case of originating process or the original or office copy in the ca se of any other document. Depending on jurisdiction, practice may vary to includ e specific directions regarding identifying person by claimant, by photograph an d location of service. C. Exceptions to Personal Service apply where: - the defendant's attorney-at-law indorses on the claim form, a statement that h e accepts service on behalf of the defendant - Pt 5.17; - in an action in respect of a contract, where the contract specifies the manner or place of service 5.16; - the defendant enters an (unconditional) appearance/acknowledges service before service; - in an action for recovery of land, the Court authorises service to be effected by affixing a copy of the writ to some conspicuous part of the land; - service is effected in a foreign country in accordance with its laws Pt 7.; - the document is required to be served on the State for the purpose or in conne ction with any civil proceedings; - service is effected by alternative service Pt 5.13; - an order for substituted/specified service is made Pt 5.12; Proof of Service: must be made by Affidavit of Service. This may now require 2 a ffidavits 1 by the server and another by person who identified the defendant or verified his photograph or description: r 5.5 (2), (3). The person who put in th e photograph must go on affidavit to verify how he knows that that is the correc t person. See also Proof of Service in section 4 (infra). B. SERVICE BY A SPECIFIED METHOD Trinidad & Tobago, - Pt 5. Service by a Specified Method: This is service on the defendant in a manner spec ified by the court in situations where it is difficult to locate the defendant o r it is believed that the defendant is evading service. Once service is effected in the manner prescribed by the court it is deemed that service takes effect at the time prescribed - 5.14 1. Method of Application: In accordance with Part 11. 2. Contents of Affidavit I. Statement that a writ or other originating process (a copy of which is e xhibited II. of such and such date) has been duly issued; III. the specific efforts made at serving defendant personally stating them w ith IV. great particularity and that all practicable means of effecting personal service have been exhausted; V. that all practicable means of effecting personal service have been exhau sted, and where appropriate that prompt personal service is impracticable; VI. that the substituted service (state the proposed substituted service) wi ll probably come to the knowledge of the defendant; VII. and if the defendant is evading service the affidavit should state the d eponent's belief to the effect, giving the facts upon which such belief is based ; VIII. where service is to be effected within the jurisdiction, a statement of the IX. deponent's belief that the defendant is within the jurisdiction or belie ved to be so. 3. Forms of Substituted Service: Whatever means will best reach the attention of the defendant. Usual forms are by: (a) Letter

(b) Advertisement. See: Cook v. Dey (1876) 2 Ch. D. 218, Crane v. Julian 2 Ch. D . 220 (c) On a person impliedly entitled to accept service on behalf of the defendant. Porter v. Freudenberg (1915) 1 K.B. 857 Its Object and Effect: Kistler v. Tettmar (1905) 1 K.B. C. SERVICE BY AN ALTERNATIVE METHOD PT 5.10 Instead of personal service party may choose an alternative method of service wi thout first seeking an order of the court. However, this type of service must be validated in order for the claimant to advance any further in litigation. Service here must be in a manner which will satisfy the court that the person in tended to be served was able to (or was likely to) ascertain the contents of the document and the time when he/she was or was likely to have been in a position to ascertain the contents of the documents When party serves by alternative meth od without order of court and wishes to take any step he must file affidavit pro ving service to satisfaction of court. The application may be made without notic e under Part 11 but must be accompanied by an affidavit outlining the above matt ers and exhibiting a copy of the documents served. Such an affidavit must immediately be referred to a judge by court office. He wi ll indorse on affidavit whether the contents satisfies the court. If it does not then a date will be fixed for a hearing for service by a specified method. NB: This form of service is without parallel in the UK and any similar reference s in UK Rules are inapplicable. D. OTHER METHODS OF SERVING CLAIM FORM METHOD TT Service by a contractually-agreed method: 5.14 5.16 Service of claim form on agent of principal who is overseas: 5.15 5.17 5.17 Service of claim form for possession of land where land is vacant: 5.16 5.18 5.1 8 E. ORDINARY SERVICE TT, Pt. 6 1. Methods of Effecting Ordinary Service (i) Leaving document at proper address of person to be served; (ii) By post (registered); (iii) In such other manner as the court may direct, and 2. Time for Effecting Service 6.3 3. Circumstances in which no service is required - 6.3 4. Proof of Service - Affidavit of Service TT, CPR 5.3 Contents of Affidavit (a) Statement by whom served if applicable; (b) Location or place of service; (c) Day of week, time, and date on which served; and (d) Manner in which service effected with great particularity. Service on an Attorney See 5.17 (2) F. SERVICE OF DOCUMENTS OUTSIDE THE JURISDICTION When Applied: When a defendant is outside of the jurisdiction at the time of the issue of the claim form and statement of claim, or is outside the jurisdiction at the time when there is an intention to serve him, permission of the court mus t be obtained in order to serve him effectively in the jurisdiction where he may be found. Such permission must be applied for under Part 7.3 and in accordance with Part 11. Matters Permitted: Permission will only be allowed if the case falls within the provisions of Pt 7.3 and 7.4. These deal with claims: i. for relief against a person ordinarily resident in the jurisdiction; ii. for an injunction relating to matters within the jurisdiction; iii. Is made against someone on whom the claim form has been or will be served a nd there is a real issue which it is reasonable for the court to try; and the claimant now wishes to serve the claim form on another person who is outside t

he jurisdiction and who is a necessary and proper party to that claim 7.3 (2); iv. For breach of contract 7.3 (3); V. tort 7.3 (4); Vi. Land located within jurisdiction 7.3 (6); vii. Enforcement of judgments and orders 7.3 (5); viii. About trust 7.3 (7); ix. Miscellaneous statutory provisions 7.3 (9) x. where claim made under Pt 7.3 (3), (4) and (7) (c), the court may grant a cla im for a remedy which does not fall within 7.3 but arises out of the same or substantiall y the same facts as the claim in respect of which the order is made 7.4. Matters not permitted admiralty proceedings in rem 7.3 (8) Method of Application (7.5): Application may be made without notice but supporte d by evidence stating the grounds on which the application is made, that in the depon ent believes he has a realistic prospect of success, in what place within what c ountry the defendant may be found and where the claimant claims that there is be tween himself and the defendant a real issue which it is reasonable for the cour t to try, he must state the grounds for his belief that the conditions are satis fied. Factors the court will take into consideration: The plaintiff must show that he has a good arguable case on the merits Diamond v Ban k of London and Montreal Ltd. [1979] QB 333 The case must fall within the spirit as well as the letter of the various classes o f cases provided for in the CPR. If there is any doubt in construing the rules it ought to be resolved in favour of the foreigner. It becomes a very serious question ... whether this court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and ... this court ought to be exceedingly c areful before it allows a writ to be served out of the jurisdiction. Since the application is made by the plaintiff without notice, full and fair disclo sure is necessary of all the relevant facts A plaintiff wishing to proceed under RSC Ord 11 to serve a defendant out of the ju risdiction should act with reasonable speed. Inordinate delay for no good reason is a strong factor to be taken into consideration in exercising the courts discr etion. The court will consider which is the appropriate court to try the action and will take into account, inter alia, which countrys law governs the cause of action and where the most effective relief will be given. In particular, if the parties have agreed that a particular countrys courts should have jurisdiction over the dispute, the court will not generally go behind that agreement. b. whether a foreign court has jurisdiction and whether both parties would have a fair trial at that foreign court; c. where the witnesses reside. Pay attention to provisions relating to: amendments to claim form (7.6); application to set aside order (7.7); service of other types of process (7.14). Methods of Service (7.8) personal service; service in accordance with the law of the country in which the defendant may be fo und; service by a specified method (not applicable to ECS); Other types of service:

through foreign governments; judicial and consular authorities; service under the Hague and other Convention; or where there is no applicable convention (7.9) UK Procedure and Practice: A distinction must be made between a claim form meant to be served within the jurisdiction and one meant to be served outside the jur isdiction. In the UK a practice has developed which mirrors a practice under the Old Rules of applying for a concurrent claim form for service outside the jurisdi ction if originally the claim form was meant to be served within the jurisdictio n but it was found that the defendant was now out of the jurisdiction. This prac tice has no basis in the CPR and seems to unnecessarily complicate matters. Furt her, the UK provisions reflect certain rights to sue and serve process in Europe an jurisdictions under EU law which have no application to the Caribbean. The criteria test for allowing service remain essentially the same under the New Rules as under the Old: De Molestina & Ors v Ponton & Ors [2002] 1 All ER (Comm ) 587. Dispensing with Service: An application for order an order dispensing with servi ce can be made but should not be made to avoid the strict requirements of servic e within the time prescribed for service Godwin v Swindon Borough Council supra. See also: Carvill America Incorporated RK Carvill & Co Ltd v. Camperdown UK Ltd Xl Speciality Insurance Co 2005 WL 1333227 (CA (Civ Div)), [2005] 1 C.L.C. 845, [20 05] 2 Lloyd s Rep. 457, [2005] EWCA Civ 645 A: APPLICATIONS GENERALLY Applications relate to any effort to have the court make an order in favour of a particular course of action which either party to litigation may require in ord er to clarify the issues, expedite the proceedings or to determine the action. S uch applications could be made from the commencement of proceedings to the final judgment and enforcement of the court on the substantive matter. In exceptional circumstances, certain applications could even be made before proceedings have commenced. Under the Old Rules, there were many occasions when such applications would be a llowed. Indeed, such applications were the main reason why many matters were delayed for years before arriving at the substantive hearing and determination of the matte r. Under the CPR, most of these applications have been done away with by the cou rt allowing parties to structure and execute their litigation plan as they chose before the case management conference without the leave of the court. However, all these actions will be reviewed by the court at the CMC and the court will ex ercise its powers of case management Part 26 in order to rationalise the litigat ion process in keeping with the overriding objectives of the Rules. B: TYPES OF APPLICATIONS Common applications under the CPR Offers to settle Pt 36; Disclosure and Inspection of documents Pt 28; Interim remedies Pt 17; Summary judgment Pt 15 C: PROCEDURE TO APPLY Application in Writing or Oral: The general rule is that applications must to be made in writing (11.4 (1)) although it may be made orally if this is permitted by a rule or practice direction; or the court dispenses with the requirement for the application to be made in writing (11.4 (2)). It is important to know the c ircumstances when such applications can be made situations of extreme urgency. I n such circumstances, it is incumbent upon the applicant to explain to the court why the application could not have been made in writing. Another important issue under the CPR is that every application to the court mus

t be done in accordance with the specific requirements of Part 11, even when the application is without notice. The only exception is for an application for a d efault judgment which has its own prescribed procedure. Notice of Application: The general rule is that an applicant must give notice of his application to the other side 11.5 (1). Notice may be dispensed with where this is permitted by a rule or Practice Direction 11.5 (2). An example of this w ould be an application for an urgent interim injunction without notice (17.3) wh ere there is not time to give notice to the respondent or giving notice will def eat the efficacy of the proposed order by giving the respondent time to countera ct the order. See discussion on Interim Injunctions. A respondent to whom notice of an application was not given when it ought to hav e been may apply to the court to set the order aside 11.15. However, once notice of an application was properly served on a respondent who fails to attend the h earing of the matter the court may proceed to hear the matter and grant the orde r requested without his attendance 11.16. In such circumstances the court may wi sh the applicants to provide proof of service of the application on the responde nt by an appropriate affidavit of service. Where an order is made in the absence of a party, that party may nevertheless apply to the court to set aside such an order where he shows on affidavit good reason for his failure to attend and he can also show that had he attended the order of the court may have been different - 11.17. Contents of Application: An application consists of: 1. The notice of application, 2. Evidence in support of the application (affidavit) - 11.5 (2) and a 3. Draft order for the consideration of the court - 11.7 (2). The Notice of Application (Form 10): This must contain the order the applicant i s seeking and the reason/s why he is seeking the order -11.7 (1). Failure to spe cify the order requested may result in the refusal of the court to grant such an order - 11.12. It must also contain the reasons for the order. Such reasons are not a regurgita tion of the evidence on which the applicant will rely, but a brief statement of the material facts and law that support the order. Evidence in Support: Where evidence in support of an application is required it must be on affidavit unless a rule, Practice Direction or a court otherwise orde rs 11.8. Multiple Orders: An applicant may apply for several different orders in one application if it is convenient to do so if the application conforms to the overriding objective and the courts powers of case management. In such a case, e ach order must be itemised in separate paragraphs and the applicant must supply relevant grounds to support each order requested. INTERIM INJUNCTIONS AREAS TO BE COVERED 1. The nature of an interim injunction; 2. Circumstances under which it is issued; 3. Procedure for making the application; 4. Consequences of the order; 5. Discharging an interim injunction; 6. Distinction and consequences of an injunction with or without notice. . A. INTRODUCTION 1. DEFINITION AND NATURE An interlocutory injunction is sought in a pending action - O 29 r 1 (1). It may be obtained in actions begun by any of the originating processes. 2. CLASSIFICATION (1) Classification by Nature:- (a) restrictive, prohibitory, restraining; (b) ma ndatory. (2) Classification by Duration:- (a) interim; (b) interlocutory; (c) perpetual. 3. JURISDICTION OF COURT TO GRANT INJUNCTION (i) Trinidad and Tobago, s. 14 and s. 23(5) of the Supreme Court of Judicature Act, Ch. 4:01.

An injunction supports a right and is a form of reliefIection addition to the st atutory provision vesting the High Court with power to grant interlocutory injun ctions, Rules of Court also contain provisions with regard to such grant. Rules of the High Court, Cap. 3:02. (i) Any party to a cause or matter . Includes a defendant, whether or not the p laintiff applies for an injunction, might seek an injunction and it is not neces sary for him to have filed any pleading in the action. (Sargant v Read (1876) 1 Ch D 600). (ii) Before or after the trial Part 27 is principally concerned with applicat ions before the trial. In certain rare cases an injunction may be granted after the trial. Boorne v Wicker (1927] 1 Ch 667). (iii) Whether or not a claim for the injunction was included in that party s wri t . An interlocutory injunction may be granted although not specifically claimed in the writ; it may be appropriate as a holding measure even though the final r elief sought at trial will be of a different nature. NB: application for an injunction must be made to a judge; masters have no power to grant injunctions except in terms agreed by the party, or where the injuncti on is ancillary to a charging order or to the appointment of a receiver by way o f equitable execution. 4. PRINCIPLES ON WHICH INJUNCTION GRANTED (1) Mandatory Injunctions: Redland Bricks Ltd. v Morris (1969) 2 All E.R. 576 at 579-580, [1970] AC 652, 665. Where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. In Hooper v Rogers [1975] Ch 43, the degree of probability is not absolute and h as to be tempered with justice and regard to all circumstances. (2) Interlocutory Injunction: . The guidelines fall under the following headings: The principles enunciated in American Cyanamid Co v Ethicon Ltd [1975] AC 396 ha ve been crystallised into the following propositions enunciated in Ex parte Factortame Ltd (No. 2) [1991] 1 AC 603, [1990] 3 WLR 818: Stage One - Adequacy of damages awarded at trial or payable under undertaking. Stage Two - Balance of Convenience: Balance of the risk of doing an injustice: Cayne v Global Natural Resources Plc [1984] 1 All ER 225, 237 Preserving the status quo: The Siskina [1979] AC 210 Relative strength of each partys case: Series 5 Software v Clarke [1996] 1 All ER 853. B. THE EX PARTE APPLICATION O 27 authorises an ex parte application. Ex parte applications may be made by affidavit only. O. 32 r 1; O 29, r. 1(2); O 41, r 1 (G). The following items mus t be attended to: 1. PROCESS MUST HAVE BEEN ISSUED The injunction must not be applied before issue of process except in the case of urgency. In cases of urgency, the application may be made before issue of writ/ claim form with undertaking to issue process on next business day:A. G. of TT v John Humphrey, H.C.A. 2608 of 1982 (Warner J 1. THE AFFIDAVIT 2. (1) Time of Filing: Unless an affidavit is filed pursuant to the procedure l aid down in A.G. v John Humphrey, the affidavit must be intituled and sworn in a n existing cause and should therefore be sworn after the claim form is issued. L ocal practice is to swear affidavit and proceed straight away to file the CF and affidavit. Adanac Industries Ltd v Black (1962) 5 W.I.R. 233 the C.A. (2) Care should be taken to ensure that the following things are done:(a) Affidavit should contain a clear and concise statement:

i. of the facts giving rise to the claim against the defendant ii. of the facts giving rise to the claim for interlocutory relief iii. of the facts relied on as justifying the application ex parte, including de tails of any notice given to the defendant or, if none has been given, the reaso ns for giving none iv. of any answer asserted by the defendant (or which he is thought likely to as sert) either to the claim in the action or to the claim for interlocutory relief v. of any facts known to the applicant which might lead the court not to grant relief ex parte vi. of the precise relief sought. (b) Affidavit contains facts and not conclusions or generalisations. However, may contain statements of information or belief with the sources thereo f. Forde v Anor v Sealy (1979) 35 WIR 53. (c) When there are many defendants, particularise in respect of each to ensure t hat a case for an injunction is maintainable against each (d) In seeking to show a complete or comprehensive case, hearsay evidence may be employed subject to stating the sources of information and belief in the inform ation in the affidavit:- Pt 30. (e) Photographs should be employed where possible. 3. NON-DISCLOSURE The duty to disclose: these principles were comprehensively Reviewed by Ralph Gibson L.J. in Brinks Mat Ltd V Elcombe [1988] 1 WLR 1350, [198 8] 3 ALL ER 188. 4. DOCUMENTATION FOR WITHOUT NOTICE APPLICATION (a) Claim form. It is not usual to claim injunction on CF except if it will be a substantial object of the action. statement of claim must be in accordance with rules of court.:- (Practice is to await outcome of injunctions proceedings befo re delivering statement of claim at length. However, the 14 days limit to deliver a statement of claim after entry of appear ance is not affected by injunction hearing. Delay gives an opportunity for each party to see where the other is coming from). Under the CPR the rules make speci fic provision for the issue of the claim form without the statement of claim/cas e in cases of urgency 8.2 (2) (b) Affidavit of plaintiff (supra). (c) Inter partes summons for hearing to continue the injunctions. The without no tice injunction would have been limited to a stated date, called the return date w hen the defendant may appear and resist the injunction. The summons has to be is sued and served by the plaintiff who is under an obligation to apply to the cour t for the earliest appropriate date for the hearing of the summons. If he delays the court will ordinarily dismiss the summons and thus discharge the injunction . (d) Draft of injunction order: note that this is indispensable when applying for any interlocutory order of injunction, whether " without notice or " with notic e (infra). 5. MISCELLANEOUS MATTERS WITHOUT NOTICE a) Any application for an injunction, and particularly a without notice one must be made PROMPTLY. b) The provisions (O. 29, O. 38 r. 1) do not permit a defendant applying "ex par te", S. Pope v Mayor, etc., of San Fernando HCA# 4994/84, 465/86 c) An opposed application without notice where either the defendant is invited o r he learns of the hearing and attends. See Pickwick lnc. Ltd. v Multiple Sound Ltd. (1972) 3 All E.R. 394, Mohammed v Home Construction Ltd. (1988) 43 WIR 380

d) A defendant who hears of the order having been made or who is served may on g ood ground apply ex parte for the discharge of the injunction:; London City Ag ency v Lee (1969) 3 All E.R. 1376. Defendant may also apply for its variation e x parte - a useful and noteworthy recourse to mitigate any hardship that might have been caused by the grant without notice. e) Plaintiff should ordinarily swear to affidavit, but the facts may be deposed to by persons having knowledge of them, including an agent of the plaintiff. Lor d Bryon v Johnston 35 E.R. 95 1. The failure of the plaintiff to swear to an aff idavit should be explained. 6. JUDGMENT ORDER The most effective sanction to ensure compliance to the terms of an injunction i s committal to prison. O 52, (TT. Kuarsingh v Bhagwandeen HCA S399/82 (TT). Obta ining an injunction order and not taking the necessary steps to ensure enforceme nt if the need arises is a waste of the Court s time, the client s money and pro fessional negligence). Attention must, therefore be paid to: DRAFTING: the order must be UNAMBIGUOUS and tell the defendant in clear terms wh at it is that he must or must not do: If the defendant is to do something by a particular date, the order must also sa y by what date the act should be done and, of course, served before that date. It should also provide for the defendant to apply on notice for discharge or ari ation of the order and for costs to be reserved. In cases where no writ has been issued because of the urgency of the situation, the order must reflect an undertaking by the plaintiff to issue the writ forthwi th. RECITALS: An omission of a material particular in the recital may assume signifi cance later on. It is advisable to include all the documents before the Court at the time the injunction order was made: writ, all affidavits with exhibits an nexed. Argument may arise with respect to what material was before the Court. A defendant is also entitled to rely upon the recitals in the injunction order as accurately informing him of the material before the Court, since consid eration of the material referred to in the recitals may incline his legal adviso r to the view that no case for an injunction was shown on the evidence. ANNEXURES: If the order refers to an annexure, ensure that it is annexed to the order. PENAL CLAUSE: O 45 r 7(4) E.C. - O 66 r 7(4). See various forms of relevant clau ses in Vol. Supreme Court Practice, 1991, 45/7/6. Omission to have order endorse d with the penal clause is fatal. LEAVE OF COURT: to serve writ, summons to continue injunction and injunction ord er itself to be included in the order. UNDERTAKING AS TO DAMAGE: The plaintiff is usually required to give an undertaki ng in damages. No undertaking - no injunction. 7 SERVICE OF ORDER: The order should be served personally on the defendant by the Marshall of the Court, though in a proper case, the Court may dispense with such personal service. So, also, if the defendant was present in Court when the order was made. See O 45 r 7(6) R.S.C. 8. HEARING ON THE RETURN DATE: The return date is the date named in the summons on which the party or parties are required to appear (return) before the court f or the initial hearing of the cause or matter. The defendant would be seeking to have the injunction discharged and would have, therefore, filed and served his affidavit in opposition outlining his case and including any material on which h e proposes to rely to have the injunction discharged. The plaintiff would be see king to have the injunction continued until the trial of the substantive action. Fullness of Affidavit: It is only in exceptional circumstances that the court wi ll give a plaintiff leave to reply to the defendant s affidavit as he will be re quired to rely solely on the ex parte affidavit 9. ADJOURNMENTS: An injunction lasts until the end of the day to which it is lim ited and dissolves at midnight of that day. If the matter is on any subsequent a djourned date and the attorney for the plaintiff does not get the Court to order the injunction to continue to the next date, it dies at midnight. Kerry v Const

ruction Specialists Ltd CA 49/77 (TT). He would, therefore, (1) Need to apply for an injunction anew (2) Application to be made inter partes , since by that time the defendant woul d have entered an appearance and the matter is inter partes . Because a plaintiff has until midnight of the day to his disposal, should he omi t to obtain the order to continue the injunction and the Court has risen he can: approach the judge in his private chambers OR find him at home or where he is O R telephone him, if possible, and request extension - Entering an order advisabl e. 10. AFFIDAVIT OF SERVICE: In seeking to enforce an injunction order in contempt proceedings for its breach, the plaintiff is required to show that notice of the order was brought home to the defendant in accordance with 0. 45. Where there h as been personal service, it is a practice of wise counsel to put an affidavit o f service on the record. It may be that long after service was effected, there i s need for proof of service but the server is no longer available or reachable. 11. POSSIBLE ORDERS OF COURT AT HEARING: TO (1) Continue injunction "UNTIL TRIAL AND DETERMINATION of cause of further order . (2) Request an undertaking from defendant which has the same effect as an injunc tion: (Undertaking may also be extracted from PLAINTIFF in a proper case). (3) Dismiss the matter with costs. (4) order an early trial whether or not injunction continued. C. THE APPLICATION WITH NOTICE Here the application for the injunction is made in the presence of the defendant . He is served with the writ, summons for injunction and affidavit(s) in support together with exhibits. At the hearing, the plaintiff will walk with his draft order. AT HEARING: At the trial of the matter, it is necessary to lead evidence to just ify the grant of the interlocutory injunction. This means evidence of the acts o f the defendant and the circumstances of urgency justifying approaching the Cour t in the summary fashion ex parte . INJUNCTION INDORSED ON STATEMENT OF CLAIM ONLY No interlocutory application having been made, the plaintiff is free to lead evi dence to obtain, for the first time, an injunction at the trial - described as " judgement for injunction by Stroud. ********** B. FORM AND CONTENT OF AFFIDAVITS FORM OF AFFIDAVIT GENERALLY Pt 31.2 CONTENTS OF AFFIDAVIT Pt 31.3 An affidavit sworn to be used in final proceedings must contain only such information as the deponent can attest to of his own kno wledge 31.3 (1). See also Love v Pharaoh (1954] 1 All ER 120, [1954] 1 WLR 190. An affidavit sworn for the purpose of being used in interlocutory proceedings ma y contain statements of information or beliefs, with the sources and grounds the reof; 31.3 (2). THE JURAT: An affidavit must be signed by the deponent, and the jurat must be co mpleted and signed by the person before whom it is sworn. See the Oaths Act or p articulars of swearing of oath. Any attorney who holds a practising certificate may administer an oath and take an affidavit as if he were a commissioner for oa th. SUPREME COURT OF BARBADOS IN THE HIGH COURT OF JUSTICE No. 369 of 2006 BETWEEN Heather Anne-Marie Worrell APPLICANT and

RESPONDENT AFFIDAVIT IN SUPPORT OF AN APPLICATION FOR A MANDATORY INJUNCTION 1. I, Heather Anne-Marie Worrell, Bank Official, of No. 27 Rosewood Park, Saint Philip in the island of Barbados MAKE OATH and say as follows:2. I am the Applicant herein and make this affidavit in support of my applicatio n for a mandatory injunction against the Respondent. 3. The Respondent and I were married at St. Philips Parish Church on December 18, 1988 and thereafter resided at No. 27 Rosewood Park, Saint Philip. (A true copy of the Marriage Certificate is hereto exhibited and marked HW1). The Respondent and I have a daughter, Andrea Rose Worrell born o n December 10, 1989 who currently attends Meriville Primary School in the parish of Saint Philip. (A true copy of the Birth Certificate is hereto exhibited and mark ed HW2) 4. Our marriage broke down and a dissolution of marriage was filed by the Respon dent on January 11, 1994 and on December 29, 1994, a decree absolute was granted. (A true copy of the Decree Absolute is hereto exhibited and marked HW3) 5. 6. On December 4, 1994, the Honourable Justice Thomas Unlucky, Judge of the High Court made an order by consent in the following terms; inter a lia, that the Respondent and I have joint custody of the said child with the Res pondent having access between the hours of 6:00 p.m. on Fridays to 6:00 p.m. on Sundays while I have access during the periods 6:00 p.m. on Sundays to 6:00 p.m. on Fridays. (A true copy of this Order is hereto annexed and marked HW4) 7. Sometime between 8:30 a.m. and 10:00 a.m. on December 8, 1996, the Respondent came to my home and without permission and with the use of force took away our daughter, Andrea Rose Worrell. 8. I had been informed by my sister, Dorcus Franklin and verily believe that the Respondent is scheduled to emigrate from this Island to Canada and intends to c arry our daughter, Andrea Rose Worrell with him. 9. The actions of the Respondent in removing the child from my home without perm ission amounts to a breach of the Court Order granted by High Court Judge Unluck y. 10. I am fearful that unless the Respondent is restrained, he will take our daug hter, Andrea Rose Worrell out of the jurisdiction of the Court. 11. In the circumstances, I beg this Honourable Court to deal with this matter a s one of extreme urgency. 12. The statements made herein are true to the best of my knowledge, information and belief. 13. I make this Affidavit in support of my Application herein filed on even date . SWORN TO by the said Heather Anne-Marie Worrell ) at the Law Courts, Coleridge S treet, Bridgetown ) on the 1st day of March 2006. ) Before me:

.. Susan Maloney Attorney-at-Law Lonely Law Chambers 32 Clifford Street

THE CASE MANAGEMENT CONFERENCE AREAS TO BE COVERED 1. What is the purpose and structure of the CMC; 2. How it is managed; 3. Participation at the conference; 4. Types of orders to be made; 5. Managing the conference for claims begun by a fixed date claim form. A. DEFINITION What Is It? A case management conference is any meeting of the court, the partie s to litigation and their attorneys to: 1. Resolve issues in dispute, or arrive at a mutually agreeable approach to the conduct of litigation; 2. Correct any defects in procedure that have been committed up to the time of t he conference and to accede to any requests of the parties for orders regarding the litigation process; and 3. receive directions from the court as to how the litigation process should be conducted particularly with a view of setting the trial date/window, listing que stionnaire, witnesses, etc.; The case management conference (the courts power of case management) can be condu cted at any time the parties appear before the court on any application which do es not completely dispose of the matter and directions are necessary for the con tinued conduct of the action. Aims and Objectives: The case management conference is the most critical aspect of the new rules. The powers of the court to manage cases contained in Part 26 a re given their fullest expression in Part 27 dealing with the management of the case management conference itself. It must be noted, however, that there is noth ing which precludes the court from exercising these powers at any stage of the p roceedings. In the Review of Civil Procedure, Dick Greenslade identifies four main aims of c ase management which are to ensure that: 1. Proceedings are disposed of expeditiously with the minimum necessary commitme nt of resources by the court or by litigants; 2. Cases which can be disposed of by some means other than trial should be ident ified as early as possible; 3. Cases going to trial are adequately prepared with the minimal commitment of r esources that is necessary for a fair decision to be achieved; and 4. There is an appropriate and effective allocation of finite court resources. These aims are given definition in the actual process of the Case Management Con ference itself (which) should have the following goals: 1. To identify, define and limit the issues between the parties ; 2. To identify, in broad terms in relation to each issue the nature of the evidence to be adduced; the area of expert evidence which will be needed; what classes of documents may need to be discovered to ensure a fair trial; 3. To dispose of hopeless or weak cases or issues within such cases summarily; 4. To seek to narrow the area of dispute on any one or more issues; 5. To seek agreement wherever possible; 6. To consider whether any form of ADR would be appropriate in resolving or assi sting to resolve the issues or any of them, such as mediation, arbitration, earl y neutral evaluation, mini-trial, etc; 7. To achieve transparency and control of costs, particularly for the client so

that s/he may understand the costs consequences - and risks - of the claim; 8. In particular to consider the cost of any particular direction sought against the likely benefit; and, finally 9. To prepare a timetable supported by directions that will ensure trial at the earliest date and to fix a trial window for the hearing. B. CONDUCTING THE CONFERENCE: The name is significant as the intention is that it should not be as much of a h earing as it should be a conference between the stakeholders in the litigation pro cess the parties, their attorneys and the court. The end result would be a set o f directions (a timetable for litigation) agreed on by all parties (if and where possible) which the court can impose (by sanctions if necessary). The conference should be held in the judges private chambers or an appropriate ro om that can accommodate the parties rather than a formal court room and presided over by the judge. Even if it has to be heard in Chamber Court everyone except the above parties shou ld be excluded from the court room. This harks back to the days when an applicat ion to a judge in chambers was exactly that you had to visit the judge in his ch ambers without the glare of the public or other members of the profession. This process rekindles the confidentiality that is now lost in chamber matters. Chapter 13 of the Review of Civil Procedure is excellent reading for the management of the case management conference and must be read. Fixing the Date (27.3): Greenslade states that ideally, it (the first case manage ment conference) should be when the attorneys for all parties have a clear idea of the basis of their case and broadly (if not in detail) how they intend to pro ve it, but before they have expended undue sums of money. The general rule under the CPR is that the court office (Registry) must fix a ca se management conference immediately upon the filing of a defence to a claim oth er than a fixed date claim. If it does not give notice of the case management co nference within 14 days of the filing of the defence, the claimant must apply fo r a date to be fixed within 28 days of the service of the defence. Failure of th e claimant to apply for a date will result in the claim being struck out. Further, any party may apply to the court to fix a date before the defence is fi led. This can be done without notice but must give reasons for such application and the court must fix a date if it is satisfied that it will enable it to deal with the case justly. In any event the case management conference must ordinarily take place between 4 to 8 weeks of the filing of the defence. The court office must give all parties not less than 14 days notice of the date, time and place of the case management conference. Dispensing with Conference (27.4): On the application of a party the court may d ispense with the conference if it is satisfied that the: 1. Case may be dealt with justly without it; 2. Cost to the parties is disproportionate to the value to be achieved; or 3. Case should be dealt with as a matter of urgency. Where the court dispenses with the hearing, it must give directions in writing a bout the preparation of the case, set a timetable for the steps to be taken, fix a date for a pre-trial review (if necessary), and fix a trial date (or period w ithin which it is to take place) and the date for sending out the listing questionnaire. C. ATTENDANCE (27.5): It is critical that each side in an action before the court has the foll owing representation at the case management conference: a. The actual party to the dispute (claimant or defendant), or a person who is i n a position to represent his interest (not the attorney). This is important to the process as it enables the actual party to either give relevant information t o his attorney or the court which would reduce the time that the attorney would then have to take to get the relevant instructions. It would also give the client/party a realistic perspective of the strength of h is case and the costs involved. b. Where the party is represented by an attorney, that attorney or one who is fu

lly authorised to negotiate on behalf of the client and deal with the case. This is critical and avoids the source of so many adjournments of matters in court where an attorney holds papers for the attorney on record but is not familiar with the matter and it would be an injustice to the client to have him deal with it. This would further enhance the expeditious handling of the case. The court can dispense with the attendance of the party or his representative if it considers this necessary or may adjourn the hearing of the conference if the attorney or the party or his representative does not attend the conference or e xercise its powers of case management under Part 26 or Part 66 (Costs). To make this exercise realistic, Greenslade recommends that the case management conference takes place at a time when attorneys are less likely to be engaged in other courts. He suggests: one day a week when trials are not conducted. This will enable judges to deal with paper work, conduct case management conferences or part heard trials; or on afternoons perhaps three days a week. The latter is certainly a more practical suggestion if there are dedicated case management masters and judges to do this work. This will allow attorneys to deal with matters in other courts and still be able to attend and give their full at tention to this procedure. D. TYPES OF ORDERS Orders to Be Made (27.6): The orders that the court makes at the conference depe nd on the nature of the case. As each case will vary it is difficult to state wh at orders the court will make. This is the reason why the rules give the court g reat flexibility as to the kinds of orders it makes. The following are some of t hose orders: Standard disclosure and inspection of documents; Service of witness statements; Service of experts report; Preparation of an agreed statement of facts; Preparation of an agreed statement of issues; Preparation of an agreed statement of the basic technical, scientific or medical m atters in issue; and An agreed statement as to any relevant specialist area of law. In addition to the above, we have seen in previous chapters that amendment to pl eadings and joinder of parties may also have to be dealt with at the case manage ment conference. Finally, the court must fix a date for the issue of the listing questionnaire, pre-trial review and the trial date or a period within which the trial should take place. In giving directions at the conference, the Review of Civil Procedure offers two suggestions. Firstly, directions should relate to particular issues especially where they are to be tried sequentially as in the case of disclosure. Secondly, each direction must have a clear date by which it is to be carried out and that the time allow ed is realistic It will often be better to allow a little longer rather than put d irections into disrepute by forcing an unrealistically fast timetable. Variation of Timetable (27.9): The last point is critical to avoid the necessity of invoking this procedure. A party must apply to the court to vary a date set for a case management conference, a pre-trial review, return of a listing questi onnaire or the trial. Where a party wishes to vary any other date in the timetab le he must have the consent of the other party. When parties agree to such variation they must file a consent application for an order to that effect and certify on that application that the variation will no t affect the date fixed for the trial or the period within which the trial is se t to take place. If he fails to obtain the consent of the other side, he would have to apply to t he court for such a variation before the scheduled date. Where he applies after the scheduled date he must apply for relief from any sanction to which he is sub ject and for an extension of time.

Adjournments (27.8): The court may adjourn a case management conference but it c annot do so unless it fixes a date, time and place for the adjourned hearing. Ge neral adjournments are a thing of the past. The court can also adjourn a matter if it is satisfied that the parties can nego tiate a settlement or are involved a form of ADR. Such an adjournment will be ma de for a date and time to facilitate the conclusion of these processes. Any adjo urned hearing (or any procedural application made prior to a pre-trial review) m ust be heard and determined by the judge or master who conducted the initial hea ring. This is an eminently good rule as it enables continuity and expedition in the process. Listing Questionnaire: At the prescribed time, the court office must send the pa rties a listing questionnaire and each party must complete and file it at the co urt office within 14 days of service on him. If he fails to do so or inadequate ly completes it or the court thinks it necessary for giving proper directions, i t may fix a listing appointment and direct any or all of the parties to attend. Fixing Trial Date: If it did not already do so, the court must fix a trial date as soon as practicable after the return of the listing questionnaire. ************ E. THE FIXED DATE CLAIM AND THE CASE MANAGEMENT CONFERENCE The fixed date claim (FDC) replaces the former forms of action under the Old Rul es which were designed to deal with urgent matters or matters which involved mos tly questions of law and not findings of fact. Under the CPR, this first hearing is now the case management conference 27.2 (2) . What the FDC does is to bypass the regular procedure used in a claim by accelera ting the time of the case management conference to 14 days of the issuing of the FDC 27.1 (1) & (4) or earlier if there is a statutory provision that specifies an earlier date. This date is specified on the FDC and is given on the filing and issuing of the claim. In cases of urgency or where the parties agree, the case management conference m ay be held at an earlier date. At the first hearing of the case management confe rence, the court may treat the hearing as the trial of the claim if it is not de fended or if it considers that the claim can be dealt with summarily 27.2 (3). In most cases, a FDC is supported by affidavit as in the case of an application for constitutional redress or an application for leave to apply for judicial rev iew. Only where a particular matter requiring a FDC specifies that a statement o f case be filed that it seems this is necessary. The reason for this is that the affidavit, being evidence, can allow the court to hear the matter as early as p ossible on the merits. It thereby achieves the objectives of the previous forms of action under the Old Rules. While the CPR are not very clear as to the procedure to be adopted for different types of matters under a FDC it seems reasonable that the FDC will stick as clo se as possible in form to the types of matters that were dealt with under the Ol d Rules e.g. constitutional motions, see Pt 56.8. OTHER ISSUES RELATING TO PLEADINGS 1. REQUEST FOR INFORMATION: A party may request from another party to litig ation information about a matter which is in dispute in the proceedings. This se ems to be wider than the former request for further and better particulars which was only limited to information on the pleadings. The procedure commences with a written request which if not complied with is followed by an application for a n order from the court to compel compliance. 2. Procedure: Where any amendment is made prior to the case management conf erence, filing the document as amended should be sufficient. However, where perm ission is required as is the case after the CMC, it must be applied for in accor dance with the procedures set out in Pt 11. 2. AMENDMENTS: Provisions here are substantially different from UK provisions.

Provisions for amendment are quite liberal and changes can be made without leave at any time prior to the case management conference except in the case of a cha nge of parties - Orders 19 and 20. There will be no amendments to pleadings after the case management conference un less it relates to a change in circumstances and such change became known only a fter the CMC. In theory, amendments can be made up to and even after judgment. However, see Stewart v Engel & Hayward [2000] 1 WLR 2268. Maguire v Molin [2002] EWCA Civ 1083 Also note: Charlesworth v Relay Roads Ltd [2000] 1 WLR 230 indorses wisdom of rationale for amendments under the Old Rules. In some instances, however, the CPR the courts have found no impediment for an application to amend by relying on a cause of ac tion which arose after the commencement of proceedings which would otherwise mak e the claim fail Maridive & Oil Services (SAE) v CNA Insurance Co. (Europe) Ltd (2002) LTL 25/3/02. 1: Amendments to Statements of Case Pt 20: In those cases when amendments are ma de to any element of a statement of case then amendments must be made by strikin g out the deleted parts while retaining them in the document. Where there are in sertions to be made, they must be made neatly and if this cannot be done the ent ire document must be redrafted displaying the deleted parts (as prescribed above ) as well as the interlineations. All amendments must be differently coloured su ch colours will appear in the following order red, green, etc. Where an amendment is made on any document and in particular under an order of t he court the particulars of amendment must be indorsed on the document. e.g. Amen ded on the day of , 2005 pursuant to the order of Justice made on the day of , 2 005 Parties Pt 19; Late amendments are allowable if previous information shared by the parties woul d not take the other party by surprise Willis v Quality Heating Services Ltd (20 00) LTL 24/3/00, CA, Madcalf v Mardell (2000) LTL 2/3/00. To substitute the name of a party: International Distillers and Vintners Ltd v J .F. Hillebrand (UK) Ltd The Times, 25 January 2000, Gregson v Channel Four Television Corporation (2000) The Times 11 August 2000, CA. At the trial: amendments can be made but not where a party, having fought the ca se on its merits, seeks to amend to add a new cause of action or defence. Kettem an v Hansel Properties Ltd [1987] AC 189, NB: 1. Leave to amend at the trial is generally granted on the terms that the am ending party pays the costs, including the costs of any adjournment. 2. The exact terms of the proposed amendment ought to be reduced to writing, sub mitted at the earliest possible time to the other party or parties in order to p revent him or them from being taken by surprise and in order to enable him to de termine his response. 3. Such terms must be handed to the judge when the application is made. Bradford Third Equitable Benefit Society v Borders [1941] 2 All ER 205. RULES APPLICABLE TO DEFENCE There are only three ways in which a defendant can deal with his opponent s plea ding. These defences are:(1) A Traverse, or a denial of the facts alleged in the statement of claim. Ord. 18 r. 13. A party must not deny an allegation of fact in the previous pleading evasively ( as in using the negative pregnant), but answer the point of Still good law and practice confirmed in CPR R 10.5 (2) A Plea in Confession and Avoidance. i.e. an allegation that even if the fact s alleged in the statement of claim are true, there are other facts affording a defence (O rd. 18 r. 8 (1) (2). Such include: set-off counter-claim, fraud, infancy, and ot

her disabilities, non-performance of a condition precedent, leave and license, S tatute of Frauds, Gaming Act, Statutes of Limitation, privileges in defamation, matters in mitigat ion of damages. Ord. 18 r. 8 (i) (a); Hewitt -v- Mac Quire (1851) 7 Exch p. 80. (3) Point of Law: i.e. an allegation that if the facts set out in the statement of claim are true they are bad in law, and therefore do not give the plaintiff the legal righ t to the relief claimed. [Ord. 18 r. 11], Independent Automatic Sales Ltd. v Knowles and Foster (1962) 3 AER p. 27 CONTENTS OF DEFENCE: 1. Response to Statement of Claim: The defendant must address every allegation i n the statement of claim and must put his case/defence clearly and specifically plead the details of such. A defence of limitation must be specifically pleaded or he will be precluded from relying on it even if claim is statute-barred Dismo re v Milton [1938] 3 All ER 762. Rule 10.5 details every requirement of the defence in detail and essentially cod ifies what ought to have been good practice under the Old Rules. Rule 10.7 also sets out the consequences of not following the elements of drafting according to the requirements of the CPR. 2. Certificate of Truth: There are similar requirements for a certificate of tru th, and need to annex documents on which defendant proposes to rely at trial. 3, Attachment of Documents: In personal injury cases, requirement to specificall y state whether he agrees with claimants medical report or where he disputes, giv e his reasons. Where the defendant is relying on his own medical report, he must annex it to defence. 4. Special requirements relating to personal injuries: In personal injuries clai ms if claimant attached a medical report the defendant must state whether he agr ees with the report if not, reasons must be given - Rule 10.6. If he intends to rely on another report he must attach that report; N.B. Upon filing of defence court office must fix a CMC within 4 8 weeks; NOTICE OF INTENTION TO DEFEND AND DEFAULT JUDGMENTS AREAS TO BE COVERED 1. The Entry of Appearance/ Notice of Intention to Defend; 2. Effect and consequences of procedure; 3. Types of default judgments; 4. Nature and effect of a default judgment; 5. Setting aside a default judgment. A. ENTRY OF APPEARANCE The Entry of Appearance is a critical process in litigation which allows the cou rt and the claimant to know in short order what type of response the defendant w ill make to the litigation that has been commenced against him. It throws a burd en on the defendant to complete and file a pre-defined form in Process of Filing : Part 9 deals with the procedure that a defendant has to follow after he has be en served with the claim form and statement of claim in an action. He is require d to complete and file a form known as a memorandum of appearance with the court registry within a specified time (14 and 8 days respectively). This process is known as entering an appearance 9.2, 9.3 The filing of a defence in a matter obviates the need to file a memorandum of ap pearance. 9.2 (2) Upon filing it is the responsibility of the court office to notify the claimant that the notice of intention/entry of appearance has been effected 9.4 Purpose of Process: This process allows the defendant to choose various options in relation to litigation in order to bring a speed and cost-effective end to th e action. He may: admit the entire claim or part of it;

deny the entire claim; or admit and make a proposal for payment. 9.5 As a consequence of this rationale, a failure to comply with this procedure draw s an inference from the court that the defendant admits liability or does not in tend to defend the action and it is on this basis that a default judgment is gra nted. Disputing Courts Jurisdiction: A defendant who wishes to dispute the claim or the courts jurisdiction does not affect his right to do so by following this procedu re 9.5. In fact, in order to challenge the courts jurisdiction or take any proced ural point regarding the action he must file and then follow the procedure outli ned in 9.7. On the hearing of the matter the court has power to strike out the statement of claim, discharge any order that was made prior to commencement of proceedings (s uch as an interim injunction) or set aside the service of the claim form 9.7 (6) . Further, if the claim is unsuccessful, the court has the jurisdiction to treat t he hearing as a case management conference and make any ancillary orders it deem s necessary 9.7 (7). B. DEFAULT OF APPEARANCE/NOTICE OF INTENTION TO DEFEND TT, O. 13, O. 19 DEFAULT JUDGMENT: A default judgment is a judgment in a civil action which is gr anted by the court on the breach of a procedural requirement committed by a part y to litigation. Most frequently, default judgments are granted where the defend ant: 1. Fails to file an acknowledgement of service/notice of intention to defend; or 2. Fails to file and serve a defence in the proceedings. JUDGMENTS IN DEFAULT PT 12 Judgments in default are based purely on a breach of procedural rules and are th erefore called judgments on procedure Part 12. Read: Strachan v The Gleaner Company Ltd - Privy Council Appeal #22/2004 deliver ed on 25/07/05. Limitations: They may not be obtained in proceedings for a fixed date claim form , in admiralty or in probate proceedings. The claimant will need leave of the co urt in any proceedings against a State, or minors and patients, and where a part y to a marriage brings a claim in tort against the other party (TT) 12.2 & 3. Types of Judgment i. Final judgment: a final judgment is one that is final in terms of the courts f indings on all matters in the proceedings before it including the issues of liab ility and damages. ii. Interlocutory judgment: an interlocutory judgment is one in which some eleme nts of liability are yet to be determined. iii. Final and interlocutory judgment: This is a judgment which is final as rega rds some issues including liability but interlocutory regarding others such as t he assessment of damages. WASA v L Waithe [1973] 21 WIR 498 Default Judgments may be granted in the following matters 12.7 (TT 1. Claims for a specified amount of money; 2. Claims for an unspecified sum of money; 3. Claims for possession of land 4. Some other remedy the claimant requires to w hich the court believes him entitled; 5. Claims for goods. In this case the court may make one of several orders inclu ding: delivery up to him or for the court to assess their value and make an order for pa yment; judgment requiring the defendant to pay the assessed value of the goods; where the claim form specifies the value of the goods, judgment in that amount; judgment requiring the defendant to deliver the goods without the option of paying for them this is only granted on application to the court which must be support ed by evidence on affidavit.

The rules are clear as to what constitutes a specified or an unspecified amount 12.6 (Claims for a Specified Amount). A judgment in default is only conclusive as to the issue of liability in respect of matters stated in the statement of claim at the time of service on the defen dant. The defendant, therefore, is not precluded from raising any issue which is not inconsistent with the judgment. Lunnun v Singh, The Times, July 19, 1999, P ugh v Cantor Fitzgerald International, The Times, Mach 20, 2001. Time of Filing: The time of filing the acknowledgement of service/memorandum of appearance on the one hand, and the application for default judgment on the othe r hand is critical. An application for a default judgment will not be granted if the acknowledgement of service/ memorandum of appearance is filed prior to the application for default judgment even though it is out of time. However, see the judgment of Coll v Tattum (2001) The Times, 3 Procedure: An application for default judgment is perhaps the only type of appli cation which has its own procedure and form 12.5. Every other type of applicatio n must be made in accordance with Part 11. It may be applied for against any one or more of several defendants who are in d efault. In this case special rules apply and the claimant may have to await judg ment against other defendants before he can enforce his judgment depending on th e circumstances 12.9 Requirements for Applying for Judgment in Default of Appearance/ - 12.3 Requirements for Applying for Judgment in Default of Appearance (including defen ce to a counterclaim) - 12.4 NB: The procedural requirements for filing and serving a defence are contained i n Pt. 10. C. SETTING ASIDE A DEFAULT JUDGMENT PT 13 A default judgment must be set aside where there is a procedural failure in maki ng the application. This failure may arise if judgment was wrongly entered becau se (a) in the case of a failure to file an acknowledgment of service, any of the co nditions in rule 12.4 was not satisfied; or (b) in the case of judgment for failure to defend, any of the conditions in rule 12.5 was not satisfied. A default judgment may be set aside where there is no procedural failure and onl y if the defendant (a) applies to the court as soon as reasonably practicable after finding out tha t judgment had been entered; (b) gives a good explanation for the failure to file an acknowledgment of servic e or a defence as the case may be; and (c) has a real prospect of successfully defending the claim. Relevance of Delay: Delay is one of the factors to be considered and should not be taken as having precedence over the other factors. The court must look at all the factors in making its decision. Citoma Trading v The Federative Republic of Brazil (1999) 2 Lloyds Rep 750, Regency Rolls Ltd. v Carnall (2000) L.T.L Octobe r 16, MacDonald v Thorn Plc (1999) The Times, October 15, 1999. Real Prospect of Defending the Claim: Alpine Bulk Transport Co. Inc. v Saudi Eagle Shipping Co. Inc. (1986) 2 Lloyds Rep 221, Allen v Taylor (1992) P.I Q.R. 255, Da y v RAC [1991] 1 All E.R. 1007. Evidence: An application to set aside must be supported by evidence on affidavit . The following factors should be considered in drafting the affidavit: The deponent ought to be the person who can attest most truthfully to the facts st ated; Each allegation in the statement of claim must be addressed fully; All relevant documents should be attached to the affidavit; Any delay in making the application must be explained; Any counterclaim must be specifically established; Drafts of the defence and any counterclaim should be exhibited.

See also: ED &F Man Liquid a 19.004. Options Available to Court ment, the court may: refuse the application; grant the application on treat the application as e conduct of the rest of the

Products Ltd. v Patel, The Times, April 18, 2003, par on Application: On an application to set aside a judg certain conditions; a case management conference and give directions as to th proceedings.

It shares certain similarities with a default judgment, however, note the follow ing: 11B. DEFAULT JUDGMENT vs SUMMARY JUDGMENT DEFAULT JUDGMENT SUMMARY JUDGMENT Applies on default of appearance/defence Applies at any time of the proceedings afte r commencement Speedy and summary in nature Speedy and summary in nature Applies to all proceedings with specific exceptions Applies to all proceedings with specific exceptions Ex parte application (in T&T it is an OTC judgment without a hearing) Inter partes a pplication Judgment is final and/or interlocutory Judgment is final and/or interlocutory Judgment based on procedural issue Judgment on merits of the case To set aside defendant must show real likelihood of success and explain delay To set aside defendant must show real likelihood of success in claim or defence Court can impose conditions on making order to set aside Court can impose conditions on making order to set aside Can only be made on application of claimant Can be made on application of both claim ant and defendant Applies at specified time depending on whether it is in relation to appearance of defence Applies at any stage of proceedings under the CPR To succeed the breach of procedure is sufficient To succeed the applicant must show a realistic prospect of success on the claim or defence as the case may be